State v. Freshwater

2023 Ohio 1248

• Court: Ohio Court of Appeals
• Decided: April 17, 2023
• Docket: 2022-L-071
• Status: Published

Opinion

[Cite as State v. Freshwater, 2023-Ohio-1248.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2022-L-071

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

JOSHUA C. FRESHWATER, Trial Court No. 2021 CR 001210 Defendant-Appellant.

OPINION

Decided: April 17, 2023 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Joshua C. Freshwater, appeals his sentence, following his no-

contest pleas and the trial court’s findings of guilt, on one count of obstructing official

business and one count of possession of cocaine. We affirm.

{¶2} In 2021, a police officer stopped Freshwater for a traffic violation. During

the traffic stop, the officer smelled the odor of raw marijuana. The officer asked

Freshwater to have a seat in the back of his cruiser. Freshwater did not comply with the

request, and a physical altercation ensued between Freshwater and the officer, during which the officer deployed his taser on Freshwater. The assistance of backup officers

was required to detain Freshwater. Ultimately, officers searched and inventoried

Freshwater’s vehicle, locating $1,000.00 in cash, together with certain instrumentalities

and contraband, including three individual baggies of cocaine, in the total amount of 83.92

grams.

{¶3} Thereafter, Freshwater was indicted on the following charges: (1)

obstructing official business, in violation of R.C. 2921.31, a fifth-degree felony; (2)

trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a first-degree felony; (3)

possession of cocaine, in violation of R.C. 2925.11, a first-degree felony; (4) trafficking

in marihuana, in violation of R.C. 2925.03(A)(2), a fourth-degree felony; (5) possession

of marihuana, in violation of R.C. 2925.11, a fifth-degree felony; (6-8) three counts of

aggravated possession of drugs, in violation of R.C. 2925.11, fifth-degree felonies; and

(9) possession of a fentanyl-related compound, in violation of R.C. 2925.11, a fourth-

degree felony; and two forfeiture specifications attendant on each charge.

{¶4} Freshwater initially pleaded not guilty and moved to suppress evidence.

After hearing, the trial court denied the motion to suppress. Thereafter, Freshwater

amended his plea to no-contest to the first and third counts (obstructing official business

and possession of cocaine) and their attendant specifications, and the state agreed to

move to dismiss the remaining counts pursuant to a plea agreement. The court found

Freshwater guilty on the first and third counts, ordered a presentence investigation and

victim impact statement, and set the matter for sentencing. Freshwater filed a sentencing

memorandum, raising constitutional challenges to the Reagan Tokes Law, which governs

his sentence on the possession of cocaine count. At sentencing, the court overruled

Case No. 2022-L-071 Freshwater’s challenges to the Reagan Tokes Law, imposed a prison term of 12 months

on the first count and an indefinite prison term of five to seven and one-half years on the

third count, to run concurrently, and ordered forfeiture of the items and cash set forth in

the specifications.

{¶5} In his first assigned error, Freshwater argues:

The trial court erred in ordering the individual prison terms as outlined on each count, as the sentences are unsupported by the factors outlined in R.C. 2929.12 and are thus contrary to law.

{¶6} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a

felony shall be guided by the overriding purposes of felony sentencing,” and it “shall

consider the factors * * * relating to the seriousness of the conduct” and “to the likelihood

of the offender’s recidivism.” R.C. 2929.12(A).

{¶7} R.C. 2953.08(G) governs our review of felony sentences, and provides, in

relevant part, that after an appellate court’s review of the record, and it “may increase,

reduce, or otherwise modify a sentence that is appealed under this section or may vacate

the sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence

is * * * contrary to law.” R.C. 2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No.

2022-A-0060, 2023-Ohio-988, ¶ 11.

{¶8} “A sentence is contrary to law when it is ‘in violation of statute or legal

regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[a] sentence is contrary to law when it does not fall

within the statutory range for the offense or if the trial court fails to consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12.’” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021- 3

Case No. 2022-L-071 Ohio-789, ¶ 11, quoting State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-

Ohio-199, ¶74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-

7127, ¶18. The Supreme Court has further held that a sentence is contrary to law if “it is

imposed ‘based on factors or considerations that are extraneous to those [seriousness

and recidivism factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11,

quoting State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. “But

an appellate court’s determination that the record does not support a sentence does not

equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is

used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.

{¶9} Further, this court has frequently noted that “even though a trial court is

required to consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make

specific findings on the record to comport with its statutory obligations.” Shannon at ¶ 17,

citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003, ¶ 24; State

v. Blake, 11th Dist. Lake No. 2003-L-196, 2005-Ohio-686, ¶ 16.

