State v. Parsons

2022 Ohio 619

• Court: Ohio Court of Appeals
• Decided: March 3, 2022
• Docket: 109443
• Status: Published

Opinion

[Cite as State v. Parsons, 2022-Ohio-619.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109443 v. :

RUSSELL PARSONS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 3, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-640143-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and David Elias, Assistant Prosecuting Attorney, for appellee.

Erin R. Flanagan, Esq., Ltd., and Erin R. Flanagan, for appellant.

MARY J. BOYLE, J.:

Defendant-appellant, Russell Parsons (“Parsons”), appeals his

sentence. He raises the following two assignments of error for our review: 1. The trial court erred by sentencing appellant Parsons to prison without considering the statutory factors contained in R.C. 2929.11 and/or 2929.12.

2. Appellant’s Parsons’[s] sentence is contrary to law because he was sentenced pursuant to the Reagan Tokes Law (S.B. 201), which is unconstitutional.

For the reasons set forth below, we affirm the trial court’s judgment.

I. Procedural History and Factual Background

In May 2019, Parsons was indicted on eight counts relating to an

aggravated robbery that occurred in Cleveland earlier the same month.1 In October

2019, Parsons pled guilty to an amended Count 1, aggravated burglary, with a three-

year firearm specification and forfeiture specification, which was amended by the

deletion of a one-year firearm specification; amended Counts 2 and 4, aggravated

robbery, with a forfeiture specification, which were amended by the deletion of one-

and three-year firearm specifications; amended Counts 3 and 5, abduction, with a

one-year firearm specification and forfeiture specification, which were amended by

the deletion of a three-year firearm specification; and Count 8, having a weapon

while under disability, with a forfeiture specification. Counts 6 and 7 were nolled.

The trial court proceeded directly to sentencing. The victim spoke to

the court. He told the court that he knew the defendants from the neighborhood

and had tried to help them in the past. With respect to Parsons, the victim said he

considered Parsons to be “like family” and “couldn’t believe” that he did this to him.

1 Parsons was indicted with codefendant, Jonathan Rivera, who has not filed an appeal as of the date of this opinion. The victim said that he had post-traumatic stress disorder (“PTSD”) from this event.

He thought he was going to die on the day of the aggravated robbery. He said the

defendants held a gun to his head for 20 to 25 minutes that day. The victim said that

he is still affected by the crime. He wakes up scared and shaking. If he hears a noise,

he thinks someone has a gun. The victim had been going to counseling to help with

his PTSD. The victim told the court that he would not be “okay with” the defendants

getting only six or eight years in prison because they “damned near took” his life and

“had [him] kidnapped in [his] own home.” The victim said that he owns a

barbershop and that he and his clients are “at ease” that Parsons’s codefendant was

in jail. The victim also stated that Parsons was part of the codefendant’s “crew of

friends” who are known for aggravated robbery.

The state informed the court that when police arrived, two officers

saw and heard the defendants robbing two victims at gunpoint. They heard the

defendants threatening the victims and called for backup. Parsons’s codefendant

took the other victim out of house to a nearby ATM machine to withdraw money and

was caught by police during the act. The state asked for a sentence that was more

than the minimum.

Defense counsel explained to the court that Parsons did not make any

excuses for his actions and accepted responsibility immediately. Defense counsel

asked for the minimum sentence because it would enable him to get rehabilitated.

Parsons apologized to the court and the victims. He asked the victims

to forgive him. The trial court said that before deciding what sentence to impose, it

considered R.C. 2929.11 and 2929.12, the presentence-investigation report, oral

statements made at the sentencing hearing, the fact that Parsons did not have an

extensive criminal history, and that although the defendants threatened harm to the

victims, they did not physically harm them.

The trial court sentenced Parsons to a minimum of 7 years and

maximum of 8.5 years in prison. In its sentencing journal entry, the trial court

stated:

The gun specifications in Counts 3 and 1 are to run consecutive to each other, for a total of 4 years of gun specifications. The gun specification in Count 5 is to run concurrent to the gun specifications in Counts 1 and 3, for a total term of 4 years of gun specifications. The 4 years of gun specifications are to be served prior to and consecutive to the underlying sentence of a minimum of 3 years and a maximum of 4.5, for a total of 7 to 8.5 years. The defendant is sentenced in Count 1 to 3 years (with a maximum of 4.5 years), 3 years in Count 2, 3 years in Count 3, 3 years in Count 4, 3 years in Count 5, and 3 years in Count 8. The counts are to run concurrent to each other, for a total term of 7 to 8.5 years.

The trial court also ordered Parsons to forfeit the firearms, notified Parsons that he

would be subject to a mandatory period of five years of postrelease control upon his

release from prison, and imposed court costs. It is from this judgment that Parsons

now appeals.

