State v. BondState v. Bond
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 5, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Carl J. Mazzone, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Steven Bond (“Bond“), appeals his sentence and claims the following errors:
The indefinite sentencing schemе set forth in the Reagan Tokes Law and imposed by the trial court in this case violates the federal and state Constitutions. - Mr. Bond‘s aggregate indefinite sentence of 12 to 16 years is not authorized by statute and is therefore contrary to law.
- Mr. Bond was denied his right to the effective assistance of counsel as protected by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 10 of the Ohio Constitution when his attorney (1) did not object to the trial court‘s improper aggregating of indefinite terms in violation of
R.C. 2929.144(B)(2) , and (2) did not object to the improper application of the Reagan Tokes Law that resulted in a potential maximum sentence two years greater than the law allows.
{¶ 2} After reviewing the record and applicable law, we affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} Bond pleaded guilty to multiple offenses in three separate cases. In Cuyahoga C.P. No. CR-19-639466-A, Bond pleaded guilty to one count of receiving stolen property. In Cuyahoga C.P. No. CR-19-643079-B, Bond pleaded guilty to one count of robbery, with а one-year firearm specification; one count of grand theft; and one count of aggravated theft. In Cuyahoga C.P. No. CR-19-643142-A, Bond pleaded guilty to one count of aggravated robbery, with a three-year firearm specification; and one count of having weapons while under disability.
{¶ 4} The robbery charge in C.P. No. CR-19-643079-B was a second-degree felony and the aggravated robbery charge in C.P. No. CR-19-643142-A was a first-degree felony. These charges were subject to the provisions of the Reagan Tokes
{¶ 5} In C.P. No. CR-19-643142-A, the court sentenced Bond to nine months on the having weapons while under disability charge. On the aggravated robbery charge, the court sentenced Bond to three years on the attendant firearm specification to be served prior to and consecutive with an indefinite prison term of four to six years. The court ordered the indefinite prison term on the aggravаted robbery charge to be served concurrently with the nine months on the having weapons while under disability charge.
{¶ 6} In C.P. No. CR-19-643079-B, the court sentenced Bond to nine months on the grand theft conviction and 18 months on the aggravated theft, to be served concurrently with each other and to the sentence on the robbery charge in that case. On the robbery charge, the court sentenced Bond to one year on the attendant firearm specification to be served prior to and consecutive with an indefinite prison term of four to six years. After making the necessary findings, the court ordered the sentences in C.P. No. CR-19-643079-B and C.P. No. CR-19-643142-A to be served consecutively. Bond now appeals his sentences.
II. Law and Analysis
A. Reagan Tokes Act
{¶ 7} In the first assignment of error, Bond argues the indefinite sentences imposed by the trial court pursuant to the Reagan Tokes Law violates the Ohio and United States Constitutions. He contends the Reagan Tokes Law violates the
{¶ 8} Bond‘s first assignment of error is overruled pursuant to this court‘s en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.
B. Consecutive Indefinite Terms
{¶ 9} In the second assignment of error, Bond argues the trial court erred by ordering the two indefinite sentences, imposed under the Reagan Tokes Law in two separate cases, to be served consecutively.
{¶ 10} Bond failed to object to this asserted sentencing error in the trial court and, therefore, forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Crim.R. 52(B) authorizes appellate courts to correct ““[p]lain errors or defects affecting substantiаl rights’ notwithstanding the accused‘s failure to meet his obligation to bring those errors to the attention of the trial court.” Id. at ¶ 22, quoting Crim.R. 52(B). To prevail under a plain error analysis, the appellant bears the burden of demonstrating that, but for the error, the outcome of the trial would clearly have been different. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.
{¶ 11} Bond argues the trial court failed to comply with the requirements of
[i]f the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degrеe, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section
2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be еqual to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.
(Emphasis added.)
{¶ 12} As previously stated, the trial court imposed indefinite prison terms on two “qualifying offenses” under the Reagan Tokes Law: Bond‘s robbery conviction in C.P. No. CR-19-643079-B and his aggravated robbery conviction in C.P. No. CR-19-643142-A. Bond contends that when more than one “qualifying felony” is to be served consecutively,
{¶ 13} We agree that when one or more qualifying felonies are ordered to be served consecutively,
{¶ 14} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the Ohio Supreme Court held that a judgment of conviction is not a final, appealable order under
{¶ 15} Nothing in
{¶ 16} The trial court sentenced Bond on each count and imposed a maximum prison term as part of the sentence in each case, CR-19-643079-B and CR-19-643142-A. The court then ran the sentenсes within each case concurrently. Therefore,
{¶ 17} The court issued separate sentencing entries in each case as required by Baker and Crim.R. 32(C). And, in accordance with
{¶ 18} The second assignment of error is overruled.
C. Ineffective Assistance of Counsel
{¶ 19} In the third assignment of error, Bond argues he was denied his constitutional right to the effective assistance of counsel.
