State v. AlexanderState v. Alexander
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Catherine Meehan, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a May 28, 2021 judgment of the Lucas County Court of Common Pleas, sentencing appellant to an indefinite term of incarceration, ranging from a minimum term of seven years to a maximum term of ten and one-half years, and a
{¶ 2} In exchange for the plea, a second count of aggravated vehicular homicide, in violation of
{¶ 3} Appellant, Jahmyar Alexander, sets forth the following four assignments of error:
I. THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT‘S GUILTY PLEA AFTER FAILING TO NOTIFY APPELLANT OF THE MAXIMUM PENALTIES AND INELIGIBILITY FOR PROBATION DURING THE
CRIM.R. 11 PLEA COLLOQUY.II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE OF DISPROPORTIONATE SENTENCING[,] THEREBY PRECLUDING APPELLANT FROM RAISING THE ISSUE ON APPEAL.
III. THE TRIAL COURT ERRED IN IMPOSING AN INDEFINITE PRISON TERM OF SEVEN [YEARS] TO TEN AND ONE-HALF YEARS.
IV. THE TRIAL COURT ERRED IN IMPOSING AN INDEFINITE TERM AS THE REAGAN TOKES LAW VIOLATED APPELLANT‘S CONSTITUTIONAL RIGHT TO DUE PROCESS [].
{¶ 4} The following undisputed facts are relevant to this appeal. On the evening of August 8, 2020, a 28-year-old Toledo woman and mother of a nine-year-old son, was driving northbound on Douglas Rd. in West Toledo, travelling to work at an area restaurant.
{¶ 5} On this same date and time, appellant, whose criminal history includes four driving under the influence offenses, and several drug abuse offenses, was simultaneously driving southbound on Douglas Road, heading directly towards the victim, coming from the opposite direction.
{¶ 6} Appellant was driving while under the influence of both alcohol and marijuana at the time of this incident. Testing revealed that appellant‘s blood alcohol level was .16%, twice the legal limit, as well having a significant level of THC, a psychoactive component of marijuana, present in his system.
{¶ 7} While compromised from the above-described consumption of alcohol and marijuana, appellant drove his vehicle across the centerline of Douglas Rd. and struck the victim‘s vehicle head-on. The collision caused catastrophic, fatal injuries to the victim. She was transported by emergency responders to Toledo Hospital, where she died as a result of her injuries shortly thereafter.
{¶ 9} On April 16, 2021, following negotiations between the parties, appellant pled guilty to the first count of aggravated vehicular homicide, in violation of
{¶ 10} The record reflects that during the change of plea colloquy, the trial court thoroughly explained to appellant the implications of the change of plea upon appellant‘s rights. In addition, the trial court fully reviewed the details with appellant of Ohio‘s indefinite sentencing statutory provisions, as applied to appellant‘s case.
{¶ 11} Following these discussions with appellant, the trial court expressly confirmed that appellant understood that, as a result of his change plea, a minimum, mandatory term of incarceration would be imposed ranging between two years and eight years. Appellant affirmed his understanding.
{¶ 12} The trial court then reviewed the exact mathematical calculations with appellant equating the potential maximum term of incarceration of 12 years. Appellant affirmed his understanding.
{¶ 14} At the conclusion of the colloquy, appellant conveyed to the trial court, “I‘m very guilty. I know what I did was wrong.” Appellant‘s change of plea was then accepted by the trial court.
{¶ 15} On May 28, 2021, the case proceeded to sentencing. Appellant‘s counsel provided a statement to the trial court on appellant‘s behalf.
{¶ 16} Counsel for appellant stated, “[H]e was, literally, drinking before he was driving and had alcohol in the car with him * * * There is no excuse for the fact he was driving intoxicated that day * * * [H]e has accepted responsibility for his actions * * * [H]e made a concerted effort to seek treatment even without the court‘s order.”
{¶ 17} The victim‘s mother next shared with the trial court a poignant victim impact statement.
{¶ 18} She articulated regarding the loss of her daughter, “She had a name. She had a life, and she had a purpose. That life was ripped from this world tragically on August 8, 2020 * * * when [appellant] selfishly and deliberately chose to get behind the wheel of a vehicle after consuming enough alcohol and drugs to impair his ability to safely and lawfully operate the vehicle.”
{¶ 20} She conveyed, “He‘s been struggling with his feelings and with the acceptance of his mother‘s untimely death * * * He cries himself to sleep wishing his mom were here with him * * * It has taken the joy away from him when doing activities that he and his mom had done.”
{¶ 21} The victim impact statement also discussed the admirable qualities of the deceased and the anguished reaction of the victim‘s family and friends upon learning that appellant had multiple prior driving under the influence and drug abuse offenses in the several-year period preceding this incident.
