State v. Tolliver

2022 Ohio 3431

Opinion

[Cite as State v. Tolliver, 2022-Ohio-3431.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111082

DENNEZ TOLLIVER, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: September 29, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-657424-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 John T. Martin, Assistant Public Defender, for appellee.

EILEEN A. GALLAGHER, P.J.:

Plaintiff-appellant, the state of Ohio, appeals from the trial court’s

judgment entry sentencing defendant-appellee Dennez Tolliver to community-

control sanctions after Tolliver pled guilty to felonious assault and having weapons

while under disability. The state contends that the trial court committed plain error by failing to reserve an indefinite prison sentence under the Reagan Tokes Law for

any violation of community-control sanctions. For the reasons that follow, we

dismiss this appeal as moot.

Factual Background and Procedural History

Tolliver pled guilty to felonious assault and having weapons while

under disability relating to an incident that occurred on February 24, 2021. On

November 4, 2021, the trial court imposed a sentence of community-control

sanctions and notified Tolliver that if he were to violate the terms and conditions of

his community control, he could receive a prison term of two years to eight years on

the felonious assault count and a prison sentence of 9 months to 36 months on the

having weapons while under disability count. Although the Reagan Tokes Law

applied to the felonious assault count, the trial court did not address the Reagan

Tokes Law in its November 4, 2021 sentencing journal entry. There is no transcript

from the November 4, 2021 sentencing hearing in the record on appeal.

The state appealed, raising the following sole assignment of error for

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.

Tolliver thereafter violated the terms and conditions of his

community control. On January 18, 2022, the trial court terminated community

control and sentenced Tolliver to two years in prison with three years of mandatory

postrelease control on the felonious assault count and 18 months in prison with two years of discretionary postrelease control on the having weapons while under

disability count, to be served concurrently.1 The trial court also ordered that

Tolliver’s sentences in this case be served concurrently with his sentence in

Cuyahoga C.P. No. CR-21-665135-A. The state did not appeal the trial court’s

sentencing of Tolliver after he violated community control.

Law and Analysis

The state asserts that the trial court committed plain error when it

“imposed a sentence of community control and reserved only a prison sentence of

two years and up to eight years” on the felonious assault count rather than

“reserv[ing] the sentence that was required under the Reagan Tokes Law.”2 The

1 The state also asserts in its appellate brief that it “appeals the trial court’s finding in CR-21-657424-A that the Reagan Tokes Law is unconstitutional.” As stated above, the trial court did not address the Reagan Tokes Law in its November 4, 2021 sentencing journal entry, and the transcript from the November 4, 2021 sentencing hearing is not in the record on appeal. We note that in its January 18, 2022 sentencing journal entry, issued after the notice of appeal was filed in this case, the trial court states that the “[c]ourt has previously declared the indefinite minimum provisions of SB201 to be unconstitutional based upon the analysis of Judge Tom Heekin in State vs. O’Neal[,] Case No. B1903562[,] Hamilton County Court of Common Pleas.” It is unclear from the limited record before us exactly when this occurred, i.e., whether the trial court had made a prior ruling in this case that the indefinite sentencing provisions were unconstitutional or whether the trial court was simply acting consistently with prior rulings made in other cases.

2 We note that, as a result of amendments that became effective on September 30, 2021, a sentencing court is no longer required to reserve a specific prison term when sentencing a defendant to community-control sanctions. Instead, the sentencing court is required to inform the defendant of the range of prison terms available for the offense if he or she violates community control. R.C. 2929.19(B)(4) (“The court shall notify the offender that, if the conditions of the sanction are violated * * *, the court may impose * * * a prison term on the offender and shall indicate the range from which the prison term may be imposed as a sanction for the violation, which shall be the range of prison terms for the offense that is specified pursuant to section 2929.14 of the Revised Code and as described in section 2929.15 of the Revised Code.”). state requests that “the sentence * * * be reversed and remanded to the trial court

for re-sentencing as the trial court should have reserved an indefinite prison

sentence under the Reagan Tokes Law for any violation of community control

sanctions.”

Tolliver responds that the issue is moot because (1) the trial court has

now terminated community-control sanctions and sentenced Tolliver to prison and

(2) the state did not appeal the two-year prison sentence (which did not include “an

S.B. 201 tail”) the trial court imposed after Tolliver violated community control. The

state did not address Tolliver’s mootness argument in its appellate briefing.

We agree that the issue is moot. Following a community-control

violation, “‘the trial court conducts a second sentencing hearing.’” State v. Jackson,

150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11, quoting State v. Fraley,

105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. “‘“At this second hearing,

the court sentences the offender anew.’”” Jackson at ¶ 11, quoting State v. Heinz,

146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 15, quoting Fraley at ¶ 17; see

also State v. Woody, 6th Dist. Ottawa No. OT-21-007, 2021-Ohio-3861, ¶ 15 (“A

community control violation under R.C. 2929.15(B) results in a new sentence, as the

previous sentence was community control.”). Given that (1) Tolliver’s community

control has been terminated, (2) Tolliver was sentenced “anew” to a prison term

after violating community-control sanctions and (3) the state has elected not to challenge that prison sentence on appeal,3 whether the trial court erred in failing to

“reserve the indefinite sentence that was required under the Reagan Tokes Law

rather than a definite sentence” when previously sentencing Tolliver to community-

control sanctions is of no consequence. See, e.g., State v. Harper, 160 Ohio St.3d

480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 43 (cautioning “prosecuting attorneys,

defense counsel, and pro se defendants” that they must challenge sentencing errors

on direct appeal from the judgment of conviction); State v. Henderson, 161 Ohio

St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27; see also State v. Stansell, 2021-

Ohio-2036, 173 N.E.3d 1273, ¶ 3-7 (8th Dist.).

