State v. Fontanez , 2023 Ohio 312 ( 2023 )

[Cite as State v. Fontanez, 2023-Ohio-312.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : Nos. 111582, 111584,
111585, 111586, and
v. : 111587
JUAN FONTANEZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-659264-C, CR-21-657923-A, CR-21-657916-B,
CR-21-657668-C, and CR-21-661882-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alicia Harrison, Assistant Prosecuting
Attorney, for appellee.
Michael P. Maloney, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant Juan Fontanez (“appellant”) appeals his sentence from the
Cuyahoga County Court of Common Pleas, arguing that it is unconstitutional. After
a thorough review of the facts and applicable law, we affirm the judgment of the trial
court.
I. Factual and Procedural History
This appeal arises from appellant’s convictions and sentencing across
five cases.1 Appellant pled guilty to the following charges:
CR-21-659264-C
One count of failure to comply, a fourth-degree felony;
One count of having weapons while under disability, a third-degree
felony; and
One count of improper handling of firearms in a motor vehicle, a
fourth-degree felony.
CR-21-657916-B
One count of having weapons while under disability, a third-degree
felony.
CR-21-661882-A
One count of drug possession, a felony of the fifth degree.
CR-21-657923-A
One count of aggravated robbery, a first-degree felony, with
accompanying three-year firearm specification.
One count of having weapons while under disability, a third-degree
felony.
CR-21-657668-C
One count of participation in a criminal gang, a second-degree felony;
1
The underlying substantive facts of this case are not relevant to the issues raised
in this appeal.
One count of improperly discharging a firearm into habitation, a
second-degree felony, along with a three-year firearm specification;
One count of improperly discharging a firearm into habitation, a
second-degree felony; and
Two counts of having weapons while under disability, both third-
degree felonies.
Pursuant to the plea agreement, appellant faced a sentencing range of
9 to 12 years. The trial court agreed to sentence appellant within that range and
advised him that the Reagan Tokes Law applied to his first- and second-degree
felonies.
The court sentenced appellant to 24 months on CR-21-659264; 24
months on CR-21-657916; 12 months on CR-21-661882; five to seven and one-half
years on CR-21-657923; and five to seven and one-half years on CR-21-657668. The
sentences for each case were to run concurrently, with the two three-year sentences
for the firearm specifications to run first and then the five to seven and one-half-
year sentences under the Reagan Tokes Law to follow for a total of 11 to 13 ½ years
in prison.
Appellant then filed the instant appeal, raising one assignment of error
for our review:
The indefinite sentence imposed upon appellant under the Ohio
Reagan Tokes Act was unconstitutional, imposed in violation of the
separation of powers doctrine.
II. Law and Analysis
In this appeal, appellant challenges the constitutionality of the Reagan
Tokes Law as it relates to his sentences in cases CR-21-657923 and CR-21-657668.
Therefore, our review is limited to this sole assignment of error, in which appellant
argues that the Ohio Revised Code sentencing provisions as enacted by Am.Sub.S.B.
No. 201, commonly known as the Reagan Tokes Law, are unconstitutional. He
claims that the Reagan Tokes Law violates the separation-of-powers doctrine.
Appellant, however, did not object to his sentence nor did he raise a
constitutional challenge to the Reagan Tokes Law at his sentencing hearing. “‘It is
well established that “the question of the constitutionality of a statute must generally
be raised at the first opportunity and, in a criminal prosecution, this means in the
trial court.”’” State v. Jenkins, 8th Dist. Cuyahoga No. 109323, 2021-Ohio-123, ¶ 21,
quoting State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838,
¶ 8, quoting State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294,
¶ 7.
This court has declined to address constitutional challenges to the
Reagan Tokes Law when defendants did not object to their sentences or otherwise
raise the constitutionality of the act at their sentencing hearing. See Jenkins at ¶ 20-
24; State v. White, 8th Dist. Cuyahoga No. 109652, 2021-Ohio-126, ¶ 6-11; State v.
Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-54; State v. Stone,
8th Dist. Cuyahoga No. 109322, 2020-Ohio-5263, ¶ 6-10. However, “[e]ven if the
appellant failed to object to the constitutionality of the statute at the trial-court level,
appellate courts may still review a trial court decision for plain error.” State v.
Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 14, citing State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. In order
to review for plain error “we require a showing that there was an error, that the error
was plain or obvious, that but for the error the outcome of the proceeding would
have been otherwise, and that reversal must be necessary to correct a manifest
miscarriage of justice.” Buttery at ¶ 7.
Appellant concedes that this court has found the Reagan Tokes Law to
be constitutional but states that he wishes to preserve the issue raised as the
litigation relating to the law makes its way through Ohio courts. Indeed, this court
has conducted en banc review of the constitutionality of the Reagan Tokes Law. See
State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 356 (8th Dist.). In Delvallie, we
determined “that the Reagan Tokes Law, as defined under R.C. 2901.011, is not
unconstitutional.” Delvallie at ¶ 17. This court specifically overruled the separation-
of-powers challenge advanced by appellant and consequently, we need not dwell on
it.
Appellant’s sole assignment of error is overruled.
Judgment affirmed.
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.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MARY EILEEN KILBANE, 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 R.C. 2967.271(C) and (D) of the Reagan Tokes Law are
unconstitutional.