{¶ 22} The victim‘s mother conveyed, “And what makes it even harder to accept is that this is not his first, second, or even his third time that he has made that exact same decision and had gotten caught in doing it.”
{¶ 23} In addressing the court on his own behalf, appellant expressed regret and remorse. Appellant described his challenges, but also accepted accountability for his actions.
{¶ 24} Appellant first stated, “Alcohol and weed have been a part of my life since I‘ve been breathing. It was something that was necessary to exist * * * My mom—my mom—my mom was just horrible. She really did a number on me.”
{¶ 26} Appellant concluded, ”I understand that I have to go away for some time as a punishment for what happened.” (Emphasis added).
{¶ 27} Following all of the aggravating and mitigating statements being presented for consideration, the trial court sentenced appellant to an indefinite term of incarceration, ranging from a mandatory, minimum term of seven-years to a maximum term of ten and one-half years, in addition to a three-year term of post-release control. This appeal ensued.
{¶ 28} For purposes of clarity and efficiency, we will address appellant‘s assignment of error in a revised order, commencing with the third assignment of error, the determination of which likewise resolves the second assignment of error. We then will conclude with the first and fourth assignments of error.
{¶ 29} In the third assignment of error, appellant asserts that the trial court‘s sentence did not comport with
{¶ 30} In support, appellant argues, “Appellant‘s sentence was not commensurate with the principles and purposes of felony sentencing provided in
{¶ 32} In State v. Jones, 163 Ohio St.3d 649, 2020-Ohio-6729, 169 N.E. 3d 242, the Ohio Supreme Court recounted the legal issue before it for determination, “The state sought this court‘s discretionary review on one proposition of law: ’
{¶ 33} In chief support of the above-quoted proposition of law, the state argued, ”
{¶ 34} In ultimately finding in favor of the state‘s proposition of law, the Ohio Supreme Court held, in pertinent part, ”Nothing in
{¶ 36} Thus, in accordance with the Ohio Supreme Court decisions set forth in Jones and Toles, we find that the legal premise submitted in support of appellant‘s third assignment of error, asserting that the underlying felony sentence in this case should be modified pursuant to
{¶ 37} Wherefore, we find appellant‘s third assignment of error not well-taken.
{¶ 38} In appellant‘s second assignment of error, appellant asserts that trial counsel was ineffective.
{¶ 39} In support, appellant specifically alleges the trial counsel was ineffective in failing to object to appellant‘s sentence premised upon the same substantive legal basis that was set forth in appellant‘s above-discussed third assignment of error.
{¶ 40} Appellant argues, “Trial counsel failed to object or argue that appellant‘s prison term was inconsistent with the purposes of felony sentencing * * *
{¶ 42} Based upon the foregoing, we find that appellant cannot demonstrate that the outcome of this case would have been different but for the failure to make an objection that is without merit given the Ohio Supreme Court rulings in Jones and Toles.
{¶ 43} Wherefore, we find appellant‘s second assignment of error not well-taken.
{¶ 44} Now that the interdeterminant third and second assignments of error have been addressed, we next proceed to consideration of appellant‘s first assignment of error.
{¶ 45} In appellant‘s first assignment of error, appellant alleges that the trial court did not comport with
{¶ 46} Specifically, appellant alleges that he was, “[N]ever advised by the trial court that he was facing a mandatory term of imprisonment or that he was ineligible for probation.” The record of evidence does not bear out appellant‘s position.
{¶ 47}
{¶ 48} In reviewing the propriety of
{¶ 49} The Dangler court further elaborated, “[T]he questions to be answered are simply: (1) [H]as the trial court complied with the relevant provision of the rule? (2) [I]f the court has not complied fully [] is the purported failure of the type that excuses a defendant from the burden of demonstrating prejudice? and (3) [I]f a showing of prejudice is required, has the defendant met that burden?” Dangler at ¶ 17. See also State v. Morgan, 6th Dist. Lucas No. L-20-1156, 2021-Ohio-3996, ¶ 15.
{¶ 50} While appellant maintains that he was not told by the trial court that a mandatory term of imprisonment would ensue from his change of plea, the transcripts of the change of plea proceedings reflect otherwise.
{¶ 51} The record reflects that during the change of plea colloquy, the trial court methodically reviewed each consequence of the change of plea with appellant, and then affirmed appellant‘s understanding of these consequences.
{¶ 53} The trial court next inquired of appellant, “And this is an F2, so do you understand that the range is going to be -- this minimum is going to be between two and eight years?” (Emphasis added). Appellant replied affirmatively.