{¶10} Given the holding in Jones, we are precluded from reviewing whether

Freshwater’s sentence is supported by the record under R.C. 2929.12. However, we will

address Freshwater’s argument to the extent that he claims the trial court explicitly relied

on facts that it was prohibited from considering or explicitly disregarded facts that it is

mandated to consider. State v. Chase, 11th Dist. Lake Nos. 2020-L-070 & 2020-L-071,

2021-Ohio-1006, ¶ 10, citing Jones at ¶ 47-49 (Fischer, J., concurring).

{¶11} At the sentencing hearing and in the presentence report, Freshwater

detailed his struggles with drug addiction and indicated that he had historically been the

Case No. 2022-L-071 victim of violence as a result of his drug addiction. When discussing the R.C. 2929.12

factors, the trial court stated:

Factors indicating the conduct is more or less serious, the Court does note other relevant factors indicating it more serious is the altercation, physical altercation, that the Defendant engaged in with the Deputy at the time of the stop and the commission of the offense. That’s an indication of the type of stuff that can happen when committing drug offenses. There’s been comments about how the Defendant doesn’t have any history or convictions of violence and he doesn’t. But yet here’s an instance that because of drug use and because of trying to perhaps prevent officers from finding them, a physical altercation ensued.

There was a reference during the statements here that the Defendant has been, you know, beaten, he’s been stabbed and there’s just been a multitude of incidents where stuff like that has happened. Violent acts have happened. Not by the Defendant, but upon the Defendant. But it’s because of drug trafficking and drug dealing and that industry and being involved in that and that’s what happens. That’s why there’s a danger with the drug dealing because violence surrounds it.

While the Defendant may not have been the one that committed those violent acts, and they were committed upon him, that’s happening out in our community in our society right out in the open, these violent acts. That’s part of the danger and risks involved with drug dealing is that others, innocent people, could be injured or could be killed as a result of this stuff going on right out in the streets and in the communities. But in this particular case the Defendant did engage in a physical altercation with the police officer which makes this conduct more serious than normal.

No factors indicate it’s less serious.

As for the recidivism factors, the Court notes the Defendant does have a lengthy history of criminal convictions going back thirty years. He has not responded to previously imposed sanction. As noted, he’s been to prison on six prior occasions. Five in the State of Ohio; one Federal term.

He had been released from probation just a couple months earlier, three, four months before the commission of this 5

Case No. 2022-L-071 offense. A drug abuse problem certainly relates to the commission of the offense and the Defendant is here today indicating that he knows, he knows he has an issue. He has attempted different steps at this point to address what’s happened over the past thirty years. But that’s just something that happened now. And we don’t know because we’ve gone through this before in the past.

No factors indicate recidivism is less likely. I will note the Defendant has put himself in this program at Ed Keating and for a decent amount of time and appears to be doing well. But we’re talking thirty years of conduct here. But that is something to be noted under the less likely recidivism factors.

{¶12} Based upon the trial court’s above statements at sentencing, Freshwater

maintains that the court erred in considering the physical altercation that occurred in this

case as a factor indicating his conduct was more serious than conduct normally

constituting the offenses. Freshwater contends that the fact of the physical altercation

“goes beyond the factors outlined in R.C. 2929.12(B) and is irrelevant as it has no bearing

on the conduct he is actually being sentenced for.” However, the R.C. 2929.12(B) factors

for the trial court to consider in sentencing is not exhaustive, as the court may consider

“any other relevant factors.” We are not persuaded that the physical altercation is

“irrelevant” to the possession of cocaine charge. However, even were this court to agree

with Freshwater on its irrelevance to that charge, the altercation was the primary basis of

the obstructing official business charge. Accordingly, the altercation is highly relevant in

sentencing and was properly considered.

{¶13} Freshwater next maintains that the trial court erred in considering the fact

that Freshwater had been the victim of multiple violent acts in the past as a factor making

his conduct more serious. However, we do not read the trial court’s statements as

indicating that Freshwater’s history as a victim of violent crimes made his conduct more

Case No. 2022-L-071 serious in this case; instead, the court contrasted Freshwater’s history of not perpetuating

violence and of being the victim of violence with his conduct at issue in the present case,

where he acted violently toward a police officer.

