State v. Dowdley , 2022 Ohio 815 ( 2022 )

[Cite as State v. Dowdley, 2022-Ohio-815.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110377
v. :
DIRK DOWDLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: March 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-653044-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eric Collins, Assistant Prosecuting
Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Dirk Dowdley (“Dowdley”) appeals from his
sentence for burglary following a guilty plea. Specifically, Dowdley argues that his
sentence is invalid because it was imposed under the Reagan Tokes Law and is
therefore unconstitutional, and that the court erred by imposing both a prison
sentence and a community-control sanction. For the following reasons, we vacate
and remand.
Factual and Procedural History
On October 1, 2020, a Cuyahoga County Grand Jury indicted
Dowdley on one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the
second degree; one count of petty theft in violation of R.C. 2913.02(A)(1), a
misdemeanor of the first degree; and one count of receiving stolen property in
violation of R.C. 2913.51(A), a felony of the fourth degree.
Dowdley initially pleaded not guilty to these charges. On February 3,
2021, the assistant prosecuting attorney and Dowdley’s counsel informed the court
that they had negotiated a plea deal. The assistant prosecuting attorney informed
the court that Dowdley was agreeing to plead guilty to one count of burglary, as
indicted, and the remaining counts would be dismissed. The parties informed the
court that they were recommending a sentence of two years.
The court engaged in a Crim.R. 11 colloquy with Dowdley and
accepted his guilty plea. As part of the plea colloquy, the court informed Dowdley
that the burglary charge was a qualifying offense under Senate Bill 201, the Reagan
Tokes law (“Reagan Tokes”), and explained the implications of the law. The court
then proceeded directly to sentencing.
The state informed the court that the victim of the burglary had
expressed a desire that Dowdley go to prison, and that she was asking for $1,100 in
restitution. The court then imposed a sentence of two to three years in prison. The
court also imposed a suspended sentence of six years and ordered Dowdley to obtain
his GED. Finally, the court ordered Dowdley to pay restitution in the amount of
$1,100 by February 3, 2025. The state questioned whether the court’s sentence was
duplicative, to which the court responded that it was not.
On February 26, 2021, Dowdley filed a pro se motion for jail-time
credit. On March 2, 2021, Dowdley’s counsel filed a motion for jail-time credit. On
March 24, 2021, the court granted Dowdley’s motion and he was credited with 149
days of jail-time credit.
Dowdley appeals, presenting two assignments of error for our review.
Legal Analysis
In his first assignment of error, Dowdley argues that his sentence is
invalid because it was imposed pursuant to Reagan Tokes, which violates the Ohio
and United States Constitutions. Specifically, Dowdley argues that the law violates
his due process rights. Dowdley’s arguments are overruled pursuant to this court’s
en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-
470, which overruled the challenges presented in this appeal to the Reagan Tokes
Law enacted through S.B. 201. Therefore, we find that Dowdley’s sentence pursuant
to Reagan Tokes was not a violation of his constitutional rights. Dowdley’s first
assignment of error is overruled.
In his second assignment of error, Dowdley argues the trial court
committed plain error by imposing both a prison sentence and a community-control
sanction. Specifically, Dowdley argues that the court does not have statutory
authority to impose both a prison sentence and a community-control sanction — in
this case, the requirement that Dowdley obtain his GED — because such split
sentences are prohibited in Ohio. The state concedes that the trial court must
impose either a prison term or a community-control sanction, but disagrees that the
case should be remanded for resentencing because, according to the state, the plea
agreement specified that Dowdley was to receive a two-year prison sentence.
The Ohio Supreme Court has held that “the General Assembly
intended prison and community-control sanctions as alternative sentences for a
felony offense” and therefore, “absent an express exception, the court must impose
either a prison term or a community-control sanction or sanctions.” State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. See also State
v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 6 (“Split sentences
are prohibited in Ohio. [A] court must impose either a prison term or a community-
control sanction as a sentence for a particular felony offense — a court cannot
impose both for a single offense”).
Therefore, upon review, we find that Dowdley’s sentence is contrary
to law. The trial court clearly imposed both a prison term and a community-control
sanction. The court imposed an indefinite prison term of two to three years
pursuant to Reagan Tokes, together with a community-control sanction in the form
of a requirement that Dowdley obtain his GED.
Further, we are not persuaded by the state’s argument that the
appropriate remedy to this sentencing error is to vacate the portion of the sentence
that imposes a community-control sanction. Despite both the state’s assertion that
this case involved an agreed sentence and the trial court’s statement at sentencing
that it was “accepting” the parties’ recommendations, it is not clear that the trial
court was bound by this agreement. Whether the court was bound to accept the
parties’ recommendations depends on the specific facts and circumstances of the
case, but the issue need not be addressed in this appeal because the appropriate
prison sentence for a qualifying felony of the second degree pursuant to Reagan
Tokes and the formula in R.C. 2929.144(A) would be a minimum of two years and a
maximum of three years. Moreover, as described above, the trial court ultimately
deviated from this agreement both when it imposed a community-control sanction
and when it imposed an indefinite sentence pursuant to Reagan Tokes. Therefore,
Dowdley’s second assignment of error is sustained. Dowdley’s sentence is vacated
and the case is remanded for resentencing.
Judgment vacated and remanded.
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 EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY J. BOYLE, 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.