State v. Turner , 2022 Ohio 1240 ( 2022 )

[Cite as State v. Turner, 2022-Ohio-1240.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110797
v. :
ISAIAH TURNER, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 14, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-646107-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney,
for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Jonathan Sidney, Assistant Public Defender, for appellee.
EILEEN T. GALLAGHER, P.J.:
Plaintiff-appellant, the state of Ohio, appeals the sentence imposed on
defendant-appellee, Isaiah Turner (“Turner”), and claims the following error:
The trial court erred when it found S.B. 201 to be unconstitutional and
did not impose and indefinite sentence pursuant to S.B. 201.
In accordance with this court’s en banc decision in State v. Delvallie,
8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, we reverse the trial court’s
judgment and remand the case to the trial court for resentencing in accordance with
the provisions of Am.Sub.S.B. No. 201, 2018 Ohio Laws 157, the Reagan Tokes Law.
I. Facts and Procedural History
The Reagan Tokes Law provides that sentences imposed on “qualifying
felonies” will consist of a minimum term selected by the sentencing judge from a
range of terms set forth in R.C. 2929.14(A) and a maximum term determined by
formulas set forth in R.C. 2929.144. The Reagan Tokes Law, as defined under R.C.
2901.011, went into effect on March 22, 2019. Thus, the law was in effect when
Turner committed the offenses giving rise to this case in July 2019.
Turner pleaded guilty to one count of attempted aggravated robbery,
with a one-year firearm specification as alleged in Count 1; and one count of having
weapons while under disability as alleged in Count 3. The offense originally charged
in Count 2 was nolled. As a second-degree felony, the attempted aggravated robbery
charge was a “qualifying felony” under R.C. 2929.144 and was subject to the
imposition of indefinite sentences.
At the sentencing hearing, the court noted that the constitutionality of
the Reagan Tokes Law was disputed in the Delvallie case that was then pending in
this court and declined to sentence Turner under the indefinite sentencing
provisions of the Reagan Tokes Law. (Tr. 23-24, 45, 47.) Applying the pre-S.B. 201
sentencing law, the court sentenced Turner to one year on the firearm specification
attendant to Count 1, to be served prior to and consecutive with four years on the
underlying attempted aggravated robbery charge. The court sentenced Turner to
three years on the having weapons while under disability charge and ordered that
sentence to be served concurrently with the four-year sentence on Count 1. The state
objected to the court’s decision to apply the pre-S.B. 201 sentencing law and now
appeals as of right.1
II. Law and Analysis
In the sole assignment of error, the state argues the trial court erred in
failing to impose an indefinite sentence on Turner’s qualifying felony on grounds
that the Reagan Tokes Law was unconstitutional.
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. Thus, because the trial court did not
impose a sentence in accordance with the Reagan Tokes Law, the sentence is
contrary to law.
The sole assignment of error is sustained.
Accordingly, we reverse the sentence imposed by the trial court and
remand this matter to the trial court for resentencing.
1R.C. 2953.08(B)(2) provides the state with an appeal as a matter of right in felony
cases where it alleges the sentence is contrary to 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
SYLVIA A. HENDON, J.,* CONCUR
*(Sitting by assignment: Sylvia A. Hendon, J., retired, of the First District Court of
Appeals.)
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 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.