State v. Pierce , 2023 Ohio 528 ( 2023 )

[Cite as State v. Pierce, 2023-Ohio-528.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111605
v. :
JOHNNIE A. PIERCE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-642073-A and CR-20-655219-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Morgan Austin and Michael Martinez,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Johnnie A. Pierce, appeals his convictions in
two separate cases. For the reasons that follow, we affirm.
I. Procedural and Factual Background
This appeal concerns two separate incidents, indictments, and trials.
Accordingly, we will discuss each case independently.
A. Cuyahoga C.P. No. CR-19-642073-A — The bar fight
In July 2019, Pierce was named in a nine-count indictment charging
him with two counts each of aggravated robbery, felonious assault, and having
weapons while under disability, and one count each of robbery, petty theft, and
illegal possession of a firearm in a liquor permit premises. A majority of the charges
also contained one- and three-year firearm specifications. These charges stemmed
from a physical altercation that occurred on July 2, 2019, at the Honey Do bar.
The evidence at trial proved that Pierce assaulted the victim inside the
bathroom at the bar. The victim testified that Pierce struck him in the head with a
gun, repeatedly punched and kicked him in the head, and robbed him of money and
lottery tickets. Kenny Walls, a defense witness, corroborated the victim’s testimony
that Pierce assaulted the victim, but denied that a weapon was used during the
assault. The victim was transported by ambulance to the hospital where he was
treated for a contusion on his scalp and a laceration on his left eye.
The responding police officers testified that the victim was “clearly
assaulted” based on observable injuries, including bruising and lacerations to his
face. The jury observed the victim’s injuries and physical condition from Officer
Jeffrey Valek’s body-camera video, which was admitted into evidence.
The trial court granted Pierce’s Crim.R. 29 motion for judgment of
acquittal on Count 9 — illegal possession of a firearm in a liquor permit premises.
Following deliberation, the jury found Pierce guilty of Count 4, felonious assault, a
second-degree felony violation of R.C. 2903.11(A)(1), but not guilty of the attendant
one- and three-year firearm specifications. The jury also found Pierce not guilty of
the remaining counts.
B. Cuyahoga C.P. No. CR-20-655219-A — The Rocky River incident
In December 2020, Pierce was named in a six-count indictment
charging him with three counts of assault, containing a furthermore specification
that the victim in each count was a peace officer, while performing their official
duties; two counts of obstructing official business, with a furthermore specification
that Pierce’s conduct created a risk of harm to the various officers; and one count of
tampering with evidence. These charges arose from an indictment that occurred on
December 10, 2020, in the Rocky River Reservation of the Cleveland Metroparks.
The evidence and testimony at trial revealed that Officers Keven Huff
and Patrick Elliot conducted a traffic stop after observing a vehicle cross the double
yellow line on a park road. Upon approaching the vehicle, the officers observed that
both the driver and the passenger, Pierce, appeared to be intoxicated. While Officer
Huff questioned the driver, Officer Elliot noticed Pierce placing something in the
backseat of the vehicle. The officer asked Pierce to exit the vehicle. During this
interaction, Pierce became noncompliant, and additional officers were called to help
detain him. Pierce continued being uncooperative and despite being tased, he
continued ignoring officers’ commands. He then aggressively pulled away from the
officers. In his attempt to flee, Pierce used both of his hands to push Officer Sarah
Petrucci, causing her to fall onto the pavement and into the path of Officer Huff, who
tripped and fell over her. Pierce ran down the embankment of the Rocky River and
into the river.
After a five-hour standoff in the Rocky River, where Pierce continued
to evade apprehension and ignore police commands, causing additional officers to
respond and navigate the waters of the Rocky River and surrounding embankment
during the month of December, the police were eventually able to detain him. Dash-
and body-camera videos depicting how the events unfolded were played for the jury.
Officer Petrucci testified about her interactions with Pierce and
described to the jury how he acted in his attempt to break away from the officers.
She stated:
Lots of flailing of the limbs just trying to pull away with his arms, legs,
everything that he could. He was just — everybody that had any sort of
grip on him he was pulling away from. Elbows were being thrown.
Anybody that had a grip on him he broke free from.
(Tr. 807.) Officer Petrucci testified as the video showing Pierce pushing her to the
ground was played for the jury. She stated that she had her “Taser pulled out and I
remember him looking at me when I had my Taser out and he just shoved me to the
ground.” (Tr. 810.) She testified that she fell into the pathway of Officer Huff, who
tripped and fell on top of her. She stated that she experienced pain as a result of the
fall because she fell on her tailbone and back onto her elbows and upper arms.
