State v. Criswell

2022 Ohio 2450

• Court: Ohio Court of Appeals
• Decided: July 18, 2022
• Docket: 9-21-40
• Status: Published

Opinion

[Cite as State v. Criswell, 2022-Ohio-2450.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-21-40

v.

JEREMY L. CRISWELL, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 21-CR-107

Judgment Affirmed

Date of Decision: July 18, 2022

APPEARANCES:

Joel M. Spitzer for Appellant

Jocelyn Stefancin for Appellee Case No. 9-21-40

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Jeremy L. Criswell (“Criswell”), appeals the

November 9, 2021 judgment entry of sentence of the Marion County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On March 12, 2021, the Marion County Grand Jury indicted Criswell

on Counts One and Three of Involuntary Manslaughter in violation of R.C.

2903.04(A), first-degree felonies, and Count Two of having weapons while under

disability in violation of R.C. 2923.13(A)(3), a third-degree felony. The indictment

includes a firearm specification under R.C. 2941.145 and 2929.14(D) as to Counts

One and Three. Criswell appeared for arraignment on March 22, 2021 and entered

pleas of not guilty.

{¶3} On October 12, 2021, Criswell withdrew his pleas of not guilty and

entered a plea of no contest, under a negotiated-plea agreement, to Count One of the

indictment. Specifically, in exchange for Criswell’s change of plea, the State agreed

to dismiss Counts Two and Three and the firearm specification. The trial court

accepted Criswell’s no-contest plea, found him guilty, and dismissed Counts Two

and Three and the firearm specification.

{¶4} On October 29, 2021, the trial court sentenced Criswell to a minimum

term of 8 years in prison to a maximum term of 12 years in prison.1 (Doc. No. 109).

1 The trial court filed its judgment entry of sentence on November 9, 2021. (Doc. No. 109).

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{¶5} On November 22, 2021, Criswell filed a notice of appeal and raises two

assignments of error.

Assignment of Error No. I

The trial court abused its discretion by imposing a prison sentence contrary to R.C. 2929.11 and the purposes and principles of the felony sentencing guidelines.

Assignment of Error No. II

The indefinite sentence ordered, of eight (8) to eleven (11) [sic] years in prison, by the trial court under S.B. 201, under the “Reagan Tokes Law” is unconstitutional because it is a violation of Appellant’s due process rights under Article I, Section 16 of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.

{¶6} In his assignments of error, Criswell argues that this court should

reverse his sentence because the 8-to-12 year prison sentence is contrary to the

purposes and principles of felony sentencing as outlined under R.C. 2929.11 and

because his sentence is contrary to law. In particular, under his first assignment of

error, Criswell contends that the record does not support the trial court’s minimum

eight-year prison term. Under his second assignment of error, Criswell specifically

argues that his sentence, imposed under Ohio’s current sentencing scheme

(commonly known as the “Reagan Tokes Law”), is unconstitutional as applied to

him.

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Standard of Review

{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Analysis

{¶8} First, we will address Criswell’s first assignment of error challenging

the trial court’s imposition of a minimum eight-year prison term. As an initial

matter, Criswell asserts that the proper standard of review is the abuse-of-discretion

standard of review. It is not. Accord State v. Likens, 12th Dist. Madison No.

CA2020-10-018, 2021-Ohio-2380, ¶ 5 (“This court ‘does not review the sentencing

court’s decision for an abuse of discretion.’”), quoting State v. Scott, 12th Dist.

Clermont Nos. CA2019-07-051 and CA2019-07-052, 2020-Ohio-3230, ¶ 54, citing

Marcum at ¶ 10. As we stated above, the proper standard of review is “‘the standard

of review set forth in R.C. 2953.08(G)(2) that governs all felony sentences.’” Id.,

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quoting State v. Watkins, 12th Dist. Preble No. CA2020-03-005, 2021-Ohio-163, ¶

48.

{¶9} When imposing a sentence, “‘trial courts have full discretion to impose

any sentence within the statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-

15-17, 2015-Ohio-4225, ¶ 10, quoting State v. Noble, 3d Dist. Logan No. 8-14-06,

2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-

Ohio-1122, ¶ 20. Here, as a first-degree felony, involuntary manslaughter carries

an indefinite-minimum sanction of 3-years to 11-years of imprisonment. R.C.

2903.04(A), (C), 2929.14(A)(1)(a). See also R.C. 2929.144(B)(1). Because the

trial court sentenced Criswell to a minimum term of 8 years in prison, the trial

court’s sentence is within the statutory range and is appropriately calculated to have

a maximum term of 12 years in prison. “[A] sentence imposed within the statutory

range is ‘presumptively valid’ if the [trial] court considered applicable sentencing

factors.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31,

quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

{¶10} In this case, because Criswell challenges only the trial court’s

application of R.C. 2929.11, we will address only that statute. R.C. 2929.11

provides, in its pertinent part, that the

overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those

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purposes without imposing an unnecessary burden on state or local government resources.

R.C. 2929.11(A). “In advancing these purposes, sentencing courts are instructed to

‘consider the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution to the victim

of the offense, the public, or both.’” Smith at ¶ 10, quoting R.C. 2929.11(A).

“Meanwhile, R.C. 2929.11(B) states that felony sentences must be ‘commensurate

with and not demeaning to the seriousness of the offender’s conduct and its impact

upon the victim’ and also be consistent with sentences imposed in similar cases.”

Id., quoting R.C. 2929.11(B).

