State v. Rojas , 2022 Ohio 2333 ( 2022 )

[Cite as State v. Rojas, 2022-Ohio-2333.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-11-013
: OPINION
- vs - 7/5/2022
:
ROSALINDA CAROL ROJAS, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 21 CR 13712
Martin P. Votel, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant
Prosecuting Attorney, for appellee.
Office of the Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender,
for appellant.
S. POWELL, J.
{¶ 1} Appellant, Rosalinda Carol Rojas, appeals from her conviction in the Preble
County Court of Common Pleas after she pled guilty to one count of second-degree felony
felonious assault. For the reasons outlined below, and considering appellee, the state of
Ohio, concedes error as it relates to Rojas' first assignment of error, we affirm Rojas'
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conviction in part, reverse Rojas' conviction in part, and remand this matter to the common
pleas court for further proceedings consistent with this opinion.
{¶ 2} On July 20, 2021, the state filed a complaint with the Preble County Court of
Common Pleas, Juvenile Division, alleging the then 17-year-old Rojas was a delinquent
child for committing acts that if charged as an adult would constitute one count of first-
degree felony attempted murder, two counts of second-degree felony felonious assault, and
one count of first-degree misdemeanor assault. The charges arose after Rojas used a
machete to attack the victim, T.A.D.D., at a campsite in Hueston Woods State Park on the
evening of July 15, 2021. Following the attack, T.A.D.D. underwent a successful four-hour
surgery to treat several deep, life-threatening injuries to her legs, arms, chest, and head.
There appears to be no dispute that prior to the attack Rojas used LSD and that Rojas was
under the influence of the drug (and possibly hallucinating) at the time of the attack.
{¶ 3} Shortly after the state filed its complaint, the state also filed a motion for
mandatory bindover to the common pleas court so that Rojas could be prosecuted as an
adult. The state's motion was filed in accordance with R.C. 2152.12(A)(1)(a)(i). Pursuant
to that statute, if a complaint is filed alleging a child is a delinquent child for committing acts
that if charged as an adult would constitute attempted murder, such as the case here, the
juvenile court must transfer the "case" so that the child can be prosecuted as an adult if
"[t]he child was sixteen or seventeen years of age at the time of the act charged and there
is probable cause to believe that the child committed the act charged." "And although
felonious assault * * * would normally be a discretionary-bindover offense under R.C.
2152.10, because it was filed as part of the same 'case' the statute requires transfer of that
charge as well." State v. Echols, 10th Dist. Franklin No. 19AP-587, 2021-Ohio-4193, ¶ 16.
The same would be true for a charge assault where that offense is also charged as part of
that "case."
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{¶ 4} On July 28, 2021, the juvenile court held a probable cause hearing on the
state's motion for mandatory bindover to the common pleas court. Following this hearing,
on August 2, 2021, the juvenile court issued an entry granting the state's motion upon
finding (1) Rojas was 17 years old at the time of the attack and (2) that there was probable
cause to believe Rojas committed all the acts making up the four charges offenses set forth
above. That same day, the Preble County Grand Jury returned an indictment charging
Rojas with one count of first-degree felony attempted murder. Appearing before the
common pleas court, Rojas entered a not guilty plea to that charge on August 9, 2021 and
bond was set at $25,000. The common pleas court then scheduled the matter for a jury
trial to be held on September 27, 2021.
{¶ 5} On September 22, 2021, five days before that trial was scheduled to begin,
the common pleas court held a change of plea hearing. During this hearing, Rojas entered
a guilty plea to a reduced charge of one count of second-degree felony felonious assault.
The common pleas court accepted Rojas' guilty plea upon finding the plea was knowingly,
intelligently, and voluntarily entered.
{¶ 6} On October 11, 2021, the common pleas court held a sentencing hearing and
sentenced Rojas to an indefinite sentence of a minimum six years in prison to a maximum
possible nine years in prison. The common pleas court imposed this sentence in
accordance with the recently enacted Reagan Tokes Law, Ohio's indefinite sentencing
structure set forth in R.C. 2967.271. The common pleas court also ordered Rojas to pay
court costs and restitution to the victim, T.A.D.D., in the amount of $3,303.19.
{¶ 7} On November 10, 2021, Rojas filed a timely notice of appeal. Rojas' appeal
now properly before this court for decision, Rojas has raised three assignments of error for
review.
{¶ 8} Assignment of Error No. 1:
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{¶ 9} THE CRIMINAL COURT ERRED WHEN IT FAILED TO SENTENCE
ROSALINDA ROJAS IN ACCORDANCE WITH R.C. 2152.121.
{¶ 10} In her first assignment of error, Rojas argues the common pleas court
committed plain error by failing to adhere to the reverse-bindover procedures set forth in
R.C. 2152.121. The state concedes, and we agree, that Rojas' argument has merit. This
is because, as the record indicates, the common pleas court did not apply the reverse-
bindover procedures set forth in R.C. 2152.121(B)(3) to the case at bar when it should have.
