State v. Cox ( 2023 )

[Cite as State v. Cox, 2023-Ohio-377.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 111636, 111640,
v. : and 111651
BRIAN L. COX, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 9, 2023
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case Nos. CR-21-660012-A, CR-21-660090-A, CR-22-669956-A,
DL-21-100138, DL-21-100881, and DL-21-111153
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sean Kilbane, Assistant Prosecuting
Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Lauren
Hammersmith, Assistant State Public Defender, for
appellant.
ANITA LASTER MAYS, A.J.:
Defendant-appellant Brian L. Cox, Jr. (“Cox”) appeals the trial court’s
judgment sentencing him to an indefinite prison term pursuant to the Reagan Tokes
Law. After reviewing the facts of the case and pertinent law, we affirm.
Cox was charged in three complaints in Cuyahoga County Juvenile
Court.1 After the court found probable cause in relation to all counts in each
complaint, Cox’s cases were transferred to the general division of the common pleas
court. Cox entered guilty pleas to one count of aggregated robbery in Cuyahoga C.P.
No. CR-21-660012; two counts of aggravated robbery (with three-year firearm
specifications), one count of robbery, and one count of aggravate burglary (with a
three-year firearm specification) in Cuyahoga C.P. No. CR-21-660090; and one
count of robbery in Cuyahoga C.P. No. CR-22-669956. Cox agreed to a
recommended sentence with a range of 14 to 18 years. The trial court sentenced Cox
to an aggregate prison sentence of 14 to 16.5 years, subject to the Reagan Tokes Law
indefinite sentencing scheme.
Cox’s trial counsel objected to the imposition of the Reagan Tokes
Law citing that it was unconstitutional. Cox filed this appeal and assigned one error
for our review:
The Reagan Tokes Law violates the Ohio and U.S. Constitutions, Cox’s
sentence is contrary to law. R.C. 2953.08(G)(2); Sixth and Fourteenth
Amendments of the U.S. Constitution; Articles I, II, and III of the U.S.
1 Cox’s three juvenile cases were DL-21-100138, DL-21-100881, and DL-21-111153.
Constitution; and Article I, Sections 5, 10, and 16 of the Ohio
Constitution.
I. Law and Analysis
In Cox’s sole assigned error, he argues that his sentence violates the
separation-of-powers doctrine and does not satisfy the requirements of due process,
and thereby violates his constitutional rights.
Cox’s assignment of error is overruled pursuant to this court’s en banc
decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.).
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.
______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MARY EILEEN KILBANE, J., CONCUR
N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s
en banc decision. For a full explanation of her analysis, see State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and
dissenting in part).
Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes
and the concurring in part and dissenting in part opinion by Administrative Judge
Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law
unconstitutional.