State v. Santana

[Cite as State v. Santana, 2023-Ohio-616.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111842
v. :
VICTOR L. SANTANA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668112-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
Aaron T. Baker, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Victor L. Santana (“Santana”), appeals his
indefinite felony sentence and claims the following error:
The trial court committed plain error when it found S.B. 201 to be
constitutional and imposed an indefinite sentence pursuant to S.B. 201.
We affirm.
I. Facts and Procedural History
Santana pleaded guilty to one count of felonious assault, a first-degree
felony, in violation of R.C. 2903.11(A)(1), with a one-year firearm specification; one
count of domestic violence, a first-degree misdemeanor, in violation of R.C. 2919.25;
and one count of violating a protection order, a first-degree misdemeanor, in
violation of R.C. 2919.27(A)(1).
The trial court sentenced Santana to a one-year prison term on the
firearm specification, to be served prior to and consecutive with a minimum prison
term of seven years and a maximum prison term of ten and one-half years on the
underlying felonious assault conviction. The court also imposed six-month prison
terms on each of the two misdemeanor convictions, to be served concurrently with
the sentence imposed on the felonious assault conviction for a total prison term of
eight to eleven and one-half years.
Santana now appeals his sentence.
II. Law and Analysis
In the sole assignment of error, Santana argues the trial court erred by
imposing an indefinite prison sentence pursuant to the Reagan Tokes Law. He
contends the Reagan Tokes Law is unconstitutional because it violates his right to a
jury trial, the separation-of-powers doctrine, and his right to due process under the
Ohio and United States Constitutions.
Santana did not object to his sentence nor did he raise a constitutional
challenge to the Reagan Tokes Law at the 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. Jenkins, 8th Dist. Cuyahoga No. 109323, 2021-Ohio-123, ¶ 21, quoting State
v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8, quoting
State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7.
This court has declined to address constitutional challenges to the
Reagan Tokes Law when defendants did not object to their sentences or otherwise
raise the constitutionality of the act at their sentencing hearing. See Jenkins at ¶ 20-
24; State v. White, 8th Dist. Cuyahoga No. 109652, 2021-Ohio-126, ¶ 6-11; State v.
Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-54; State v. Stone,
8th Dist. Cuyahoga No. 109322, 2020-Ohio-5263, ¶ 6-10.
Santana nevertheless requests that we review his sentence for plain
error. And, appellate courts may review a trial court’s decision for plain error even
if the defendant failed to object to the constitutionality of the statute at trial. State
v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 14, citing State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. We,
therefore, review Santana’s sentence for plain error.
Consistent with the well-established precedent of this court, we find
no error, plain or otherwise. The question of whether the Reagan Tokes Law is
constitutional was decided in this court’s en banc opinion in State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.). In that case, this court found “that the Reagan
Tokes Law, as defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed
the principles established in State v. Gamble, 2021-Ohio-1810, 173 N.E.3d 132 (8th
Dist.); State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v.
Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.). Delvallie at ¶ 17. Because
Santana does not raise any novel arguments left unaddressed by the Delvallie
decision, we find the constitutional challenges presented in this appeal are without
merit.
The 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.
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 356 (8th Dist.). (Laster Mays, J., concurring in part and
dissenting in part.)