State v. Andreano , 2023 Ohio 2044 ( 2023 )

[Cite as State v. Andreano, 2023-Ohio-2044.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 22 CA 00041
CHRISTOPHER ANDREANO :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of
Common Pleas, Case No. 20-CR-70
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 21, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LINDSEY K. ANGLER GEORGE URBAN
Prosecuting Attorney 116 Cleveland Avenue N.W.
BY: JASON R. FARLEY Suite 808
Assistant Prosecutor Canton, OH 44702
627 Wheeling Avenue
Cambridge, OH 43725
Guernsey County, Case No. 22 CA 00041 2
Gwin, P.J.
{¶1} Defendant-appellant Christopher Andreano [“Andreano”] appeals his non-
life felony indefinite sentence of seven years to ten and one-half years after a negotiated
guilty plea in the Guernsey County Court of Common Pleas.
Facts and Procedural History
{¶2} On April 8, 2022, the Guernsey County Grand Jury returned an Indictment
charging Andreano in Count One with Aggravated Trafficking in methamphetamine, in
an amount greater than or equal to fifty times bulk amount but less than one hundred
times bulk amount, a felony of the first degree in violation of R.C. 2925.03(A)(2) and R.C.
2925.03(C)(1)(e) and in Count Two with Aggravated Possession of methamphetamine,
in an amount greater than or equal to fifty times bulk amount but less than one hundred
times the bulk amount, a felony of the first degree in violation of R.C. 2925.11(A) and R.C.
2925.11(C)(1)(d).
{¶3} By Judgment Entry filed July 6, 2022, the trial judge noted that a negotiated
plea had been reached. [Docket Entry No. 70]. The judge scheduled a change of plea
hearing for July 20, 2022.
{¶4} On July 20, 2022, Andreano informed the trial judge that he would plead
guilty to Count One of the Indictment in exchange for the state dismissing Count Two of
the Indictment. Plea T. at 4-6. The trial judge conducted a Crim. R. 11 colloquy with
Andreano, Andreano withdrew his former plea of not guilty and entered a guilty plea.
Andreano specifically reserved the right to file an appeal based upon the constitutionality
of the felony non-life sentencing scheme commonly referred to as the Reagan Tokes Act.
Guernsey County, Case No. 22 CA 00041 3
Plea T. at 7-8. The state did not object to the defense reserving the right to challenge the
statute. Id. at 8.
{¶5} The trial judge accepted the plea, the reservation of the right to appeal and
ordered the preparation of a Pre-sentence Investigation Report. Plea T. at 39.
{¶6} A sentencing hearing took place on September 29, 2022. The trial judge
noted that Andreano has a prior criminal record. Id. at 15-17; 23. Andreano was found to
be in possession of almost one-half of a pound of methamphetamine. Id. at 20. Further,
Andreano was paid to transport the drugs. Id. at 26-27. Andreano was on probation for
a similar offense in West Virginia at the time he was arrested for the offense in this case.
Id. at 16-17.
{¶7} When sentencing Andreano, the trial court applied the indefinite sentencing
scheme set forth under the Reagan Tokes Act. Under this law, when imposing prison
terms for defendants found guilty of first- or second-degree-felony offenses committed on
or after March 22, 2019, the sentencing court must impose an indefinite sentence with a
stated minimum term as provided in R.C. 2929.14(A) and a calculated maximum term as
provided in R.C. 2929.144. In applying the Reagan Tokes Act, and after considering the
record, the oral statements, the purposes and principles of sentencing under R.C.
2929.11, and the seriousness and recidivism factors under R.C. 2929.12, the trial court
sentenced Andreano to an indefinite term of seven to ten and one-half years.
Assignments of Error
{¶8} Andreano raises three Assignments of Error,
Guernsey County, Case No. 22 CA 00041 4
{¶9} “I. The Reagan Tokes Act Violates the Separation of Powers Since the
Ohio Department of Rehabilitation and Corrections Determines the Length of a Person's
Sentence.
{¶10} “II. The Reagan Tokes Act Violates Appellant's Constitutional Right To A
Trial By Jury Because DRC As Opposed To A Jury Makes The Necessary Findings To
Increase A Presumptive Sentence.
{¶11} “III. The Reagan Tokes Act Violates Appellant’s Constitutional Right To Due
Process Because It Fails to Provide Him With Adequate Notice and a Fair Hearing.”
I, II & III.
{¶12} Because each of Andreano’s Assignments of Error challenge the
constitutionality of R.C. 2967.271 Non-life Felony Indefinite Prison Terms we shall
address his assignments of error collectively.
{¶13} In his assignments of error, Andreano argues his indefinite prison term
imposed pursuant to the Reagan Tokes Act, codified in R.C. 2967.271, violates his right
to a jury trial, the doctrine of separation of powers, and due process principals under the
federal and state constitutions.
{¶14} We rejected the same challenge in State v. Householder, 5th Dist.
Muskingum No. CT2021-0026, 2022-Ohio-1542, ¶ 6:
For the reasons stated in the dissenting opinion of The Honorable W.
Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-
Ohio-5501, we find the Reagan Tokes Law does not violate Appellant’s
constitutional rights to trial by jury and due process of law, and does not
violate the constitutional requirement of separation of powers. We hereby
Guernsey County, Case No. 22 CA 00041 5
adopt the dissenting opinion in Wolfe as the opinion of this Court. In so
holding, we also note the sentencing law has been found constitutional by
the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth
District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery
No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,
2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-
Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-
470. Further, we reject Appellant’s claim the Reagan Tokes Act violates
equal protection for the reasons stated in State v. Hodgkin, 12th Dist.
Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶15} We are aware that these issues are before the Ohio Supreme Court. See,
State v. Hacker, 3rd Dist., 2020-Ohio-5048, 161 N.E.3d 112, appeal allowed in part, 161
Ohio St.3d 1449, 2021-Ohio-534, 163 N.E.3d 585, State v. Simmons, 8th Dist. Cuyahoga
No. 109476, 2021-Ohio-939, 169 N.E.3d 728, appeal allowed in part, 163 Ohio St.3d
1492, 2021-Ohio-2270, 169 N.E.3d 728.1
{¶16} Andreano’s First, Second and Third Assignments of Error are overruled.
1 Oral arguments were held before the Ohio Supreme Court in these cases on Jan. 11, 2023.
Guernsey County, Case No. 22 CA 00041 6
{¶17} The judgment of the Guernsey County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur