State v. Potter

2023 Ohio 534

• Court: Ohio Court of Appeals
• Decided: February 23, 2023
• Docket: 111782
• Status: Published

Opinion

[Cite as State v. Potter, 2023-Ohio-534.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111782 v. :

JULIUS POTTER, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 23, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-667757-A

Appearances:

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

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

FRANK DANIEL CELEBREZZE, III, P.J.:

Plaintiff-appellant state of Ohio (“the state”) appeals from a judgment

of the trial court that found S.B. 201, the Reagan Tokes Law, unconstitutional and

did not sentence defendant-appellee Julius Potter accordingly. Pursuant to this court’s en banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 538 (8th

Dist.), finding the Reagan Tokes Law constitutional, we reverse the trial court’s

judgment and remand the matter for resentencing.

I. Factual and Procedural History

Potter entered a guilty plea to felonious assault with firearm

specifications, having weapons while under disability, and resisting arrest. Potter

was sentenced to prison for a total term of five years. Pertinently, the trial court’s

journal entry noted that the “court determines the indefinite provisions of SB201 to

be unconstitutional.”

The state timely appealed, assigning a single error for our review:

The trial court plainly erred when it found S.B. 201 to be unconstitutional and did not impose an indefinite sentence pursuant to S.B. 201.

II. Law and Analysis

Pursuant to R.C. 2953.08(B)(2), the state has the right to appeal a

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

provision is contrary to law. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-

1, 922 N.E.2d 923, ¶ 21.

This court, in Delvallie, 2022-Ohio-470, 185 N.E.3d 538, held that the

Reagan Tokes Law was constitutional and overruled all of the arguments raised by

Potter in this appeal, as Potter concedes in his brief. Because the trial court failed to

impose indefinite sentences on Potter’s two qualifying offenses in accordance with

the Reagan Tokes Law, the sentence was contrary to law. The state’s sole assignment of error is sustained.

III. Conclusion

The trial court’s judgment was contrary to law because it failed to

sentence Potter in accordance with the Reagan Tokes Law, which this court found

constitutional in Delvallie. The trial court’s judgment is reversed, and the matter is

remanded for resentencing in accordance with the Reagan Tokes Law.

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.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and MICHAEL JOHN RYAN, J., CONCUR