State v. Toney , 2022 Ohio 1319 ( 2022 )

[Cite as State v. Toney, 2022-Ohio-1319.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110790
v. :
KENITH TONEY, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-646556-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin M. Karkutt, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
SYLVIA A. HENDON, J.:
Defendant-appellant Kenith Toney, Jr. (“Toney”), raising a single
assignment of error, appeals from his sentence for involuntary manslaughter and
other charges. Specifically, Toney argues that his sentence is invalid because it was
imposed under the Reagan Tokes Law and is therefore unconstitutional. For the
following reasons, we affirm.
Factual and Procedural History
On December 17, 2019, a Cuyahoga County Grand Jury indicted
Toney on one count of aggravated murder in violation of R.C. 2903.01(A); one count
of murder in violation of R.C. 2903.02(B); one count of felonious assault in violation
of R.C. 2903.11(A)(1); one count of voluntary manslaughter in violation of R.C.
2903.03(A); and two counts of felonious assault in violation of R.C. 2903.11(A)(2).
All charges carried one- and three-year firearm specifications.
On August 3, 2021, Toney pleaded guilty to an amended count of
involuntary manslaughter with one- and three-year firearm specifications and an
amended count of attempted felonious assault with a three-year firearm
specification. The remaining counts and specifications were dismissed. On August
4, 2021, the court sentenced Toney to 20 to 25 and one-half years pursuant to the
Reagan Tokes Law.
Toney appeals, presenting a single assignment of error for our review.
Legal Analysis
In his sole assignment of error, Toney argues that his indefinite
sentence pursuant to Reagan Tokes is unconstitutional because it violates his due
process rights and violates the separation-of-powers doctrine.
Toney’s arguments are overruled pursuant to this court’s en banc
decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, which
overruled the challenges presented in this appeal to the Reagan Tokes Law enacted
through S.B. 201. Therefore, we find that Toney’s sentence pursuant to Reagan
Tokes was not a violation of his constitutional rights. Toney’s 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________
SYLVIA A. HENDON, JUDGE*
EILEEN T. GALLAGHER, P.J., and
EMANUELLA D. GROVES, 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.