State v. Whetstone , 2022 Ohio 800 ( 2022 )

[Cite as State v. Whetstone, 2022-Ohio-800.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 109671
v. :
TRAVON WHETSONE, :
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-19-646601-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
Robert B. McCaleb, Assistant Public Defender, for
appellee.
MICHELLE J. SHEEHAN, J.:
Appellant, the state of Ohio, appeals the sentence imposed by the trial
court upon appellee, Travon Whetstone. On March 26, 2020, the trial court
sentenced Whetstone to an aggregate five-year sentence for robbery but did not
impose an indefinite sentence under the Reagan Tokes Law, as defined in R.C.
2901.011. In State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (en
banc), this court overruled the reasons that the trial court found the Reagan Tokes
Law to be unconstitutional, and we vacated the judgment of the trial court.
Travon Whetstone was charged with a 17-count indictment that
included multiple charges of aggravated robbery, first-degree felonies, and robbery,
second- and third-degree felonies as well as accompanying gun specifications
occurring on or about November 29, 2019. On March 3, 2020, Whetstone entered
into a plea agreement with the state of Ohio and pleaded guilty to one count of
robbery with a three-year firearm specification, a felony of the second degree; one
count of grand theft, a felony of the fourth degree; and two counts of robbery,
felonies of the second degree. During the plea colloquy, the trial court advised
Whetstone that he was subject to the Reagan Tokes Law and could receive an
indefinite sentence.
On March 25, 2020, the trial court held a sentencing hearing. At that
hearing, the trial court held the Reagan Tokes Law to be unconstitutional and noted
the state’s objection. The trial court imposed an aggregate sentence of five years,
consisting of three years on the gun specification consecutive to two-year concurrent
sentences on the robbery charges. The trial court did not impose sentence on the
charge of grand theft, determining that it was an allied offense to one count of
robbery with the state electing to have sentence imposed on the robbery charge.
Following the appeal in this sentence, the trial court issued a nunc pro
tunc journal entry adopting an opinion from the Hamilton County Court of Common
Pleas, State v. Oneal, Hamilton C.P. No. B 1903562, 2019 WL 7670061 (Nov. 20,
2019), which outlined reasons for finding the Reagan Tokes Law to be
unconstitutional. In Oneal, the court held that the indefinite sentencing scheme
enacted under the Reagan Tokes Law violates the constitutional doctrine providing
for the separation of powers and that the administrative process that allows the Ohio
Department of Rehabilitation and Correction (“ODRC”) to keep an offender
incarcerated past the stated minimum sentence deprives the offender of procedural
due process.
In this appeal, the state of Ohio alleges one assignment of error that
reads, “The trial court erred in finding the indefinite sentence required under S.B.
201 to be unconstitutional.” 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. E.g., State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21.
In State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470(en banc), this court overruled the arguments underlying the trial court’s finding
that the Reagan Tokes Law is unconstitutional. Because the trial court did not
impose sentence in accordance with the Reagan Tokes Law, we find the sentence to
be contrary to law and sustain the state’s assignment of error. We reverse the
sentence imposed by the trial court and remand this matter to the trial court for
resentencing.
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
MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
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.