State v. Fisher , 2023 Ohio 1372 ( 2023 )

[Cite as State v. Fisher, 2023-Ohio-1372.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111953
v. :
BRANDON FISHER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 27, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-657553-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Steven N. Szelagiewicz, Assistant
Prosecuting Attorney, for appellee.
Valore & Gordillo LLP and Dean M. Valore, for appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant Brandon Fisher (“Fisher”) argues that the
Reagan Tokes Law is unconstitutional and, therefore, his sentence imposed under
the law is invalid. For the following reasons, we find that the Reagan Tokes Law is
not unconstitutional and affirm the lower court’s ruling.
Factual and Procedural History
On March 26, 2021, in Cuyahoga C. P. No. CR-21-657553-A, a
Cuyahoga County Grand Jury indicted Fisher on 12 counts of rape in violation of
R.C. 2907.02(A)(1)(b); six counts of gross sexual imposition in violation of
R.C. 2907.05(A)(4); six counts of kidnapping in violation of R.C. 2905.01(A)(4); two
counts of endangering children in violation of R.C. 2919.22(B)(1); one count of
driving while under the influence in violation of R.C. 4511.19(A)(1)(a); one count of
driving while under the influence in violation of R.C. 4511.19(A)(1)(g); one count of
physical control of vehicle while under the influence in violation of
R.C. 4511.194(B)(1); and one count of motor vehicle offenses in violation of
R.C. 4510.11(A). The rape, kidnapping, and endangering children counts all
included furthermore clauses, and the kidnapping counts included a sexual-
motivation specification. The charges arose from incidents that allegedly occurred
between Fisher and his minor daughter. On April 22, 2021, Fisher pleaded not guilty
to the indictment.
From May 2021 through February 2022, the trial court continued the
matter pursuant to COVID-19 protocols. On May 12, 2022, the trial court conducted
a plea hearing where Fisher withdrew his prior pleas and pleaded guilty to the
following: amended Counts 2, 9, and 22, rape in violation of R.C. 2907.02(A)(2);
Counts 3, 11, and 23, gross sexual imposition in violation of R.C. 2907.05(A)(4);
Count 25, endangering children in violation of R.C. 2919.22(B)(1); Count 27, driving
while under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a);
and Count 29, physical control of vehicle while under the influence in violation of
R.C. 4511.194(B)(1). The remaining counts were nolled. The trial court instructed
Fisher that Counts 2, 9, 22, and 25 were qualifying offenses under the Reagan Tokes
Law, and Fisher’s counsel objected to the constitutionality of the Reagan Tokes Law.
The trial court referred Fisher to the probation department for a presentence
investigation and to the court’s psychiatric clinic for a recommendation regarding
disposition.
On September 7, 2022, the trial court held a sentencing hearing.
Fisher’s counsel again objected to the constitutionality of the Reagan Tokes Law.
The trial court ordered Fisher to serve ten years each on Counts 2 and 9; five years
each on Counts 22 and 25; 36 months each on Counts 3, 11, and 23; and 180 days on
Count 27. Count 29 merged with Count 27 for purposes of sentencing. The court
further ordered that the sentences on Counts 2, 22, and 25 run consecutive to each
other and concurrent to the sentences in Counts 3, 9, 11, 23, and 27. The sentences
on Counts 3, 9, 11, 23, and 27 were to run concurrent to each other. Pursuant to the
Reagan Tokes Law, the court imposed an indefinite sentence of 10 to 15 years on
Count 2. The total stated prison term was 20-25 years. The court classified Fisher
as a Tier III sex offender/child offender and imposed postrelease control.
On September 16, 2022, Fisher filed a timely notice of appeal
presenting a single assignment of error for our review: The Reagan-Tokes Law is
unconstitutional on its face.
Legal Analysis
In his sole assignment of error, Fisher argues that the Reagan Tokes
Law is unconstitutional and, therefore, his sentence imposed under that law is
invalid. Specifically, Fisher argues that his indefinite sentence under the Reagan
Tokes Law, enacted under S.B. 201 and R.C. 2901.011, is unconstitutional because it
violates his constitutional right to a jury trial, the separation-of-powers doctrine,
and his due-process rights. Fisher also argues that because his trial counsel failed
to object to the imposition of an indefinite sentence, his appeal should be reviewed
for plain error. The state argues that this court found the Reagan Tokes Law
constitutional in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). The
state further contends that Fisher objected to the imposition of indefinite sentences
under the Reagan Tokes Law but did not object to the constitutionality of the law
and, therefore, forfeited his constitutional challenges.
A review of the transcripts from the plea and sentencing hearings
demonstrates Fisher’s counsel objected to the constitutionality of the Reagan Tokes
Law at both hearings:
DEFENSE COUNSEL: Right. And I would just, prior to getting to
that, obviously note our objection to Reagan Tokes as being
unconstitutional under both the constitutions of the State of Ohio and
the United States of America.
THE COURT: Defense counsel, I’ll note your objection to any
Reagan Tokes indefinite maximum sentence being given to your client
on Count 2, the F1 rape, Count 9, the F1 rape, Count 22, the F1 rape,
and Count 25, the F2, endangering children.
Plea hearing, May 12, 2022, tr. 14-15.
DEFENSE COUNSEL: Your Honor, just [as] a matter of
housekeeping in regards to the Reagan Tokes count, we would ask the
Court to note our objection as that being unconstitutional at this time.
Sentencing hearing, Sept 7, 2022, tr. 39-40. Where Fisher’s trial counsel raised an
objection to the constitutionality of the Reagan Tokes Law, we are not limited to
reviewing for plain error.
This court’s en banc decision in Delvallie overruled Fisher’s
challenges to S.B. 201 that are presented in this appeal. Therefore, we are
constrained to follow Delvallie, and find that the Reagan Tokes Law is not
unconstitutional. We must find that Fisher’s sentence pursuant to the Reagan Tokes
Law was not a violation of his constitutional rights and, thus, his 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, PRESIDING JUDGE
LISA B. FORBES, J., and
EMANUELLA D. GROVES, J., CONCUR
N.B. Judge Mary Eileen Kilbane joined the dissents by Judge Lisa B. Forbes and
Administrative 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).
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Administrative Judge Anita Laster Mays (concurring in part and
dissenting in part) in Delvallie and would have found the Reagan Tokes Law
unconstitutional.