Even if the issue were not moot, we would decline to find plain error

here. Recognition of plain error is discretionary with the reviewing court. State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23; State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error is an obvious

error or defect in the trial court proceedings that affects a substantial right. Rogers

at ¶ 22; see also Crim.R. 52(B). Plain error requires a showing that there was an

error, i.e., a ‘“deviation from a legal rule,”’ that the error was plain or obvious and

that but for the error the outcome of the proceeding would have been otherwise.

Rogers at ¶ 22, quoting Barnes at 27; see also State v. Buttery, 162 Ohio St.3d 10,

2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, citing State v. Quarterman, 140 Ohio St.3d

3 Normally, an appellate court can only consider what is in the record on appeal. However, an “‘event that causes a case to be moot may be proved by extrinsic evidence outside the record.’” State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 729 N.E.2d 1181 (2000), quoting Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992). 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. Notice of plain error “is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. The burden of demonstrating plain error is on the

party asserting it. Quarterman at ¶ 2, 16, citing State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.

At the time of the November 4, 2021 sentencing (and also at the time

of the January 18, 2022 sentencing), there were conflicting decisions from this court

regarding whether the indefinite sentencing provisions of the Reagan Tokes Law

were constitutional. Compare State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544

(8th Dist.) (decided May 27, 2021), State v. Sealey, 2021-Ohio-1949, 173 N.E.3d 894

(8th Dist.) (decided June 10, 2021), and State v. Daniel, 2021-Ohio-1963, 173

N.E.3d 184 (8th Dist.) (decided June 10, 2021), with State Wilburn, 2021-Ohio-578,

168 N.E.3d 873 (8th Dist.) (decided Mar. 4, 2021), State v. Simmons, 2021-Ohio-

939, 169 N.E.3d 728 (8th Dist.) (decided Mar. 25, 2021), and State v. Gamble, 2021-

Ohio-1810, 173 N.E.3d 132 (8th Dist.) (decided May 27, 2021). On February 17,

2022, in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, this

court, in an en banc decision, resolved the conflict and rejected the constitutional

challenges that had been raised to the indefinite sentencing provisions of the Reagan

Tokes Law. The Ohio Supreme Court has not yet addressed the issue.

With respect to its claim of plain error, the state asserts in its appellate

brief that “it was plain error for the trial court to not impose the sentence required under the Reagan Tokes Law” when sentencing Tolliver to community-control

sanctions. The state does not identify the standard for plain error review and does

not include any argument explaining why we should find plain error here. The state

merely argues that the indefinite sentencing provisions of the Reagan Tokes Law are

constitutional and explains why it believes this court’s en banc decision in Delvallie,

2022-Ohio-470, was correctly decided.

An appellate court is not obliged to construct or develop arguments

to support an assignment of error. See, e.g., State v. Jacinto, 2020-Ohio-3722, 155

N.E.3d 1056, ¶ 56 (8th Dist.); see also State v. Collins, 8th Dist. Cuyahoga No.

89668, 2008-Ohio-2363, ¶ 91 (‘“[I]t is not the duty of this Court to develop an

argument in support of an assignment of error if one exists.’”), quoting State v.

Franklin, 9th Dist. Summit No. 22771, 2006-Ohio-4569, ¶ 19; App.R. 12(A)(2);

App.R. 16(A)(7).

Further, an error by the trial court is arguably not “plain” if the Ohio

Supreme Court “has not rendered a definitive pronouncement on the issue at the

time the trial court committed the error” and appellate courts disagree. See, e.g.,

State v. Brandeberry, 6th Dist. Lucas No. L-16-1137, 2017-Ohio-5676, ¶ 23-24

(appellant’s plain-error, facial challenge to the constitutionality of mandatory

sentencing statutes “as applied to children” failed where the issue had not yet been

decided by the Ohio Supreme Court), citing Barnes, 94 Ohio St.3d at 28, 759 N.E.2d

1240 (the lack of a definitive pronouncement from the Ohio Supreme Court and

“disagreement among the lower courts” precluded a finding of plain error); see also State v. Brown, 12th Dist. Butler No. CA2006-10-247, 2007-Ohio-7070, ¶ 30 (“[I]f

the trial court committed an error, it was not plain or obvious if, at that time, there

was no agreement among appellate courts or declaration from the Supreme Court

on the issue.”).

The state’s assignment of error is overruled.

Appeal dismissed as moot.

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

Cuyahoga County Court of Common Pleas 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 A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR