State v. Laws ( 2023 )

[Cite as State v. Laws, 2023-Ohio-77.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111591
v. :
KATO LAWS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART;
REMANDED
RELEASED AND JOURNALIZED: January 12, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-653057-A, CR-20-654036-A, CR-21-655736-A,
and CR-21-657668-G
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Nora C. Bryan, Assistant Prosecuting
Attorney, for appellee.
The Law Office of Jaye M. Schlachet and Eric M. Levy, for
appellant.
MARY J. BOYLE, J.:
Defendant-appellant Kato Laws (“Laws”) appeals his sentence,
challenging the constitutionality of the Reagan Tokes Law and arguing that his
sentence is contrary to law because the trial court failed to notify him of all the
statutory advisements under the Reagan Tokes Law. For the following reasons, we
affirm.
I. Facts and Procedural History
Laws was indicted in four separate cases in the Cuyahoga Court of
Common Pleas: Cuyahoga C.P. No. CR-20-653057-A on October 28, 2020;
Cuyahoga C.P. No. CR-20-654036-A on November 3, 2020; Cuyahoga C.P. No. CR-
21-655736-A on January 13, 2021; and Cuyahoga C.P. No. CR-21-657668-G on
March 5, 2021. The first case, CR-20-653057, charged him with aggravated burglary
in violation of R.C. 2911.11(A)(1), a first-degree felony (Count 1), and felonious
assault in violation of R.C. 2903.11(A)(1), a second-degree felony (Count 2). The
second case, CR-20-654036, charged him with aggravated robbery in violation of
R.C. 2911.01(A)(1), a first-degree felony (Count 1), and felonious assault in violation
of R.C. 2903.11(A)(2), a second-degree felony (Count 2). Each of the counts in CR-
20-654036 included one- and three-year firearm specifications. The third case, CR-
21-655736, charged him with burglary in violation of R.C. 2911.12(A)(2), a second-
degree felony (Count 1).
In the fourth case, CR-21-657668, Laws and seven codefendants were
charged in a 53-count indictment. Laws was charged with participating in a criminal
gang in violation of R.C. 2923.42(A), a second-degree felony (Count 1); having
weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree
felony (Count 15); three counts of trafficking in violation of R.C. 2925.03(A)(2), two
of which were fourth-degree felonies (Counts 23 and 25) and one of which was a
fifth-degree felony (Count 24); and three counts of drug possession in violation of
R.C. 2925.11(A), two of which were fourth-degree felonies (Counts 26 and 28) and
one of which was a fifth-degree felony (Count 27). Count 1 carried both one- and
three-year firearm specifications. Counts 23, 24, 25, 26, 27, and 28 each carried a
one-year firearm specification. Count 15 included forfeiture of a 9 mm handgun,
and Counts 23 and 26 included forfeiture of money in a drug case.
The trial court initially released Laws on bond and ordered him to
have no contact with the victims in CR-20-653057, CR-20-654036, CR-21-655736.
On March 17, 2021, the trial court issued a capias warrant and jailed Laws on
August 14, 2021, following his extradition from Los Angeles.
On April 13, 2022, following a negotiated plea with plaintiff-appellee,
the state of Ohio, Laws pled guilty in CR-20-653057 to Count 1 as amended to
burglary in violation of R.C. 2911.12(A)(3), a third-degree felony, and Count 2 as
amended to attempted felonious assault in violation of R.C. 2923.02/2903.11(A)(1),
a third-degree felony. In CR-20-654036, Laws pled guilty to aggravated robbery
with a three-year firearm specification as charged in Count 1. The one-year firearm
specifications in Count 1 and Count 2 were deleted. In CR-21-655736, Laws pled
guilty to Count 1 as amended to attempted burglary in violation of R.C.
2923.02/2911.12(A)(2), a third-degree felony. Lastly, in CR-21-657668, Laws pled
guilty to Count 1, participating in a criminal gang, a second-degree felony, as
amended by deletion of the one- and three-year firearm specifications; Count 15,
having weapons while under disability and forfeiture of the 9 mm handgun, as
charged; and Counts 23 and 25, fourth-degree-felony trafficking, as amended by
deletion of the one-year firearm specifications in both counts. Counts 24, 26, 27,
and 28 were deleted.
