State v. Davis , 2022 Ohio 1056 ( 2022 )

[Cite as State v. Davis, 2022-Ohio-1056.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109359
v. :
JEROME S. DAVIS, :
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 No. CR-19-640756-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sean M. Kilbane, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Jerome S. Davis (“Davis”) appeals his sentence
and asks this court to hold that S.B. 201 (“Reagan Tokes Act”) is unconstitutional
and modify his prison sentence. We affirm.
Davis pleaded guilty to one count of felonious assault, a second-
degree felony, in violation of R.C. 2903.11(A)(2); one count of violating a protection
order, a third-degree felony, in violation of R.C. 2919.27(A)(1); and intimidation of
crime victim or witness, a third-degree felony, in violation of R.C. 2921.04(B)(1).
Davis was sentenced to eight years’ imprisonment for the felonious assault charge
and three years each on the other two charges for an aggregate total of 14 years’
imprisonment. The sentences were run consecutively, and Davis was notified by the
trial court that
[a]s it applies to Reagan Tokes, the defendant is notified that there is
a rebuttable presumption that the defendant shall be released from
service of the sentence at the expiration of the minimum term, which
is 14 years. However, that presumption may be rebutted at a hearing
held under 2967.271. If the Department of Rehabilitation and
Correction makes specified determinations regarding the defendant’s
conduct while confined, the offender’s threat to society, the offender’s
restrictive housing, if any, while confined, and the offender’s security
clarification, they may increase his sentence by four years.
(Tr. 33-34.)
During sentencing, the trial court also noted that it thought the
Reagan Tokes Act was unconstitutional, but it was bound to follow the law. (Tr. 32,
36.) The trial court sentenced Davis to serve his sentences consecutively and made
the following findings:
The Court is going to impose the maximum possible sentence in this
case, for the following reasons: This defendant has a long and violent
criminal history. In 2010, in Case Number 536443 he was convicted
of felonious assault with a prior conviction. He plead guilty to
felonious assault with a notice of prior conviction.
In 2003 in Case Number 441638, he plead guilty to felonious assault
with a one-year firearm specification. In 2001, he plead guilty to
attempted possession of drugs in Case Number 405411. In the year
2000, actually on May 16, 2001, in Case Number 392975, he plead
guilty to possession of drugs, a felony of the fifth degree.
In 1992, in Case Number 290118, he plead guilty to felonious assault.
In 1992, in Case Number 287968, he plead guilty to trafficking in
drugs, a felony of the third degree. Additionally, he has ten driver’s
license suspensions and 14 traffic convictions.
This gentleman has been in court continuously, and he has been in
court for very violent offenses. This particular offense is horrendous,
and the impact that it has had upon the victim in this case is
devastating and she will live with the scars as a reminder of this
person’s conduct for the rest of her life.
Therefore, the defendant will be sentenced as follows: He plead guilty
to a felony of the second degree in Count 3 of the indictment. The
maximum period of incarceration is eight years. He is sentenced to
eight years. He also plead guilty, in Count 4 of this indictment, to a
violation of a protection order; that is a felony of the third degree,
punishable by nine to 36 months. He is sentenced to an additional 36
months consecutive.
In Count 7, he is sentenced for intimidation of a crime victim to an
additional 36 months. So that is 14 years in a state penal institution.
This Court will never entertain any form of early release for this
individual. He is also, because of his barbaric behavior, fined. So he
will do hard time. On the F-2 he is fined $10,000. On both F-3s he is
find $5,000; $5,000 per F-3 for a total cumulative fine of $20,000.
(Tr. 30-32.)
Davis subsequently filed this appeal assigning two errors for our
review:
I. 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; and
II. The trial court erred when it ordered consecutive sentences
without support in the record for the requisite statutory
findings under R.C. 2929.11, 2929.12, and 2929.14.
