State v. FreshwaterState v. Freshwater
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{1} Appellant, Joshua C. Freshwater, appeals his sentence, following his no-contest pleas and the trial court‘s findings of guilt, on one count of obstructing official business and one count of possession of cocaine. We affirm.
{2} In 2021, a police officer stopped Freshwater for a traffic violation. During the traffic stop, the officer smelled the odor of raw marijuana. The officer asked Freshwater to have a seat in the back of his cruiser. Freshwater did not comply with the request, and a physical altercation ensued between Freshwater and the officer, during
{3} Thereafter, Freshwater was indicted on the following charges: (1) obstructing official business, in violation of
{4} Freshwater initially pleaded not guilty and moved to suppress evidence. After hearing, the trial court denied the motion to suppress. Thereafter, Freshwater amended his plea to no-contest to the first and third counts (obstructing official business and possession of cocaine) and their attendant specifications, and the state agreed to move to dismiss the remaining counts pursuant to a plea agreement. The court found Freshwater guilty on the first and third counts, ordered a presentence investigation and victim impact statement, and set the matter for sentencing. Freshwater filed a sentencing memorandum, raising constitutional challenges to the Reagan Tokes Law, which governs his sentence on the possession of cocaine count. At sentencing, the court overruled
{5} In his first assigned error, Freshwater argues:
The trial court erred in ordering the individual prison terms as outlined on each count, as the sentences are unsupported by the factors outlined in
R.C. 2929.12 and are thus contrary to law.
{6} Pursuant to
{7}
{8} “A sentence is contrary to law when it is ‘in violation of statute or legal regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34. Thus, ““[a] sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{9} Further, this court has frequently noted that “even though a trial court is required to consider the
{10} Given the holding in Jones, we are precluded from reviewing whether Freshwater‘s sentence is supported by the record under
{11} At the sentencing hearing and in the presentence report, Freshwater detailed his struggles with drug addiction and indicated that he had historically been the
Factors indicating the conduct is more or less serious, the Court does note other relevant factors indicating it more serious is the altercation, physical altercation, that the Defendant engaged in with the Deputy at the time of the stop and the commission of the offense. That‘s an indication of the type of stuff that can happen when committing drug offenses. There‘s been comments about how the Defendant doesn‘t have any history or convictions of violence and he doesn‘t. But yet here‘s an instance that because of drug use and because of trying to perhaps prevent officers from finding them, a physical altercation ensued.
There was a reference during the statements here that the Defendant has been, you know, beaten, he‘s been stabbed and there‘s just been a multitude of incidents where stuff like that has happened. Violent acts have happened. Not by the Defendant, but upon the Defendant. But it‘s because of drug trafficking and drug dealing and that industry and being involved in that and that‘s what happens. That‘s why there‘s a danger with the drug dealing because violence surrounds it.
While the Defendant may not have been the one that committed those violent acts, and they were committed upon him, that‘s happening out in our community in our society right out in the open, these violent acts. That‘s part of the danger and risks involved with drug dealing is that others, innocent people, could be injured or could be killed as a result of this stuff going on right out in the streets and in the communities. But in this particular case the Defendant did engage in a physical altercation with the police officer which makes this conduct more serious than normal.
No factors indicate it‘s less serious.
As for the recidivism factors, the Court notes the Defendant does have a lengthy history of criminal convictions going back thirty years. He has not responded to previously imposed sanction. As noted, he‘s been to prison on six prior occasions. Five in the State of Ohio; one Federal term.
He had been released from probation just a couple months earlier, three, four months before the commission of this
offense. A drug abuse problem certainly relates to the commission of the offense and the Defendant is here today indicating that he knows, he knows he has an issue. He has attempted different steps at this point to address what‘s happened over the past thirty years. But that‘s just something that happened now. And we don‘t know because we‘ve gone through this before in the past. No factors indicate recidivism is less likely. I will note the Defendant has put himself in this program at Ed Keating and for a decent amount of time and appears to be doing well. But we‘re talking thirty years of conduct here. But that is something to be noted under the less likely recidivism factors.
{12} Based upon the trial court‘s above statements at sentencing, Freshwater maintains that the court erred in considering the physical altercation that occurred in this case as a factor indicating his conduct was more serious than conduct normally constituting the offenses. Freshwater contends that the fact of the physical altercation “goes beyond the factors outlined in
{13} Freshwater next maintains that the trial court erred in considering the fact that Freshwater had been the victim of multiple violent acts in the past as a factor making his conduct more serious. However, we do not read the trial court‘s statements as indicating that Freshwater‘s history as a victim of violent crimes made his conduct more
{14} Freshwater lastly contends that the trial court “completely ignored” the mitigating factor of his remorse, particularly in light of his “significant steps in treatment to make changes in his life.” However, the trial court specifically acknowledged his treatment when discussing the recidivism factors. Further, to the extent that Freshwater expressed remorse for the offenses, the trial court was not required to expressly state that it had considered his remorse, nor was it required to find Freshwater‘s statements of remorse credible. See State v. Rutherford, 11th Dist. Lake No. 2020-L-033, 2020-Ohio-3934, ¶ 7.
{15} Based upon the foregoing, Freshwater‘s first assigned error is without merit.
{16} In his second through fifth assigned errors, Freshwater argues:
[2.] The Defendant-Appellant‘s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
[3.] The Defendant-Appellant‘s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of separation of powers.
[4.] The Defendant-Appellant‘s indeterminate prison sentence on count three of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, violates his constitutional right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Ohio Constitution.
[5.] The Defendant-Appellant‘s indeterminate prison sentence of five to seven and one-half years that was ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 201, violates his constitutional rights to fair trial and due process as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5 & 10 of the Ohio Constitution.
{17} In Freshwater‘s second through fifth assigned errors, he raises constitutional challenges to the Reagan Tokes Law, under which he received an indeterminate prison sentence of five to seven and one-half years on the possession of cocaine count.
{18} Initially, we note that Freshwater did not raise the void for vagueness challenge contained in his second assigned error in the trial court. “While an appellate court may hear a constitutional challenge that has not been raised below, such an issue is evaluated only for plain error.” State v. Shannon, 11th Dist. Trumbull No. 2021-T-0049, 2022-Ohio-4160, ¶ 42, citing State v. Freetage, 11th Dist. Portage No. 2020-P-0083, 2021-Ohio-4050, ¶ 34. ““When the court hears an appeal for plain error, it must presume the constitutionality of the statute at issue and will not invalidate it unless the challenger establishes that it is unconstitutional beyond a reasonable doubt.“” Shannon at ¶ 42, quoting Freetage at ¶ 34. Nonetheless, this court has previously considered the arguments raised in Freshwater‘s second assigned error, as well as his third through fifth assigned errors, and for the reasons addressed below, the trial court did not err in finding the Reagan Tokes Law constitutional.
{19} The issue of the facial constitutionality of the Reagan Tokes Law is currently pending before the Supreme Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496; and State v. Simmons, Sup. Ct. Case No. 2021-0532. This court has
{20} For the reasons stated in Moran, Taylor, and Scott, Freshwater‘s second through fifth assigned errors are without merit.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
Case No. 2022-L-071