{¶14} Freshwater lastly contends that the trial court “completely ignored” the

mitigating factor of his remorse, particularly in light of his “significant steps in treatment to

make changes in his life.” However, the trial court specifically acknowledged his

treatment when discussing the recidivism factors. Further, to the extent that Freshwater

expressed remorse for the offenses, the trial court was not required to expressly state

that it had considered his remorse, nor was it required to find Freshwater’s statements of

remorse credible. See State v. Rutherford, 11th Dist. Lake No. 2020-L-033, 2020-Ohio-

3934, ¶ 7.

{¶15} Based upon the foregoing, Freshwater’s first assigned error is without merit.

{¶16} In his second through fifth assigned errors, Freshwater argues:

[2.] The Defendant-Appellant’s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.

[3.] The Defendant-Appellant’s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of separation of powers.

[4.] The Defendant-Appellant’s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Ohio Constitution. 7

Case No. 2022-L-071 [5.] The Defendant-Appellant’s indeterminate prison sentence of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, violates his constitutional rights to fair trial and due process as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5 & 10 of the Ohio Constitution.

{¶17} In Freshwater’s second through fifth assigned errors, he raises

constitutional challenges to the Reagan Tokes Law, under which he received an

indeterminate prison sentence of five to seven and one-half years on the possession of

cocaine count.

{¶18} Initially, we note that Freshwater did not raise the void for vagueness

challenge contained in his second assigned error in the trial court. “While an appellate

court may hear a constitutional challenge that has not been raised below, such an issue

is evaluated only for plain error.” State v. Shannon, 11th Dist. Trumbull No. 2021-T-0049,

2022-Ohio-4160, ¶ 42, citing State v. Freetage, 11th Dist. Portage No. 2020-P-0083,

2021-Ohio-4050, ¶ 34. “‘When the court hears an appeal for plain error, it must presume

the constitutionality of the statute at issue and will not invalidate it unless the challenger

establishes that it is unconstitutional beyond a reasonable doubt.’” Shannon at ¶ 42,

quoting Freetage at ¶ 34. Nonetheless, this court has previously considered the

arguments raised in Freshwater’s second assigned error, as well as his third through fifth

assigned errors, and for the reasons addressed below, the trial court did not err in finding

the Reagan Tokes Law constitutional.

{¶19} The issue of the facial constitutionality of the Reagan Tokes Law is currently

pending before the Supreme Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case

No. 2020-1496; and State v. Simmons, Sup. Ct. Case No. 2021-0532. This court has 8

Case No. 2022-L-071 addressed the constitutional challenges that Freshwater advances in State v. Moran,

2022-Ohio-3610, 198 N.E.3d 922 (11th Dist.), State v. Taylor, 2022-Ohio-3611, 198

N.E.3d 956 (11th Dist.), and State v. Scott, 11th Dist. Trumbull No. 2022-T-0084, 2023-

Ohio-1091. Therein, we “determined that the Reagan Tokes Law does not violate the

doctrine of separation of powers, an appellant’s constitutional rights to due process, fair

trial, or trial by jury, and, further, that it is not void for vagueness.” State v. Stearns, 11th

Dist. Lake No. 2021-L-091, 2022-Ohio-4245, ¶ 29, appeal allowed, 2023-Ohio-554.

Further, “the constitutionality of the Reagan Tokes Law has been addressed by other

Ohio appellate courts, each of which has declared that the sentencing scheme does not

facially violate an inmate’s constitutional rights.” Moran at ¶ 4, citing State v. Barnes, 2d

Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-Ohio-5048, 161

N.E.3d 112 (3d Dist.), appeal allowed in part, 161 Ohio St.3d 1449, 2021-Ohio-534, 163

N.E.3d 585; State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d 607 (4th Dist.); State v.

Ratliff, 2022-Ohio-1372, 190 N.E.3d 684 (5th Dist.), appeal allowed, 167 Ohio St.3d 1481,

2022-Ohio-2765, 192 N.E.3d 516; State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682

(6th Dist.); State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc), appeal

allowed, 166 Ohio St.3d 1496, 2022-Ohio-1485, 186 N.E.3d 830; and State v. Guyton,

12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. See also State v. Guyton, 1st

Dist. Hamilton No. C-190657, 2022-Ohio-2962, appeal allowed, 168 Ohio St.3d 1418,

2022-Ohio-3752, 196 N.E.3d 850, ¶ 1; and State v. Runner, 2022-Ohio-4756, 204 N.E.3d

162 (7th Dist.).

{¶20} For the reasons stated in Moran, Taylor, and Scott, Freshwater’s second

through fifth assigned errors are without merit.

Case No. 2022-L-071 {¶21} The judgment is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2022-L-071