State v. Drewery , 2022 Ohio 838 ( 2022 )

[Cite as State v. Drewery, 2022-Ohio-838.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109587
v. :
JACQUISE DREWERY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641033-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Anna Faraglia and Daniel Van, Assistant
Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Jacquise Drewery (“Drewery”), appeals from his
sentence, raising the following assignment of error for review:
As amended by the Reagan Tokes Act, the Revised Code’s sentences for
first- and second-degree felonies violate the constitutions of the United
States and the state of Ohio.
After careful review of the record and relevant case law, we affirm
Drewery’s sentence.
I. Procedural and Factual History
In July 2019, Drewery was named in a nine-count indictment, charging
him with murder in violation of R.C. 2903.02(A), with one- and three-year firearm
specifications (Count 1); murder in violation of R.C. 2903.02(B), with one- and
three-year firearm specifications (Count 2); voluntary manslaughter in violation of
R.C. 2903.03(A), with one- and three-year firearm specifications (Count 3);
felonious assault in violation of R.C. 2903.11(A)(1), with one- and three-year firearm
specifications (Count 4); failure to comply in violation of R.C. 2921.331(B) (Count
5); failure to comply in violation of R.C. 2921.331(B) (Count 6); obstructing official
business in violation of R.C. 2921.31(A) (Count 7); tampering with evidence in
violation of R.C. 2921.12(A)(1) (Count 8); and grand theft in violation of R.C.
2913.02(A)(1) (Count 9).
In January 2020, Drewery pleaded guilty to voluntary manslaughter, a
felony of the first degree; failure to comply, a felony of the third degree; tampering
with evidence, a felony of the third degree; and grand theft, a felony of the fourth
degree, as charged in Counts 3, 6, 8, and 9 of the indictment. The remaining counts
were nolled.
At sentencing, the trial court sentenced Drewery to an indefinite prison
term of seven to ten and one-half years on the voluntary manslaughter offense, to
run consecutively to the accompanying three-year firearm specification. In
addition, Drewery was sentenced to three years in prison on the failure to comply
offense, three years in prison on the tampering with evidence offense, and 18 months
in prison on the grand theft offense. The sentences imposed on Counts 3, 8, and 9
were ordered to run concurrently. By statute, however, the sentence imposed on the
failure to comply offense was ordered to run “consecutive to the sentences on the
remaining counts.” Accordingly, Drewery was sentenced to an aggregate, indefinite
term of 13 to 16 and one-half years in prison.1
Drewery now appeals the constitutionality of his sentence.
II. Law and Analysis
In his sole assignment of error, Drewery argues the trial court erred in
sentencing him under the Reagan Tokes Law, which became effective March 22,
2019. He contends the Reagan Tokes Law is unconstitutional because it violates his
constitutional rights to trial by a jury, separation of powers, and due process.
In accordance with this court’s en banc decision in State v. Delvallie,
8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges
1Neither party has raised any issues as to the imposed sentence and, therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
presented in this appeal are overruled. Accordingly, Drewery’s sole assignment of
error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, 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.
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, P.J., concurring in part and dissenting in
part).