State v. Riemer

2022 Ohio 1230

• Court: Ohio Court of Appeals
• Decided: April 14, 2022
• Docket: 110308
• Status: Published

Opinion

[Cite as State v. Riemer, 2022-Ohio-1230.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110308 v. :

HECTOR RIEMER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 14, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652216-B

Appearances:

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

Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, for appellant.

FRANK DANIEL CELEBREZZE, III, J.:

Defendant-appellant Hector Riemer brings this appeal challenging his

indefinite sentence. Appellant argues that the trial court erred in imposing an indefinite prison sentence because the Reagan Tokes Law is unconstitutional. After

a thorough review of the record and law, this court affirms.

I. Facts and Procedural History

In 2020, appellant was charged in a three-count indictment as follows:

(1) Count 1, aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first

degree, with one- and three-year firearm specifications; (2) Count 2, felonious

assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, with one-

and three-year firearm specifications; and (3) Count 3, carrying a concealed weapon

in violation of R.C. 2923.12(A)(2), a felony of the fourth degree.

The parties reached a plea agreement. Appellant pleaded guilty to an

amended Count 1, burglary, a felony of the third degree and to amended Count 2,

felonious assault, with a one-year firearm specification. The remaining count was

nolled. The trial court sentenced appellant to 36 months on Count 1. On Count 2,

the court sentenced appellant to one year on the firearm specification to be served

prior to and consecutive to a minimum of three years and a maximum of four years

and six months for a total indefinite sentence of four years to a maximum five and

one-half years in prison.

At sentencing, defense counsel objected to the imposition of an

indefinite sentence on the ground that the Reagan Tokes Law was unconstitutional.

The trial court stated that it had considered the constitutionality of the Reagan Tokes

Law, found the law to be unconstitutional, but determined it was still going to

impose an indefinite sentence of four to five and one-half years in prison. Appellant filed the instant appeal, challenging his indefinite sentence

imposed under the Reagan Tokes Law.1 Appellant assigns two errors for review:

I. As amended by the Reagan Tokes Act, the Revised Code’s sentences for first- and second-degree qualifying felonies violate the Constitutions of the United States and the State of Ohio; trial court erred in imposing a Reagan Tokes indefinite sentence.

II. In the event this court finds that the first assignment of error was inadequately preserved, Mr. Riemer was denied his right to the effective assistance of counsel as protected by the Sixth and Fourteenth Amendments to the United States Constitution and By Article I, Section 10 of the Ohio Constitution.

II. Law and Analysis

In his first assignment of error, appellant argues that the Reagan Tokes

Law, enacted through S.B. 201, is unconstitutional because it violates the right to

trial by jury, the separation-of-powers doctrine, and the right to due process.2 As

noted, both the court and defense counsel raised the issue of whether the Reagan

Tokes Law is constitutional at the sentencing hearing; therefore, the issue has been

properly preserved for review.

This court has recently conducted en banc review of the

constitutionality of the Reagan Tokes Law. State v. Delvallie, 8th Dist. Cuyahoga

1 Neither party raised any issues as to the imposed sentence; therefore, any determination as to the validity of the sentence is beyond the scope of this direct appeal. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.

2 The Ohio Supreme Court recently determined that a defendant’s challenge to the Reagan Tokes Law is ripe for review on the defendant’s direct appeal of his or her conviction and prison sentence. State v. Maddox, Slip Opinion No. 2020-1266, 2022- Ohio-764, ¶ 21. No. 109315, 2022-Ohio-470. In Delvallie, this court overruled the challenges

presented in this appeal to the constitutionality of the Reagan Tokes Law.

Pursuant to Delvallie, appellant’s first assignment of error is overruled.

In the second assignment of error, appellant argues that if this court

determines he waived his objection to the Reagan Tokes Law by not raising the

proper arguments at the trial-court level, then he was denied the effective assistance

of trial counsel.

In order to demonstrate ineffective assistance of counsel, appellant

must show (1) deficiency in the performance of counsel “so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”

and (2) that the errors made by counsel were “so serious as to deprive the defendant

of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Appellant must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable possibility that the outcome of the trial would

have been different. Id. at 694.

We have already determined that appellant’s argument regarding the

Reagan Tokes Law was properly preserved for appeal. Accordingly, the second

assignment of error is overruled.

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.

FRANK DANIEL CELEBREZZE, III, JUDGE

MARY J. BOYLE, P.J., and LISA B. FORBES, J., CONCUR

N.B. 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).