State v. Mabe

2022 Ohio 2996

• Court: Ohio Court of Appeals
• Decided: August 29, 2022
• Docket: 6-22-01
• Status: Published

Opinion

[Cite as State v. Mabe, 2022-Ohio-2996.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-22-01

v.

SHAYAN MABE, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20212148

Judgment Affirmed

Date of Decision: August 29, 2022

APPEARANCES:

Howard A. Elliott for Appellant

Bradford Bailey for Appellee Case No. 6-22-01

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Shayan Mabe (“Mabe”), appeals the February 24,

2022 judgment entry of sentence of the Hardin County Court of Common Pleas.

We affirm.

{¶2} On October 14, 2021, the Hardin County Grand Jury indicted Mabe on

eight criminal counts: Count One of possession of cocaine in violation of R.C.

2925.11(A), (C)(4)(f), a first-degree felony; Count Two of trafficking in cocaine in

violation of R.C. 2925.03(A)(2), (C)(4)(g), a first-degree felony; Count Three of

improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B),

(I), a fourth-degree felony; Count Four of illegal conveyance of drugs of abuse onto

grounds of a specified governmental facility in violation of R.C. 2921.36(A)(2),

(G)(2), a third-degree felony; Count Five of possessing criminal tools in violation

of R.C. 2923.24(A), (C), a fifth-degree felony; Count Six of possessing drug abuse

instruments in violation of R.C. 2925.12(A), (C), a second-degree misdemeanor;

Count Seven of illegal use or possession of drug paraphernalia in violation of R.C.

2925.14(C)(1), (F)(1), a fourth-degree misdemeanor; and Count Eight of aggravated

possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony.

The indictment included firearm and forfeiture specifications as to Counts One and

Two. On October 19, 2021, Mabe appeared for arraignment and entered pleas of

not guilty.

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{¶3} On November 10, 2021, under a superseding indictment, the Hardin

County Grand Jury indicted Mabe on 14 Counts: Count One of possession of a

fentanyl-related compound in violation of R.C. 2925.11(A), (C)(11)(g), a first-

degree felony; Count Two trafficking in a fentanyl-related compound in violation

of R.C. 2925.03(A)(2), (C)(9)(h), a first-degree felony; Count Nine of possession of

cocaine in violation of R.C. 2925.11(A), (C)(4)(d), a second-degree felony; Count

Ten of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(e), a second-

degree felony; Count Eleven of aggravated possession of drugs in violation of R.C.

2925.11(A), (C)(1)(c), a second-degree felony; Count Twelve of aggravated

trafficking in drugs in violation of R.C. 2925.13(A)(2), (C)(1)(d), a second-degree

felony; Count Thirteen of aggravated possession of drugs in violation of R.C.

2925.11(A), (C)(1)(a), a fifth-degree felony; and Count Fourteen of aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(2), (C)(1)(a), a fourth-degree

felony.1 The superseding indictment included firearm and forfeiture specifications

as to Counts One, Two, and Nine through Fourteen. Mabe appeared for arraignment

on November 24, 2021 and entered pleas of not guilty to the new indictment.

{¶4} On January 6, 2022, Mabe withdrew her pleas of not guilty and entered

guilty pleas, under a negotiated-plea agreement, to Counts Eight, Nine, Thirteen,

and the forfeiture specifications of the superseding indictment. In exchange for her

1 The charges under Counts Three through Eight remained the same as charged in the original indictment.

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change of pleas, the State agreed to dismiss the remaining counts and the firearm

specifications. The trial court accepted Mabe’s guilty pleas, found her guilty,

dismissed the remaining counts and specifications, and ordered a presentence

investigation.

{¶5} On February 16 and 23, 2022, the trial court sentenced Mabe to 12

months in prison on Counts Eight and Thirteen, respectively, and to a minimum

term of 8 years in prison to a maximum term of 12 years in prison on Count Nine.

(Doc. No. 38). The prison terms imposed by the trial court were ordered to be served

consecutively for an aggregate sentence of a minimum of 10 years in prison to a

maximum term of 14 years in prison. Further, the trial court ordered the property

identified in the forfeiture specifications forfeited.2

{¶6} Mabe filed a notice of appeal on February 28, 2022.3 She raises two

assignments of error for our review, which we will discuss together.

Assignment of Error No. I

The trial court erred when it imposed consecutive sentences upon the Appellant without facts in the record to support its statutory findings under Ohio Revised Code Section 2929.14(C)(4).

Assignment of Error No. II

The trial court erred in sentencing the defendant to an indefinite sentence pursuant to the Reagan Tokes Act over the objection of

2 The trial court filed its judgement entry of sentence on February 24, 2022; however, it filed a nunc pro tunc entry correcting a clerical error on March 1, 2022. (Doc. Nos. 38, 52). 3 On March 24, 2022, Mabe filed a notice of appeal from the trial court’s nunc pro tunc entry. (Doc. No. 56).

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the appellant that the Act was unconstitutional for violating the Separation of Powers clause.

{¶7} In her assignments of error, Mabe argues that the record does not

support the trial court’s imposition of consecutive sentences and that her sentence

is contrary to law. In particular, under her first assignment of error, Mabe argues

that the record does not support her consecutive sentence. Under her second

assignment of error, Mabe specifically argues that her sentence, imposed under

Ohio’s current sentencing scheme (commonly known as the “Reagan Tokes Law”),

is unconstitutional.

Standard of Review

{¶8} 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

{¶9} We will begin by addressing Mabe’s first assignment of error

challenging the trial court’s imposition of consecutive sentences. “Except as

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provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or

sentence of imprisonment shall be served concurrently with any other prison term,

jail term, or sentence of imprisonment imposed by a court of this state, another state,

or the United States.” R.C. 2929.41(A). R.C. 2929.14(C) provides:

(4) * * * [T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶10} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

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sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

{¶11} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

{¶12} On appeal, Mabe concedes that the trial court’s judgment entry of

sentence includes the statement that “‘consecutive sentencing is necessary to protect

the public from future crime or to punish the offender, and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

the danger the offender poses to the public.’” (Appellant’s Brief, quoting Doc. No.

56). Further, Mabe concedes that the trial court’s judgment entry of sentence

documents its finding that R.C. 2929.14(C)(4)(b) and (c) apply—that is, the trial

court found

that at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more

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of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct; and that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

(Emphasis added.) (Doc. No. 56). Instead, Mabe contends that the trial court failed

to find at her sentencing hearing “that the consecutive sentences are not

disproportionate to the seriousness of the conduct and the danger posed upon the

public as required by the statute” and “that consecutive sentences were needed to

protect the public from future crime by the appellant * * * .” (Appellant’s Brief at

8). Mabe further argues that the record does not support trial court’s findings under

R.C. 2929.14(C)(4)(b) or (c).

{¶13} Mabe’s arguments are without merit. Rather, based on our review of

the record, we conclude that the trial court made the statutorily required findings at

Mabe’s February 16, 2022 sentencing hearing before imposing consecutive

sentences and that the trial court’s findings are supported by the record.

Specifically, the trial court found that consecutive sentences are necessary in this

case to “protect the public from [her] conduct” and because “one single sentence

would not sufficiently punish” Mabe. (Feb. 16, 2022 Tr. at 30). (See also id. at 26).

Compare State v. Ray, 8th Dist. Cuyahoga No. 107450, 2019-Ohio-1346, ¶ 37

(concluding that “[t]he trial court specifically found that consecutive sentences were

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necessary to protect the public from further drug dealing by Ray” following Ray’s

conviction for multiple drug-trafficking offenses).

{¶14} Moreover, even though the trial court did not use the explicit language

of the statute, “the trial court conducted the necessary proportionality analysis and

made the required finding.” State v. Smith, 3d Dist. Defiance No. 4-21-04, 2022-

Ohio-420, ¶ 21. Accord State v. Rodriquez, 3d Dist. Defiance No. 4-16-16, 2017-

Ohio-1318, ¶ 12 (“Although the trial court could have been clearer in the language

used at the hearing, the statements of the trial court regarding the serious amount of

drugs involved and the danger to the public equate ‘to a finding that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.’”), quoting State v. Fields, 10th Dist.

Franklin No. 16AP-417, 2017-Ohio-661, ¶ 20; Ray at ¶ 37 (“And although the trial

court did not use the explicit language of the statute, it found that consecutive

sentences were not disproportionate to the danger Ray poses to the public when it

noted that there were 160 grams of heroin in Ray’s apartment, ‘enough to kill a

small community.’”).

{¶15} Importantly, Mabe pleaded guilty to three drug-possession offenses in

this case. In exchange for her change of pleas, the State agreed to dismiss 11 other

drug- and firearm-related charges along with the firearm specifications. Those

dismissed charges included two first-degree felonies, three second-degree felonies,

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one third-degree felony, two fourth-degree felonies, two misdemeanor offenses, and

the firearm specifications. Accord State v. Lough, 2d Dist. Greene No. 2019-CA-

66, 2021-Ohio-230, ¶ 11.

{¶16} Significantly, at Mabe’s February 16, 2022 sentencing hearing, the

trial court highlighted that the amount of cocaine that Mabe was found guilty of

possessing under Count Nine “is the greatest amount of cocaine [discovered] in

Hardin County.” (Feb. 16, 2022 Tr. at 22). Likewise, the trial court addressed that,

even though Mabe was not convicted of Count One as a result of the negotiated-

plea agreement, it was alleged in that count that she possessed “[f]entanyl in an

amount that exceeded a hundred grams”—“a mammoth quantity of a deadly

substance.” (Id. at 21). The trial court further discussed the harm caused by

fentanyl—namely, the trial court identified that “[f]entanyl overdoses specifically

is [sic] the largest cause of death” and that fentanyl “is the most deadly substance

that we can imagine.” (Id. at 21-22). Compare State v. Hughes, 5th Dist. No.

15CA0008, 2016-Ohio-880, ¶ 33 (addressing the trial court’s findings under R.C.

2929.14(C)(4) and acknowledging that the trial court “noted the difference in the

harms inflicted by heroin versus cocaine, deploring the havoc heroin has wreaked

upon appellant’s community”). Furthermore, the trial court noted that law

enforcement discovered Mabe with “a bullet” and “two guns.” (Feb. 16, 2022 Tr.

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at 23). See State v. Bass, 10th Dist. Franklin No. 14AP-992, 2015-Ohio-3979, ¶ 16;

State v. McCoy, 8th Dist. Cuyahoga No. 103671, 2016-Ohio-5240, ¶ 14.

{¶17} Consequently, we conclude that “[t]he trial court’s phraseology in this

case is conceptually equivalent to the statutory language, even though the trial court

eschewed the phrase ‘not disproportionate,’” and that the trial court made the

appropriate proportionality finding. State v. Adams, 10th Dist. Franklin No. 13AP-

783, 2014-Ohio-1809, ¶ 21, quoting State v. Power, 7th Dist. Columbiana No. 12

CO 14, 2013-Ohio-4254, ¶ 45.

{¶18} Nevertheless, Mabe argues that the trial court erred by imposing

consecutive sentences because the record does not support the trial court’s

conclusion under R.C. 2929.14(C)(4)(b) that the harm caused by two or more of the

multiple offenses was so great and unusual that no single prison term adequately

reflects the seriousness of her conduct. Specifically, Mabe argues that the trial

court’s imposition of consecutive sentences is improper because there is no

“evidence that she caused harm to the public beyond the inference that she possessed

the substances so as to traffic in them.” (Appellant’s Brief at 9). We disagree.

Instead, the harm from Mabe’s conduct stems from her intention to distribute drugs

to her community. Accord State v. Mason, 3d Dist. Allen No. 1-19-74, 2020-Ohio-

3505, ¶ 18 (concluding that “the harm from Mason’s conduct stems from his

intention to distribute drugs—namely, a significant amount of cocaine—to his

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community.”), citing State v. Waxler, 6th Dist. Lucas No. L-16-1269, 2017-Ohio-

7536, ¶ 16 (concluding that “that the harm stemming from Waxler’s conduct centers

on his intention to distribute drugs and firearms to his community”) and State v.

Johnson, 10th Dist. Franklin No. 16AP-860, 2017-Ohio-9286, ¶ 28 (concluding that

the trial court’s finding under R.C. 2929.14(C)(4)(b) was “based on the amount of

heroin involved” from multiple transactions).

{¶19} In addition to the “record” amount of cocaine found in Mabe’s

possession, the evidence in the record reveals that Mabe was engaging in a drug-

related venture. Accord id. at ¶ 19. Importantly, the trial court emphasized that

“that this was part of a criminal activity and something more than just for [Mabe’s]

personal use” based on “the mere fact of this massive quantity of drugs * * * .”

(Feb. 16, 2022 Tr. at 23). See Lough, 2021-Ohio-230, at ¶ 9-10. Indeed, the record

reveals that Mabe was discovered operating a motor vehicle and that, aside from the

cocaine, law enforcement found a large amount of fentanyl, two firearms, a 9mm

bullet, and instruments commonly used in the drug trade inside the vehicle. The

record further reveals that another known drug trafficker was a passenger in the

vehicle. In addition, as we previously addressed, the trial court outlined the

catastrophic harm posed by the release of fentanyl into the community. See Lough

at ¶ 9-10. Thus, we conclude that the trial court’s finding under R.C.

2929.14(C)(4)(b) is supported by the record. Accord Mason at ¶ 19.

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{¶20} Similarly, Mabe argues that the trial court erred by imposing

consecutive sentences because the record does not support the trial court’s

conclusion under R.C. 2929.14(C)(4)(c) since she “had no significant criminal

record.” (Appellant’s Brief at 9). However, “[b]ecause only one R.C.

2929.14(C)(4)(a)-(c) factor needs to be supported by the record,” we need not

address Mabe’s argument regarding the trial court’s finding under R.C.

2929.14(C)(4)(c). State v. Robinson, 3d Dist. Hancock No. 5-16-13, 2017-Ohio-

2703, ¶ 14. Therefore, we conclude that the trial court properly imposed Mabe’s

consecutive sentences.

{¶21} Turning to Mabe’s second assignment of error, Mabe challenges the

constitutionality of the Reagan Tokes Law—that is, Mabe argues that the Reagan

Tokes Law violates “the principles of Separation of Powers”; “violates the

defendant’s right to trial by jury”; “is void for vagueness”; and is unconstitutional

“because it denies procedural due process.” (Appellant’s Brief at 10, 12). “A statute

may be challenged on constitutional grounds in two ways: (1) that the statute is

unconstitutional on its face, or (2) that it is unconstitutional as applied to the facts

of the case.” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-4546, ¶ 10.

“To mount a successful facial challenge, the party challenging the statute must

demonstrate that there is no set of facts or circumstances under which the statute

can be upheld.” Id. “Where it is claimed that a statute is unconstitutional as applied,

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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.” Id.

{¶22} Assuming without deciding that Mabe properly preserved her

constitutional arguments on appeal, we summarily reject her constitutional

challenges. Importantly, this court previously determined the constitutionality of

the Reagan Tokes Law and rejected similar facial challenges. Accord State v.

Hacker, 3d Dist. No. 8-20-01, 2020-Ohio-5048, ¶ 18-23. See also State v.

Cervantes, 3d Dist. Henry No. 7-21-06, 2022-Ohio-2536, ¶ 43-44. Likewise, we

continue to follow our precedent rejecting similar as-applied constitutional

challenges. Accord Cervantes at ¶ 47; State v. Criswell, 3d Dist. Marion No. 9-21-

40, 2022-Ohio-2450, ¶ 20, citing 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, Mabe’s sentence is not contrary to law.

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

overruled.

{¶24} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

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SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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