State v. McCarver , 2022 Ohio 813 ( 2022 )

[Cite as State v. McCarver, 2022-Ohio-813.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110327
v. :
ISIAH MCCARVER, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650126-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Daniel Van, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron
T. Baker, Assistant Public Defender, for appellee.
MICHELLE J. SHEEHAN, J.:
Appellant, the state of Ohio, appeals from the trial court’s judgment
imposing a definite sentence on defendant-appellee Isiah McCarver. The Reagan
Tokes Law, as defined under R.C. 2901.011, went into effect on March 22, 2019, and
it required the trial court to impose an indefinite sentence for McCarver’s offenses.
In State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, this court
considered the constitutionality of the Reagan Tokes Law en banc and the majority
of the court found the law to be constitutional. Accordingly, the judgment of the
trial court is reversed and the matter is remanded for resentencing.
On January 7, 2021, McCarver pleaded guilty to voluntary
manslaughter, a first-degree felony; two counts of felonious assault, a second-degree
felony; and discharge of firearm on or near prohibited premises. Pursuant to the
Reagan Tokes Law, the trial court should have imposed indefinite prison terms for
these offenses. However, at the sentencing hearing, the trial court found the Reagan
Tokes Law to be unconstitutional and instead sentenced McCarver to definite prison
terms for his offenses for an aggregate sentence of ten years.
The state objected to McCarver’s definite sentence and now appeals
from the trial court’s judgment, arguing the trial court erred when it found the
Reagan Tokes Law to be unconstitutional.
R.C. 2953.08(B)(2) provides prosecutors with an appeal as a matter
of right in felony cases on grounds that the sentence is contrary to law. See also
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21. (“Both
the state and the defendant have an appeal as of right if a sentence is ‘contrary to
law.’”).
On appeal, the state raises one assignment of error and argues the
trial court erred in finding the Reagan Tokes Law unconstitutional. McCarver
argues the trial court was correct in finding the Reagan Tokes Law unconstitutional
because the law violates a defendant’s right to a jury trial, due process, and
separation of powers. Pursuant to Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470, the trial court’s sentence is contrary to law. We therefore reverse the trial
court’s judgment and remand the matter to the trial court for resentencing
consistent with the provisions of the Reagan Tokes Law.
This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of 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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).