Officer Petrucci stated that she suffered a bruised tailbone from the fall and
additional bruising, bumps, and soreness from the subsequent apprehension of
Pierce.
The jury found Pierce guilty of Count 3, assault, and further found
that the victim was a peace officer who was engaged in the performance of her
official duties at the time of the offense, a fourth-degree felony violation of R.C.
2903.13(A); and Count 5, obstructing official business and further found that Pierce
created a risk of harm to the officers, a fifth-degree felony violation of R.C.
2921.31(A); and Count 6, obstructing official business, a second-degree
misdemeanor violation of R.C. 2921.31(A). The jury acquitted Pierce of the
remaining charges and specifications.
C. Sentencing Hearing
The trial court sentenced Pierce for both cases on the same day. In
CR-655219, the court ordered Pierce to serve 18 months on Count 3, assault of a
peace officer; 12 months on Count 5, obstructing official business; and 30 days on
Count 6, obstructing official business. The court ordered Pierce to serve Counts 5
and 6 concurrently but consecutively to Count 3, for a total prison term of 30
months.
Over objection, the trial court sentenced Pierce in CR-642073 under
the Reagan Tokes Law. For the felonious assault offense, the trial court imposed an
indefinite prison term of a minimum of two years and a maximum of three years.
The trial court ordered Pierce to serve this sentence consecutively to the 30-month
sentence imposed in CR-655219.
Pierce now appeals, raising four assignments of error.
II. Sufficiency of the Evidence
In his first assignment of error, Pierce contends that his convictions
are not supported by sufficient evidence.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Cottingham, 8th Dist.
Cuyahoga No. 109100, 2020-Ohio-4220, ¶ 32. An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997). The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Id.A. Felonious Assault — The bar fight
Pierce does not contend that he did not engage in a physical
altercation with the victim or that this was a case of mistaken identity. Rather, he
challenges the victim’s credibility. Although Pierce couches this argument as one of
sufficiency, in actuality it is a manifest weight of the evidence challenge because
Pierce asks this court to consider the victim’s credibility due to his state of
intoxication in determining whether sufficient evidence supports his felonious
assault conviction. This contention calls for an evaluation of the witness’s
credibility, which is not proper on reviewing a sufficiency-of-the-evidence claim.
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 135, citing
State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 200;
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
“‘When evaluating the adequacy of the evidence, we do not consider its credibility or
effect in inducing belief. Rather, we decide whether, if believed, the evidence can
sustain the verdict as a matter of law.’” State v. McAlpin, Slip Opinion No. 2022-
Ohio-1567, ¶ 93, quoting State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448,
84 N.E.3d 993, ¶ 13.
Pierce was convicted of felonious assault, a second-degree felony in
violation of R.C. 2903.11(A)(1), which provides that no person shall knowingly cause
serious physical harm to another. “Serious physical harm” is any harm that involves
some temporary, serious disfigurement. R.C. 2901.01(A)(5)(d). This court has
found that the need for stitches constitutes serious physical harm for purposes of
felonious assault. See, e.g., State v. Finley, 8th Dist. Cuyahoga No. 108062, 2019-
Ohio-3891, ¶ 28. Even if stitches are not required for treatment, this court has found
the element of “serious physical harm” satisfied with evidence of a bloody cut and a
swollen eye because the injury was a temporary, serious disfigurement. State v.
Payne, 8th Dist. Cuyahoga No. 76539, 2000 Ohio App. LEXIS 3274, 9 (July 20,
2000).
In this case, the victim testified that Pierce, a person known to him,
assaulted him the bathroom at the Honey Do bar. He stated that Pierce struck him
the head with a gun, repeatedly punched and kicked him in the head, and robbed
him of money and lottery tickets. According to the victim, he briefly lost
consciousness during the altercation. The victim was transported by ambulance to
the hospital, where he was diagnosed with a facial laceration, contusion on his scalp,
and a laceration to his left eyelid. He underwent a CT scan, which indicated there
were no fractures to his face. The victim testified that he received “seven to eight
stitches to his eye,” and a scar from his injury remains. His medical records, which
were admitted into evidence, indicated that the laceration to his eye was “closed by
plastics.”
