State v. RodriguezState v. Rodriguez
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.
Brian R. McGraw, for appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART, AND REMANDED FOR RESENTENCING
RELEASED AND JOURNALIZED: March 16, 2023
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant, Adam Rodriguez (“Rodriguez”), appeals from his sentence. He raises the following assignments of error for review:
- The trial court erred in imposing an indefinite sentence (the “Reagan Tokes” sentencing law).
The trial court erred in ordering that all time given in this sentence be served as “mandatory time.” - The trial court erred when it advised/ordered that Rodriguez is not eligible for judicial release.
{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶ 3} On December 27, 2019, Rodriguez was named in a five-count indictment, charging him with kidnapping in violation of
{¶ 5} Satisfied that the pleas were knowingly, voluntarily, and intelligently made, the trial court accepted Rodriguez’s guilty pleas and referred him to the county probation department for a presentence-investigation report (“PSI”).
{¶ 6} On August 23, 2021, the trial court sentenced Rodriguez to three years in prison on the firearm specification attached to amended Count 2, to run prior and consecutive to an indefinite prison term of 11 to 16.5 years on the underlying kidnapping offense. Rodriguez was further sentenced to three years in prison on amended Count 4, and three years in prison on amended Count 5. The sentences imposed on amended Counts 2 and 4 were ordered to run consecutively. Finally, the sentence imposed on amended Count 5 was ordered to run concurrently with the remaining prison terms.
II. Law and Analysis
A. The Reagan Tokes Law
{¶ 8} In the first assignment of error, Rodriguez argues the trial court erred by imposing an indefinite sentence pursuant to the Reagan Tokes Law. He contends the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers doctrine and his right to due process under the Ohio and United States Constitutions.
{¶ 9} Consistent with the well-establish precedent of this court, we find no merit to the constitutional challenges raised within this assigned error. The question of whether the Reagan Tokes Law is constitutional was decided in this court’s en banc opinion in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). There, this court found “that the Reagan Tokes Law, as defined under
{¶ 10} The first assignment of error is overruled.
{¶ 11} In the second assignment of error, Rodriguez argues the trial court erred by advising him at the time of sentencing that each of his convictions carried mandatory prison terms as contemplated under
{¶ 12} Preliminarily, we note that Rodriquez failed to object to the imposition of a mandatory sentence at the sentencing hearing and, therefore, has forfeited all but plain error. See
{¶ 13} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 14} A criminal “sentence is a penalty or combination of penalties imposed on a defendant as punishment for the offense he or she is found guilty of committing.” State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 28. Fundamentally, “[c]rimes are statutory, as are the penalties.” Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). It is well recognized that “[a] trial court has ‘no inherent power to create sentences, and the only sentence that a trial judge may impose is that provided for by statute.’” State v. Bursley, 6th Dist. Huron No. H-19-014, 2021-Ohio-1613 ¶ 9, quoting State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 18, citing State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 12. Thus, a sentence is contrary to law when it is “in violation of statute or legal regulations at a given time.” State v. Jones, 162 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34, citing
{¶ 15} As stated, Rodriguez’s conviction for impersonating a peace officer was governed by
{¶ 16} Relevant to this appeal,
(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under * * * section 2929.14 * * * of the Revised Code and except as specifically provided in section 2929.20, divisions (C) to (I) of section 2967.19, or section 2967.191 of the Revised Code or when parole is authorized for the offense under section 2967.13 of the Revised Code shall not reduce the term or terms pursuant to * * * section 2967.193, or any other provision of Chapter 2967 * * * for any of the following offenses:
* * *
(6) Any offense that is a first or second degree felony and that is not set forth in division (F)(1), (2), (3), or (4) of this section, if the offender previously was convicted of or pleaded guilty to aggravated murder, murder, any first or second degree felony, or an offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to one of those offenses;
* * * (8) Any offense, other than [carrying concealed weapons], that is a felony, if the offender had a firearm on or about the offender’s person or under the offender’s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm[.]
{¶ 17} “[I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [i]mpose a stated prison term and, if the court imposes a mandatory prison term, notify the offender that the prison term is a mandatory prison term.”
The entirety of your prison sentence is mandatory and you are not eligible for good time credit or judicial release.
(Tr. 64.) The trial court’s characterization of Rodriquez’s sentence and his ineligibility for sentencing reductions under
{¶ 19} On appeal, Rodriguez does not challenge the trial court’s consideration of the purposes and principles of felony sentencing, or the court’s compliance with
{¶ 21} After careful consideration, we agree with the state’s interpretation of the facts and the applicable sentencing provisions. In this case, Rodriquez’s three-year prison sentence on amended Count 4 is clearly within the range indicated for a third-degree felony. As recognized by the state, however, none of the provisions of
{¶ 23} Accordingly, we sustain the second and third assignments of error.
{¶ 24} Judgment affirmed in part, reversed in part, and remanded for resentencing on amended Count 4.
It is ordered that appellee and appellant share the 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.