State v. McGlothin

2022 Ohio 940

• Court: Ohio Court of Appeals
• Decided: March 24, 2022
• Docket: 109908
• Status: Published

Opinion

[Cite as State v. McGlothin, 2022-Ohio-940.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109908 v. :

EDWIN MCGLOTHIN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 24, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-648040-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Amanda Hall, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano, for appellant.

MARY EILEEN KILBANE, J.:

Defendant-appellant Edwin McGlothin (“McGlothin”) appeals from

his sentence for felonious assault following a guilty plea. Specifically, McGlothin

argues that his sentence is contrary to law because the record does not support the length of his individual sentences and that his sentence is invalid because it was

imposed under the Reagan Tokes Law and is therefore unconstitutional. For the

following reasons, we affirm.

Factual and Procedural History

On January 28, 2020, a Cuyahoga County Grand Jury indicted

McGlothin on one count of attempted murder in violation of R.C. 2923.02 and R.C.

2903.02(A), one count of felonious assault in violation of R.C. 2903.11(A)(1), one

count of felonious assault in violation of R.C. 2903.11(A)(2), one count of aggravated

burglary in violation of R.C. 2911.11(A)(1), one count of aggravated burglary in

violation of R.C. 2911.11(A)(2), one count of having weapons while under disability

in violation of R.C. 2923.13(A)(2), and one count of assault in violation of R.C.

2903.13(A). The attempted murder, felonious assault, and aggravated burglary

charges all carried one- and three-year firearm specifications, notice of prior

convictions, and repeat violent offender specifications.

The charges arose from an August 17, 2019 shooting. McGlothin

forced his way into the home of victim Tonia Allen (“Allen”), his child’s mother.

McGlothin and victim John Dorsey (“Dorsey”) began arguing and McGlothin

ultimately shot Dorsey in the groin. Dorsey’s son witnessed Dorsey run, bleeding,

out into the street and calling for help. McGlothin then went upstairs and punched

Allen in the face.

McGlothin initially pleaded not guilty to these charges. On July 1,

2020, the prosecutor and McGlothin’s counsel informed the court that they had negotiated a plea deal. The prosecutor informed the court that McGlothin was

agreeing to plead guilty to one count of felonious assault in violation of R.C.

2903.11(A)(2), amended to delete the notice of prior conviction and the repeat

violent offender specification, and one count of having weapons while under

disability in violation of R.C. 2923.13(A)(2), as indicted. All remaining counts and

specifications would be dismissed. The court engaged in a Crim.R. 11 colloquy with

McGlothin and accepted his guilty pleas. As part of the plea colloquy, the court

informed McGlothin that the felonious assault charge was a qualifying offense under

S.B. 201, the Reagan Tokes Law (“Reagan Tokes”) and explained the implications of

the law. The court referred McGlothin for a presentence investigation (“PSI”).

On July 22, 2020, the trial court held a sentencing hearing. The court

stated that it had reviewed the PSI and a letter from McGlothin’s sister. The court

heard from the victim, the assistant prosecuting attorney, McGlothin’s counsel, a

close friend of McGlothin, and McGlothin. The assistant prosecuting attorney asked

the court to impose a maximum consecutive sentence. The court sentenced

McGlothin to one year on the firearm specification, to be served prior to and

consecutive to six to nine years on the felonious assault. The court also sentenced

McGlothin to 36 months, to run concurrent to the felonious assault sentence. The

court waived fines and court costs.

On August 24, 2020, McGlothin filed a notice of appeal. McGlothin

presents two assignments of error for our review. Legal Analysis

In his first assignment of error, McGlothin argues that his sentence is

contrary to law because the record does not support the length of the individual

sentences.

Here, McGlothin contends that the trial court did not adequately

consider the factors set forth in R.C. 2929.11 and 2929.12. Specifically, he argues

that the trial court did not adequately explain why the prison terms it imposed were

necessary to protect the public or whether they were the minimum sanctions

necessary to protect the public and punish McGlothin. While R.C. 2929.11 and

2929.12 require the court to consider certain factors in crafting felony sentences, the

court is not required to make findings or give reasons supporting those factors when

imposing a sentence. State v. Riemer, 8th Dist. Cuyahoga No. 110314, 2021-Ohio-

4122, ¶ 17, citing State v. Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807, and

109808, 2021-Ohio-2586, ¶ 24. Moreover, “a sentence is not contrary to law merely

because the defendant disagrees with the way the trial court weighed and applied

the R.C. 2929.11 and 2929.12 factors in fashioning an appropriate sentence.” Id.

Further, “R.C. 2953.08(G)(2)(a) permits an appellate court to modify

or vacate a sentence if it clearly and convincingly finds that the ‘record does not

support the sentencing court’s findings under’ certain specified statutory

provisions,”’ namely, R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and

2929.20(I). State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,

¶ 28. R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a), and thus, this court cannot rely on R.C. 2929.11 and 2929.12 as a

basis to modify or vacate a sentence. For these reasons, McGlothin’s first

assignment of error is overruled.

In his second assignment of error, McGlothin argues that his sentence

is invalid because it was imposed pursuant to Reagan Tokes, which violates the Ohio

and the United States Constitutions. Specifically, McGlothin argues that the law

violates the separation-of-powers doctrine, his due process rights, and his right to

trial by jury. McGlothin’s arguments are overruled pursuant to this court’s en banc

decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, which

overruled the challenges presented in this appeal to the Reagan Tokes Law enacted

through S.B. 201. Therefore, we find that McGlothin’s sentence pursuant to Reagan

Tokes was not a violation of his constitutional rights. McGlothin’s second

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

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and LISA B. FORBES, J., CONCUR

N.B. 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.

Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J., dissenting).