State v. Menefee , 2023 Ohio 1142 ( 2023 )

[Cite as State v. Menefee, 2023-Ohio-1142.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111793
v. :
CHARLES MENEFEE, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: April 6, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-667535-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Daniel T. Van and Tasha L. Forchione, Assistant
Prosecuting Attorneys for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender for appellee.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellee, state of Ohio (“the state”), appeals the sentence
imposed on defendant-appellee, Charles Menefee (“Menefee”), and claims the
following error:
The trial court plainly erred when it did not reserve an indefinite
sentence pursuant S.B. 201.
For the following reasons, we reverse the trial court’s judgment in part, affirm it in
part, and remand this case to the trial court for the limited purposes of imposing a
reserved indefinite sentence on Menefee’s burglary conviction as required by S.B.
201, the Reagan Tokes Law.
I. Facts and Procedural History
Menefee was charged with two counts of rape, one count of sexual
battery, and one count of gross sexual imposition. Following discovery and after
reaching a plea agreement with the state, Menefee pleaded guilty to one count of
burglary, a second-degree felony, as amended in Count 1 of the indictment. Menefee
also pleaded guilty to one count of gross sexual imposition, a fourth-degree felony,
as alleged in Count 4 of the indictment. The remaining counts were nolled.
The trial court sentenced Menefee to two years of community-control
sanctions on both counts. On Menefee’s burglary conviction, the sentencing entry
further provides that “violation of the terms and conditions [of community-control]
may result in more restrictive sanctions, or a prison term of 2 to 8 years as approved
by law.” On Count 4, the sentencing entry provides that “violation of the terms and
conditions [of community control] may result in more restrictive sanctions, or a
prison term of 6 to 8 months as approved by law.” The trial court did not reserve an
indefinite sentence on Menefee’s burglary conviction, even though it was a second-
degree felony. The state now appeals the trial court’s judgment.
II. Law and Analysis
R.C. 2953.08(B)(2) gives the state the right to appeal a sentence if it is
contrary to law. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,
or otherwise modify a sentence or vacate a sentence and remand for resentencing if
it “clearly and convincingly” finds that (1) the record does not support the sentencing
court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e), or (C)(4) or
2929.20(I); or (2) the sentence is “otherwise contrary to law.” State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34.
A sentence that fails to impose a mandatory provision is contrary to law.
State v. McCalpine, 8th Dist. Cuyahoga No. 110665, 2022-Ohio-842, ¶ 4, citing State
v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21.
The Reagan Tokes Law provides that certain first- and second-degree
felonies are “qualifying offenses” subject to the indefinite sentencing scheme in R.C.
2929.14. Trial courts imposing prison terms on “qualifying offenses” are required
to impose 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).
Menefee pleaded guilty to one count of burglary, in violation of R.C.
2911.12, a second-degree felony. As defined in R.C. 2929.144, a “‘qualifying felony
of the first or second degree’ means a felony of the first or second degree committed
on or after the effective date of this section.” R.C. 2929.144(A). It is undisputed that
Menefee committed the offenses giving rise to this case in December 2021, after the
effective date of R.C. 2929.144(A), which became effective on March 22, 2019.
Therefore, he pleaded guilty to an offense that is subject to the indefinite sentencing
scheme set forth in R.C. 2929.14, and the trial court was required to reserve an
indefinite sentence in accordance with the Reagan Tokes Law as part of his sentence,
but it did not. The sentence is, therefore, contrary to law.
Menefee argues we should nevertheless affirm the trial court’s
judgment because the Reagan Tokes Law is unconstitutional because it violates his
constitutional right to a jury trial, his right to due process, and violates the
separation-of-powers doctrine. However, the question of whether the Reagan Tokes
Law is constitutional was decided by this court in State v. Delvallie, 2022-Ohio-470,
185 N.E.3d 536 (8th Dist.) (en banc). In Delvallie, 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, 2021-Ohio-1810, 173 N.E.3d 132 (8th
Dist.); State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v.
Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.). Delvallie at ¶ 17.
Because the trial court failed to impose an indefinite sentence on
Menefee’s burglary conviction as required by the Reagan Tokes Law, the sentence is
contrary to law. And since this court has held that the Reagan Tokes Law is
constitutional, we sustain the state’s sole assignment of error.
Accordingly, we affirm Menefee’s convictions but vacate the sentence
imposed on Menefee’s burglary conviction and remand this case to the trial court
for the limited purpose of imposing an indefinite sentence on Menefee’s burglary
conviction as required by the Reagan Tokes Law.
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.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION
ATTACHED)
EILEEN A. GALLAGHER, J., CONCURRING
I concur but am compelled to write separately to state that the law of
this district is found in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 356 (8th
Dist.), wherein the Eighth District Court of Appeals sitting en banc found the Regan
Tokes provisions of the Ohio sentencing laws to be constitutional. The continued
finding by several trial courts that it is unconstitutional is folly.
N.B. 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.
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 356 (8th Dist.). (Laster Mays, J., concurring in part and dissenting
in part).