State v. AllenState v. Allen
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kerry A. Sowul, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Mario Allen (“Allen“), appeals from his sentence, raising the following assignment of error for review:
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.
I. Procedural and Factual History
{¶ 3} On January 27, 2020, Allen was named in a four-count indictment in Cuyahoga C.P. No. CR-19-647303-A. He was charged with having weapons while under disability in violation of
{¶ 4} On August 13, 2020, Allen was named in an eight-count indictment in Cuyahoga C.P. No. CR-19-644840-A. He was charged with three counts of rape in violation of
{¶ 5} On April 13, 2022, Allen agreed to retract his former pleas of not guilty and accept the terms of a negotiated plea agreement with the state. The purpose of the plea agreement was to resolve each of Allen‘s pending cases.
{¶ 6} In Case No. CR-19-647303-A, Allen pleaded guilty to having weapons while under disability, a felony of the third degree, with a forfeiture specification, and a one-year firearm specification (amended Count 1); and receiving stolen property, a felony of the fourth degree, with a forfeiture specification (Count 4). In Case No. CR-19-644840-A, Allen pleaded guilty to felonious assault, a felony of the second degree (amended Count 1); gross sexual imposition, a felony of the third degree (Count 7); and endangering children, a misdemeanor of the first degree (amended Count 8). In exchange for his guilty pleas, the remaining counts in each case were nolled.
{¶ 7} On May 9, 2022, a consolidated sentencing hearing was held. In Case No. CR-19-647303-A, the trial court sentenced Allen to one year in prison on the firearm specification attached to amended Count 1, to run prior and consecutive to a one-year term of imprisonment on the underlying felony offense of having weapons while under disability. Allen was further sentenced to a one-year term of imprisonment on the felony offense of receiving stolen property. The sentences were ordered to run concurrently, for an aggregate two-year prison term.
{¶ 9} Allen now appeals from his sentence.
II. Law and Analysis
{¶ 10} In the sole assignment of error, Allen argues the trial court erred by imposing an indefinite sentence pursuant to the Reagan Tokes Law. He contends the Reagan Tokes Law is unconstitutional because it violates his right to a trial by jury, the separation-of-powers doctrine, and his right to due process under the Ohio and United States Constitutions.
{¶ 11} In this case, Allen did not object to his sentence nor did he raise a constitutional challenge to the Reagan Tokes Law at his 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.
{¶ 13} 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.). There, this court found “that the Reagan Tokes Law, as defined under
{¶ 14} The sole assignment of error is overruled.
{¶ 15} 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
EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes and the concurring in part and dissenting in part opinion by Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.