State v. Byrd , 2022 Ohio 1168 ( 2022 )

[Cite as State v. Byrd, 2022-Ohio-1168.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110451
v. :
MARQUS BYRD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 7, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-647832-A and CR-20-652759-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Chadwick Cleveland, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
JAMES A. BROGAN, J.:
Defendant-appellant Marqus Byrd appeals his sentence and assigns the
following error:
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; the trial court plainly erred
in imposing a Reagan Tokes indefinite sentence.
After reviewing the record and applicable law, we affirm the trial court’s
judgment.
Byrd pleaded guilty in two separate cases to attempted aggravated
burglary (Count 1), endangering children (Count 4), having weapons while under
disability (Count 5), criminal damaging (Count 7) in Cuyahoga C.P. No. CR-20-
652759-A and unlawful sexual conduct with a minor (Count 1), carrying concealed
weapons (Count 2), and criminal child enticement (Count 3) in Cuyahoga C.P. No.
CR-20-647382-A. Over objection, the trial court sentenced Byrd to an indefinite
prison term of a minimum of three years and a maximum of four and one-half years
in prison on the attempted aggravated burglary charge, pursuant to the Reagan
Tokes Law. The trial court sentenced Byrd to six months on the endangering
children charge, 24 months on the weapons while under disability charge, 60 days
in jail on the criminal damaging charge, 48 months in prison on the unlawful sexual
conduct with a minor charge, 12 months in prison on the carrying concealed weapon
charge, and 6 months in jail on the child enticement charge. The court’s journal
entry states, in relevant part, that “Counts are to run concurrently to each other for
a total of 3 years to 4.5 years in prison. Sentence to run concurrently with Case No.
CR 647832.”
Byrd now brings this appeal challenging the constitutionality of his
indefinite sentence under the Reagan Tokes Law.1
In his sole assignment of error, Byrd argues his indefinite sentence
under the Reagan Tokes Law is unconstitutional. He contends the Reagan Tokes
Law violates his Sixth Amendment right to a jury trial, the separation-of-powers
doctrine, and due process of law.
In accordance with this court’s en banc decision in State v. Delvallie,
8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges
presented in this appeal are overruled.
Therefore, the sole 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. Case remanded to the
trial court for execution of sentence.
1 Neither party has raised any issues as to the imposed sentence; therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27. See also State v.
Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221; State v. Murnahan, 63
Ohio St.3d 60, 66, 584 N.E.2d 1204 (1992); App.R. 26(B).
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
JAMES A. BROGAN, JUDGE*
MARY J. BOYLE, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)