State v. Tolliver

2022 Ohio 826

• Court: Ohio Court of Appeals
• Decided: March 17, 2022
• Docket: 110739
• Status: Published

Opinion

[Cite as State v. Tolliver, 2022-Ohio-826.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110739 v. :

SABRA TOLLIVER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-644899-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anna Faraglia and Daniel T. Van, Assistant Prosecuting Attorneys, for appellee.

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

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Sabra Tolliver (“Tolliver”), appeals her sentence

and claims the following error: As amended by the Reagan Tokes Act, the revised code’s sentences for first and second-degree qualifying felonies violates the constitutions of the United States and the state of Ohio; the trial court erred in imposing a Reagan Tokes indefinite sentence.

After reviewing the record and applicable law, we affirm the trial court’s

judgment.

I. Facts and Procedural History

Tolliver pleaded guilty to one count of aggravated vehicular homicide

(C0unt 1); one count of aggravated vehicular assault (Count 3); one count of failure

to stop after an accident (Count 5); and one count of operating a vehicle under the

influence (“OVI”) (Count 7). Over objection, the trial court sentenced Tolliver to a

presumptive minimum sentence of eight years on the aggravated vehicular homicide

charge, pursuant to the Reagan Tokes Law. The trial court sentenced Tolliver to one

year on the aggravated vehicular assault charge, one year on the failure to stop after

an accident charge, and time served on the OVI charge. The court’s journal entry

states, in relevant part, that “Counts 1, 3, and 5 are to run consecutive to each other.

Total aggregate sentence is 10 years to 12 years.”1 Tolliver now brings this appeal

challenging the constitutionality of her indefinite sentence under the Reagan Tokes

Law.

1 Neither party has raised any issues as to the imposed sentence and, 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. II. Law and Analysis

In her sole assignment of error, Tolliver argues her indefinite sentence

under the Reagan Tokes Law is unconstitutional. She contends the Reagan Tokes

Law violates her Sixth Amendment right to a jury trial, the separation-of-powers

doctrine, and due process of law.

In accordance with this court’s en banc decision in State v. Delvallie,

8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges

presented in this appeal are overruled.

Therefore, 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. 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.

EILEEN T. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and CORNELIUS J. O’SULLIVAN, JR., 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.