Laws’s plea agreement with the state included a recommended
sentencing range of six to ten years in prison and reimbursement of $3,541.25 in
extradition costs. Before accepting the plea, the trial court advised Laws of the effect
of the Reagan Tokes Law on any sentence it would impose for aggravated robbery in
CR-20-654036 and participating in a criminal gang in CR-21-657668. Counsel for
Laws objected to constitutionality of the Reagan Tokes Law.
The matter proceeded to sentencing on May 10, 2022. The trial court
again informed Laws that “aggravated robbery is a first degree felony * * *
punishable under the Reagan Tokes Law, Senate Bill 201, with a minimum sentence
of three to four-and-a-half years, and up to 11 and 16-and-a-half years” and
“participating in a criminal gang, a felony of the second degree, [is] punishable by
two to three years as a minimum and up to 8 to 12 years” and “also fall[s] under the
Reagan Tokes advisement which I will give momentarily.” After informing Laws of
the minimum and maximum terms, the trial court then notified Laws of the Reagan
Tokes Law:
Mr. Laws, at the time of your plea we went over a few things. I am going
to go over them again just to preserve the record and make sure that
you understand.
Senate Bill 201 titled the Reagan Tokes Law significantly altered the
sentencing structure for many of Ohio’s most serious felonies. Senate
Bill 201 implements an indefinite sentencing system for non-life
felonies of the first degree and second degree.
I must now impose a minimum term from within the currently
established range and a maximum term of an additional 50 percent of
the minimum term imposed.
Release is presumed to occur at the expiration of the minimum term.
However, the Department of Rehabilitation and [Correction] may,
under certain circumstances, rebut that release presumption and
impose additional prison time up to the maximum term.
The DRC may also reduce the minimum term by 5 to 15 percent for
exceptional conduct or adjustment to incarceration with approval of
the sentencing court.
Senate Bill 201 went into effect on March 22, 2019, and applies to all
non-life felonies of the first degree and second degree that occurred
after this effective date.
(Sentencing hearing, May 10, 2022, tr. 49-50.)
Counsel for Laws again objected to the constitutionality of the Reagan
Tokes Law at sentencing. The state, Laws’s girlfriend Luna Astro (“Astro”), defense
counsel, Laws himself, and Laws’s father all addressed the court. The state noted
that Laws was actively involved in the Laflexico gang, pled guilty to three separate
violent offenses, had “absconded from the jurisdiction,” “was found in Los Angeles,”
and “needed to be extradited back to face those charges.” (Sentencing hearing, May
10, 2022, tr. 55.) The state requested that the court adopt the parties’ agreed-upon
sentencing range of six t0 ten years and sentence Laws within that range.
Astro spoke next, stating that Laws has two small children and a lot
of family in Los Angeles. Defense counsel stated that Laws was very involved in
skateboarding and the arts, including acting and singing, and that Laflexico was also
a music group. Defense counsel added that Laws wants to learn a trade, such as
HVAC, and that Laws’s father, who is contractor, offered Laws a job installing cable
wire on utility poles after his release from prison. Defense counsel requested that
the trial court adopt the minimum six years to which the parties had agreed. Laws
then addressed the court, stating that he had no excuses for the wrongs he
committed and just wanted to move forward in his life. Lastly, Laws’s father stated
that he is a business owner and guaranteed Laws a job. He also stated that Laws had
a hard childhood, is a good man, his criminal conduct did not define him, and he
only accepted responsibility for the crimes because he faced a substantially longer
period in jail if he did not.
The trial court acknowledged all the people who spoke on Laws’s
behalf and noted that Laws was the most remorseful and respectful of his
codefendants. In CR-20-654036, the trial court sentenced Laws to four to six years
on Count 1, aggravated robbery, and to three years on the associated firearm
specification to be served prior and consecutively to the prison term on the
underlying offense. The trial court sentenced Laws in the remaining three cases to
prison terms that would run concurrently with each other and to the sentence
imposed in CR-20-654036. In CR-20-653057, the court sentenced Laws to 24
months on amended Count 1, burglary, and 24 months on amended Count 2,
attempted felonious assault. In CR-21-655736, the court sentenced Laws to 24
months for the sole count of attempted burglary. In CR-21-657668, the court
sentenced Laws to four to six years on amended Count 1, participating in a criminal
gang; 24 months on Count 15, having weapons while under disability; and 12 months
on each of the trafficking charges in Counts 23 and 25.
In its corresponding sentencing entries issued the same day as the
hearing, the trial court stated in CR-20-654036:
The court imposes a prison sentence * * * of 7 year(s). 3 year firearm
spec. runs prior and consecutive to 4 year underlying sentence. The
underlying sentence imposed on defendant is an indefinite sentence
under SB 201 — Reagan Tokes Law. The aggregate minimum term
imposed by the court is 4 years. The maximum term is 6 years.
Underlying sentence runs concurrent to sentences in 655736, 657668
& 653057. * * * [T]he defendant will/may be subject to a period of
post-release control of: a mandatory minimum 2 years, up to a
maximum of 5 years.
(Sentencing entry, CR-20-654036, May 10, 2022.)
In its sentencing entry for CR-20-653057, the trial court “impose[d]
a prison sentence * * * of 24 month(s). Ct. 1: 24 mos. & Ct. 2: 24 mos. Counts run
concurrent to each other and to sentences 654036, 655736 & 657668. * * * [T]he
defendant will/may be subject to a period of post-release control: up to 2 years of
PRC at the discretion of the parole board.” (Sentencing entry, CR-20-653057,
May 10, 2022.)
In the sentencing entry for CR-21-655736, the trial court “impose[d]
a prison sentence of * * * 24 month(s). Ct. 1: 24 mos. Sentence runs concurrent with
sentences in 654036, 653057 & 657668. * * * [T]he defendant will/may be subject
to a period of post-release control of: a mandatory minimum 1 year, up to a
maximum of 3 years.” (Sentencing entry, CR-21-655736, May 10, 2022.)
Lastly, in its sentencing entry for CR-21-657668 sentencing entry, the
trial court stated:
The court imposes a prison sentence * * * of 4 year(s). The sentence
imposed in Ct. 1 upon defendant is an indefinite sentence under SB 201
— Reagan Tokes Law. Ct. 1 the aggregate minimum term imposed by
the court is 4 years. The maximum term is 6 years. Ct. 15: 24 mos., Ct.
23: 12 mos. & Ct. 25: 12 mos., all counts run concurrent to each other
and to sentences in 655736, 653057, and 654036. * * * [T]he
defendant will/may be subject to a period of post-release control of: a
mandatory minimum 18 months, up to a maximum of 3 years. * * *
Restitution ordered in the amount of $3,541.35 to Cuyahoga County
Prosecutor Office.
(Sentencing entry, CR-21-657668, May 10, 2022.)
The court credited Laws with 269 days in jail and waived fines and
costs in all four cases.
Laws now appeals his sentence, raising the following assignments of
error for review:
Assignment of Error I: Appellant’s indefinite sentence imposed
under the Reagan Tokes sentencing scheme violates appellant’s rights
under the United States Constitution applied to the state of Ohio
through the Fourteenth Amendment and the Ohio Constitution as it
denies appellant due process of law; violates the Sixth Amendment
right to a jury trial; violates the separation of powers doctrine; does not
provide fair warning of the dictates of the statute to ordinary citizens;
and the statute conferred too much authority to the Ohio Department
of Rehabilitation and Correction (ODRC).
Assignment of Error II: Appellant’s sentence is contrary to law
where the trial court failed to comply with the required notices
contained in R.C. 2929.19(B)(2)(c) when imposing [the] sentence.
II. Law and Analysis
A. Reagan Tokes
In his first assignment of error, Laws challenges the constitutionality
of his indefinite sentence under the Reagan Tokes Law, raising the same arguments
addressed by this court en banc in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d
536 (8th Dist.). Laws notes in his brief that he advances these arguments to preserve
them for further review. Based on the arguments presented, however, we conclude
that Laws’s sentence is constitutional under Delvallie. Therefore, his first
assignment of error is overruled.
B. R.C. 2929.19
In his second assignment of error, Laws contends that prior to
sentencing, the trial court failed to give him all the advisements required by R.C.
2929.19(B)(2)(c).