I. The Constitutionality of Reagan Tokes Act
A. Standard of Review
“The interpretation of the constitutionality of a statute presents a
question of law.” In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777
and 87816, 2008-Ohio-4444, ¶ 11, citing Andreyko v. Cincinnati, 153 Ohio App.3d
108, 2003-Ohio-2759, 791 N.E.2d 1025. “‘Questions of law are reviewed de novo,
independently and without deference to the trial court’s decision.’” Id.Additionally,
“[a] regularly enacted statute of Ohio is presumed to be constitutional
and is therefore entitled to the benefit of every presumption in favor
of its constitutionality” and “before a court may declare it
unconstitutional it must appear beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible.”
Id. at ¶ 12, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128
N.E.2d 59 (1955), paragraph one of the syllabus.
[Cite as State v. Davis, 2022-Ohio-1056.]
“Moreover, the presumption of validity cannot be overcome unless it
appears that there is a clear conflict between the legislation in question and some
particular provision or provisions of the Constitution.” Id. at ¶ 13, citing Xenia v.
Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph two of the syllabus;
Dickman.
B. Law and Analysis
Davis argues that the Reagan Tokes Act is unconstitutional. Based on
the authority established by this district’s en banc holding in State v. Delvallie, 8th
Dist. Cuyahoga No. 109315, 2022-Ohio-470, the challenges Davis advanced against
the constitutional validity of the Reagan Tokes Law have been overruled. See id. at
¶ 17-54. Davis does not advance any novel argument left unaddressed by the
Delvallie decision. As a result, Davis’s arguments claiming that his sentence
imposed under the Reagan Tokes Law is void based on the same arguments
presented in Delvallie, are overruled.
Therefore, Davis’s first assignment of error is overruled.
II. Consecutive Sentences
A. Standard of Review
“An appellate court must conduct a meaningful review of the trial
court’s sentencing decision.” State v. Williams, 8th Dist. Cuyahoga No. 108904,
2020-Ohio-1622, ¶ 17, quoting State v. McHugh, 8th Dist. Cuyahoga No. 108372,
2020-Ohio-1024, ¶ 11.
Also,
[a]n appellate court “may increase, reduce, or otherwise modify a
sentence” or it “may vacate the sentence and remand the matter to the
sentencing court for resentencing” if it “clearly and convincingly
finds” that “the record does not support the sentencing court’s
findings” under R.C. 2929.14(C)(4). R.C. 2953.08(G)(2). “‘Clear and
convincing evidence is that measure or degree of proof * * * which will
produce in the mind of the trier of facts a firm belief or conviction as
to the facts sought to be established.’” State v. Franklin, 8th Dist.
Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 29, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus. It is “an extremely deferential standard of review.”
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
State v. Travis, 8th Dist. Cuyahoga No. 109370, 2021-Ohio-125, ¶ 11.
A defendant can challenge consecutive sentences on appeal arguing
that the sentences are contrary to law and/or the record does not support the
findings made under R.C. 2929.14(C)(4). See State v. Tidmore, 8th Dist. Cuyahoga
No. 107369, 2019-Ohio-1529, ¶ 16.
When reviewing a defendant’s challenge to consecutive sentences on
the grounds they are not supported by the record, an appellate court
must conduct a “meaningful review” of a trial court’s decision to
impose consecutive sentences. See, e.g., State v. Peters, 8th Dist.
Cuyahoga No. 108068, 2019-Ohio-4461, ¶ 30; State v. Johnson, 8th
Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6. R.C. 2953.08(G)(2)
states that the appellate court “shall review the record, including the
findings underlying the sentence * * * given by the sentencing court.”
See also R.C. 2953.08(F).
State v. Davis, 8th Dist. Cuyahoga No. 109211, 2021-Ohio-64, ¶ 16.
B. Law and Analysis
Davis argues that the trial court erred when sentencing him to serve
his sentences consecutively because the trial court did not make the statutory
findings in accordance with R.C. 2929.11, 2929.12 and 2929.14. However, “[t]he
plurality of the Ohio Supreme Court in State v. Gwynne, 158 Ohio St.3d 279, 2019-
Ohio-4761, 141 N.E.3d 169, ¶ 18, held that appellate courts may not review
consecutive sentences for compliance with R.C. 2929.11 and R.C. 2929.12.” State v.
