State v. Foster , 2023 Ohio 1615 ( 2023 )


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  • [Cite as State v. Foster, 
    2023-Ohio-1615
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                CASE NO. 1-22-64
    v.
    LEROY D. FOSTER,                                           OPINION
    DEFENDANT-APPELLANT.
    Appeal from Allen County Common Pleas Court
    Trial Court No. CR 2021 0207
    Judgment Affirmed
    Date of Decision: May 15, 2023
    APPEARANCES:
    Chima R. Ekeh for Appellant
    John R. Willamowski, Jr. for Appellee
    Case No. 1-22-64
    ZIMMERMAN, J.
    {¶1} Defendant-appellant, Leroy D. Foster (“Foster”), appeals the October
    3, 2022 judgment entry of sentencing of the Allen County Court of Common Pleas.
    We affirm.
    {¶2} On June 17, 2021, the Allen County Grand Jury indicted Foster for
    felonious assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), a second-degree
    felony along with a firearm specification and a repeat-violent-offender (“RVO”)
    specification. On June 23, 2021, Foster filed a written plea of not guilty.
    {¶3} On August 23, 2022, Foster withdrew his plea of not guilty and entered
    a guilty plea, under a negotiated-plea agreement, to felonious assault with a three-
    year firearm specification. In exchange, the State agreed to recommend dismissal
    of the RVO specification. The trial court accepted Foster’s guilty plea, found him
    guilty of felonious assault with a three-year firearm specification and dismissed the
    RVO specification.          That negotiated-plea agreement also included a joint-
    sentencing recommendation under R.C. 2953.08(D)(1) wherein the parties jointly
    recommended and stipulated to a three-year mandatory prison term as to the firearm
    specification to be served prior to and consecutively to the a three-year minimum
    prison term for felonious assault.1 Further, the sentence included “No PRC tack on
    time”. (Doc. No. 147).
    1
    Foster was on postrelease control (“PRC”) at the time of the sentencing hearing and had three years
    remaining on PRC.
    -2-
    Case No. 1-22-64
    {¶4} On October 3, 2022, the trial court sentenced Foster to an indefinite
    sentence of a minimum of three years to a maximum of four and one-half years in
    prison for felonious assault and to a three-year mandatory prison term for the firearm
    specification. Thereafter, the trial court ordered that Foster serve the sentence for
    the mandatory firearm specification first followed by the indefinite sentence
    imposed for the felonious assault for an aggregate minimum term of six years and a
    maximum term of seven and one-half years.
    {¶5} Foster filed a timely appeal on October 31, 2022, and raises three
    assignments of error for our review, which we will review together.
    First Assignment of Error
    Foster’s Indefinite Sentence Pursuant To R.C. 2967.271 (The
    Reagan Tokes Law) Violates The Right To A Jury Trial As
    Protected By The Sixth Amendment [sic] Of The United States
    Constitution, And Article I, Section 5 Of The Ohio Constitution.
    (Sentencing Tr. Pg. 11-120) [sic]
    Second Assignment of Error
    R.C. 2967.271 (The Reagan Tokes Law) Unconstitutionally
    Violates The Separation Of Powers Doctrine Of The United States
    And Ohio Constitution. (Sentencing Tr. Pg. 11-12) [sic]
    Third Assignment of Error
    R.C. 2967.271 (The Reagan Tokes Law) Violates The Right To
    Due Process Under The Fourteenth Amendment [sic] Of The
    United States Coonstitution [sic], And Article 1, Section 16, Of
    The Ohio Constitution. (Sentencing Tr. Pg. 11-12) [sic]
    -3-
    Case No. 1-22-64
    {¶6} In his assignments of error, Foster argues that the indefinite sentence of
    incarceration imposed for the felonious assault pursuant to the Reagan Tokes Law
    is unconstitutional. Specifically, Foster asserts that these provisions violate the
    separation-of-powers doctrine, infringe on his right to due process, and violate his
    right to a jury trial.
    {¶7} Before we begin, we must address a jurisdictional question. Here, the
    trial court adopted the parties’ joint-sentencing recommendation in its entirety and
    without deviation.       In his assignments of error, Foster challenges the
    constitutionality of the Reagan Tokes Law. Even though R.C. 2953.08(D)(1)
    precludes review of agreed sentences, the Supreme Court of Ohio has held that
    constitutional challenges are not within the scope of R.C. 2953.08, and thus, the
    statute “does not preclude an appeal of a sentence on constitutional grounds.” State
    v. Patrick, 
    164 Ohio St.3d 309
    , 
    2020-Ohio-6803
    , ¶ 22.               Because Foster’s
    constitutional challenge to his sentence is not barred by R.C. 2953.08(D)(1), we
    may consider his argument with respect to the constitutionality of the Reagan Tokes
    Law. State v. Hartline, 3d Dist. Logan Nos. 8-21-13 and 8-21-14, 
    2022-Ohio-2997
    ,
    ¶ 16
    {¶8} Nevertheless, as this Court has noted in State v. Ball, 3d Dist. Allen No.
    1-21-16, 
    2022-Ohio-1549
    , challenges to the Reagan Tokes Law do not present a
    matter of first impression to this Court. Ball at ¶ 59. “Since the indefinite sentencing
    -4-
    Case No. 1-22-64
    provisions of the Reagan Tokes Law went into effect in March 2019, we have
    repeatedly been asked to address the constitutionality of these provisions. We have
    invariably concluded that the indefinite sentencing provisions of the Reagan Tokes
    Law do not facially violate the separation-of-powers doctrine or infringe on
    defendants’ due process rights.” 
    Id.,
     citing e.g., State v. Crawford, 3d Dist. Henry
    No. 7-20-05, 
    2021-Ohio-547
    , ¶ 10-11; State v. Hacker, 3d Dist. Logan No. 8-20-01,
    
    2020-Ohio-5048
    , ¶ 22; State v. Wolfe, 3d Dist. Union No. 14-21-16, 
    2022-Ohio-96
    ,
    ¶ 21. Further, for the reasons stated in Ball, the remaining constitutional issue under
    Reagan Tokes related to a jury trial is also unavailing. Id. at ¶ 61-63. Thus, on the
    basis of Ball and our prior precedent, we find no merit to Foster’s arguments.
    {¶9} Accordingly, Foster’s first, second, and third assignments of error are
    overruled.
    {¶10} Having found no error prejudicial to the appellant herein in the
    particulars assigned and argued, we affirm the judgment of the trial court.
    Judgment Affirmed
    MILLER, P.J. and EPLEY, J., concur.
    /jlr
    ** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
    by Assignment of the Chief Justice of the Supreme Court of Ohio.
    -5-
    

Document Info

Docket Number: 1-22-64

Citation Numbers: 2023 Ohio 1615

Judges: Zimmerman

Filed Date: 5/15/2023

Precedential Status: Precedential

Modified Date: 5/15/2023