State v. Mitchell , 2021 Ohio 2802 ( 2021 )

[Cite as State v. Mitchell, 2021-Ohio-2802.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-02
v.
FARRAKHAN J. MITCHELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2020 0069
Judgment Affirmed
Date of Decision: August 9, 2021
APPEARANCES:
Thomas J. Lucente, Jr. for Appellant
Jana E. Emerick for Appellee
Case No. 1-21-02
ZIMMERMAN, J.
{¶1} Defendant-appellant, Farrakhan J. Mitchell (“Mitchell”), appeals the
December 18, 2020 judgment entry of sentence of the Allen County Court of
Common Pleas. We affirm.
{¶2} This case stems from the November 20, 2019 armed robbery of a Dollar
General in Lima, Ohio by Mitchell (who was a juvenile at the time of the offense).
On December 30, 2019, a delinquency complaint was filed in the Allen County
Court of Common Pleas, Juvenile Division, alleging that Mitchell committed
aggravated robbery in violation of R.C. 2911.01(A), a first-degree felony if
committed by an adult. (Juv. Doc. No. 3). The complaint also included a firearm
specification and alleged that Mitchell was subject to a mandatory bindover under
R.C. 2152.10(A) to transfer jurisdiction of the case to the common pleas court’s
general division so that Mitchell would be prosecuted as an adult. (Id.). On January
7, 2020, Mitchell appeared for arraignment and denied the charges. (Juv. Doc. No.
14).
{¶3} After a hearing on February 12, 2020, the juvenile trial court concluded
that there was probable cause to find that Mitchell committed the act charged in the
complaint and to find that the alleged specification is true. (Juv. Doc. No. 22).
Consequently, Mitchell’s case was transferred to the Allen County Court of
Common Pleas, General Division, for Mitchell to be prosecuted as an adult. (Id.).
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{¶4} Following the transfer of Mitchell’s case, on March 12, 2020, the Allen
County Grand Jury indicted Mitchell on a single count of aggravated robbery in
violation of R.C. 2911.01(A)(1), (C), a first-degree felony. (Doc. No. 3). The
indictment also included a firearm specification under R.C. 2941.145(A) as to the
count. (Id.). Mitchell filed written pleas of not guilty to the indictment on March
20, 2020. (Doc. Nos. 11, 13).
{¶5} On August 18, 2020, Mitchell withdrew his pleas of not guilty and
entered guilty pleas, under a negotiated-plea agreement, to an amended count and
the specification in the indictment. (Doc. No. 34). Specifically, in exchange for
Mitchell’s change of pleas, the State agreed to amend the aggravated-robbery charge
to robbery in violation of R.C. 2911.02(A)(1), a second-degree felony. (Id.). The
trial court accepted Mitchell’s guilty pleas, found him guilty, and ordered a
presentence investigation (“PSI”). (Doc. No. 35).
{¶6} On October 2, 2020, the trial court sentenced Mitchell to a minimum
term of seven years in prison to a maximum term of ten and one-half years in prison
as to the count and to three years in prison as to the specification. (Doc. No. 39).
The trial court further ordered that Mitchell serve the mandatory term imposed as to
the firearm specification prior to and consecutive to the seven-year minimum term.1
(Id.). The trial court stayed Mitchell’s sentence pending the resolution of his
1
The trial court filed its judgment entry of sentence on October 19, 2020. (Doc. No. 39).
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reverse-bindover case in the Allen County Court of Common Pleas, Juvenile
Division. (Id.).
{¶7} After the Allen County Court of Common Pleas, Juvenile Division,
concluded on December 11, 2020 that Mitchell “is not amenable to care or
rehabilitation in the juvenile system and that the safety of the community may
require that he be subject solely to the adult sanctions,” Mitchell’s case was
transferred back to the trial court for Mitchell’s previously imposed sentenced to
“be invoked.” (Juv. Doc. No. 32); (Doc. No. 46). On December 18, 2020, the trial
court ordered Mitchell to serve the previously imposed sentence. (Doc. No. 46).
{¶8} On January 15, 2021, Mitchell filed a notice of appeal. (Doc. No. 49).
He raises one assignment of error.
Assignment of Error
The indefinite sentencing scheme set forth in the Reagan Tokes
Act and imposed by the trial court in this case violates the federal
and state constitutions.
{¶9} In his assignment of error, Mitchell argues that his sentence, imposed
under Ohio’s current sentencing scheme (commonly known as the “Reagan Tokes
Law”), is unconstitutional. Specifically, Mitchell alleges that the portion of the
Reagan Tokes Law that permits his sentence to be “enhanced” by decision of the
Ohio Department Rehabilitation and Correction (“ORDC”) (an agency within the
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executive function of Ohio’s government) runs afoul of the Ohio and United States
Constitutions.