{¶11} “Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 * * * , the sentencing court is not

required to ‘state on the record that it considered the statutory criteria or discuss[ed]

them.’” Maggette at ¶ 32, quoting State v. Polick, 101 Ohio App.3d 428, 431 (4th

Dist.1995). “A trial court’s statement that it considered the required statutory

factors, without more, is sufficient to fulfill its obligations under the sentencing

statutes.” Id., citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-

4570, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18.

{¶12} At Criswell’s sentencing hearing and in its sentencing entry, the trial

court considered the principles and purposes of felony sentencing in accordance

with R.C. 2929.11. (Nov. 4, 2021 Tr. at 9-11); (Doc. No. 109). Nevertheless,

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Criswell contends that the record does not support the trial court’s sentence because

he has “not been in any major trouble for a substantial period of time prior to this

offense and the entire incident was a tragic incident likely to not repeat itself.”

(Appellant’s Brief at 5).

{¶13} However, the Supreme Court of Ohio recently directed Ohio’s courts

of appeal that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an

appellate court to modify or vacate a sentence if it concludes that the record does

not support the sentence under R.C. 2929.11 and R.C. 2929.12 because * * * R.C.

2929.11 and R.C. 2929.12 are not among the statutes listed in the provision.” State

v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 31. As a result, this court may not

modify or vacate a felony sentence based on a finding by clear and convincing

evidence that the record does not support the trial court’s findings under R.C.

2929.11 or 2929.12. State v. Reed, 3d Dist. Union No. 14-20-16, 2021-Ohio-1623,

¶ 19, citing Jones at ¶ 32-39. Consequently, “‘when reviewing felony sentences that

are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12,

we shall no longer analyze whether those sentences are unsupported by the record.

We simply must determine whether those sentences are contrary to law.’” Id.,

quoting State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18.

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{¶14} Therefore, because Criswell’s sentence is within the sentencing range

and the trial court considered the principles and purposes of felony sentencing set

forth in R.C. 2929.11, Criswell’s sentence is not contrary to law. See, e.g., id.

{¶15} Turning to Criswell’s second assignment of error, Criswell challenges

the constitutionality of the Reagan Tokes Law as applied to him—namely, Criswell

alleges that the Reagan Tokes Law violates his right to due process of law. In

situations in which “it is claimed that a statute is unconstitutional as applied, the

challenger must present clear and convincing evidence of a presently existing set of

facts that make the statute unconstitutional and void when applied to those facts.”

State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-4546, ¶ 10, citing Harrold

v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 38, citing Belden v. Union Central

Life Ins. Co., 143 Ohio St. 329 (1944), paragraph six of the syllabus.

{¶16} However, our review of the record reflects that Criswell is attempting

to, on appeal, raise his constitutional argument for the first time. “‘“The question

of constitutionality of a statute must generally be raised at the first opportunity and,

in a criminal prosecution this means in the trial court.”’” State v. Bagley, 3d Dist.

Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70, quoting State v. Rowland, 3d Dist.

Hancock No. 5-01-28, 2002 WL 479163, *1 (Mar. 29, 2002), quoting State v. Awan,

22 Ohio St.3d 120, 122 (1986). This applies to the constitutionality of a statute’s

application (as argued by Criswell). Id., citing Awan at syllabus.

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{¶17} “The Supreme Court of Ohio has held that, ‘“[f]ailure to raise at the

trial court level the issue of the constitutionality of a statute or its application, which

issue is apparent at the time of trial, constitutes a waiver of such issue and a

deviation from this state’s orderly procedure, and therefore need not be heard for

the first time on appeal.”’” State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-

5908, ¶ 29, quoting State v. Rice, 3d Dist. Allen Nos. 1-02-15, 1-02-29, and 1-02-

30, 2002-Ohio-3951, ¶ 7, quoting Awan at syllabus. “However, the waiver doctrine

* * * is discretionary; thus, ‘even where waiver is clear, a reviewing court may

consider constitutional challenges to the application of statutes in specific cases of

plain error or where the rights and interests involved may warrant it.’” Id., quoting

Rice at ¶ 7, citing In re M.D., 38 Ohio St.3d 149 (1988), syllabus. Nevertheless,

“‘“discretion will not ordinarily be exercised to review such claims, where the right

sought to be vindicated was in existence prior to or at the time of trial.”’” Id.,

quoting Rice at ¶ 7, quoting State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170-

171 (1988), quoting State v. Woodards, 6 Ohio St.2d 14, 21 (1966).

{¶18} Here, Criswell failed to challenge the trial court’s application of the

Reagan Tokes Law at his sentencing hearing. Consequently, Criswell waived his

argument on appeal.

{¶19} Notwithstanding Criswell’s failure to raise his argument in the trial

court, we will address the merits of his argument in the interest of justice. On

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appeal, Criswell contends that the Reagan Tokes Law (as applied to him) deprives

him “of his constitutional right of due process because [he] would not be before the

trial court at the time the Ohio Department of Rehabilitation and Correction holds

the hearing described in [R.C.] 2967.271.” (Appellant’s Brief at 6).

{¶20} However, this court previously determined the constitutionality of the

Reagan Tokes Law. Accord State v. Hacker, 3d Dist. No. 8-20-01, 2020-Ohio-5048,

¶ 18-23. Nevertheless, we continue to follow our sister appellate districts by holding

that the Reagan Tokes Law does not violate a defendant’s constitutional right to due

process of law. Accord State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-

Ohio-1350, ¶ 7, citing State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-

Ohio-5501, ¶ 41-84 (Gwin, J., concurring in part and dissenting in part).

Accordingly, Criswell’s sentence is not contrary to law.

{¶21} For these reasons, Criswell’s first and second assignments of error are

overruled.

MILLER and WILLAMOWSKI, J.J., concur.

/jlr

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