State v. Philpotts , 2023 Ohio 213 ( 2023 )

[Cite as State v. Philpotts, 2023-Ohio-213.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107374
v. :
DELVONTE PHILPOTTS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: January 26, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-619945-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender,
Robert B. McCaleb, Assistant Public Defender, for
appellant.
MICHELLE J. SHEEHAN, J.:
This appeal presents a highly unique procedural circumstance. During
the pendency of the appeal, the United States Supreme Court changed the burden
of proof and standard of review when evaluating the constitutionality of a statute
regulating firearms. Because of the change in the law, we vacate the trial court’s
decision and remand this case for the trial court to apply the new standards as set
forth in New York State Rifle & Pistol Assn. v. Bruen, 597 U.S.___, 142 S.Ct. 2111,
213 L.Ed.2d 387 (2022).
By way of background, appellant Delvonte Philpotts had filed a motion
to dismiss his indictment for having weapons while under disability in violation of
R.C. 2923.13(A)(2), claiming the statute’s automatic criminalization of possession
of firearms by one who is under indictment violates the Second Amendment to the
United States Constitution. The trial court held a hearing on the constitutionality of
R.C. 2923.13(A)(2) and upheld the statute as constitutional. Philpotts appealed the
trial court’s order.
On July 18, 2019, this court issued an opinion in State v. Philpotts,
2019-Ohio-2911, 132 N.E.3d 743 (8th Dist.), in which we affirmed the trial court’s
decision finding R.C. 2923.13(A)(2) constitutional. On November 12, 2019, the
Supreme Court of Ohio accepted discretionary review of the case. During the
pendency of the appeal, on June 23, 2022, the United States Supreme Court decided
Bruen. On December 9, 2022, the Supreme Court of Ohio vacated this court’s
decision and remanded the cause to this court “for reconsideration in light of”
Bruen.
Prior to Bruen, a defendant challenging the constitutionality of a
firearms statute bore the burden of proof. Further, in determining the
constitutionality of such statutes, courts employed balancing tests. See Bruen, 142
S.Ct. 2111, at 2129-30. This case was briefed and analyzed in the trial court based on
the standards of law in effect before Bruen. However, Bruen shifts the burden of
proof and alters the court’s standard of review for determining the constitutionality
of firearm-regulating statutes such as R.C. 2923.13. The state now bears the burden
of proof and is required to “justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130.
Further, Bruen changed the court’s standard of review by eliminating the
application of any “means-end test such as strict or intermediate scrutiny” in its
review. Id. at 2129.
Upon reconsideration, we are cognizant that the parties developed a
record based upon their respective burdens of proof and the trial court considered
the record and arguments and employed a different standard of review than what is
now required pursuant to Bruen. Therefore, we vacate the judgment of the trial
court and remand this case to the trial court so that the parties may develop the
relevant record and the trial court can apply the correct burden of proof and
standard of review as set forth in Bruen.
Judgment vacated, and cause remanded to the trial court for
rehearing.
It is ordered that appellant recover of appellee 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.
MICHELLE J. SHEEHAN, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR