State v. Menefee

2023 Ohio 1142

• Court: Ohio Court of Appeals
• Decided: April 6, 2023
• Docket: 111793
• Status: Published

Opinion

[Cite as State v. Menefee, 2023-Ohio-1142.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111793 v. :

CHARLES MENEFEE, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: April 6, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-667535-A

Appearances:

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

Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender for appellee.

EILEEN T. GALLAGHER, J.:

Plaintiff-appellee, state of Ohio (“the state”), appeals the sentence

imposed on defendant-appellee, Charles Menefee (“Menefee”), and claims the

following error: The trial court plainly erred when it did not reserve an indefinite sentence pursuant S.B. 201.

For the following reasons, we reverse the trial court’s judgment in part, affirm it in

part, and remand this case to the trial court for the limited purposes of imposing a

reserved indefinite sentence on Menefee’s burglary conviction as required by S.B.

201, the Reagan Tokes Law.

I. Facts and Procedural History

Menefee was charged with two counts of rape, one count of sexual

battery, and one count of gross sexual imposition. Following discovery and after

reaching a plea agreement with the state, Menefee pleaded guilty to one count of

burglary, a second-degree felony, as amended in Count 1 of the indictment. Menefee

also pleaded guilty to one count of gross sexual imposition, a fourth-degree felony,

as alleged in Count 4 of the indictment. The remaining counts were nolled.

The trial court sentenced Menefee to two years of community-control

sanctions on both counts. On Menefee’s burglary conviction, the sentencing entry

further provides that “violation of the terms and conditions [of community-control]

may result in more restrictive sanctions, or a prison term of 2 to 8 years as approved

by law.” On Count 4, the sentencing entry provides that “violation of the terms and

conditions [of community control] may result in more restrictive sanctions, or a

prison term of 6 to 8 months as approved by law.” The trial court did not reserve an

indefinite sentence on Menefee’s burglary conviction, even though it was a second-

degree felony. The state now appeals the trial court’s judgment. II. Law and Analysis

R.C. 2953.08(B)(2) gives the state the right to appeal a sentence if it is

contrary to law. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

or otherwise modify a sentence or vacate a sentence and remand for resentencing if

it “clearly and convincingly” finds that (1) the record does not support the sentencing

court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e), or (C)(4) or

2929.20(I); or (2) the sentence is “otherwise contrary to law.” State v. Jones, 163

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34.

A sentence that fails to impose a mandatory provision is contrary to law.

State v. McCalpine, 8th Dist. Cuyahoga No. 110665, 2022-Ohio-842, ¶ 4, citing State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21.

The Reagan Tokes Law provides that certain first- and second-degree

felonies are “qualifying offenses” subject to the indefinite sentencing scheme in R.C.

2929.14. Trial courts imposing prison terms on “qualifying offenses” are required

to impose a stated minimum prison term, as provided in R.C. 2929.14(A)(2)(a), and

an accompanying maximum prison term, as provided in R.C. 2929.144(B).

Menefee pleaded guilty to one count of burglary, in violation of R.C.

2911.12, a second-degree felony. As defined in R.C. 2929.144, a “‘qualifying felony

of the first or second degree’ means a felony of the first or second degree committed

on or after the effective date of this section.” R.C. 2929.144(A). It is undisputed that

Menefee committed the offenses giving rise to this case in December 2021, after the

effective date of R.C. 2929.144(A), which became effective on March 22, 2019. Therefore, he pleaded guilty to an offense that is subject to the indefinite sentencing

scheme set forth in R.C. 2929.14, and the trial court was required to reserve an

indefinite sentence in accordance with the Reagan Tokes Law as part of his sentence,

but it did not. The sentence is, therefore, contrary to law.

Menefee argues we should nevertheless affirm the trial court’s

judgment because the Reagan Tokes Law is unconstitutional because it violates his

constitutional right to a jury trial, his right to due process, and violates the

separation-of-powers doctrine. However, the question of whether the Reagan Tokes

Law is constitutional was decided by this court in State v. Delvallie, 2022-Ohio-470,

185 N.E.3d 536 (8th Dist.) (en banc). In Delvallie, this court found “that the Reagan

Tokes Law, as defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed

the principles established in State v. Gamble, 2021-Ohio-1810, 173 N.E.3d 132 (8th

Dist.); State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v.

Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.). Delvallie at ¶ 17.

Because the trial court failed to impose an indefinite sentence on

Menefee’s burglary conviction as required by the Reagan Tokes Law, the sentence is

contrary to law. And since this court has held that the Reagan Tokes Law is

constitutional, we sustain the state’s sole assignment of error.

Accordingly, we affirm Menefee’s convictions but vacate the sentence

imposed on Menefee’s burglary conviction and remand this case to the trial court

for the limited purpose of imposing an indefinite sentence on Menefee’s burglary

conviction as required by the Reagan Tokes Law. It is ordered that appellant recover of 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.

EILEEN T. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., CONCURS; EILEEN A. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION ATTACHED)

EILEEN A. GALLAGHER, J., CONCURRING

I concur but am compelled to write separately to state that the law of

this district is found in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 356 (8th

Dist.), wherein the Eighth District Court of Appeals sitting en banc found the Regan

Tokes provisions of the Ohio sentencing laws to be constitutional. The continued

finding by several trial courts that it is unconstitutional is folly.

N.B. 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.

Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022-Ohio- 470, 185 N.E.3d 356 (8th Dist.). (Laster Mays, J., concurring in part and dissenting in part).