Walls testified that he observed the victim “getting his butt whooped”
by Pierce in the bathroom. He said that he had to pull Pierce off of the victim. Walls
testified that the victim was “bleeding so badly, blood everywhere,” that they called
for an ambulance. And the responding police officers testified that the victim was
“clearly assaulted” based on his observable injuries, including bruising and
lacerations to his face. The jury observed the victim’s injuries and physical condition
from Officer Valek’s body-camera video.
Viewing the evidence in the light most favorable to the state, we find
that sufficient evidence was presented to support Pierce’s felonious assault
conviction. The evidence is undisputed that Pierce physically assaulted the victim,
causing bruising and serious injury to the victim’s face and scalp, including a
laceration to the victim’s left eye, that required medical treatment.
B. Assault of a Police Officer — The Rocky River incident
Although Pierce was convicted of three offenses in this case, he only
challenges the sufficiency of the evidence as it relates to Count 3 — the assault on a
police officer offense.
R.C. 2903.13(A) provides that no person shall knowingly cause or
attempt to cause physical harm to another, who is a peace officer while in the
performance of their official duties.
Pursuant to R.C. 2901.22(B), “a person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances probably exist.”
“Accordingly, assault does not require that a defendant intend to cause physical
harm, but ‘only requires that the defendant acted with awareness that the conduct
probably will cause such harm.’” State v. Lucas, 11th Dist. Lake No. 2020-L-118,
2021-Ohio-2721, ¶ 21, quoting State v. Skjold, 11th Dist. Geauga No. 2003-G-2544,
2004-Ohio-5311, ¶ 24; see also State v. Lloyd, 8th Dist. Cuyahoga No. 109128, 2021-
Ohio-1808, ¶ 51 (is only necessary that the result is within the natural and logical
scope of risk created by the conduct).
Pierce contends that he did not act “knowingly” because the physical
contact between him and Officer Petrucci was incidental to his efforts to evade from
the officers; not in an effort to cause or attempt to cause the officer harm. We
disagree.
“Incidental and accidental conduct cannot support a conviction for
knowingly causing or attempting to cause physical harm.” In re S.C.W., 9th Dist.
Summit No. 25421, 2011-Ohio-3193, ¶ 23. However, this court has found that
“flailing” to evade arrest is sufficient to support a conviction for knowingly causing
harm or attempting to cause harm. State v. Jones, 8th Dist. Cuyahoga No. 81112,
2003-Ohio-3004, ¶ 57; see also State v. Munoz, 10th Dist. Franklin No. 12AP-299,
2013-Ohio-4987, ¶ 12 (it was probable that the defendant flailing his arms while in
close proximity to another, would strike the other); State v. Standifer, 12th Dist.
Warren No. CA2011-07-071, 2012-Ohio-3132 (evidence that officer was kicked by
defendant’s flailing foot during arrest was sufficient to support assault conviction).
Viewing the evidence in favor of the state, we find that sufficient
evidence was presented that Pierce acted knowingly when he placed two hands onto
Officer Petrucci and shoved her, causing her to fall to the ground. The officer’s
testimony and the video showed that Pierce’s conduct was not merely incidental but
deliberate in his attempt to flee from police. Even if we view his conduct as “flailing”
and not a more purposeful movement, the evidence is still sufficient to support his
assault on a peace officer conviction.
Accordingly, Pierce’s first assignment of error challenging his
convictions in both cases is overruled.
III. Manifest Weight of the Evidence
The Supreme Court of Ohio has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ * * *, declaring that ‘manifest weight’ and ‘legal sufficiency’
are ‘both quantitatively and qualitatively different.’” Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541, at paragraph two of the syllabus. In contrast to a sufficiency
argument, a manifest weight challenge questions whether the state met its burden
of persuasion. State v. Riedel, 2017-Ohio-8865, 100 N.E.3d 1155, ¶ 91 (8th Dist.).
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. * * * Weight is not a question of mathematics, but depends on its
effect in inducing belief.” Eastley at ¶ 12, quoting Thompkins at 387. In a manifest
weight analysis, the reviewing court sits as a “thirteenth juror,” and reviews “‘the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in the
evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’”
Thompkins at id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983). The discretionary power to grant a new trial should be exercised
only in exceptional cases where the evidence weighs heavily against the conviction.
Thompkins at 386.
Pierce contends in his second assignment of error that his convictions
are against the manifest weight of the evidence.
