State v. McCain , 2023 Ohio 1573 ( 2023 )

[Cite as State v. McCain, 2023-Ohio-1573.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111980
v. :
KARMONE MCCAIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 11, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-667831-A and CR-22-668061-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
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
ANITA LASTER MAYS, A.J.:
Plaintiff-appellant Karmone McCain (“McCain”) filed this appeal of
the trial court’s sentence under S.B. 201 known as the Reagan Tokes Law (“Reagan
Tokes”) on the ground that the law is unconstitutional. We affirm.
I. Facts and Procedural History
McCain pleaded guilty to and was sentenced on multiple charges in
the underlying cases, several of which were subject to the imposition of Reagan
Tokes.
In Cuyahoga C.P. No. CR-22-667831-A, McCain was charged with
attempted kidnapping, R.C. 2932.02 and 2905.01, a second-degree felony; robbery,
R.C. 2911.02(A)(2), a second-degree felony; intimidation of a crime victim or
witness, R.C. 2921.04(B)(1), a third-degree felony; theft, aggravated theft,
R.C. 2913.02(A)(1), a fifth-degree felony; and assault, R.C. 2903.13, a first-degree
misdemeanor. Journal entry No. 128567998, p. 1. (Aug. 31, 2022). In Cuyahoga
C.P. No. CR-22-668061-A, McCain was charged with felonious assault,
R.C. 2903.11(A)(1), a second-degree felony; and abduction, R.C. 2905.02 (A)(2), a
third-degree felony. Journal entry No. 128567730, p. 1 (Aug. 31, 2022).
The trial court advised McCain of the Reagan Tokes notifications
during McCain’s plea and sentencing as required by R.C. 2929.19(B)(2)(c).1 McCain
objected to imposition of Reagan Tokes and argues on appeal that the trial court
violated McCain’s constitutional rights by imposing a Reagan Tokes sentence under
S.B. 201. Specifically, McCain argues that Reagan Tokes violates the: (1) right to
1 The failure of a trial court to notify a defendant of all R.C. 2929.19(B)(2)(c)
notifications at both the plea hearing and the sentencing hearing renders the sentence
contrary to law. See State v. Gates, 8th Dist. Cuyahoga No. 110616, 2022-Ohio-1666;
State v. Bentley, 4th Dist. Adams No. 21CA1147, 2022-Ohio-1914.
trial by jury; (2) separation-of-powers doctrine; and (3) due process guarantees.
McCain also states that severance is not an appropriate remedy.
McCain generally advances that this court’s analysis in the original
State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.), was correct. While
this writer may certainly agree, based on the authority established by this court’s en
banc holding in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the
challenges advanced by McCain have been overruled. See id. at ¶ 17-54.
McCain’s assigned errors lack merit. The trial court’s judgment is
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, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
MICHAEL JOHN RYAN, J., CONCUR
N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s en
banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and
dissenting in part).
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.