State v. Shepard

[Cite as State v. Shepard, 2022-Ohio-2776.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111162
v. :
TYSHAWN SHEPARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 11, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-653555-A, CR-20-654029-A,
CR-20-654033-A, and CR-20-654172-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Kilbane McNally, Assistant
Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
EILEEN T. GALLAGHER, J.:
In this consolidated appeal, defendant-appellant, Tyshawn Shepard
(“Shepard”), appeals from his sentence. He raises the following assignment of error
for review:
The trial court erred when it found S.B. 201 to be constitutional and
imposed an indefinite sentence pursuant to S.B. 201.
After careful review of the record and relevant case law, we affirm
Shepard’s sentence.
I. Factual and Procedural History
In Cuyahoga C.P. No. CR-20-653555-A, Shepard pleaded guilty to drug
possession in violation of R.C. 2925.11(A), a felony of the second degree. Over
defense counsel’s objection, Shepard was sentenced to an indefinite prison term of
eight to twelve years under the Reagan Tokes Law.
In Cuyahoga C.P. No. CR-20-654029-A, Shepard pleaded guilty to
assault in violation of R.C. 2903.13(A), a felony of the fifth degree. Shepard was
sentenced to a six-month term of imprisonment.
In Cuyahoga C.P. No. CR-20-654033-A, Shepard pleaded guilty to
burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree; and theft in
violation of R.C. 2913.02(A)(1), a felony of the fifth degree. Shepard was sentenced
to a 30-month term of imprisonment on the burglary offense, to run concurrently
with a six-month term of imprisonment on the theft offense.
In Cuyahoga C.P. No. CR-20-654172-A, Shepard pleaded guilty to
burglary in violation of R.C. 2911.12(B), a felony of the fourth degree; burglary in
violation of R.C. 2911.12(B), a felony of the fourth degree; attempted having weapons
while under disability in violation of R.C. 2923.02 and 2923.13(A)(2), a felony of the
fourth degree; misuse of credit cards in violation of R.C. 2913.21(B)(2), a felony of
the fifth degree; and resisting arrest in violation of R.C. 2921.33(A), a misdemeanor
of the second degree. Shepard was sentenced a 12-month term of imprisonment on
each burglary offense, a 12-month term of imprisonment on the attempted having
weapons while under disability offense, a six-month term of imprisonment on the
misuse of credit cards offense, and a 90-day term of imprisonment on the resisting
arrest offense. Each sentence imposed in Case No. CR-20-654172-A was ordered to
run concurrently, for a total prison term of 12 months.
The aggregate sentences imposed in Case Nos. CR-20-653555-A, CR-
20-654029-A, CR-20-654033-A, and CR-20-654172-A were ordered to run
concurrently with each other.
Shepard now appeals from the trial court’s sentence.
II. Law and Analysis
In his sole assignment of error, Shepard argues the trial court erred in
sentencing him under the Reagan Tokes Law, which became effective March 22,
2019. He contends the Reagan Tokes Law is unconstitutional because it violates the
constitutional right to trial by a jury, separation-of-powers doctrine, and due
process.
As acknowledged by Shepard on appeal, 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.). There, 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.). See Delvallie at ¶ 17. Because Shepard does not advance any novel argument
left unaddressed by the Delvallie decision, we find the constitutional challenges
presented in this appeal are overruled.1
Shepard’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.
1 Neither party has raised any issues as to the imposed sentence and, 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
EMANUELLA D. GROVES, 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.
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).
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.