State of Ohio, Plaintiff-Appellee, v. Faizal M. Abdullahi, Defendant-Appellant.
No. 21AP-350 (C.P.C. No. 19CR-350)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 6, 2024
[Cite as State v. Abdullahi, 2024-Ohio-418.]
LUPER SCHUSTER, J.
(REGULAR CALENDAR)
DECISION
Rendered on February 6, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: The Law Office of Thomas F. Hayes, LLC, and Thomas F. Hayes, for appellant. Argued: Thomas F. Hayes.
LUPER SCHUSTER, J.
{1} Defendant-appellant, Faizal M. Abdullahi, appeals from a judgment entry of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of kidnapping, attempted rape, and felonious assault. For the following reasons, we affirm.
I. Facts and Procedural History
{2} By indictment filed October 17, 2019, plaintiff-appellee, State of Ohio, charged Abdullahi with one count of aggravated burglary, in violation of
{3} At the trial beginning April 26, 2021, the trial court appointed interpreters for both Abdullahi and A.T. A.T., who is originally from Somalia but has lived in Columbus since 1999, testified that on October 7, 2019 she had been living at her
{4} Once she was inside her apartment, A.T. said she was relaxing and watching YouTube when she fell asleep in her living room. She woke up to a knock at her door and, without opening the door, asked who was there. The person on the other side said he wanted water and asked A.T. to open the door. A.T. said she could smell alcohol through the door. A.T. also said she did not open the door but ignored the man and went back to the living room. When she returned to the living room, A.T. said she fell asleep again. Approximately an hour and one-half later, A.T. said she heard more loud banging at the door. The man at the door kept saying he wanted water, and A.T. testified the man spoke to her in Somali and referred to her as his sister, asking her to help him. A.T. said she told the man to leave or she would call the police.
{5} After a period of silence, A.T. testified she thought the man left and she decided to check her door to be sure it was locked. A.T. said she opened the door slightly and when she did that, the man put his arms through the doorway and grabbed her wrists. According to A.T.‘s testimony, the man then forced his way into the apartment, shut and locked the door, pulled her hair, and threw her on the ground. While she was on the ground, A.T. said the man grabbed her throat with both of his hands and squeezed, causing her to feel like her “head was going to pop” and making it “painful to breathe.” (Tr. Vol. I at 91-92.) A.T. said the man released the pressure briefly and then choked her a second time, this time applying more pressure that caused her vision to slowly fade to black. She compared the sensation to feeling like she was drowning.
{6} A.T. further testified that while the man had her pinned to the ground, he removed all of his clothes and flipped her over so that her stomach was on the ground. A.T. said the man tried to rip her dress off but could not get it to come off so he pulled it all the way up to her shoulders. At that point, A.T. said the man got on top of her and his penis was touching her butt with skin-to-skin contact. A.T. testified the man was moving back and forth and that his penis was going up and down on her buttocks. The prosecutor asked A.T. detailed questions about this portion of the incident, and the following exchange occurred:
Q. Was his penis ever between your butt cheeks?
A. It was in the outer part, yes.
Q. Did you ever feel his penis inserted into your anus?
A. No.
Q. Did you feel his penis in between your butt cheeks?
A. I would say the outer but not -- because I was clenching my butt. I was closing my legs as tight as I can because I didn‘t want that happening to me.
Q. Just to clarify, [A.T.], why were you clenching your butt?
A. Because I didn‘t want his penis to go inside.
Q. Did you remain on your stomach during this incident?
A. Shortly.
Q. What happened after he tried to insert his penis into your anus? A. He flipped me. Now I was in my back position and he tried to -- it was a struggle. It was a struggle because I was closing both my legs tight. He wanted to put his penis, put his penis in my vagina.
Q. Did he?
A. No.
Q. How come?
A. Because I was fighting him. And he was a lot stronger than me.
Q. Throughout this struggle, am I correct in understanding you, when you said you were trying very hard to keep your legs and your buttocks closed, and during that was he still on top of you?
A. Yes, he was.
(Tr. Vol. I at 97-99.) When asked again about where she specifically felt the man‘s penis, A.T. testified she felt the man‘s penis inside her butt cheeks but not inside her anus. A.T. said the man then strangled her a third time, and she again felt like she could not breathe, could not speak, and her vision turned blurry with black checkers. She felt like she was close to passing out but did not lose consciousness. While he was attacking her, A.T. said the man told her his name was Faizal.