Bellomy, 5th Dist. Fairfield No. 2020-CA-00001, 2020-Ohio-6690, ¶ 24. Appellate
courts can only review consecutive sentences under R.C. 2929.14(C)(4). Gwynne at
¶ 18.
According to R.C. 2929.14(C)(4), the trial court may impose
consecutive sentences on the defendant if the trial court determines that consecutive
sentences (1) are necessary to protect the public from future crime or to punish the
offender; (2) are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public; and additionally (3) that (a) the
offender committed the offense while awaiting trial or sentencing, under community
control monitoring, or under postrelease control for a prior offense; (b) at least two
of the offenses caused harm so great and unusual that no single term for any offense
adequately reflects the seriousness of the offender’s conduct; or (c) the offender’s
history of criminal conduct demonstrates the necessity of consecutive sentences to
protect the public from future crime. State v. Rapier, 8th Dist. Cuyahoga
No. 108583, 2020-Ohio-1611, ¶ 8, citing State v. Smeznik, 8th Dist. Cuyahoga
Nos. 103196 and 103197, 2016-Ohio-709, ¶ 6.
“In order to reverse the imposition of consecutive sentences, the
defendant must clearly and convincingly demonstrate that the record does not
support the sentencing court’s findings under R.C. 2929.14(C)(4).” Id. at ¶ 12.
Additionally, the trial court is not required to make the findings verbatim. State v.
Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382, ¶ 6, citing State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 13 (8th Dist.). “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine
that the record contains evidence to support the findings, consecutive sentences
should be upheld.” State v. O’Conner, 8th Dist. Cuyahoga No. 107191, 2019-Ohio-
702, ¶ 8, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 29.
The trial court determined that consecutive sentences (1) are
necessary to protect the public from future crime or to punish the offender; (2) are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public; and additionally (3) that, the offender’s history of
criminal conduct demonstrates the necessity of consecutive sentences to protect the
public from future crime. As indicated earlier, the trial court stated,
The Court is going to impose the maximum possible sentence in this
case, for the following reasons: This defendant has a long and violent
criminal history. In 2010, in Case Number 536443 he was convicted
of felonious assault with a prior conviction. He plead guilty to
felonious assault with a notice of prior conviction.
In 2003 in Case Number 441638, he plead guilty to felonious assault
with a one-year firearm specification. In 2001, he plead guilty to
attempted possession of drugs in Case Number 405411. In the year
2000, actually on May 16, 2001, in Case Number 392975, he plead
guilty to possession of drugs, a felony of the fifth degree.
In 1992, in Case Number 290118, he plead guilty to felonious assault.
In 1992, in Case Number 287968, he plead guilty to trafficking in
drugs, a felony of the third degree. Additionally, he has ten driver’s
license suspensions and 14 traffic convictions.
This gentleman has been in court continuously, and he has been in
court for very violent offenses. This particular offense is horrendous,
and the impact that it has had upon the victim in this case is
devastating and she will live with the scars as a reminder of this
person’s conduct for the rest of her life.
(Tr. 30-31.)
The trial court labeled Davis’s behavior as “barbaric.” (Tr. 32.) The
trial court also noted the victim’s injuries and suffering. It stated, “I’d like the record
to reflect that the scar on this woman’s face is very pronounced; I can observe it very
clearly sitting 12 feet from her. And this is something that she is going to have to live
with for the rest of her life.” (Tr. 26.)
From the record, we determine that the trial court complied with
R.C. 2929.14(C)(4) when sentencing Davis to serve his sentences consecutively. We
are unable to clearly and convincingly find that the record does not support the trial
court’s findings under R.C. 2929.14(C)(4), or that the sentence is contrary to law.
Therefore, Davis’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.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, 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 her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).
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).