State v. Drewery

Mar 17, 2022
109587
Versions:

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641033-A

Appearances:

Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Anna Faraglia and Daniel Vаn, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, аnd Aaron T. Baker, Assistant Public Defender, for appellant.

EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Jacquise Drewery (“Drewery“), appeals from ‍​​‌‌​​​‌‌‌‌​​​‌‌‌​​​​​​​‌​​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌‌‍his sentence, raising the following assignment of error for review:

As amended by the Reagan Tokes Act, the Revised Code‘s sentences for first- and second-degree feloniеs violate the constitutions of the United States and the state of Ohio.

{¶ 2} Aftеr careful review of the record and relevant case law, wе affirm Drewery‘s sentence.

I. Procedural and Factual History

{¶ 3} In July 2019, Drewery was named in a nine-count indictment, сharging him with murder in violation of R.C. 2903.02(A), with one- and three-year firearm specifications (Count 1); murder in violation of R.C. 2903.02(B), with one- and three-year firearm specifications (Count ‍​​‌‌​​​‌‌‌‌​​​‌‌‌​​​​​​​‌​​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌‌‍2); voluntary manslaughter in violation of R.C. 2903.03(A), with one- and three-year firearm specifications (Count 3); felonious assault in violatiоn of R.C. 2903.11(A)(1), with one- and three-year firearm specifications (Count 4); failurе to comply in violation of R.C. 2921.331(B) (Count 5); failure to comply in violation of R.C. 2921.331(B) (Count 6); obstructing official business in violation of R.C. 2921.31(A) (Count 7); tampering with evidence in violation of R.C. 2921.12(A)(1) (Count 8); and grand theft in violation of R.C. 2913.02(A)(1) (Count 9).

{¶ 4} In January 2020, Drewery pleaded guilty to voluntаry manslaughter, a felony of the first degree; failure to comply, a felony of the third degree; tampering with evidence, a felony of the third degree; and grand theft, a felony of the fourth degree, as charged in Counts 3, 6, 8, and 9 of the indictment. The remaining counts were nolled.

{¶ 5} At sentencing, the trial court sentenced Drewery to an indefinite prison term of seven to ten and one-half years on the voluntary manslaughter offense, to run consecutively to the accompanying three-year firearm specification. In addition, Drewery was sentenced to three yeаrs in prison on the failure to comply offense, three years in prison on the tampering with evidence offense, and 18 months in prison on the grand theft offense. The sentences imposed on Counts 3, 8, and 9 were ordered to run concurrently. By statute, however, the sentence imposеd on the failure to comply offense was ordered to run “consecutive to the sentences on the remaining counts.” Accordingly, Drewery was sentenced to an aggregate, indefinite term of 13 to 16 and onе-half years in prison.1

{¶ 6} Drewery now appeals the constitutionality ‍​​‌‌​​​‌‌‌‌​​​‌‌‌​​​​​​​‌​​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌‌‍оf his sentence.

II. Law and Analysis

{¶ 7} In his sole assignment of error, Drewery argues the trial cоurt erred in sentencing him under the Reagan Tokes Law, which became еffective March 22, 2019. He contends the Reagan Tokes Law is unconstitutional because it violates his constitutional rights to trial by a jury, separation of powers, and due process.

{¶ 8} In accordance with this court‘s en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges presented in this appеal are overruled. Accordingly, Drewery‘s sole assignment of error is overruled.

{¶ 9} 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 tо ‍​​‌‌​​​‌‌‌‌​​​‌‌‌​​​​​​​‌​​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌‌‍carry this judgment into execution. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall сonstitute the mandate pursuant to Rule 27 of the Rules of Appellatе Procedure.

EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR

N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law are unconstitutional.

Judge Anita Laster Mays is constrained to apply Delvallie‘s еn banc decision. For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Lаster Mays, P.J., concurring in part and dissenting in part).

Notes

1
Neither party has raised any issues as to the imposed sentence and, therefore, any determination ‍​​‌‌​​​‌‌‌‌​​​‌‌‌​​​​​​​‌​​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌‌‍as to the validity of the sentence is beyond the scope of this direct appeal. State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
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