{7} A.T. testified she was eventually able to break free from the man‘s grasp by pleading to use the restroom and that when she broke free from his hands, she ran into her kitchen and started smashing dishes on the floor in the hopes a neighbor would hear the commotion. When the man ran toward her in the kitchen, A.T. said she grabbed a knife but the man told her “[g]o ahead and kill me.” (Tr. Vol. I at 102.) A.T. said the man then grabbed a kitchen pot and threw it toward her, just missing her head and landing on the kitchen counter. A.T. then started screaming hoping someone would hear her. According to her testimony, the man then slowly started to get dressed while she continued to yell and scream even though using her voice was painful after being choked, and he eventually left her apartment. She described the man as being dark skinned, approximately five feet eight inches tall, with a scar on his cheek and missing several teeth. A.T. made an in-court identification of Abdullahi as the man who attacked her.
{8} After the man left her apartment, A.T. said she called 911. The state played a recording of the 911 call for the jury. When police arrived, A.T. said she asked for medical attention and was taken to the hospital for examination. Once at the hospital, A.T. said she was evaluated by a forensic nurse but that she refused to consent to a physical exam because she was scared. A.T. also testified she was not sure if she had been raped because she was engaged in a struggle with the man the whole time he was on top of her. When asked to explain what she meant, A.T. said she was closing her legs tightly the whole time but that “when he flipped me, when I was [on] my stomach facing down on the floor I did feel his penis. He was going up and down but not to the point where it went fully inside.” (Tr. Vol. I at 119.) A.T. said she gave the forensic nurse the dress she had been wearing during the attack.
{9} A.T. testified the exam took most of the day and that she did not return to her apartment until close to 11:00 p.m. When she returned to her apartment with her parents and her brother, who had driven from Cleveland to be with her, A.T. said she saw the man who attacked her outside her apartment complex again. A.T. told her family that was the man who had attacked her, and then she called police.
{10} Mary Hogue, a patrol officer with the Columbus Division of Police who responded
{11} Molly Downs, a sexual assault nurse examiner (“SANE“), testified she examined A.T. at the hospital on October 7, 2019 and documented her injuries. In her report from the SANE exam, Downs described A.T. as withdrawn, tired, and having difficulty making basic decisions. Downs testified that A.T. reported that a man named Faizal had forced his way into her home, physically assaulted her, and attempted to sexually assault her, though she said A.T. had difficulty remembering the details of the events, something Downs described as a common experience for someone who has experienced trauma. Downs testified she observed a bite injury to the corner of A.T.‘s mouth, a bruised and swollen area on her forehead, and an area on her neck that A.T. had reported as having experienced strangulation. Additionally, Downs noticed that A.T. had difficulty projecting her voice, and A.T. reported she had a sore throat and it was difficult for her to swallow. When asked if any vaginal or anal penetration occurred, A.T. responded that she was unsure. Downs said A.T. declined to undergo a genital exam.
{12} Law enforcement officers collected DNA samples from A.T.‘s neck and from a pot handle at A.T.‘s residence. Subsequent laboratory testing identified Abdullahi as the contributor of those DNA samples.
{13} At the close of the state‘s evidence, defense counsel made a
{14} After the state rested, defense counsel called two witnesses: Abdullahi and one of his friends. Sadi Ismali Gurhan, a friend of Abdullahi, testified that he had seen Abdullahi interact with A.T. before and that A.T. and Abdullahi were not strangers to each other. Gurhan described seeing Abdullahi help A.T. carry groceries to her apartment on a previous occasion. He also testified that he was with Abdullahi on a separate occasion when A.T. came
{15} Abdullahi also testified. Abdullahi was born in Somalia in 1983, spent 18 years in Kenya as a refugee, and then moved to the United States in 2009 with his wife and children. Abdullahi testified he is now separated from his wife, and acknowledged he had prior convictions, also occurring in 2019, for domestic violence and trespass into a habitation.
