State v. Perry

[Cite as State v. Perry, 2022-Ohio-1590.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110901
v. :
WALTER PERRY, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 12, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-652391-A and CR-21-657696-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Mussman, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Walter Perry, Jr. (“Perry”),1 appeals his sentence
following guilty pleas. For the reasons set forth below, we affirm.
Procedural and Factual History2
On September 8, 2021, pursuant to negotiated plea agreements with
the state, Perry entered guilty pleas in three separate cases. In Cuyahoga C.P. No.
CR-21-657696-A (“657696”), Perry entered a guilty plea to a single count of third-
degree felony drug possession. In Cuyahoga C.P. No. CR-20-654739-A (“654739”),
Perry entered guilty pleas to one count of fifth-degree felony unauthorized use of a
motor vehicle and to one count of misdemeanor assault. In Cuyahoga C.P. No.
CR- 20-652391-A (“652391”), Perry entered a guilty to a single count of first-degree
felony involuntary manslaughter. In exchange for Perry’s guilty pleas, the state
dismissed the remaining charges in all three cases.
Prior to accepting the guilty pleas, the trial court advised Perry that the
indefinite sentencing structure, under the Reagan Tokes Act, was applicable to the
first-degree felony involuntary manslaughter. The trial court then gave Perry a
detailed explanation of the framework of the Reagan Tokes Act.
Thereafter, on September 16, 2021, in 652391, the trial court
sentenced Perry, pursuant to the Reagan Tokes Act, to serve a minimum of four
1 Appellant also goes by the name of Walker Perry, Jr.
2 The appeal stems from a negotiated guilty plea, and Perry’s sole challenge is to
the constitutionality of the sentence imposed. Therefore, we will not render a detailed
recitation of the underlying facts.
years and a maximum of six years for involuntary manslaughter. Defense counsel
objected to the trial court’s imposition of an indefinite sentence.
In 654739, the trial court sentenced Perry to serve one year for the
unauthorized use of a motor vehicle and to serve six months for misdemeanor
assault. In 657696, the trial court sentenced Perry to serve nine months for drug
possession.
Perry now appeals and assigns the following sole error for review:
Assignment of Error
The trial court violated appellant’s constitutional rights by imposing a
Reagan-Tokes sentence under S.B. 201.
Law and Analysis
In the sole assignment of error, Perry argues that the Reagan Tokes
Act is unconstitutional because it violates the right to trial by jury, the separation-
of-powers doctrine, and the right to due process.3
However, we need not dwell on the arguments presented. The Ohio
Supreme Court held in State v. Maddox, Slip Opinion No. 2022-Ohio-764, that
constitutional challenges to the Reagan Tokes Act are ripe for review. Based on the
authority established by this district’s en banc holding in State v. Delvallie, 8th Dist.
Cuyahoga No. 109315, 2022-Ohio-470, the challenges Perry advanced against the
constitutional validity of the Reagan Tokes Act have been overruled. Id. at ¶ 17-54.
3 Neither party has raised any issues as to the imposed sentence; therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
Accordingly, we overrule the sole assignment of error.
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
Cuyahoga County 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.
_________________________
EMANUELLA D. GROVES, JUDGE
LISA B. FORBES, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and
dissenting in part) in Delvallie and would have found the Reagan Tokes Law
unconstitutional.
Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see
State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J.,
dissenting).