State v. Primm , 2022 Ohio 945 ( 2022 )

[Cite as State v. Primm, 2022-Ohio-945.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
Nos. 110479 and 110480
v. :
DION R. PRIMM, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED, VACATED, AND REMANDED
RELEASED AND JOURNALIZED: March 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-654818-A and CR-20-651405-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellee.
MARY EILEEN KILBANE, J.:
The state of Ohio, raising a single assignment of error, appeals from
the trial court’s sentence imposed on defendant-appellee Dion R. Primm (“Primm”)
based on the trial court’s finding the Reagan Tokes Law unconstitutional and
declining to impose a sentence in accordance with the Reagan Tokes Law. For the
following reasons, we reverse, vacate, and remand.
Factual and Procedural History
CR-20-654818
On December 14, 2020, in Cuyahoga C.P. No. CR-20-654818-A, a
Cuyahoga County Grand Jury indicted Primm on four counts of trafficking in
violation of R.C. 2925.03(A)(2), five counts of drug possession in violation of R.C.
2925.11(A), one count of possessing criminal tools in violation of R.C. 2923.24(A),
and one count of having weapons while under disability in violation of R.C.
2923.13(A)(3). With the exception of the having weapons while under disability
charge, the counts carried various firearm and forfeiture specifications.
On March 3, 2021, Primm pleaded guilty to four counts of trafficking
with various forfeiture specifications and one count of having weapons while under
disability. Three of the trafficking counts were felonies of the first degree, and the
remaining trafficking count was a felony of the second degree.
On March 31, 2021, the court sentenced Primm to six years on each
trafficking count and two years on the having weapons while under disability count,
to be served concurrently, for an aggregate sentence of six years.
CR-20-651405-C
On December 23, 2020, in Cuyahoga C.P. No. CR-20-651405-C, a
Cuyahoga County Grand Jury indicted Primm on five counts of trafficking in
violation of R.C. 2925.03(A)(2), five counts of drug possession in violation of R.C.
2925.11(A), one count of having weapons while under disability in violation of R.C.
2923.13(A)(3), and one count of possessing criminal tools in violation of R.C.
2923.24(A). With the exception of the having weapons while under disability count,
the charges carried various firearm, forfeiture, and major drug offender
specifications.
On March 3, 2021, Primm pleaded guilty to four counts of drug
trafficking, a one-year firearm specification, and various forfeiture specifications.
Two of the drug trafficking counts were felonies of the first degree and two were
felonies of the second degree.
On March 31, 2021, the court sentenced Primm to three years on each
trafficking count, to be served concurrently to each other and consecutively to the
one-year firearm specification, for an aggregate sentence of four years. At the
sentencing hearing, the court and the assistant prosecuting attorney engaged in a
brief discussion regarding the Reagan Tokes Law and the state of various appeals
pending before this court on the question of the law’s constitutionality. Ultimately,
the court stated that it was not going to impose a Reagan Tokes sentence on Primm.
The state appealed the sentence in both cases, presenting one
assignment of error for our review.
Legal Analysis
In its sole assignment of error, the state of Ohio argues that the trial
court erred when it found S.B. 201, the Reagan Tokes Law, to be unconstitutional
and did not impose an indefinite sentence on Primm pursuant to the law.
The question of whether the Reagan Tokes Law is constitutional was
recently decided in this court’s en banc opinion in State v. Delvallie, 8th Dist.
Cuyahoga No. 109315, 2022-Ohio-470. There, this court found “that the Reagan
Tokes Law, as defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed
the principles established in State v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-
Ohio-1810, State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939, and
State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578. Delvallie at ¶ 17.
Therefore, we find that the trial court was required to impose an indefinite sentence
pursuant to S.B. 201 and the failure to do so constitutes error. Primm’s sentence,
therefore, is vacated, and the case is remanded for the imposition of a sentence
pursuant to S.B. 201.
Judgment reversed, vacated, and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
N.B. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B.
Forbes and the concurring in part and dissenting in part opinion by Judge Anita
Laster Mays in Delvallie and would have found the Reagan Tokes Law
unconstitutional.