A. Felonious Assault — The bar fight
Pierce raises the same argument that he asserted in his sufficiency of
the evidence challenge — that the victim’s state of intoxication during the incident
prevented him from “mak[ing] an accurate observation, form[ing] a memory of that
event, and [the ability] to recount that recollection at a later time.” According to
Pierce, the victim’s testimony was therefore incredible and unreliable. We disagree.
Even accounting for the victim’s intoxication during the altercation
and discrediting his testimony, there is no dispute that Pierce physically assaulted
the victim. Pierce’s own witness testified that he had to “pull” Pierce off of the victim,
who was “getting his butt whooped.” Wells testified that the victim was bleeding so
badly that an ambulance was called.
Pierce appears to take issue with the allegation that he used a weapon
during the assault. Whether Pierce assaulted the victim with a weapon is irrelevant
because Pierce was not convicted of felonious assault involving a firearm — he was
acquitted of that charge and any associated specifications involving a firearm.
Accordingly, it is clear that the jury did not believe beyond a reasonable doubt that
Pierce used a weapon during the assault. The lack of weapon, however, does not
invalidate his felonious assault conviction under R.C. 2929.03(A)(1) because it only
required the state to prove that Pierce knowingly caused the victim serious physical
harm. The weight of the evidence reveals that this is not the exceptional case where
the jury clearly lost its way and a new trial must be ordered.
B. The Rocky River incident
Pierce also raises the same argument that he asserted in his
sufficiency of the evidence challenge — that he did not intend to cause any harm to
any of the officers but that his intention was merely to avoid apprehension and harm
to himself. He contends that Officer Petrucci’s testimony supports his claim because
she commented on his strength and ability to pull away from the officers’ grips and
break free, which according to Pierce, indicates that his intention was only to evade
police, not cause anyone harm. We disagree.
For the reasons previously stated in addressing his sufficiency
challenge, we also find that Pierce’s assault-on-police officer conviction is not
against the manifest weight of the evidence. The evidence demonstrates that Pierce
purposely pushed Officer Petrucci to the ground as he was attempting to flee and
evade detention. Additionally, his flailing and struggle with the other officers during
his attempts supports his conviction for obstruction in Count 5. The contact he
made with the officers was not incidental but deliberate. Moreover, the harm he
created to himself and the officers by fleeing and entering the frigid waters of the
Rocky River in December in an effort to avoid apprehension supports his conviction
for obstruction of official business, as charged in Count 6. Accordingly, this is not
the exceptional case where the jury clearly lost its way and a new trial must be
ordered.
Pierce’s second assignment of error is overruled.
IV. Maximum and Consecutive Sentences
In his third assignment of error, Pierce contends that the trial court
erred when it imposed the maximum sentence without support in the record and by
ordering the sentences to be served consecutively. He contends that the sentences
are not supported by the record because he did not intend to cause anyone harm but
only tried to evade police and avoid harm to himself. From his argument, he makes
no challenge under this assignment of error to the individual sentence imposed in
CR-642073, felonious assault. Therefore, that individual sentence will not be
addressed.
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 1, 21. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either that the record does not support the sentencing
court’s findings as required by certain sentencing statutes, or the sentence is
“otherwise contrary to law.” See also State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, ¶ 34; State v. Bryant, Slip Opinion No. 2022-Ohio-1878, ¶ 22; State v.
Brunson, Slip Opinion No. 2022-Ohio-4299, ¶ 69.
“A trial court’s imposition of a maximum prison term for a felony
conviction is not contrary to law as long as the sentence is within the statutory range
for the offense, and the court considers both the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set
forth in R.C. 2929.12.” State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-
8302, ¶ 12, citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-
Ohio-5234, ¶ 10, 16; see also State v. Pate, 8th Dist. Cuyahoga No. 109758, 2021-
Ohio-1089, ¶ 3 (a court’s imposition of any prison term, even a maximum term, for
a felony conviction is not contrary to law if the sentence is within the statutory range
for the offense and the trial court considers R.C. 2929.11 and 2929.12).
