State v. Hunter ( 2022 )

[Cite as State v. Hunter, 2022-Ohio-1072.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110738
v. :
THEOPHOLIS HUNTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-654001-A, CR-20-654024-A,
CR-20-652003-A and CR-20-652029-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Theopholis Hunter appeals his indefinite
sentences after he pled guilty to multiple offenses in four criminal cases.
On July 8, 2021, Hunter pled guilty to the following charges:
● In CR-20-652003-A, Hunter pled guilty to one count of receiving
stolen property in violation of R.C. 2913.51(A) (a fourth-degree
felony) and one count of improper handling firearms in a motor
vehicle in violation of R.C. 2923.16(B) (a fourth-degree felony),
with forfeiture specifications;
● In CR-20-652029-A, Hunter pled guilty to one count of felonious
assault in violation of R.C. 2903.11(A)(1) (a second-degree
felony) with a one-year firearm specification, one count of
improper discharge into a habitation in violation of R.C.
2923.161(A)(1) (a second-degree felony) and one count of
receiving stolen property in violation of R.C. 2913.51(A) (a
fourth-degree felony);
● In CR-20-654001-A, Hunter pled guilty to one count of
attempted aggravated robbery in violation of R.C.
2923.02/2911.01(A)(1) (a second-degree felony) with a one-year
firearm specification and
● In CR-20-654024-A, Hunter pled guilty to one count of assault
in violation of R.C. 2903.13(A) (a fifth-degree felony) and one
count of harassment by an inmate in violation of R.C. 2921.38(A)
(a fifth-degree felony).
The trial court imposed a one-year prison sentence on each of the
firearm specifications in CR-20-652029-A and CR-20-654001-A to be served
consecutively to each other and prior to and consecutively to all other sentences.
The trial court imposed an aggregate minimum prison term of two years and a
maximum prison term of three years on the underlying offenses as follows. In CR-
20-652029-A, the trial court sentenced Hunter to a minimum term of two years and
a maximum term of three years on the underlying offense in the felonious assault
count, two years on the improper discharge into a habitation count and six months
on the receiving stolen property count, to be served concurrently with each other
and concurrently with the sentences on all other underlying offenses. In CR-20-
654001-A, the trial court sentenced Hunter to a minimum term of two years and a
maximum term of three years on the underlying offense in the attempted aggravated
robbery count and six months each on the assault and harassment by inmate counts,
to be served concurrently with each other and concurrently with the sentences on all
other underlying offenses. The court imposed six-month sentences on each of the
counts in CR-20-652003-A and CR-20-654024-A, to be served concurrently with
each other and concurrently with the sentences on all other underlying offenses.
Hunter appeals his indefinite sentences imposed pursuant to the Reagan Tokes Law,
arguing that the indefinite sentences are unconstitutional and violate the right to
trial by jury, the separation-of-powers doctrine and due process. He presents the
following assignment of error for review:
As amended by the Reagan Tokes Act, the Revised Code’s sentences for
first- and second-degree qualifying felonies violates the Constitutions
of the United States and the State of Ohio; the trial court plainly erred
in imposing a Reagan Tokes indefinite sentence.1
The arguments presented in this case do not present novel issues or
any new theory challenging the constitutional validity of any aspect of the Reagan
Tokes Law left unaddressed by this court’s en banc decision in State v. Delvallie, 8th
1 Although Hunter asserts in his assignment of error that the trial court “plainly
erred” in imposing indefinite sentences under the Reagan Tokes Law, Hunter did object
to the constitutionality of his indefinite sentences below, specifically asserting that “the
Reagan Tokes Act, as it amended the Ohio Revised Code sentences for first and second
degree qualifying felonies * * * violates the defendant’s constitutional right to trial by jury
as well as violates the separation of powers and due process in both the federal and state
constitution[s].”
Dist. Cuyahoga No. 109315, 2022-Ohio-470. Accordingly, pursuant to Delvallie, we
overrule Hunter’s assignment of error.
Judgment 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
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s convictions having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EMANUELLA D. GROVES, J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting
in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.