State v. Diaz , 2023 Ohio 1045 ( 2023 )

[Cite as State v. Diaz, 2023-Ohio-1045.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111794
v. :
JOEL DIAZ, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-660353-A
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
Francis Cavallo, Assistant Public Defender, for appellee.
MICHELLE J. SHEEHAN, J.:
Appellant, the state of Ohio appeals the felony prison sentence
imposed on appellee Joel Diaz (“Diaz”) because the trial court did not impose an
indefinite sentence pursuant to the Reagan Tokes Law as defined in R.C. 2901.111.
For the following reasons, we reverse the judgment of the trial court and remand
this matter for further proceedings.
On June 27, 2022, Diaz entered guilty pleas to involuntary
manslaughter in violation of R.C. 2903.04(A), a felony of the first degree, having
weapons while under disability, a violation of R.C. 2923.13(A)(3), a felony of the
third degree, and drug possession in violation of R.C. 2925.11(A), a felony of the
fourth degree. On July 26, 2022, the trial court sentenced Diaz to a 10-year prison
term for involuntary manslaughter, a 30-month prison term for having weapons
while under disability, and a 12-month prison term for drug possession, all
sentences to be served concurrently. In addition to imposing sentence, the trial
court found that the indefinite sentencing requirements of S.B. 201, otherwise
known as the Reagan Tokes Law, were unconstitutional.
The state appealed the sentence imposed and filed a record pursuant
to App.R. 9(A). In its appeal, the state raises a single assignment of error, which
reads:
The trial court plainly erred when it found S.B. 201 to be
unconstitutional and did not impose an indefinite sentence pursuant to
S.B. 201.
The state asks this court to find the sentence imposed for involuntary manslaughter
to be contrary to law on the authority of this court's en banc decision in State v.
Delvallie, 2022-Ohio-470, 185 N.E.3d 538 (8th Dist.). Diaz asserts that the Reagan
Tokes Law violates his right to a jury trial, his due process rights, and the separation-
of-powers doctrine. Diaz also asserts that he was not advised of an indefinite
sentence at the time of his plea and asks that if this court sustains the state’s
assignment of error, we allow him an opportunity to withdraw his plea.
Diaz was sentenced for involuntary manslaughter, a felony of the first
degree subject to an indefinite sentence under the Reagan Tokes Law. The Reagan
Tokes Law provides that first- and second-degree felonies are qualifying offenses
subject to an indefinite sentencing scheme. R.C. 2929.14. When imposing prison
terms for offenders with qualifying offenses, sentencing courts are to impose an
indefinite sentence by imposing a stated minimum prison term as provided in R.C.
2929.14(A)(2)(a) and an accompanying maximum prison term as provided in R.C.
2929.144(B). Pursuant to this court’s en banc decision in Delvallie, we find the
sentence imposed for involuntary manslaughter in this case to be contrary to law.
Diaz asserts in his brief that at the time he entered his plea, the trial
court did not properly advise him under the Reagan Tokes Law, asking that his plea
be vacated. This request asks us to modify the judgment of the trial court. However,
Diaz did not appeal his convictions, nor did he file a cross-appeal. App.R. 3(C)(1),
provides in relevant part that ”an appellee who seeks to change the order or, in the
event the order is reversed or modified, an interlocutory ruling merged into the
order, shall file a notice of cross appeal with the clerk of the trial court.” Without an
appeal or cross-appeal, we are without jurisdiction to consider or modify the trial
court’s judgment based upon Diaz’s argument.1 Hirt’s Greenhouse v. Strongsville,
1 Moreover, the record in this appeal was filed pursuant to App.R. 9(A) without a transcript.
The trial court’s journal reflects Diaz was “fully advised in open court of his/her
constitutional rights and penalties.” June 27, 2022 Journal Entry. “‘When portions of the
8th Dist. Cuyahoga No. 68374, 1995 Ohio App. LEXIS 3851, at 5-6 (Sept. 7, 1995);
Saxton v. Navistar, Inc., 2013-Ohio-352, 986 N.E.2d 611, ¶ 18 (10th Dist.) (“Because
no separate notice of appeal was filed with respect to such argument pursuant to
App.R. 3(C)(1), we find it is not properly before us.”).
Accordingly, we sustain the state’s sole assignment of error, vacate
the 10-year prison sentence imposed for involuntary manslaughter, and remand this
matter to the trial court for the purpose of imposing an indefinite sentence in
accordance with 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.
transcript necessary for resolution of assigned errors are omitted from the record, the
reviewing court has nothing to pass upon and thus, as to those assigned errors, the court
has no choice but to presume the validity of the lower court’s proceedings, and affirm.’”
State v. Simmons, 8th Dist. Cuyahoga No. 100638, 2014-Ohio-3038, ¶ 14, quoting Knapp
v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s en
banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and
dissenting in part).
Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie
and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law are
unconstitutional.