"[T]he procedures set forth in R.C. 2152.121 are clear and unambiguous, and the adult
court does not have the discretion to ignore its mandates." State v. Ferguson, 2d Dist.
Montgomery No. 27032, 2017-Ohio-7930, ¶ 90. This necessarily means that "[a] trial court's
failure to follow the plain language of R.C. 2152.121 constitutes plain error." State v. Mack,
7th Dist. Mahoning No. 14 MA 82, 2015-Ohio-4148, ¶ 15. Therefore, because a common
pleas court's failure to follow the plain language of R.C. 2152.121 constitutes plain error,
and because there is no dispute that the common pleas court did not apply the reverse-
bindover procedures set forth in R.C. 2152.121(B)(3) to the case at bar when it should have,
Rojas' conviction must be reversed to the extent outlined above and remanded back to the
common pleas court for consideration and application of R.C. 2152.121 to this case. Rojas'
conviction in all other respects is affirmed. Accordingly, Rojas' first assignment of error has
merit and, to the extent stated above, is sustained.
{¶ 11} Assignment of Error No. 2:
{¶ 12} ROSALINDA ROJAS RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE U.S. CONSTITUTION; AND ARTICLE I, SECTION 10, OHIO CONSTITUTION.
{¶ 13} In her second assignment of error, Rojas argues she received ineffective
assistance of counsel when her trial counsel failed (1) to inform the common pleas court
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about the reverse-bindover procedures set forth in R.C. 2152.121 and (2) object when the
common pleas court "did not stay [her] sentence and transfer her case to the juvenile court
in accordance with those procedures." However, given our holding above in Rojas' first
assignment of error, Rojas' ineffective assistance of counsel claim has been rendered moot.
See, e.g., State v. Abdullah, 7th Dist. Mahoning Nos. 19 MA 0011 and 19 MA 0012, 2020-
Ohio-4813, ¶ 36 ("when the trial court commits plain error in failing to properly sentence an
offender pursuant to R.C. 2152.121, a claim of ineffective assistance of trial counsel is
rendered moot"); and State v. Grant, 9th Dist. Summit No. 29259, 2019-Ohio-3561, ¶ 11
(ineffective assistance of counsel claim based on counsel's failure to inform or apprise the
trial court of R.C. 2152.121 was rendered moot where the appellate court had already
decided to remand the matter to apply R.C. 2152.121). Therefore, because Rojas'
ineffective assistance of counsel claim is now moot, Rojas' second assignment of error is
dismissed.
{¶ 14} Assignment of Error No. 3:
{¶ 15} BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND U.S.
CONSTITUTIONS, ROSALINDA ROJAS'S SENTENCE IS CONTRARY TO LAW.
{¶ 16} In her third assignment of error, Rojas argues the common pleas court's
decision sentencing her to serve an indefinite sentence of a minimum six years in prison to
a maximum nine years in prison pursuant to the Reagan Tokes Law, Ohio's indefinite
sentencing structure set forth in R.C. in R.C. 2967.271, is unconstitutional. This is because,
according to Rojas, the Reagan Tokes Law violates her right to a jury trial, the separation-
of-powers doctrine, and runs afoul of her due process rights. Rojas, however, did not first
raise this issue with the common pleas court. As this court has repeatedly held, "arguments
challenging the constitutionality of the Reagan Tokes Law are forfeited and will not be heard
for the first time on appeal in cases where the appellant did not first raise the issue with the
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trial court." State v. Blaylock, 12th Dist. Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7;
see also State v. Lee, 12th Dist. Warren No. CA2021-05-047, 2022-Ohio-248, ¶ 34-35; and
State v. Bond, 12th Dist. Butler No. CA2021-08-103, 2022-Ohio-1628, ¶ 28-29. Therefore,
given this court's consistent precedent declining to hear arguments challenging the
constitutionality of the Reagan Tokes Law in cases where the issue was not raised below,
Rojas' third assignment of error lacks merit and is overruled.1
{¶ 17} Judgment affirmed in part, reversed in part, and remanded.
PIPER, P.J., and HENDRICKSON, J., concur.
1. We note that, even if Rojas had not waived this issue by raising a constitutional challenge to the Reagan
Tokes Law below, all of Rojas' arguments have previously been considered and rejected by this court. See
State v. Bloodworth, 12th Dist. Warren No. CA2021-08-073, 2022-Ohio-1899, ¶ 50, citing State v. Guyton,
12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 7-17 (the Reagan Tokes Law does not run afoul of
an offender's due process rights); State v. Suder, 12th Dist. Clermont Nos. CA2020-06-034 and CA2020-06-
035, 2021-Ohio-465, ¶ 25 (the Reagan Tokes Law does not violate the separation-of-powers doctrine); and
State v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-3282, ¶ 20 (the Reagan Tokes Law does
not impinge on an offender's constitutional right to a jury trial).
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