{16} In his testimony, Abdullahi stated A.T. was not being truthful when she told law enforcement and the jury that she did not know Abdullahi prior to October 7, 2019. Abdullahi said he spent a month and one-half talking to A.T. and developed a relationship with her. He said A.T. was lying when she said he had never been inside her apartment prior to October 7, 2019 and that she had invited him over previously for lunch and for tea.
{17} With respect to the events of October 7, 2019, Abdullahi said he was sitting outside the apartment complex with his friend when A.T. returned to the apartment complex around 2:00 a.m. and invited him to come to her apartment. Abdullahi testified that A.T. let him into the apartment and he sat down on her mattress to talk to her. According to his testimony, Abdullahi had never told A.T. that he was married or that he had children, and he said that on October 7, 2019, A.T. confronted him about having a family. He said A.T. became upset and accused him of deceiving her, and he said she then started throwing plates on the floor. Abdullahi said he tried to leave the apartment but that A.T. quickly came up behind him with a cooking pot and hit him in the face, so he said he then tried to grab her wrists and put his hand on her neck to try to push A.T. away from him. Abdullahi said he scratched A.T.‘s neck while trying to push her away from him but that he was not trying to hurt her. Additionally, Abdullahi said he was never undressed while in A.T.‘s apartment except for taking off his sweatshirt. He also denied rubbing his penis on A.T.‘s backside and in between her butt cheeks.
{18} Following closing arguments, the trial court instructed the jury on both rape and the lesser-included offense of attempted rape. Following deliberations, the jury found Abdullahi not guilty of aggravated burglary and rape but guilty of kidnapping, attempted rape, and felonious assault. The trial court conducted a sentencing hearing on June 8, 2021 and determined the attempted rape conviction and the kidnapping conviction would merge for purposes of sentencing. Finding the date of the offenses rendered the Reagan Tokes Law applicable to sentencing, the trial court then sentenced Abdullahi to an indefinite sentence with a minimum of 12 years and a maximum of 15 years and informed him of his classification as a Tier III sex offender with lifelong reporting requirements. The trial court journalized Abdullahi‘s convictions and sentence in a June 24, 2021 judgment entry.
{19} Abdullahi timely appealed. In a November 11, 2022 journal entry, this court sua sponte stayed the appeal pending the Supreme Court of Ohio‘s determination of State v. Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535. On July 26, 2023, the Supreme Court issued its decision in Hacker overruling facial constitutional challenges to the Reagan Tokes Law. Id. This court subsequently reactivated the appeal on August 24, 2023.
{20} Abdullahi assigns the following four assignments of error for our review:
- [I.] The trial court erred by denying the Defendant‘s Rule 29 Motion and failing to dismiss Count 3 (Rape) because there was no evidence of “sexual conduct” or penetration presented at trial.
- [II.] Mr. Abdullahi was deprived of a fair trial due to prosecutorial misconduct through misstatements of testimony and law in closing arguments.
- [III.] Mr. Abdullahi was deprived effective assistance of counsel.
- 3a. Failure to renew Defendant‘s Rule 29 Motion at the defense‘s case.
- 3b. Failure to object to the prosecutor‘s misstatements of fact and law in closings.
- 3c. Failure to object to the Attempted Rape jury instruction.
- 3d. The totality of trial counsel‘s performance.
- [IV.] The trial court committed plain error in imposing an indefinite sentence under
R.C. 2967.271 , the Reagan Tokes Law, because it violates the United States and Ohio Constitution.
III. First Assignment of Error – Crim.R. 29 Motion for Acquittal
{21} In his first assignment of error, Abdullahi argues the trial court erred in denying his
{22}
{23} Abdullahi asserts the state failed to present sufficient evidence to convict him of rape and that the trial court erred in denying his
{24} Here, Abdullahi argues the state failed to present any evidence of penetration and, accordingly, the trial court should have granted the
{25} Having reviewed the record, we agree with the trial court that the state presented sufficient evidence of sexual conduct related to the rape charge to overcome Abdullahi‘s
{26} From all of this testimony, we agree with the trial court that the question of whether penetration, however slight, had occurred was a question for the trier of fact. The testimony related to A.T.‘s understanding of what constituted penetration undercuts Abdullahi‘s assertion that A.T. was unequivocal that no penetration occurred. Accordingly, the trial court did not err in denying Abdullahi‘s
IV. Second Assignment of Error – Prosecutorial Misconduct
{27} In his second assignment of error, Abdullahi argues he was deprived of a fair trial because of prosecutorial misconduct. Through this assignment of error, Abdullahi asserts the prosecutor made misstatements of fact and law during closing arguments that were so prejudicial as to deny him a fair trial.
