State v. Hicks , 2022 Ohio 685 ( 2022 )

[Cite as State v. Hicks, 2022-Ohio-685.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110193
v. :
DARRYL HICKS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644372-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Valore & Gordillo LLP and Dean M. Valore, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Darryl Hicks (“Hicks”), appeals his sentence.
He raises one assignment of error for our review:
The Reagan Tokes Law is unconstitutional on its face.
For the reasons set forth below, we affirm the trial court’s judgment.
I. Procedural History
On March 19, 2020, Hicks pled guilty to the following charges: Count
1, felonious assault, with notice of prior conviction specification, which was
amended by the deletion of the one-, three-, and 4.5-year firearm specifications and
the repeat violent offender specification; Count 3, felonious assault, with a one-year
firearm specification, notice of prior conviction specification, and a repeat violent
offender specification, which was amended by the deletion of the three- and 4.5-year
firearm specifications; and Count 4, having weapons while under disability, with a
one-year firearm specification and forfeiture specification, which was amended by
the deletion of the 4.5 year-firearm specification; Count 7, criminal damaging; and
Count 8, assault. Counts 2, 5, and 6 were nolled.
The trial court sentenced Hicks the same day and advised him of the
effect of the Reagan Tokes Law on his sentence. As set forth in the trial court’s
sentencing journal entry:
The court imposes a prison sentence at the Lorain Correctional
Institution of 3 year(s).
Defendant is sentenced to 2 years as to Count 1; Counts 3 and 4 firearm
specifications merge for a sentence of 1 year to be served prior to and
consecutive to the underlying sentence. Count 3 is qualifying sentence
and court imposes minimum prison term of 2 years and maximum
prison term of 3 years. As to Count 4, court imposes 1 year prison term,
as to Count 7, 90 days and as to Count 8, 180 days. All underlying
sentences to run concurrent to each other.
The defendant has a total state prison term of 1 year for the firearm
specification to be served prior to and consecutive to the underlying
sentencing of a minimum of 2 years and maximum of 3 years.
The court has notified the defendant that pursuant to R.C.
2929.19(B)(2)(C), it is rebuttably presumed that the defendant will be
released from service of the sentence on the expiration of the aggregate
minimum prison term imposed (and after the service of the
specification) or presumptive early release date, whichever is earlier.
That the department of rehabilitation and correction may rebut the
presumption if it makes specified determinations at a hearing
regarding offender’s conduct while confined, threat to society,
restrictive housing and/or security classification while confined
pursuant to R.C. 2967.271, and may then maintain the defendant’s
incarceration after the expiration of the aggregate minimum prison
term for a reasonable time and may make such determinations more
than one time up to the aggregate maximum prison term. The trial
court can conduct a hearing and find the early release date is rebutted
pursuant to 2967.271(F)(1).
Hicks did not object to the constitutionality of the Reagan Tokes Act
at sentencing.
On December 28, 2020, Hicks filed a motion for a delayed appeal
with this court, arguing “ineffective assistance of counsel and Covid[-]19.” The state
filed an opposition. This court granted Hicks’s motion and appointed him counsel.
II. Reagan Tokes Act
In this appeal, Hicks challenges the constitutionality of the Reagan
Tokes Act as it relates to his sentence. Therefore, our review is limited to this sole
assignment of error, in which Hicks argues that the Ohio Revised Code sentencing
provisions as enacted by Am.Sub.S.B. No. 201, commonly known as the Reagan
Tokes Act, are unconstitutional. He claims that the Reagan Tokes Act violates (1)
the constitutional right to a trial by jury, (2) the separation-of-powers doctrine, and
(3) due process.
Hicks, however, did not object to his sentence nor did he raise a
constitutional challenge to the Reagan Tokes Act 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 Act 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; and State v. Dames, 8th
Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 12-19, appeal accepted for review,
162 Ohio St.3d 1410, 2021-Ohio-961, 165 N.E.3d 333 (cause held for decision in
State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150). We
therefore decline to address Hicks’s constitutional arguments raised for the first
time on appeal.
Although this court has the discretion to review arguments that were
not raised in the trial court for plain error, we decline to do so here. As we noted in
Dames:
Even 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. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. However, 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.” Dames did
not make any plain error showing for this court to review.
Id. at ¶ 14; see also Hollis at ¶ 50 (“Furthermore, like Dames, appellant failed to raise
a plain error argument in this appeal, and we decline to construct a plain error
argument on appellant’s behalf.”); Stone at ¶ 10 (“In addition to failing to raise a
constitutional challenge of the Reagan Tokes Act in the trial court, Stone also has
not argued plain error in this appeal. Thus, we decline to address this issue for the
first time on appeal.”).
Accordingly, Hicks’s sole assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LISA B. FORBES, J., CONCUR
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of this writer’s analysis, see State v. Delvallie, 8th Dist.
Cuyahoga No. 109315, 2022-Ohio-470.
Judge Lisa B. Forbes is also constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J.,
dissenting).