State v. Potter ( 2023 )

[Cite as State v. Potter, 2023-Ohio-534.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111782
v. :
JULIUS POTTER, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 23, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-667757-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellee.
FRANK DANIEL CELEBREZZE, III, P.J.:
Plaintiff-appellant state of Ohio (“the state”) appeals from a judgment
of the trial court that found S.B. 201, the Reagan Tokes Law, unconstitutional and
did not sentence defendant-appellee Julius Potter accordingly. Pursuant to this
court’s en banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 538 (8th
Dist.), finding the Reagan Tokes Law constitutional, we reverse the trial court’s
judgment and remand the matter for resentencing.
I. Factual and Procedural History
Potter entered a guilty plea to felonious assault with firearm
specifications, having weapons while under disability, and resisting arrest. Potter
was sentenced to prison for a total term of five years. Pertinently, the trial court’s
journal entry noted that the “court determines the indefinite provisions of SB201 to
be unconstitutional.”
The state timely appealed, assigning a single error for our review:
The trial court plainly erred when it found S.B. 201 to be
unconstitutional and did not impose an indefinite sentence pursuant to
S.B. 201.
II. Law and Analysis
Pursuant to R.C. 2953.08(B)(2), the state has the right to appeal a
sentence that is contrary to law. A sentence that fails to impose a mandatory
provision is contrary to law. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-
1, 922 N.E.2d 923, ¶ 21.
This court, in Delvallie, 2022-Ohio-470, 185 N.E.3d 538, held that the
Reagan Tokes Law was constitutional and overruled all of the arguments raised by
Potter in this appeal, as Potter concedes in his brief. Because the trial court failed to
impose indefinite sentences on Potter’s two qualifying offenses in accordance with
the Reagan Tokes Law, the sentence was contrary to law.
The state’s sole assignment of error is sustained.
III. Conclusion
The trial court’s judgment was contrary to law because it failed to
sentence Potter in accordance with the Reagan Tokes Law, which this court found
constitutional in Delvallie. The trial court’s judgment is reversed, and the matter is
remanded for resentencing in accordance with the Reagan Tokes Law.
It is ordered that appellant recover from appellee 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
MICHELLE J. SHEEHAN, J., and
MICHAEL JOHN RYAN, J., CONCUR