When a trial court imposes a non-life felony indefinite sentence
pursuant to the Reagan Tokes Law, R.C. 2929.19(B)(2)(c) requires that the trial
court notify the offender
(i) That it is rebuttably presumed that the offender will be released from
service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender’s presumptive
earned early release date, as defined in section 2967.271 of the Revised
Code, whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a
hearing held under section 2967.271 of the Revised Code, the
department makes specified determinations regarding the offender’s
conduct while confined, the offender’s rehabilitation, the offender’s
threat to society, the offender’s restrictive housing, if any, while
confined, and the offender’s security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and
rebuts the presumption, the department may maintain the offender’s
incarceration after the expiration of that minimum term or after that
presumptive earned early release date for the length of time the
department determines to be reasonable, subject to the limitation
specified in section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender’s incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject
to the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of
the offender’s maximum prison term imposed as part of the sentence,
the offender must be released upon the expiration of that term.
While the court must give these notices at the time of sentencing, no
specific language is required. State v. Gates, 8th Dist. Cuyahoga No. 110616, 2022-
Ohio-1666, ¶ 25.
Here, at the sentencing hearing, the trial court notified Laws that
[r]elease is presumed to occur at the expiration of the minimum term.
However, the Department of Rehabilitation and [Correction] may,
under certain circumstances, rebut that release presumption and
impose additional prison time up to the maximum term.
The DRC may also reduce the minimum term by 5 to 15 percent for
exceptional conduct or adjustment to incarceration with approval of
the sentencing court.
(Sentencing hearing, May 10, 2022, tr. 50.)
Pursuant to R.C. 2929.19(B)(2)(c), the trial court notified Laws (i) of
the rebuttable presumption that he would be released upon expiration of the
minimum prison term or the “presumptive earned early release date,” as defined in
R.C. 2967.271; (ii) that “under certain circumstances” the presumption is rebuttable
by the Department of Rehabilitation and Correction (“DRC”); and (iii)-(v) that, if
rebutted, Laws may be remain in prison up to the maximum term. However, the
trial court’s reference to “certain circumstances” does not identify the “specified
determinations” the DRC may make to rebut the presumption or that the
presumption may be rebutted more than once up to the maximum term or that Laws
must be released upon expiration of the maximum term. Therefore, the trial court
did not fully notify Laws of the required advisements under R.C. 2929.19(B)(2)(c).
Laws argues that the trial court’s failure to fully notify him of the R.C.
2929.19(B)(2)(c) advisements requires either vacation of his sentence or remand for
resentencing. This court has held that such an error does not undermine the
conviction and that the proper remedy is remand for resentencing so that the
offender may be given the proper advisements. State v. Bobo, 8th Dist. Cuyahoga
No. 111362, 2022-Ohio-3555, ¶ 33; State v. Bradley, 8th Dist. Cuyahoga No. 110882,
2022-Ohio-2954, ¶ 13; Gates, 2022-Ohio-1666, at ¶ 27; State v. Whitehead, 8th Dist.
Cuyahoga No. 109599, 2021-Ohio-847, ¶ 46.
Therefore, Laws’s second assignment of error is sustained.
III. Conclusion
Laws’s sentence pursuant to the Reagan Tokes Law is constitutional
under this court’s en banc decision in Delvallie, 2022-Ohio-470, 185 N.E.3d 536,
and is therefore affirmed. Because the trial court failed to fully notify Laws of the
R.C. 2929.19(B)(2)(c) advisements, however, the case is remanded for resentencing
solely to provide the proper advisements.
Accordingly, judgment is affirmed in part, reversed in part, and
remanded for resentencing solely to provide all the advisements required by
R.C. 2929.19(B)(2)(c).
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.
_________________________
MARY J. BOYLE, JUDGE
LISA B. FORBES, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION)
N.B. Judge Lisa B. Forbes constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J.,
dissenting).
KATHLEEN ANN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY:
Respectfully, I concur in judgment only because the majority opinion
does not make clear that Laws’s void-for-vagueness challenge to the Reagan Tokes
Law is actually a due process challenge that was considered and rejected in Delvallie.
“[A]ny statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute is void for vagueness.” State v.
Tanner, 15 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984). Laws contends that the Reagan
Tokes Law is void for vagueness because it “does not provide fair warning of the
dictates of the statute to ordinary citizens.” (Appellant’s brief, p. 3). The arguments
raised in Laws’s appellate brief and the state’s response to those arguments make
clear, however, that Laws’s void-for-vagueness challenge is actually a due process
challenge to the constitutionality of the Reagan Tokes Law that was considered and
overruled in Delvallie. Because the majority opinion fails to recognize this
distinction, I respectfully concur in judgment only.