{28} Courts afford prosecutors wide latitude in closing arguments, and prosecutors may draw reasonable inferences from the evidence at trial, commenting on those inferences during closing arguments. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments “is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr, 636 F.2d 117 (5th Cir.1981). ” ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416,
{29} Here, Abdullahi concedes he did not object to the prosecutor‘s statements at trial and thus has waived all but plain error. “A court recognizes plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice.” State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 68. For an error to be “plain error” under
{30} Abdullahi points to several instances of alleged prosecutorial misconduct during closing arguments. First, Abdullahi notes the prosecutor repeatedly stated the evidence demonstrated that Abdullahi vaginally raped A.T. when neither the indictment nor the testimony at trial supported these statements. In the indictment, the state charged Abdullahi with one count of forcible rape through anal intercourse. Despite the charge in the indictment, Abdullahi argues the prosecutor improperly asked A.T. numerous questions about vaginal rape and that A.T. repeatedly denied that any vaginal penetration occurred. Nonetheless, the prosecutor made the following statements during closing arguments:
So the sexual conduct is the vaginal and anal intercourse that you heard [A.T.] testify to.
* * *
He knew what he was doing when he stripped off his clothes and inserted his penis into her anus and vagina.
* * *
He grabbed her by the wrists, pushed her to the ground, ripped off his own clothes and anally and vaginally raped this woman after strangling her multiple times.
(Tr. Vol IV at 470-76.)
{31} Abdullahi further argues the prosecutor used these erroneous factual statements to make improper legal misrepresentations deriving therefrom. Specifically, in explaining the definition of sexual conduct, the prosecutor stated, “[w]e don‘t need to prove this charge with testimony that his penis, his whole penis, was inserted into her anus or her vagina. We don‘t need that. It is penetration, no matter how slight.” (Tr. Vol. IV at 497-98.) Abdullahi argues the recurring reference to vaginal penetration was prejudicial because he was not charged with vaginal rape. He also asserts the prosecutor advocated for an erroneous definition of sexual conduct by stating “the victim used the language, his penis touched my butt. His penis went up and down on my butt. This is insertion, no matter how slight.” (Tr. Vol. IV at 470.)
{33} To the extent Abdullahi argues the misstatements about the rape charge affected the overall fairness of his trial on the other charges, we are mindful that the plain error standard requires Abdullahi to demonstrate that, but for the prosecutor‘s improper conduct, Abdullahi would not have been convicted. Lipkins at ¶ 23. Abdullahi does not explain how the prosecutor‘s references to vaginal rape had any bearing on the fairness of his trial on the remaining charges or the jury‘s consideration of those charges. Thus, even agreeing with Abdullahi that the prosecutor‘s statements about vaginal rape were improper, Abdullahi is unable to demonstrate the type of prejudice necessary to require reversal based on plain error from prosecutorial misconduct. See State v. Guade, 10th Dist. No. 11AP-718, 2012-Ohio-1423, ¶ 20.
{34} Abdullahi next argues the prosecutor made improper comments on the credibility of his own testimony and of A.T.‘s testimony. When recounting Abdullahi‘s version of events, the prosecutor stated “I think it‘s safe to say he was not so forthcoming in a lot of his answers. And from my recollection, it was quite difficult to get him to answer the questions.” (Tr. Vol. IV at 502.) Then, when remarking on A.T.‘s version of events, the prosecutor stated “[i]t‘s not credible to think that a woman as conservative and timid as her would do anything but tell the truth.” (Tr. Vol. IV at 503.) On appeal, Abdullahi argues the prosecutor, through these statements, improperly imparted personal beliefs onto the jury.
