State v. McGlothin , 2022 Ohio 940 ( 2022 )

[Cite as State v. McGlothin, 2022-Ohio-940.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109908
v. :
EDWIN MCGLOTHIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-648040-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Amanda Hall, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Edwin McGlothin (“McGlothin”) appeals from
his sentence for felonious assault following a guilty plea. Specifically, McGlothin
argues that his sentence is contrary to law because the record does not support the
length of his individual sentences and that his sentence is invalid because it was
imposed under the Reagan Tokes Law and is therefore unconstitutional. For the
following reasons, we affirm.
Factual and Procedural History
On January 28, 2020, a Cuyahoga County Grand Jury indicted
McGlothin on one count of attempted murder in violation of R.C. 2923.02 and R.C.
2903.02(A), one count of felonious assault in violation of R.C. 2903.11(A)(1), one
count of felonious assault in violation of R.C. 2903.11(A)(2), one count of aggravated
burglary in violation of R.C. 2911.11(A)(1), one count of aggravated burglary in
violation of R.C. 2911.11(A)(2), one count of having weapons while under disability
in violation of R.C. 2923.13(A)(2), and one count of assault in violation of R.C.
2903.13(A). The attempted murder, felonious assault, and aggravated burglary
charges all carried one- and three-year firearm specifications, notice of prior
convictions, and repeat violent offender specifications.
The charges arose from an August 17, 2019 shooting. McGlothin
forced his way into the home of victim Tonia Allen (“Allen”), his child’s mother.
McGlothin and victim John Dorsey (“Dorsey”) began arguing and McGlothin
ultimately shot Dorsey in the groin. Dorsey’s son witnessed Dorsey run, bleeding,
out into the street and calling for help. McGlothin then went upstairs and punched
Allen in the face.
McGlothin initially pleaded not guilty to these charges. On July 1,
2020, the prosecutor and McGlothin’s counsel informed the court that they had
negotiated a plea deal. The prosecutor informed the court that McGlothin was
agreeing to plead guilty to one count of felonious assault in violation of R.C.
2903.11(A)(2), amended to delete the notice of prior conviction and the repeat
violent offender specification, and one count of having weapons while under
disability in violation of R.C. 2923.13(A)(2), as indicted. All remaining counts and
specifications would be dismissed. The court engaged in a Crim.R. 11 colloquy with
McGlothin and accepted his guilty pleas. As part of the plea colloquy, the court
informed McGlothin that the felonious assault charge was a qualifying offense under
S.B. 201, the Reagan Tokes Law (“Reagan Tokes”) and explained the implications of
the law. The court referred McGlothin for a presentence investigation (“PSI”).
On July 22, 2020, the trial court held a sentencing hearing. The court
stated that it had reviewed the PSI and a letter from McGlothin’s sister. The court
heard from the victim, the assistant prosecuting attorney, McGlothin’s counsel, a
close friend of McGlothin, and McGlothin. The assistant prosecuting attorney asked
the court to impose a maximum consecutive sentence. The court sentenced
McGlothin to one year on the firearm specification, to be served prior to and
consecutive to six to nine years on the felonious assault. The court also sentenced
McGlothin to 36 months, to run concurrent to the felonious assault sentence. The
court waived fines and court costs.
On August 24, 2020, McGlothin filed a notice of appeal. McGlothin
presents two assignments of error for our review.
Legal Analysis
In his first assignment of error, McGlothin argues that his sentence is
contrary to law because the record does not support the length of the individual
sentences.
Here, McGlothin contends that the trial court did not adequately
consider the factors set forth in R.C. 2929.11 and 2929.12. Specifically, he argues
that the trial court did not adequately explain why the prison terms it imposed were
necessary to protect the public or whether they were the minimum sanctions
necessary to protect the public and punish McGlothin. While R.C. 2929.11 and
2929.12 require the court to consider certain factors in crafting felony sentences, the
court is not required to make findings or give reasons supporting those factors when
imposing a sentence. State v. Riemer, 8th Dist. Cuyahoga No. 110314, 2021-Ohio-
4122, ¶ 17, citing State v. Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807, and
109808, 2021-Ohio-2586, ¶ 24. Moreover, “a sentence is not contrary to law merely
because the defendant disagrees with the way the trial court weighed and applied
the R.C. 2929.11 and 2929.12 factors in fashioning an appropriate sentence.” Id.Further, “R.C. 2953.08(G)(2)(a) permits an appellate court to modify
or vacate a sentence if it clearly and convincingly finds that the ‘record does not
support the sentencing court’s findings under’ certain specified statutory
provisions,”’ namely, R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and
2929.20(I). State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
¶ 28. R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C.
2953.08(G)(2)(a), and thus, this court cannot rely on R.C. 2929.11 and 2929.12 as a
basis to modify or vacate a sentence. For these reasons, McGlothin’s first
assignment of error is overruled.
In his second assignment of error, McGlothin argues that his sentence
is invalid because it was imposed pursuant to Reagan Tokes, which violates the Ohio
and the United States Constitutions. Specifically, McGlothin argues that the law
violates the separation-of-powers doctrine, his due process rights, and his right to
trial by jury. McGlothin’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 McGlothin’s sentence pursuant to Reagan
Tokes was not a violation of his constitutional rights. McGlothin’s second
assignment of error is overruled.
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.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
LISA B. FORBES, 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.
Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see
State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J.,
dissenting).