Standard of Review
{¶10} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶11} In this case, Mitchell challenges the constitutionality of the Reagan
Tokes Law—namely, Mitchell alleges that the Reagan Tokes Law violates the
separation-of-powers doctrine and due-process clause of the Ohio and United States
Constitutions. Specifically, Mitchell argues that the Reagan Tokes Law violates the
separation-of-powers doctrine of Ohio and United States Constitutions because it
“removes the sentencing enhancement from the prerogative of the judicial branch
and transfers it to the executive branch [because] ORDC decides if a sentence will
be enhanced.” (Appellant’s Brief at 8). Furthermore, Mitchell argues that the
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Reagan Tokes Law violates the due-process clause of the Ohio and United States
Constitutions because it (1) provides inadequate notice “as to what conduct on his
part will trigger an increase in his sentence under R.C. 2967.271(A)(1)”; (2)
provides “the executive’s ability to make whatever judgment calls it deems
appropriate, without sufficient guidance, results in a criminal penalty”; and (3)
deprives him of “certain core rights as fundamental to the trial process.” (Id. at 11,
15-16).
{¶12} “‘An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-
4546, ¶ 9, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955),
paragraph one of the syllabus. “‘That presumption of validity of such legislative
enactment cannot be overcome unless it appear[s] that there is a clear conflict
between the legislation in question and some particular provision or provisions of
the Constitution.’” Id., quoting Xenia v. Schmidt, 101 Ohio St. 437 (1920),
paragraph two of the syllabus.
{¶13} “A statute may be challenged on constitutional grounds in two ways:
(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as
applied to the facts of the case.” Id. at ¶ 10, citing Harrold v. Collier, 107 Ohio
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St.3d 44, 2005-Ohio-5334, ¶ 37, citing Belden v. Union Central Life Ins. Co., 143
Ohio St. 329 (1944), paragraph four of the syllabus. “To mount a successful facial
challenge, the party challenging the statute must demonstrate that there is no set of
facts or circumstances under which the statute can be upheld.” Id., citing Harrold
at ¶ 37, citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095 (1987).
“Where it is claimed that a statute is unconstitutional as applied, the challenger must
present clear and convincing evidence of a presently existing set of facts that make
the statute unconstitutional and void when applied to those facts.” Id., citing
Harrold at ¶ 38, citing Belden at paragraph six of the syllabus.
{¶14} However, our review of the record reflects that Mitchell is attempting
to, on appeal, raise his constitutional arguments for the first time. “‘“The question
of constitutionality of a statute must generally be raised at the first opportunity and,
in a criminal prosecution this means in the trial court.”’” State v. Bagley, 3d Dist.
Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70, quoting State v. Rowland, 3d Dist.
Hancock No. 5-01-28, 2002 WL 479163, *1 (Mar. 29, 2002), quoting State v. Awan,
22 Ohio St.3d 120, 122 (1986). “This applies to challenges to the facial
constitutionality of a statute and to the constitutionality of a statute’s application.”
Id., citing Awan at syllabus.
{¶15} “The Supreme Court of Ohio has held that, ‘“[f]ailure to raise at the
trial court level the issue of the constitutionality of a statute or its application, which
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issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state’s orderly procedure, and therefore need not be heard for
the first time on appeal.”’” State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-
5908, ¶ 29, quoting State v. Rice, 3d Dist. Allen Nos. 1-02-15, 1-02-29, and 1-02-
30, 2002-Ohio-3951, ¶ 7, quoting Awan at syllabus. “However, the waiver doctrine
set forth by Awan is discretionary; thus, ‘even where waiver is clear, a reviewing
court may consider constitutional challenges to the application of statutes in specific
cases of plain error or where the rights and interests involved may warrant it.’” Id.,quoting Rice at ¶ 7, citing In re M.D., 38 Ohio St.3d 149 (1988), syllabus.
Nevertheless, “‘“discretion will not ordinarily be exercised to review such claims,
where the right sought to be vindicated was in existence prior to or at the time of
trial.”’” Id., quoting Rice at ¶ 7, quoting State v. 1981 Dodge Ram Van, 36 Ohio
St.3d 168, 170-71 (1988), quoting State v. Woodards, 6 Ohio St.2d 14, 21 (1966).
{¶16} Here, Mitchell neither objected to the constitutionality of the Reagan
Tokes Law while his case was pending before the trial court nor did he challenge
the trial court’s application of the Reagan Tokes Law at his sentencing hearings.
Thus, Mitchell waived his arguments on appeal.
{¶17} Notwithstanding Mitchell’s failure to raise his arguments in the trial
court, we will address the merits of his arguments in the interest of justice. On
appeal, Mitchell urges this court to diverge from our prior precedent in which we
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concluded that the Reagan Tokes Law does not violate the separation-of-powers
doctrine or due-process clause of the Ohio and United States Constitutions. We
decline to do so.2 E.g., State v. Floyd, 3d Dist. Marion No. 9-20-44, 2021-Ohio-
1935, ¶ 23. Consequently, we conclude that Mitchell’s sentence is not contrary to
law.
{¶18} Mitchell’s assignment of error is overruled.
{¶19} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
2
To the extent that Mitchell alleges that his constitutional arguments are ripe for review, this court has
consistently “declined to resolve those claims as not being ripe for review.” State v. Floyd, 3d Dist. Marion
No. 9-20-44, 2021-Ohio-1935, ¶ 22.
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