State v. Dowdell , 2022 Ohio 2956 ( 2022 )

[Cite as State v. Dowdell, 2022-Ohio-2956.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111026
v. :
JAMES DOWDELL, III, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 25, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-659386-B
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
John T. Martin, Assistant Public Defender, for appellee.
EMANUELLA D. GROVES, J.:
Appellant, the state of Ohio (the “state”), appeals the trial court’s
decision not to impose an indefinite sentence upon defendant-appellee, James
Dowdell, III (“Dowdell”). For the reasons set forth below, we reverse Dowdell’s
sentence and remand to the trial court for resentencing in accordance with the
Reagan Tokes Law.
Procedural and Factual History
In May 2021, a grand jury returned a multicount indictment against
Dowdell, which included two counts of first-degree felony drug trafficking, two
counts of first-degree felony drug possession, and one count of fifth-degree felony
drug possession. The grand jury also indicted Dowdell on one count each of
possession of criminal tools, having weapons while under disability, and
endangering children. All the first-degree felonies and the fifth-degree felony were
accompanied by one-year firearm specification, major drug offender specification,
forfeiture of a gun in a drug case, forfeiture of a scale in a drug case, forfeiture of
money in a drug case, and forfeiture of a cell phone in a drug case, as well as a
juvenile specification for allegedly committing the offenses within 100 feet of a
juvenile.
On October 14, 2021, pursuant to a negotiated plea agreement, Dowdell
pled guilty to one count of first-degree felony drug trafficking, as amended in Count
3 to delete the major drug offender and juvenile specifications, but with the
remaining specifications in place.1 In addition, the state recommended that the trial
court impose an agreed six-year prison sentence.
1 The remaining counts and specifications were dismissed.
Relevant to this appeal, prior to accepting Dowdell’s plea, the trial court
stated:
[D]o you understand that the offense to which you will be pleading is a
felony of the first degree that carries with it - - and this Court, by the
way, would note that on a prior occasion, * * * this Court has found the
provision, the minimum indefinite provisions of Senate Bill 201,
Reagan Tokes Law, to be unconstitutional. So, the sentence that I could
impose would be three, four, five, six, seven, eight, nine, ten or eleven
years for the underlying felony of the first degree.
After accepting Dowdell’s guilty plea, the trial court immediately
proceeded to sentencing and imposed a prison sentence of six years. The sentence
included the mandatory one-year firearm specification that was required to be
served prior to and consecutive to the five years on the base charge of drug
trafficking. The trial court’s journal entry indicated that it had determined that the
minimum indefinite terms of S.B. 201 was unconstitutional.
The state now appeals the trial court’s sentence and assigns the
following sole error for review:
Assignment of Error
The trial court erred when it found S.B. 201 to be unconstitutional and
did not impose an indefinite sentence pursuant to S.B. 201.
Law and Analysis
In the sole assignment of error, the state argues that the trial court
erred when it found the Reagan Tokes Law to be unconstitutional and declined to
impose an indefinite sentence on Dowdell pursuant to the law. We agree.
As an initial matter, it is well settled that the Ohio Revised Code
provides the state the right to appeal a sentence if it is contrary to law. R.C.
2953.08(B)(2). A sentence that fails to impose a mandatory provision is contrary to
law. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶
21.
Dowdell claims the state waived a challenge to his sentence by not
expressively lodging an objection. However, a sentence imposed contrary to law
constitutes a plain error and we may review it for plain error. State v. Whittenburg,
8th Dist. Cuyahoga No. 109700, 2022-Ohio-803, ¶ 6, citing State v. Walters, 4th
Dist. Adams No. 15CA1009, 2016-Ohio-5783, ¶ 2 (although appellant did not object
to the imposition of the sentence at the sentencing hearing, the sentence imposed
by the trial court was not authorized by law and contrary to law, and therefore
constituted plain error); State v. Ayers, 10th Dist. Franklin No. 13AP-371, 2014-
Ohio-276, ¶ 15 (where the trial court failed to make the requisite findings required
by R.C. 2929.14(C)(4) before imposing consecutive sentences, appellant’s sentence
was contrary to law and constituted plain error).
Recently, the constitutionality of the Reagan Tokes Law was decided
in this court’s en banc opinion in State v. Delvallie, 8th Dist. Cuyahoga No. 109315,
2022-Ohio-470. There, this court found “that the Reagan Tokes Law, as defined
under R.C. 2901.011, is not unconstitutional.” Id. at ¶ 17. In accordance with this
court’s decision in Delvallie, we find the trial court was required to impose an
indefinite sentence pursuant to S.B. 201. The trial court declining to do so rendered
Dowdell’s sentence contrary to law.
Accordingly, we sustain the state’s the sole assignment of error.
The trial court’s judgment is reversed, and the matter is remanded for
resentencing in accordance with the provisions of the Reagan Tokes Law.
It is ordered that appellant recover from 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.
_____________________________
EMANUELLA D. GROVES, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION)
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and
dissenting in part) in Delvallie and would have found the Reagan Tokes Law
unconstitutional.
SEAN C. GALLAGHER, A.J., DISSENTING:
I respectfully dissent from the majority opinion. Although I certainly
understand the majority’s decision and the application of State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.), to the issues raised, I simply do not agree with
sua sponte invoking the plain-error rule to overturn the jointly recommended
definite sentence that was imposed in this case. “[O]ur holdings should foster rather
than thwart judicial economy by providing incentives * * * for [parties] to raise all
errors in the trial court * * *.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,
802 N.E.2d 643, ¶ 23.
I find it rather disingenuous that the state’s brief does not even
mention that the sentence imposed in this case was a jointly recommended sentence
of six years under a plea agreement and that it forfeited the challenge being raised.
The state simply argues the sentence is contrary to law because it was not imposed
in accordance with the Reagan Tokes Law. Although this court may invoke the
plain-error standard to sua sponte consider an error affecting substantial rights, it
is not warranted in this case. “An appellate court has discretion to notice plain error
and therefore ‘is not required to correct it.’” State v. West, Slip Opinion No. 2022-
Ohio-1556, ¶ 22, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 23.
The Supreme Court of Ohio has admonished appellate courts to
notice plain error with the utmost caution, under exceptional circumstances and
“only” when required to prevent a manifest miscarriage of justice. Rogers at ¶ 23,
quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
“The burden of demonstrating plain error is on the party asserting it.” State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, citing State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17. Generally, a
forfeited challenge pertaining to the constitutionality of a statute “is subject to
review ‘where the rights and interests involved may warrant it.’” Id., quoting In re
M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. This is not such a case.
The transcript of the plea hearing reflects the state placed the plea
agreement on the record and indicated Dowdell would be entering a plea of guilty to
the offense of trafficking, a felony of the first degree, with a one-year firearm
specification and forfeiture specifications, there was “an agreed six-year prison
sentence to be recommended to [the] court,” and an additional specification along
with the remaining counts would be nolled. The assistant prosecutor and defense
counsel confirmed it was an agreed prison term. When explaining the sentence for
the first-degree felony offense that could be imposed, the trial court indicated it had
found the minimum indefinite provisions of the Reagan Tokes Law to be
unconstitutional, which was prior to the release of Delvallie, 2022-Ohio-470, 185
N.E.3d 536. The state made no objection. The trial court then indicated to Dowdell
that he would do the “agreed six-year prison term.” At sentencing, the definite
sentence of six years that was jointly recommended to the court is the sentence that
was imposed. The state now seeks to unring the bell in order to have Dowdell
sentenced to an indefinite term under the Reagan Tokes Law.
Not only did the state forfeit its argument on appeal, but it cannot be
said that substantial rights were affected or that reversal is necessary to correct a
manifest miscarriage of justice. Additionally, in this instance, it is not in the interest
of judicial economy to remand for resentencing and a potential postconviction plea
challenge. Accordingly, I would find the state forfeited the challenge raised and
would not invoke the plain-error rule. Nonetheless, the constitutionality issues
raised were decided in Delvallie, which remains controlling law in this district.
For these reasons and under the limited circumstances of this case, I
would affirm the judgment of the trial court and uphold the sentence that was
imposed.