{35} As a general rule “[i]t is improper for an attorney to express his or her own personal belief or opinion as to the credibility of a witness.” State v. Williams, 79 Ohio St.3d 1, 12 (1997). A prosecutor may, however, comment on the testimony and suggest what conclusions the jury should draw from it and, “[i]n doing so, the prosecutor may express his or her personal opinion if he bases that opinion on the evidence presented in court.” State v. Young, 10th Dist. No. 18AP-630, 2020-Ohio-462, ¶ 46, citing State v. Crossty, 12th Dist. No. CA2008-03-070, 2009-Ohio-2800, ¶ 45, and State v. Shine-Johnson, 10th Dist. No. 17AP-194, 2018-Ohio-3347, ¶ 88. A prosecutor improperly vouches for the credibility of a witness ” ‘when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue.’ ” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 200, quoting State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 232.
{36} Here, the credibility of both A.T. and Abdullahi was the main crux of Abdullahi‘s argument, with Abdullahi‘s defense counsel suggesting in the defense‘s own closing arguments that A.T. was not to be believed and that Abdullahi‘s version of events was more credible. Given the context of the prosecutor‘s statements about Abdullahi‘s and A.T.‘s relative credibility,
{37} Lastly under this assignment of error, Abdullahi argues the prosecutor acted improperly by telling the jury not to “get wrapped up in beyond a reasonable doubt.” (Tr. Vol. IV at 504.) Again, Abdullahi does not articulate any specific prejudice as a result of these remarks. Moreover, in addition to instructing the jury that closing arguments are not evidence, the trial court also instructed the jury on the legal concept of proof beyond a reasonable doubt. Again, a jury is presumed to follow the instructions of the trial court. State v. Hicks, 10th Dist. No. 18AP-883, 2020-Ohio-548, ¶ 23, citing State v. Shipley, 10th Dist. No. 12AP-948, 2013-Ohio-4055, ¶ 62. Here, because the trial court properly instructed the jury on the law and the applicable burden of proof, Abdullahi does not demonstrate the prosecutor‘s remarks prejudicially affected his substantial rights, even if we assume, arguendo, that the statement was improper. Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 47 (10th Dist.), citing State v. Fox, 133 Ohio St. 154, 160 (1938), and Pang v. Minch, 53 Ohio St.3d 186, 195 (1990).
{38} Because Abdullahi is not able to demonstrate plain error arising from the prosecutor‘s alleged misconduct, we overrule Abdullahi‘s second assignment of error.
V. Third Assignment of Error – Ineffective Assistance of Counsel
{39} In his third assignment of error, Abdullahi argues he received ineffective assistance of counsel.
{40} In order to prevail on a claim of ineffective assistance of counsel, Abdullahi must satisfy a two-prong test. First, he must demonstrate that his counsel‘s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires Abdullahi to show that his counsel committed errors which were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. If Abdullahi can so demonstrate, he must then establish that he was prejudiced by the deficient performance. Id. To show prejudice, Abdullahi must establish there is a reasonable probability that, but for his counsel‘s errors, the results of the trial would have been different. A “reasonable probability”
{41} In considering claims of ineffective assistance of counsel, courts review these claims with a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. Abdullahi contends his trial counsel was ineffective in: (1) failing to renew the
A. Failure to Renew Crim.R. 29 Motion
{42} Abdullahi‘s first alleged instance of ineffective assistance of counsel is his trial counsel‘s failure to renew the
{43} As this court has previously held, ” ‘[d]efense counsel‘s failure to make a
B. Failure to Object to Attempted Rape Instruction
{44} Abdullahi‘s second allegation of ineffective assistance of counsel is his trial counsel‘s failure to object to the trial court instructing the jury on the lesser-included offense of attempted rape. To succeed on a claim of ineffective assistance of counsel based on counsel‘s failure to file an objection, an appellant must demonstrate that the objection had a reasonable probability of success. State v. Jones, 10th Dist. No. 18AP-33, 2019-Ohio-2134, ¶ 52, citing State v. Johns, 10th Dist. No. 11AP-203, 2011-Ohio-6823, ¶ 25. If the objection would not have been successful, the appellant cannot prevail on a claim of ineffective assistance of counsel. Id., citing Johns at ¶ 25.