R.C. 2929.11 and 2929.12 are not fact-finding statutes and although
the trial court must “consider” the factors, it is not required to make specific findings
on the record regarding its consideration of those factors. Pate at ¶ 6. Indeed,
consideration of the factors is presumed unless the defendant affirmatively shows
otherwise. Id., citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th
Dist.). Further, a trial court’s statement in its sentencing journal entry that it
considered the required statutory factors is enough to fulfill its obligations under
R.C. 2929.11 and 2929.12. State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and
102302, 2015-Ohio-4074, ¶ 72; State v. Clayton, 8th Dist. Cuyahoga No. 99700,
2014-Ohio-112, ¶ 9.1
In CR-655219, Pierce was sentenced to 18 months’ incarceration for
assault of a police officer, a fourth-degree felony violation of R.C. 2903.13; 12
1 The Ohio Supreme Court recently accepted this issue for review. See 01/17/2023
Case Announcements, 2023-Ohio-86, accepting State v. Fraley, Case No. 2022-1281.
(Proposition of Law IV: Meaningful appellate review of a sentence under R.C. 2953.08
should be permitted.).
months’ incarceration for obstructing official business, in violation of R.C. 2921.31,
a fifth-degree felony; and 30 days in jail for obstructing official business, a second-
degree misdemeanor violation of R.C. 2921.31. These sentences are within the
statutory range for these offenses. See R.C. 2929.14(A) and 2929.24(A).
Additionally, the journal entry in this case states that “[t]he court
considered all required factors of the law. The court finds that prison is consistent
with the purpose of R.C. 2929.11.” The court’s statement is sufficient to find that the
court considered R.C. 2929.11 and 2929.12 when sentencing Pierce, and he has not
demonstrated otherwise. Further, the record reflects that the trial court considered
the purposes and principles of felony sentencing in R.C. 2929.11 and the seriousness
and recidivism factors in R.C. 2929.12 when sentencing Pierce. Both Pierce and his
counsel had an opportunity to address the court prior to sentencing and make
arguments regarding mitigation. The trial court also obtained a PSI for Pierce and
noted his significant criminal history, including prior assaults and escapes. Pierce’s
argument that the trial court failed to consider R.C. 2929.11 and 2929.12 is without
merit. Accordingly, the trial court's imposition of the maximum terms for in CR-
655219 on Counts 3 and 5 are not contrary to law.
Pierce also contends that the trial court erred in imposing consecutive
sentences. He does not challenge the individual findings under R.C. 2929.14(C) or
that the trial court failed to make the necessary statutory findings; he contends that
the record does not support the findings.
Consecutive sentences may be imposed only if the trial court makes
the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive
sentences may be imposed if the trial court finds that (1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, (2)
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public, and (3) at least one of
the following applies:
(1) The offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
post-release control for a prior offense;
(2) At least two of the multiple offenses were committed as part of one
or more courses of the conduct, and the harm caused by two or more of
the offenses was so great or unusual that no single prison term for any
of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct; or
(3) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
To impose consecutive terms of imprisonment, a trial court must both
make the statutory findings mandated for consecutive sentences under R.C.
2929.14(C)(4) at the sentencing hearing and incorporate those findings into its
sentencing entry. Bonnell at the syllabus.
We find that the trial court made the requisite findings prior to
imposing consecutive sentences — a challenge not disputed by Pierce. Under the
law as it currently stands, courts do not have to state their factual findings or
reasoning for imposing consecutive sentences. “[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.” Bonnell at ¶ 29.2
Even though not required to do so, the trial court found that Pierce
committed the Rocky River incident offenses while on bond for the bar fight. The
court determined that consecutive sentences were necessary to protect the public
because both events occurred in public places that involved causing harm. As such,
the court found that consecutive sentences were not disproportionate to the
seriousness of the Pierce’s conduct and to the danger he poses to the public because
of his history of criminal conduct that involved prior escapes and assault. The court
also noted that the Rocky River offenses were committed as part of one or more
courses of conduct, and the harm caused was so great or unusual that no single
prison term would adequately reflect the seriousness of the offense because his
attempt to escape into the Rocky River required “that whole police department” and
“whole section of Cuyahoga County off-line” (tr. 1230) due to the amount of
personnel required to respond and the amount of area the Metropark covers.
2 The Ohio Supreme Court recently accepted this issue for review. See 01/17/2023
Case Announcements, 2023-Ohio-86, accepting State v. Fraley, Case No. 2022-1281.
(Proposition of Law II: Before imposing consecutive sentences, it should no longer be
sufficient to only recite statutory language into the record. The trial court should be
required to make actual factual findings that can be appropriately reviewed by the
appellate courts.).
Accordingly, we can discern from the record that the trial court made the findings
required by R.C. 2929.14(C)(4) to impose consecutive sentences.