{¶ 54} Thus, the record shows that the trial court did properly advise appellant that the effect of the plea would entail a mandatory term of incarceration, rather than create an incorrect impression that the plea would result in probation and release. As such, the Dangler analysis proceeds no further given that appellant has not shown a failure of the trial court to comply with
{¶ 55} The trial court then reviewed the indefinite sentencing calculations with appellant, prior to inquiring, “Do you understand that the maximum term you could face would be 12 years in prison?” Appellant replied affirmatively.
{¶ 56} At the conclusion of the change of plea colloquy, appellant stated to the trial court, “I‘m very guilty. I know what I did was wrong * * * I understand that I have to go away for some time as a punishment for what happened.” (Emphasis added).
{¶ 57} Based upon the forgoing, the record reflects that, in adherence with
{¶ 58} Accordingly, we find that the trial court did not breach
{¶ 59} Wherefore, we find appellant‘s first assignment of error not well-taken.
{¶ 60} In appellant‘s fourth assignment of error, appellant asserts that the felony sentence imposed in this case is unconstitutional given the applicability of the Reagan Tokes Act (“Tokes“) to the sentence.
{¶ 61} Tokes restored indefinite sentencing in Ohio for first and second degree felonies committed subsequent to March 22, 2019, such as the second degree felony aggravated vehicular homicide conviction underlying this appeal. See
{¶ 62} Appellant argues, “The Reagan Tokes Law allows the executive branch of the government to unilaterally, without input from the trial court, increase the minimum sentence [that] the trial court previously imposed.”
{¶ 63} In further support, appellant asserts that, “The Reagan Tokes Law is unconstitutional because * * * the unelected officials at the ODRC can second guess the sound judgment of a trial court without the need to have a full hearing * * * [it] does not provide prisoners with any form of meaning hearing.”
{¶ 64} Appellant explicitly alleges that Tokes infringed upon his due process rights. However, an examination of the entirety of appellant‘s arguments reflect that
{¶ 65} At the outset, we note that the record of evidence shows that appellant failed to object to his sentence upon constitutional grounds, or upon any other grounds, before the trial court.
{¶ 66} It is well-established that, “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. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986).
{¶ 67} As such, “[Appellant‘s] failure to raise the issue of the constitutionality of a statute or its application at the trial court level generally constitutes waiver of that issue and it need not be heard for the first time on appeal.” State v. Golden, 10th Dist. Franklin No. 13-AP-927, 2014-Ohio-2148, 2014 WL 2156780, ¶ 11.
{¶ 68} However, even assuming arguendo that waiver had not occurred in this case, we remain unconvinced of the merits of appellant‘s position.
{¶ 69} As held by State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.), ¶ 10, “[U]nder the Reagan Tokes Law, the sentencing court imposes both a minimum and maximum term of incarceration and prohibits the DRC from maintaining custody of the offender past the maximum sentence imposed. The system does not violate the separation of powers doctrine nor does it allows for the DRC to impose greater sanctions than those imposed by the sentencing court.” (Emphasis added).
{¶ 71} Thereafter, the Simmons court concluded, “Because the Reagan Tokes Law provides that a court impose an indefinite sentence and does not allow the DRC to increase that sentence past the maximum imposed sentence, the trial court erred by finding that it violates the separation of powers, thus [is] unconstitutional.” Id. at ¶ 15. (Emphasis added).
{¶ 72} As likewise recently held by this court in State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, ¶ 37,
Under the Regan Tokes Law, the trial court imposes a minimum sentence and a maximum sentence. While ODRC may rebut the presumption than an offender will be released after service of his or her minimum sentence * * * under no circumstances may it maintain an offender‘s incarceration date beyond the maximum term imposed by the sentencing court. As such, the executive agency does not impede the function of the judicial branch, and the constitutional doctrine of separation of powers is not violated. (Emphasis added).
{¶ 74} “To prevail on a facial challenge to a statute, rule, or ordinance, it must be shown that the law or rule cannot be applied constitutionally in any circumstances.” Stenson at ¶ 31, citing Toney v. Dayton, 2017-Ohio-5618, N.E.3d 179, ¶ 23 (2d Dist.), citing Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21. Because we found appellant failed to show that the law “cannot be applied constitutionally in any circumstances,” we rejected his facial challenge to its constitutionality.
{¶ 75} Here, as in Stenson, DRC has not sought to maintain appellant‘s incarceration beyond the presumptive minimum sentence, and appellant has failed to show that the law cannot be applied constitutionally in any circumstances.
{¶ 77} Irrespective of waiver, in accord with our reasoning and conclusions in Gifford and Stenson, we further find that the application of the Reagan Tokes Law to appellant‘s felony sentence was not unconstitutional, in violation of either the separation of powers doctrine or in violation of due process rights.
{¶ 78} Wherefore, we find appellant‘s fourth assignment of error not well-taken.
{¶ 79} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J. CONCUR.
JUDGE