State v. Santana

2023 Ohio 616

• Court: Ohio Court of Appeals
• Decided: March 2, 2023
• Docket: 111842
• Status: Published

Opinion

[Cite as State v. Santana, 2023-Ohio-616.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111842 v. :

VICTOR L. SANTANA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 2, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-668112-A

Appearances:

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

Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Victor L. Santana (“Santana”), appeals his

indefinite felony sentence and claims the following error:

The trial court committed plain error when it found S.B. 201 to be constitutional and imposed an indefinite sentence pursuant to S.B. 201. We affirm.

I. Facts and Procedural History

Santana pleaded guilty to one count of felonious assault, a first-degree

felony, in violation of R.C. 2903.11(A)(1), with a one-year firearm specification; one

count of domestic violence, a first-degree misdemeanor, in violation of R.C. 2919.25;

and one count of violating a protection order, a first-degree misdemeanor, in

violation of R.C. 2919.27(A)(1).

The trial court sentenced Santana to a one-year prison term on the

firearm specification, to be served prior to and consecutive with a minimum prison

term of seven years and a maximum prison term of ten and one-half years on the

underlying felonious assault conviction. The court also imposed six-month prison

terms on each of the two misdemeanor convictions, to be served concurrently with

the sentence imposed on the felonious assault conviction for a total prison term of

eight to eleven and one-half years.

Santana now appeals his sentence.

II. Law and Analysis

In the sole assignment of error, Santana argues the trial court erred by

imposing an indefinite prison sentence pursuant to the Reagan Tokes Law. He

contends the Reagan Tokes Law is unconstitutional because it violates his right to a

jury trial, the separation-of-powers doctrine, and his right to due process under the

Ohio and United States Constitutions. Santana did not object to his sentence nor did he raise a constitutional

challenge to the Reagan Tokes Law at the sentencing hearing. “‘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 Law 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.

Santana nevertheless requests that we review his sentence for plain

error. And, appellate courts may review a trial court’s decision for plain error even

if the defendant failed to object to the constitutionality of the statute at trial. State

v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 14, citing State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. We,

therefore, review Santana’s sentence for plain error.

Consistent with the well-established precedent of this court, we find

no error, plain or otherwise. The question of whether the Reagan Tokes Law is

constitutional was decided in this court’s en banc opinion in State v. Delvallie, 2022- Ohio-470, 185 N.E.3d 536 (8th Dist.). In that case, 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

Santana does not raise any novel arguments left unaddressed by the Delvallie

decision, we find the constitutional challenges presented in this appeal are without

merit.

The sole 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.

EILEEN T. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., and MICHELLE J. SHEEHAN, J., CONCUR

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.)