[Cite as State v. Garcia, 2022-Ohio-707.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109946 v. :
MARISLEYSIS GARCIA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645880-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James S. Gallagher, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Marisleysis Garcia (“Garcia”) appeals her
sentence and asks this court to reverse her sentence and remand to the trial court
for resentencing. We affirm the trial court’s judgment. Garcia pleaded guilty to voluntary manslaughter, a first-degree
felony, in violation of R.C. 2903.03(A), with one- and three-year firearm
specifications. The trial court sentenced Garcia to 11 years in prison plus three years
for the firearm specification, to be served consecutively, for a total of 14 years in
prison, at a minimum. At a maximum, the trial court sentenced Garcia to 19.5 years
consistent with the Reagan Tokes Act (“Reagan Tokes”).
I. Facts and Procedural History
On November 8, 2019, Garcia shot Darius Boone (“Boone”), and he
later died from his injuries. Garcia ran from the scene, but turned herself into the
police three days later. Garcia was originally charged with murder, felonious
assault, and voluntary manslaughter. After a plea deal with the state, Garcia pleaded
guilty to voluntary manslaughter, Count 3.
After pleading guilty, the trial court sentenced Garcia and stated:
The Court has considered all this information. I’ve read all the letters. I’ve considered all the principles and purposes of felony sentencing and all the appropriate recidivism and seriousness factors. * * * Considering this information and considering all the factors in law, voluntary manslaughter is appropriate based on these facts. * * * The facts in this case point towards there’s no self-defense. That’s not an issue.
(Tr. 74, 77-78.)
The trial court went on to state its reasons for sentencing Garcia to 14
to 19.5 years in prison. It stated,
The amount of the consequences, though, definitely point to a more severe sentence in this case based on how you acted afterwards and what I’ve heard and the facts, and the fact that you accepted responsibility in this matter, so I’m going to fashion a sentence based on this. It’s going to be an indefinite sentence as I described earlier.
(Tr. 78.)
As a result of the sentence, Garcia filed this appeal and assigned two
errors for our review:
I. The trial court abused its discretion by imposing a prison sentence contrary to R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines;1 and
II. The trial court violated defendant’s constitutional right and exceeded its authority by imposing a Regan-Tokes sentence, under S.B. 201.
II. Sentencing
A. Standard of Review
We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate and remand a felony sentence if the court clearly and
convincingly finds either that the record does not support the sentencing court’s
findings or the sentence is otherwise “contrary to law.”
A sentence is not contrary to law if the trial court considered the
purposes and principles of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12, properly applied postrelease control, and
1The appellant assigned an error that the trial court abused its discretion under R.C. 2929.14, but argued in the body of the brief that the trial court abused its discretion under R.C. 2929.11 and 2929.12. imposed a sentence within the applicable statutory range. State v. Lenard, 8th Dist.
Cuyahoga No. 105998, 2018-Ohio-3365, ¶ 79, citing State v. A.H., 8th Dist.
Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.
B. Law and Analysis
In Garcia’s first assignment of error, she argues that the trial court
failed to consider the purposes and principles of felony sentencing. Garcia contends
that she feared for her life when she shot Boone. She also contends that she could
have proceeded to trial and been acquitted due to acting in self-defense. The record
reveals that the trial court imposed a sentence within the applicable statutory range.
Garcia was found guilty of a first-degree felony, for which the applicable prison term
is from 3 to 11 years. The trial court stated: “The amount of consequences, though,
definitely point to a more severe sentence in this case based on how you acted
afterwards and what I’ve heard and the facts, and the fact that you accepted
responsibility in this matter, so I’m going to fashion a sentence based on this.”
The trial court stated that it considered all the principles and
purposes of felony sentencing and all the appropriate recidivism and seriousness
factors. (Tr. 74.) Although the trial court must consider the purposes and principles
of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in
R.C. 2929.12, the court is not required to make findings or give reasons for its
sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15,
citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. “A trial court’s general statement that it considered the required statutory factors, without
more, is sufficient to fulfill its obligations under the sentencing statutes.” Id. at ¶ 10,
citing State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-Ohio-733, ¶ 4.
Further, “[t]his court has held that a trial court’s statement in its
sentencing journal entry that it considered the required statutory factors, without
more, is sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.” State v.
Paulino, 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37, citing State v.
Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6. And because courts
have full discretion to impose sentences within the statutory range, a sentence
imposed within the statutory range is “presumptively valid” if the court considered
the applicable sentencing factors. Id., citing State v. Collier, 8th Dist. Cuyahoga
No. 95572, 2011-Ohio-2791, ¶ 15.
Therefore, Garcia’s first assignment of error is overruled.
III. The Constitutionality of the Reagan Tokes Act
“The interpretation of the constitutionality of a statute presents a
question of law.” In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777
and 87816, 2008-Ohio-4444, ¶ 11, citing Andreyko v. Cincinnati, 153 Ohio App.3d
108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist.). “‘Questions of law are reviewed
de novo, independently and without deference to the trial court’s decision.’” Id.,
quoting Andreyko at ¶ 11. Additionally,
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[Cite as State v. Garcia, 2022-Ohio-707.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109946 v. :
MARISLEYSIS GARCIA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645880-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James S. Gallagher, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Marisleysis Garcia (“Garcia”) appeals her
sentence and asks this court to reverse her sentence and remand to the trial court
for resentencing. We affirm the trial court’s judgment. Garcia pleaded guilty to voluntary manslaughter, a first-degree
felony, in violation of R.C. 2903.03(A), with one- and three-year firearm
specifications. The trial court sentenced Garcia to 11 years in prison plus three years
for the firearm specification, to be served consecutively, for a total of 14 years in
prison, at a minimum. At a maximum, the trial court sentenced Garcia to 19.5 years
consistent with the Reagan Tokes Act (“Reagan Tokes”).
I. Facts and Procedural History
On November 8, 2019, Garcia shot Darius Boone (“Boone”), and he
later died from his injuries. Garcia ran from the scene, but turned herself into the
police three days later. Garcia was originally charged with murder, felonious
assault, and voluntary manslaughter. After a plea deal with the state, Garcia pleaded
guilty to voluntary manslaughter, Count 3.
After pleading guilty, the trial court sentenced Garcia and stated:
The Court has considered all this information. I’ve read all the letters. I’ve considered all the principles and purposes of felony sentencing and all the appropriate recidivism and seriousness factors. * * * Considering this information and considering all the factors in law, voluntary manslaughter is appropriate based on these facts. * * * The facts in this case point towards there’s no self-defense. That’s not an issue.
(Tr. 74, 77-78.)
The trial court went on to state its reasons for sentencing Garcia to 14
to 19.5 years in prison. It stated,
The amount of the consequences, though, definitely point to a more severe sentence in this case based on how you acted afterwards and what I’ve heard and the facts, and the fact that you accepted responsibility in this matter, so I’m going to fashion a sentence based on this. It’s going to be an indefinite sentence as I described earlier.
(Tr. 78.)
As a result of the sentence, Garcia filed this appeal and assigned two
errors for our review:
I. The trial court abused its discretion by imposing a prison sentence contrary to R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines;1 and
II. The trial court violated defendant’s constitutional right and exceeded its authority by imposing a Regan-Tokes sentence, under S.B. 201.
II. Sentencing
A. Standard of Review
We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate and remand a felony sentence if the court clearly and
convincingly finds either that the record does not support the sentencing court’s
findings or the sentence is otherwise “contrary to law.”
A sentence is not contrary to law if the trial court considered the
purposes and principles of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12, properly applied postrelease control, and
1The appellant assigned an error that the trial court abused its discretion under R.C. 2929.14, but argued in the body of the brief that the trial court abused its discretion under R.C. 2929.11 and 2929.12. imposed a sentence within the applicable statutory range. State v. Lenard, 8th Dist.
Cuyahoga No. 105998, 2018-Ohio-3365, ¶ 79, citing State v. A.H., 8th Dist.
Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.
B. Law and Analysis
In Garcia’s first assignment of error, she argues that the trial court
failed to consider the purposes and principles of felony sentencing. Garcia contends
that she feared for her life when she shot Boone. She also contends that she could
have proceeded to trial and been acquitted due to acting in self-defense. The record
reveals that the trial court imposed a sentence within the applicable statutory range.
