State v. Garcia

2023 Ohio 1219

Opinion

[Cite as State v. Garcia, 2023-Ohio-1219.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111795 v. :

ANTHONY GARCIA, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 13, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-664823-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, for appellee. LISA B. FORBES, P.J.:

Appellant the state of Ohio (“the state”) appeals the trial court’s

journal entry sentencing appellee Anthony Garcia (“Garcia”) to a definite prison

term of five years. After reviewing the facts of the case and pertinent law, we reverse.

I. Facts and Procedural History

Garcia pled guilty to felonious assault, a second-degree felony in

violation of R.C. 2903.11(A)(2); aggravated burglary, a first-degree felony in

violation of R.C. 2911.11(A)(2); and resisting arrest, a second-degree misdemeanor

in violation of R.C. 2921.33(A).

On July 28, 2022, the trial court journalized an entry sentencing

Garcia to a definite prison term of five years. It is from this order that the state

appeals.

II. Law and Analysis

In its sole assignment of error, the state asserts that “the trial court

plainly erred when it found S.B. 201 to be unconstitutional and did not impose an

indefinite sentence pursuant to S.B. 201.” S.B. 201 is otherwise known as the Reagan

Tokes Law. In response, Garcia argues that the trial court did not err because the

Regan Tokes Law violates “the constitutional right to trial by jury,” “the separation

of powers doctrine,” and “due process.”

This court’s en banc decision in State v. Delvallie, 2022-Ohio-470,

185 N.E.3d 536 (8th Dist.), determined that “[t]he Reagan Tokes Law is not

unconstitutional based on the claims presented by the defendants.” Id. at ¶ 51. The Delvallie opinion addressed arguments related to the defendant’s right to a trial by

jury, the separation-of-powers doctrine, and the defendant’s right to due process.

Garcia has not raised a new constitutional challenge to the Reagan

Tokes Law, and we are therefore constrained to follow this court’s en banc decision

in Delvallie. The state’s sole assignment of error is sustained.

Judgment reversed and remanded to the trial court for proceedings

consistent with this opinion.

It is ordered that appellant recover from appellee 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________________ LISA B. FORBES, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR

N.B. The author of this opinion is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J., dissenting).

Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law are unconstitutional.