{¶ 20} To establish ineffective assistance of counsel, the defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{¶ 21} Bond argues he was deprived of his right to effective assistance of counsel because his trial counsel failed to object to the sentence imposed pursuant to the Reagan Tokes Law and because his trial counsel failed to object to the imposition of consecutive indefinite sentences under the Reagan Tokes Law in violation of
{¶ 22} However, because this court has held in Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, that the Reagan Tokes Law is constitutional, Bond‘s trial counsel was not ineffective for failing to object on that basis. And, because the trial court complied with all applicable sentencing provisions and proрerly ran the
{¶ 23} Therefore, the third assignment of error is overruled.
{¶ 24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasоnable 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. 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
KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE CONCURRING OPINION)
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
{¶ 25} I fully concur with the majority opinion. I write to further address Bond‘s second assignment of error, which advocates for the imposition of an “aggregate indefinite sentence” for all cases on which he was sentenced. By reading
{¶ 26} Bond mistakenly believes that because the trial court ordered the sentence imposed in CR-19-643142-A to run consecutive to the sentence imposed in CR-19-643179-B, an “aggregate indefinite sentence” should have been imposed for all case files on which he was sentenced. In other words, Bond‘s position is there should be only one qualifying felony used to determine a single maximum prison term for all files being contemporaneously sentenced.1
{¶ 28} Contrary to Bond‘s argument, there is no authority to support the imposition of a global sentence or for a qualifying felony offense from one case to be used to calculate an indefinite term in another case. Rather, a “maximum prison term” is to be imposed within each individual “case” file that includes a qualifying felony offense. That is what the trial court did here. The fact that consecutive sentences were imposed between casеs does not alter the sentence imposed within each case file or the calculation for the maximum prison term imposed as part of the sentence in each individual case. Furthermore,
{¶ 29}
(B) The court imposing a prison term on an offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a
qualifying felony of the first or second degree shall determine the maximum prison term that is part of the sentence in accordance with the following: (1) If the offender is being sentenced for one felony and the felony is a qualifying felony of the first or second degree, the maximum prison term shall be equal to the minimum term imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent of that term.
(2) If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, аnd if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.
(3) If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that all of the prison terms imposed are to run concurrently, the maximum term shall be equal to the longest of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree for which the sentence is being imposed plus fifty per cent of the longest minimum term for the most serious qualifying felony being sentenced.
(4) Any mandatory prison term, or portion of a mandatory prison term, that is imposed or to be imposed on the offender under division (B), (G), or (H) of section 2929.14 of the Revised Code or under any other provision of the Revised Code, with respect to a conviction of or plea of guilty to a specification, and that is in аddition to the sentence imposed for the underlying offense is separate from the sentence being imposed for the qualifying first or second degree felony committed on or after the effective date of this section and shall not be considered or included in determining a maximum prison term for the offender under divisions (B)(1) to (3) of this section.
(C) The court imposing a prison term on an offender pursuant to division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree shаll sentence the offender, as part of the sentence, to the maximum prison term determined under division (B) of this section. The court shall impose this maximum term at sentencing as part of the sentence it imposes under section 2929.14 of the Revised Code, and shall state the minimum term it imposes under division (A)(1)(a) or (2)(a) of that section, and this maximum term, in the sentencing entry.
{¶ 30} Simply because the drafters of
{¶ 31} The specious reasoning offered by appellant to advance his novel theory is at best superficial. According to Bond‘s view, the plain language of
{¶ 32} In determining the meaning of statutory language, courts “look first to the plain language of the statute, read in context.” See Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., 166 Ohio St.3d 96, 2021-Ohio-3445, 182 N.E.3d 1170, ¶ 16. In Electronic Classroom of Tomorrow, the Supreme Court of Ohio considered language in a statute providing for an appeal of a determination by the Ohio Department of Education that a community school owes money to the state, which provides that “‘[a]ny decision made by the [Ohio State Board of Education] [on such an appeal] is final.‘” (Emphasis added.) Id. at ¶ 1, quoting
{¶ 33} Here, when read in context, it is apparent that the calculation of a “maximum term” under
{¶ 34} An interpretation of
{¶ 35} First, a global sentencing “term” cannot be “assembled” across case files containing unique case numbers without consideration of joinder of offenses under Crim.R. 8(A), which did not occur at the trial-court level herein. Joinder is not even contemplated by
{¶ 37} Third, the Revised Code does not require a court to state the total aggregate prison term following imposition of cоnsecutive sentences. In fact, there is no requirement under existing case law that a trial court advise of or impose a global maximum sentence. See State v. Johnson, 40 Ohio St.3d 130, 133, 532 N.E.2d 1295 (1988). In Johnson, a case challenging the failure to advise on the prospect of consecutive sentences, the court found the consecutive advisement was not required because Crim.R. 11(C) speaks in the singular. See id. “The term ‘the charge’ indicates a single and individual criminal charge. So, too, does ‘the plea’ refer to ‘a plea’ which thе court ‘shall not accept’ until the dictates of the rule have been observed.” Id. The Johnson “individual count” view is a predecessor to the view
{¶ 38} Finally, although I wrote to affirm the constitutionality of S.B. 201 in Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, I will acknowledge the formula language in
{¶ 39} As the majority finds, the trial court properly sentenced Bond to an indefinite prison term on a qualifying felony in each individual case,