{45} A trial court “must give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater
C. Failure to Object to Prosecutor‘s Closing Arguments
{46} Abdullahi‘s third alleged instance of ineffective assistance of counsel is his trial counsel‘s failure to object to the prosecutor‘s many allegedly improper statements during closing arguments. As noted above, to succeed on a claim of ineffective assistance of counsel based on counsel‘s failure to file an objection, an appellant must demonstrate that the objection had a reasonable probability of success. Jones at ¶ 52. Additionally, ” ’ “where the failure to object does not constitute plain error, the issue cannot be reversed by claiming ineffective assistance of counsel.” ’ ” Young, 2020-Ohio-462, at ¶ 103, quoting State v. Roy, 10th Dist. No. 14AP-223, 2014-Ohio-4587, ¶ 20, quoting State v. Carson, 10th Dist. No. 05AP-13, 2006-Ohio-2440, ¶ 51; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22 (plain error review employs “the same deferential standard for reviewing ineffective assistance of counsel claims“).
{47} Here, Abdullahi makes the same argument he made under his second assignment of error. As we noted in our resolution of Abdullahi‘s second assignment of error, because of Abdullahi‘s failure to make an objection at trial, we reviewed Abdullahi‘s allegations of prosecutorial misconduct under a plain error standard. Having previously held that Abdullahi did not demonstrate plain error regarding prosecutorial misconduct, we find Abdullahi‘s argument in this regard likewise fails to satisfy the second prong of the Strickland test. Young at ¶ 104. Thus, Abdullahi‘s claim of ineffective assistance of counsel based on counsel‘s failure to object to the various instances of alleged prosecutorial misconduct lacks merit.
D. Totality of Counsel‘s Performance
{48} Abdullahi‘s final argument related to his allegation of ineffective assistance of counsel is that his trial counsel‘s overall performance violated his constitutional rights. However, where none of an appellant‘s individual claims of ineffective assistance of counsel has merit, the appellant cannot establish a right to relief by joining those claims together. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶
{49} Additionally, even if we were to agree with Abdullahi that his counsel‘s overall performance was deficient under the first prong of Strickland, we are nonetheless constrained by the second prong of Strickland which requires Abdullahi to demonstrate that but for his counsel‘s performance, the outcome of the proceeding would have been different. Abdullahi does not demonstrate the requisite prejudice under the second prong of Strickland, and, thus, the cumulative effect of the alleged errors did not deprive him of a fair trial.
{50} Because Abdullahi does not demonstrate he received ineffective assistance of counsel under the Strickland test, we overrule Abdullahi‘s third assignment of error.
VI. Fourth Assignment of Error – Indefinite Sentence
{51} In his fourth and final assignment of error, Abdullahi argues the trial court erred in imposing an indefinite sentence under the Reagan Tokes Law because the Reagan Tokes Law is unconstitutional. Abdullahi did not object to the application or constitutionality of the Reagan Tokes Law at trial and, thus, has waived all but plain error. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, ¶ 7 (an appellate court has discretion to consider a forfeited constitutional challenge to a statute and may review the trial court decision for plain error).
{52} Effective March 2019, the Reagan Tokes Law provides that first- and second-degree felonies not already carrying a life sentence are subject to an indefinite sentencing scheme consisting of a minimum and maximum prison term. The Reagan Tokes Law creates a presumption that the offender will be released from incarceration after serving the minimum prison term but gives the Ohio Department of Rehabilitation and Correction (“ODRC“) the opportunity to rebut that presumption, in which case the ODRC may maintain the offender‘s incarceration up to the maximum prison term set by the trial court at sentencing.
{53} During the sentencing hearing, the trial court determined the Reagan Tokes Law applied to the offenses. As a result, the trial court sentenced Abdullahi to an indefinite sentence with a minimum of 12 years and a maximum of 15 years in prison. Abdullahi now argues on appeal the trial court erred in applying the indefinite sentencing structure of the Reagan Tokes Law because the Reagan Tokes Law is unconstitutional. More specifically, Abdullahi argues the presumptive release portion of
{54} While this appeal was pending, the Supreme Court issued a decision finding the Reagan Tokes Law to be facially constitutional. Hacker, 2023-Ohio-2535, at ¶ 41 (holding the Regan Tokes Law does not violate the doctrine of separation of powers, is not unconstitutionally vague, and does not unconstitutionally deprive offenders of their right to due process). Following
VII. Disposition
{55} Based on the foregoing reasons, the trial court did not err in denying Abdullahi‘s
Judgment affirmed.
DORRIAN and LELAND, JJ., concur.