Pierce’s third assignment of error is overruled.
V. Reagan Tokes Law
In his fourth assignment of error, Pierce contends that the trial court
erred when it sentenced him to an indefinite sentence under the Reagan Tokes Law
because the law violates constitutional guarantees of both substantive and
procedural due process, the separation-of-powers doctrine, and the right to trial by
jury. Most of the challenges Pierce advances against the constitutional validity of
the Reagan Tokes Law — due process, the separation of powers, and the right to trial
by jury — have been overruled by this district’s en banc holding in State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). Id. at ¶ 17-51.3 Accordingly, we
summarily overrule those challenges under the authority of Delvallie.
Regarding his substantive due process claim, Pierce first contends
that the indeterminate sentencing scheme violates substantive due process because
it fails to provide the defendant with adequate notice of what conduct can enable the
ODRC to keep the defendant in prison beyond the presumptive minimum.4 He next
3 Regarding due process, Delvallie found the Reagan Tokes Law constitutional as
it relates to R.C. 2967.271(C) and (D)’s silence with respect to setting all constitutional
rights guaranteed by trial. See Delvallie at ¶ 48-51.
4 The Ohio Supreme Court recently accepted this issue for review. See 01/31/2023
Case Announcements, 2023-Ohio-212, accepting State v. Bryant, Case No. 2022-1455.
(Proposition of Law IV: The Reagan Tokes sentencing law violates due process by failing
to provide the offender with adequate notice of what conduct exposes them to prison time
beyond the minimum term and/or because it allows the Ohio Department of
contends that the indeterminate sentencing scheme violates substantive due process
because it sets inadequate parameters on the Executive Branch’s discretion by
allowing the ODRC to keep a defendant in prison beyond the presumptive minimum
sentence on the basis of prison housing and classification decisions that need not be
the result of any misconduct by the defendant while in prison. Although not argued
separately, Pierce merely cites to case law supporting the proposition that “arbitrary
and discriminatory enforcement renders the ordinance unconstitutionally void for
vagueness.”
We recognize that Delvallie did not identify or address substantive
due process or void-for-vagueness as independent due process challenges to the
indefinite sentencing scheme under the Reagan Tokes Law.5 Granted, although
Delvallie made a general statement that the law did not violate “due process,” we are
cognizant that a party can also challenge the constitutional validity of a law as
violating due process by asserting that it violates substantive due process, or that it
is void for vagueness.
Although Pierce separated the concept of due process into both
substantive and procedural, the brief and vague arguments he raises in support of
his “substantive” due process claims are insufficient to withstand his burden to
Rehabilitation and Correction (ODRC) to impose prison time beyond the minimum term-
based classification decisions unrelated [to] the offender’s misconduct in prison.)
5 The First District has held that the Reagan Tokes Law does not violate a
defendant’s substantive due process rights. State v. Guyton, 1st Dist. Hamilton No. C-
190657, 2022-Ohio-2962, ¶ 32-37.
establish beyond a reasonable doubt that the Reagan Tokes Law is unconstitutional
on this basis. Delvallie at ¶ 18, citing State v. Bloomer, 122 Ohio St.3d 200, 2009-
Ohio-2462, 909 N.E.2d 1254, ¶ 41, citing State v. Ferguson, 120 Ohio St.3d 7, 2008-
Ohio-4824, 896 N.E.2d 110, ¶ 12.
Nevertheless, Pierce’s general claims were raised and rejected by this
court in State v. Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.), and State v.
Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.), when addressing whether the
Reagan Tokes Law violates the general concept of due process. See Wilburn, ¶ 28-
36; and Simmons, ¶ 16-21 (recognizing that the ODRC does not have unfettered
discretion under the Revised Code and that the Ohio Admin. Code provides inmates
with adequate notice of the conduct that will lead to rule infractions or restrictive
housing assignments, factors that trigger the ODRC to extend an inmate’s minimum
term of incarceration).6 Pierce has not made any additional “substantive” due
process arguments beyond those raised in Wilburn and Simmons, nor has he
explained why the decisions in those cases do not apply. Accordingly, we also
summarily reject his “substantive” due process arguments under the authority of
Wilburn and Simmons.
Pierce’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
6 Delvallie reaffirmed both Wilburn and Simmons. Id. at ¶ 17.
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. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
LISA B. FORBES, J., CONCUR
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J.,
dissenting).