II. Law and Analysis

A. R.C. 2929.11 and 2929.12

In his first assignment of error, Parsons argues that the trial court

failed to consider R.C. 2929.11 and 2929.12 when sentencing him. “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[,] [b]ut R.C.

2929.11 and 2929.12 are not among the statutory provisions listed” in this provision.

State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28.

Parsons maintains that the trial court “never even mentioned” the

factors set forth in R.C. 2929.11 and 2929.12 at the sentencing hearing. It has long

been held, however, that while a sentencing court must consider the sentencing

factors set forth in R.C. 2929.11 and 2929.12, Ohio law does not require them to

mention these factors at the sentencing hearing or make any findings on the record.

Jones at ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951

N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000). Moreover, the trial court here stated at the sentencing hearing that it

considered R.C. 2929.11 and 2929.12. Therefore, we do not have to wonder whether

it complied with the mandates of the statute. The trial court further considered

mitigating factors from R.C. 2929.12 explicitly on the record, including the fact that

the victims were not physically harmed and that Parsons did not have an extensive

criminal record. See R.C. 2929.12(C)(3) and (E)(3).

We also note that Parsons received a significantly lower sentence than

he could have. Parsons was convicted of multiple first-degree felonies with the use

of a firearm as well as three third-degree felonies. Without even considering Reagan

Tokes, first-degree felonies carry a possible maximum sentence of 11 years each. Third-degree felonies carry a possible maximum sentence of 9 to 36 months each.

Additionally, the trial court could have ordered the sentences for each offense to be

served consecutively if it had made the findings under R.C. 2929.14(C)(4). It is

evident from the record that the trial court certainly considered not only the

mitigating factors present but also “[t]he overriding purposes of felony sentencing,”

including protecting the public from future crime by the offender, punishing the

offender, and promoting “the effective rehabilitation of the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” R.C.

2929.11(A). Accordingly, we find Parsons’s arguments that the trial court failed to

consider R.C. 2929.11 and 2929.12 unpersuasive.

Parsons’s first assignment of error is overruled.

B. Reagan Tokes Act

In his second assignment of error, Parsons argues that the Reagan

Tokes Act is unconstitutional on its face. Parsons contends that this court should

consider the merits of his argument even though he did not object to the Reagan

Tokes sentence in the trial court.

“‘It is well established that “the question of the constitutionality of a

statute must generally be raised at the first opportunity and, in a criminal

prosecution, this means in the trial court”’” State v. Jenkins, 8th Dist. Cuyahoga No.

109323, 2021-Ohio-123, ¶ 21, quoting State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8, quoting State v. Buttery, 162 Ohio St.3d 10,

2020-Ohio-2998, 164 N.E.3d 294, ¶ 7.

This court has declined to address constitutional challenges to the

Reagan Tokes Act when defendants did not object to their sentences or otherwise

raise the constitutionality of the act at their sentencing hearing. See Jenkins at ¶ 20-

24; State v. White, 8th Dist. Cuyahoga No. 109652, 2021-Ohio-126, ¶ 6-11; State v.

Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-54; State v. Stone,

8th Dist. Cuyahoga No. 109322, 2020-Ohio-5263, ¶ 6-10; and State v. Dames, 8th

Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 12-19, appeal accepted for review,

162 Ohio St.3d 1410, 2021-Ohio-961, 165 N.E.3d 333 (cause held for decision in

State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150). We

therefore decline to address Parsons’s constitutional arguments raised for the first

time on appeal.

Although this court has the discretion to review arguments that were

not raised in the trial court for plain error, we decline to do so here. As we noted in

Dames:

Even if the appellant failed to object to the constitutionality of the statute at the trial-court level, appellate courts may still review a trial court decision for plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. However, in order to review for plain error “we require a showing that there was an error, that the error was plain or obvious, that but for the error the outcome of the proceeding would have been otherwise, and that reversal must be necessary to correct a manifest miscarriage of justice.” Dames did not make any plain error showing for this court to review. Id. at ¶ 14; see also Hollis at ¶ 50 (“Furthermore, like Dames, appellant failed to raise

a plain error argument in this appeal, and we decline to construct a plain error

argument on appellant’s behalf.”); Stone at ¶ 10 (“In addition to failing to raise a

constitutional challenge of the Reagan Tokes Act in the trial court, Stone also has

not argued plain error in this appeal. Thus, we decline to address this issue for the

first time on appeal.”).

Accordingly, Parsons’s second assignment of error is overruled.

Judgment is affirmed.

It is ordered that appellee recover from appellant the 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. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

_________________________ MARY J. BOYLE, JUDGE

SEAN C. GALLAGHER, A.J., and EMANUELLA D. GROVES, J.,2 CONCUR

2Judge Emanuella D. Groves joined the dissents by Judge Lisa B. Forbes and Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.