State v. MurrayState v. Murray
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: February 2, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Michael Timms, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Vondel T. Murray (“Murray“), raising a single assignment of error, argues that the Reagan Tokes Law is unconstitutional and, therefore, his sentence imposed under that law is invalid. For the following reasons,
Factual and Procedural History
{¶ 2} On June 9, 2021, in Cuyahoga C.P. No. CR-21-660314-A, a Cuyahoga County Grand Jury indicted Murray on two counts of felonious assault in violation of
{¶ 3} On March 31, 2022, Murray withdrew his prior pleas and pleaded guilty to amended Count 1, felonious assault, a felony of the second degree in violation of
{¶ 4} On April 28, 2022, the trial court held a sentencing hearing. On Count 1, the court ordered Murray to serve one year on the firearm specification to run prior to and consecutive to a five-year sentence on the felonious assault charge. The court sentenced Murray to five years on amended Count 2. The court ordered the five-year sentences to be served concurrently. Pursuant to the Reagan Tokes Law, the court imposed a maximum sentence of seven and one-half years on Count
{¶ 5} On May 24, 2022, Murray filed an appeal presenting a single assignment of error for our review:
Assignment of Error: As amended by S.B. 201, the Revised Code‘s sentences for first- and second-degree qualifying felonies violate the Constitutions of the United States and the State of Ohio; accordingly, the trial court plainly erred in imposing a S.B. 201 indefinite sentence.
Legal Analysis
{¶ 6} In his sole assignment of error, Murray argues that the Reagan Tokes Law is unconstitutional and, therefore, his sentence imposed under that law is invalid. Specifically, Murray argues that his indefinite sentence under the Reagan Tokes Law, enacted under S.B. 201 and
{¶ 7} This court‘s en banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), overruled Murray‘s challenges to S.B. 201 that are presented in this appeal. Therefore, we are constrained to follow Delvallie, and as such, find that the Reagan Tokes Law is constitutional. We must find that Murray‘s sentence pursuant to the Reagan Tokes Law was not a violation of his constitutional rights and, therefore, his assignment of error is overruled.
{¶ 8} In its appellee brief, the state of Ohio noted an error in the trial court‘s sentencing journal entry. At the sentencing hearing, the trial court imposed a five-
COURT: You must be sentenced for a period that this Court concludes is six years, and I‘ll do that by sentencing you to one year for the firearm spec, followed by a five-year period of incarceration. Count 1 --
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There is a firearm spec indicating he had a firearm on or about his person or under his control when he committed the offense. The ORC requires a period of one year incarcerated followed by a five-year sentence for a total sentence of six years for this offense on Count 1. He is sentenced to a five-year concurrent sentence on Count 2.
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It is Reagan Tokes, which means that the five years, under the current state of the law, could become 7.5 years at the discretion of the Ohio Department of [Rehabilitation and Correction].
{¶ 9} In contrast to the court‘s comments in open court, the court‘s May 2, 2022 sentencing entry stated, in pertinent part:
The court imposes a minimum prison term of 6 year(s) and a maximum prison term of 8 year(s), 6 month(s) on the underlying offense(s). The total stated prison term is six to eight and a half years at the Lorain Correctional Institution.
{¶ 10} In compliance with the Reagan Tokes Law, courts impose maximum prison terms on qualifying offenses.
{¶ 11} Trial courts retain jurisdiction to correct clerical errors in judgment entries so that the entries accurately reflect the trial court‘s decision. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19;
{¶ 12} The May 2, 2022 journal entry contains clerical errors that can be corrected through a nunc pro tunc entry. On remand, the trial court shall correct the clerical error in the May 2, 2022 journal entry to accurately state that the court imposed on Count 1 a minimum prison term of five years and a maximum prison term of seven and one-half years.
{¶ 13} Judgment affirmed and case remanded for proceedings consistent with this opinion.
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.
MARY EILEEN KILBANE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and EILEEN T. GALLAGHER, J., CONCUR
N.B. 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.
Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that