State v. GreenState v. Green
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 10, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
{1 1} Defendant-appellant, Delvinci Green (“Green“), appeals his sentence. He raises the following single assignment of error for review:
As amended by the Reagan Tokes Act, the Revised Code‘s sentences for first and second degree qualifying felonies violates the constitutions of
the United States and the state of Ohio; the trial court plainly erred in imposing a Reagan Tokes indefinite sentence.
{1 2} For the reasons set forth below, we affirm the trial court‘s judgment.
I. Procedural History
{1 3} In March 2020, Green was charged in a 20-count indictment that included the offenses of aggravated burglary; burglary; aggravated robbery; robbery; abduction; theft; having a weapon while under disability; attempted murder; felonious assault; and aggravated menacing. The indictment included various firearm specifications, repeat violent offender specifications, and notice of prior conviction specifications.
{1 4} In October 2020, Green pled guilty to two amended counts of aggravated burglary (Counts 1 and 10); two amended counts of aggravated robbery (Counts 3 and 12); two amended counts of having weapons while under a disability (Counts 9 and 20); and an amended count (Count 15) of attempted murder. The aggravated burglary, aggravated robbery, and attempted murder charges contained a notice of prior conviction and repeat violent offender specification, and all charges contained a 54-month firearm specification. The remaining counts were nolled.
{1 5} At the plea hearing, the trial court informed Green that his sentence would involve the Reagan Tokes Act, that the trial court would “permit” Green to “raise that issue on appeal,” and that the trial court would appoint Green appellate counsel if necessary.
{1 7} At the sentencing hearing, the trial court again stated that it would give Green “an opportunity to appeal” the part of his sentence imposed pursuant to
{1 8} It is from this judgment that Green now appeals.
II. Reagan Tokes
{1 9} In his sole assignment of error, Green argues that the trial court erred in imposing an indefinite sentence pursuant to the Reagan Tokes Act because the Act violates the United States and Ohio Constitutions. Specifically, he argues that the Act violates his constitutional right to a jury trial, separation of powers, and due process. He requests that we modify his sentence to a term of 19 years of imprisonment without disturbing the other components of his sentence such as postrelease control.
{1 10} However, pursuant to our recent en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, this court has determined that challenges to the Reagan Tokes Act are ripe for review and that the Act is constitutional.1
{1 11} Accordingly, the sole assignment of error is overruled.
{1 12} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. 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.
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR
N.B. Judge Anita Laster Mays is constrained to apply Delvallie‘s en banc decision. For a full explanation of this writer‘s analysis, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.