State v. Hardin-Rogers

2022 Ohio 802

• Court: Ohio Court of Appeals
• Decided: March 17, 2022
• Docket: 109679
• Status: Published

Opinion

[Cite as State v. Hardin-Rogers, 2022-Ohio-802.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 109679 v. :

BRIAN HARDIN-ROGERS, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-640332-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellee.

LISA B. FORBES, J.:

I. Facts and Procedural History

On March 16, 2020, Brian Hardin-Rogers (“Hardin-Rogers”) plead

guilty to the following: attempted rape, a second-degree felony, in violation of

R.C. 2923.02 and 2907.02(A); abduction, a third-degree felony, in violation of R.C. 2905.02(A)(2); felonious assault, a second-degree felony, in violation of

R.C. 2903.11(A)(1). On April 7, 2020, the court found that the Reagan Tokes Law

was unconstitutional, did not sentence Hardin-Rogers under the statute, and

sentenced him to a definite prison term of seven years. The state of Ohio appeals

this sentence raising the following two assignments of error, which will be addressed

together:

The trial court erred in finding the Reagan Tokes Law indefinite sentencing requirements unconstitutional.

The trial court erred in imposing a definite sentence for a qualifying felony of the second degree.

II. Law and Analysis

The state of Ohio’s assignments of error are sustained pursuant to this

court’s en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-

Ohio-470, and this case is remanded to the trial court for a resentencing hearing.

Judgment reversed and case remanded.

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, JUDGE

SEAN C. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR

N.B. The author of this opinion is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J., dissenting).

Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes and the concurring in part and dissenting in part opinion by Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.