State v. White

[Cite as State v. White, 2021-Ohio-126.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109652
v. :
ADRIAN W. WHITE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 21, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640744-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Janna R. Lifford, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellant.
MARY J. BOYLE, A.J.:
Defendant-appellant, Adrian White, appeals his sentence. He raises
the following sole assignment of error:
As amended by the Reagan Tokes Act, the Revised Code’s sentences for
first and second degree qualifying felonies violate the Constitutions of
the United States and the State of Ohio.
Finding no merit to his appeal, we affirm his sentence.
I. Procedural History and Factual Background
White was indicted on 11 counts in July 2019, for offenses that
occurred on April 15, 2019, including two counts each of trafficking, drug
possession, and felonious assault with furthermore clauses that the victim was a
peace officer, and one count each of failure to comply with an order or signal of a
police officer, improperly handling firearms in a motor vehicle, carrying a concealed
weapon, possessing criminal tools, and resisting arrest. Many of the counts carried
forfeiture and firearm specifications.
On the same day in March 2020, the trial court held a plea and
sentencing hearing. White pleaded guilty to an amended indictment of seven
counts, including Counts 1 and 2, felonious assault in violation of R.C. 2903.11(A)(2)
without the furthermore clauses that the victim was a peace officer, second-degree
felonies; Count 3, failure to comply with an order or signal of a police officer in
violation of R.C. 2921.331(B), a third-degree felony; Count 4, improperly handling
firearms in a motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony;
Court 8, trafficking in violation of R.C. 2925.03(A)(2) without a one-year firearm
specification but with forfeiture specifications, a fifth-degree felony; Count 10,
possessing criminal tools in violation of R.C. 2923.24(A) with forfeiture
specifications, a fifth-degree felony; and Count 11, resisting arrest in violation of R.C.
2921.33(A), a second-degree misdemeanor. The remaining counts were nolled. As
part of his plea, White agreed to forfeit two cell phones, a firearm, a digital scale,
ammunition, and $1,830. The state and White also agreed to a joint-sentence
recommendation of a minimum of five years to a maximum of seven-and-a-half
years in prison. White also agreed that he would not be judicially released before
spending five years in prison.
The trial court sentenced White as follows: four to six years in prison
for Count 1, felonious assault; four to six years for Count 2, felonious assault; 12
months for Count 3, failure to comply with an order or signal of a police officer; ten
months for Count 4, improperly handling firearms in a motor vehicle; six months
for Count 8, trafficking; six months for Count 10, possessing criminal tools; and 90
days in jail for Count 11, resisting arrest. The trial court ordered that Count 3 be
served prior to and consecutive to Counts 1, 2, 4, 8, 10, and 11, which will run
concurrent to each other, for an aggregate sentence of a minimum of five and a
maximum of six years in prison. The trial court also notified White that he would
be subject to a mandatory period of three years of postrelease control upon his
release from prison. It is from this judgment that White now appeals.
II. Reagan Tokes Act
In his sole assignment of error, White argues that Ohio Revised Code
sentencing provisions as enacted by Am.Sub.S.B. No. 201, commonly known as the
Reagan Tokes Act, are unconstitutional. He claims that the Reagan Tokes Act
violates (1) the constitutional right to a trial by jury, (2) the separation-of-powers
doctrine, and (3) due process.
First, White’s sentence is not reviewable because his sentenced was
authorized by law, and the trial court sentenced him within the jointly
recommended sentencing range. State v. Williams, 8th Dist. Cuyahoga No. 109091,
2020-Ohio-4467, ¶ 32.
Second, even if White could challenge his sentence, he did not object
to his sentence or raise a constitutional challenge to the Reagan Tokes Act at his
sentencing hearing. “It is well established that ‘the question of the constitutionality
of a statute must generally be raised at the first opportunity and, in a criminal
prosecution, this means in the trial court.’” State v. Alexander, 12th Dist. Butler No.
CA2019-12-204, 2020-Ohio-3838, ¶ 8, quoting State v. Buttery, Slip Opinion No.
2020-Ohio-2998, ¶ 7.
This court has recently declined to address constitutional challenges
to the Reagan Tokes Act when defendants did not object to their sentences or
otherwise raise the constitutionality of the act at their sentencing hearing. See State
v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 12-19; State v. Hollis,
8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-54; and State v. Stone, 8th
Dist. Cuyahoga No. 109322, 2020-Ohio-5263, ¶ 6-10. We therefore decline to
address White’s constitutional arguments raised for the first time on appeal.
Although this court has the discretion to review arguments that were
not raised in the trial court for plain error, we decline to do so here. As we noted in
Dames:
Even if the appellant failed to object to the constitutionality of the
statute at the trial-court level, appellate courts may still review a trial
court decision for plain error. State v. Quarterman, 140 Ohio St. 3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. However, in order to
review for plain error “we require a showing that there was an error,
that the error was plain or obvious, that but for the error the outcome
of the proceeding would have been otherwise, and that reversal must
be necessary to correct a manifest miscarriage of justice.” Dames did
not make any plain error showing for this court to review.
Id. at ¶ 14; see also Hollis at ¶ 50 (“Furthermore, like Dames, appellant failed to raise
a plain error argument in this appeal, and we decline to construct a plain error
argument on appellant’s behalf.”); Stone at ¶ 10 (“In addition to failing to raise a
constitutional challenge of the Reagan Tokes Act in the trial court, Stone also has
not argued plain error in this appeal. Thus, we decline to address this issue for the
first time on appeal.”).
Accordingly, White’s 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. The defendant’s
conviction having been affirmed, any bail pending 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
MARY EILEEN KILBANE, J., CONCUR