Garcia was found guilty of a first-degree felony, for which the applicable prison term
is from 3 to 11 years. The trial court stated: “The amount of consequences, though,
definitely point to a more severe sentence in this case based on how you acted
afterwards and what I’ve heard and the facts, and the fact that you accepted
responsibility in this matter, so I’m going to fashion a sentence based on this.”
The trial court stated that it considered all the principles and
purposes of felony sentencing and all the appropriate recidivism and seriousness
factors. (Tr. 74.) Although the trial court must consider the purposes and principles
of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in
R.C. 2929.12, the court is not required to make findings or give reasons for its
sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15,
citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. “A trial court’s general statement that it considered the required statutory factors, without
more, is sufficient to fulfill its obligations under the sentencing statutes.” Id. at ¶ 10,
citing State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-Ohio-733, ¶ 4.
Further, “[t]his court has held that a trial court’s statement in its
sentencing journal entry that it considered the required statutory factors, without
more, is sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.” State v.
Paulino, 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37, citing State v.
Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6. And because courts
have full discretion to impose sentences within the statutory range, a sentence
imposed within the statutory range is “presumptively valid” if the court considered
the applicable sentencing factors. Id., citing State v. Collier, 8th Dist. Cuyahoga
No. 95572, 2011-Ohio-2791, ¶ 15.
Therefore, Garcia’s first assignment of error is overruled.
III. The Constitutionality of the Reagan Tokes Act
“The interpretation of the constitutionality of a statute presents a
question of law.” In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777
and 87816, 2008-Ohio-4444, ¶ 11, citing Andreyko v. Cincinnati, 153 Ohio App.3d
108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist.). “‘Questions of law are reviewed
de novo, independently and without deference to the trial court’s decision.’” Id.,
quoting Andreyko at ¶ 11. Additionally,
“[a] regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality” and “before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.”
Id. at ¶ 12, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128
N.E.2d 59 (1955), paragraph one of the syllabus.
“Moreover, the presumption of validity cannot be overcome unless it
appears that there is a clear conflict between the legislation in question and some
particular provision or provisions of the Constitution.” Id. at ¶ 13, citing Xenia v.
Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph two of the syllabus;
Dickman.
Garcia argues that the Reagan Tokes Act is unconstitutional. “On
March 22, 2019, the Ohio legislature enacted the Reagan Tokes Act, which changed
the terms of felony sentencing for qualifying felonies of the first or second degree.
See R.C. 2929.14.” State v. Young, 8th Dist. Cuyahoga No. 108868, 2020-Ohio-
4135, ¶ 16. Garcia did not raise the issue of the constitutionality of the Reagan Tokes
Act in the trial court. “In general, the failure to raise an issue in the trial court, forfeits
the issue on appeal.” Id. at ¶ 10, citing Broadview Hts. v. Misencik, 8th Dist.
Cuyahoga No. 100196, 2014-Ohio-1518, ¶ 19.
“It is well established that “‘the question of the 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. Alexander, 12th Dist. Butler
No. CA2019-12-204, 2020-Ohio-3838, ¶ 8, quoting State v. Buttery, 162 Ohio St.3d
10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, quoting State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277 (1986).
By not first raising the issue with the trial court, Garcia’s arguments
challenging the constitutionality of the Reagan Tokes Act are forfeited and will not
be heard for the first time on appeal. State v. Ponyard, 8th Dist. Cuyahoga
No. 101266, 2015-Ohio-311, ¶ 7. See also State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 2. (“The failure to challenge the constitutionality
of a statute in the trial court forfeits all but plain error on appeal, and the burden of
demonstrating plain error is on the party asserting it.”).
Furthermore,
“[w]e may review the trial court decision for plain error, but we require a showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.” (Citation omitted.) State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. “The burden of demonstrating plain error is on the party asserting it.” Id.
State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 39.
In addition to failing to raise a constitutional challenge of the Reagan
Tokes Act in the trial court, Garcia also has not argued plain error in this appeal.
Consequently, we decline to address this issue for the first time on appeal. See
Young, 8th Dist. Cuyahoga No. 108868, 2020-Ohio-4135, at ¶ 21. See also State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 19 (“Given the lack of
presentment to the trial court and the absence of plain error arguments, we decline
to address the constitutionality of the Reagan Tokes Act as to this case.”).
Therefore, Garcia’s second 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_____________________________ ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and MICHELLE J. SHEEHAN, J., CONCUR