State v. Freeman

[Cite as State v. Freeman, 2022-Ohio-1991.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-17
v.
JUAN E. FREEMAN, II, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-18
v.
JUAN E. FREEMAN, II, OPINION
DEFENDANT-APPELLANT.
Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2020 0159 and CR2020 0160
Judgments Affirmed
Date of Decision: June 13, 2022
APPEARANCES:
Chima R. Ekeh for Appellant
Jana E. Emerick for Appellee
Case Nos. 1-21-17, 1-21-18
MILLER, J.
{¶1} Defendant-appellant, Juan E. Freeman, II, appeals the April 27, 2021
judgments of sentence of the Allen County Court of Common Pleas. For the reasons
that follow, we affirm.
I. Background
{¶2} At approximately 8:00 p.m. on January 14, 2020, Freeman, who was 17
years old at the time, robbed Hermie’s Party Shop in Lima. A short time later,
Freeman robbed a nearby Little Caesars Pizza shop. Freeman used a firearm during
both robberies.
{¶3} On July 16, 2020, after having been bound over from the Allen County
Juvenile Court, Freeman was indicted on one count of aggravated robbery in
violation of R.C. 2911.01(A)(1), a first-degree felony, in case number CR2020
0159, and two counts of aggravated robbery in violation of R.C. 2911.01(A)(1),
first-degree felonies, in case number CR2020 0160. Each of the three counts of
aggravated robbery was accompanied by a three-year firearm specification pursuant
to R.C. 2941.145(A). On July 27, 2020, Freeman appeared for arraignment and
pleaded not guilty to the counts and specifications of the two indictments.
{¶4} The cases proceeded to a bench trial on April 26, 2021, at the conclusion
of which the trial court found Freeman guilty of all the counts and specifications set
forth in the two indictments. The trial court then proceeded immediately to sentence
Freeman to an aggregate term of 28-32 years in prison.
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Case Nos. 1-21-17, 1-21-18
II. Assignments of Error
{¶5} On May 13, 2021, Freeman timely filed notices of appeal. He raises
the following three assignments of error for our review:
1. Freeman’s indefinite sentence pursuant to R.C. 2967.271
(the Reagan Tokes Law) violates the right to a jury trial as
protected by the Sixth Amendment of the United States
Constitution and Article I, Section 5 of the Ohio Constitution.
2. R.C. 2967.271 (the Reagan Tokes Law) unconstitutionally
violates the separation of powers doctrine of the United States and
Ohio Constitution.
3. R.C. 2967.271 (the Reagan Tokes Law) violates the right to
due process under the Fourteenth Amendment of the United
States Constitution and Article I, Section 16, of the Ohio
Constitution.
As they concern related issues, we address Freeman’s assignments of error together.
III. Discussion
{¶6} In his three assignments of error, Freeman argues that his sentence is
contrary to law because the indefinite-sentencing provisions of the Reagan Tokes
Law are unconstitutional. He claims that these provisions violate his right to a jury
trial, his right to due process, and the separation of powers doctrine.
A. Standard of Review for Felony Sentences
{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
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Case Nos. 1-21-17, 1-21-18
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
B. Freeman’s sentence is not contrary to law because the indefinite-
sentencing provisions of the Reagan Tokes Law do not violate the separation
of powers doctrine, his right to due process, or his right to a jury trial.
{¶8} Freeman argues that his sentence is contrary to law because the
indefinite-sentencing provisions of the Reagan Tokes Law,1 under which he was
sentenced, run afoul of the separation of powers doctrine, infringe on his right to
due process, and deprive him of his right to a jury trial. At the outset, we note that
Freeman failed to object to the constitutionality of the Reagan Tokes Law in the trial
court. “The ‘[f]ailure to raise at the trial court level the issue of the constitutionality
of a statute or its application, which is apparent at the time of trial, constitutes a
waiver of such issue and a deviation from this state’s orderly procedure, and
therefore need not be heard for the first time on appeal.’” State v. Barnhart, 3d Dist.
Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 7, quoting State v. Awan, 22 Ohio St.3d
120 (1986), syllabus. “However, we retain the discretion to consider a waived
constitutional argument under a plain-error analysis.” Id. at ¶ 8. “An error qualifies
as ‘plain error’ only if it is obvious and but for the error, the outcome of the
1
Because we have thoroughly explained these provisions in previous opinions, we need not do so here. See,
e.g., State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 9; State v. Hiles, 3d Dist. Union
No. 14-20-21, 2021-Ohio-1622, ¶ 11-16.
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Case Nos. 1-21-17, 1-21-18
proceeding clearly would have been otherwise.” Id. In this case, we elect to
exercise our discretion to review Freeman’s constitutional arguments for plain error.
See id. at ¶ 8, 15 (reviewing “waived” challenge to the constitutionality of the
Reagan Tokes Law for plain error).
{¶9} Freeman’s challenges do not present a matter of first impression in this
court. Since the indefinite-sentencing provisions of the Reagan Tokes Law went
into effect in March 2019, we have repeatedly been asked to address the
constitutionality of these provisions. We have invariably concluded that the
indefinite-sentencing provisions of the Reagan Tokes Law do not facially violate
the separation of powers doctrine or infringe on defendants’ due process rights.
E.g., State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State
v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d
Dist. Union No. 14-21-16, 2022-Ohio-96, ¶ 21.
{¶10} In this case, Freeman asks us to reconsider our earlier decisions. In
recent months, a number of defendants have requested the same of us—requests that
we have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04,
2022-Ohio-884, ¶ 33; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist.
Allen No. 1-21-02, 2021-Ohio-2802, ¶ 17; State v. Rodriguez, 3d Dist. Seneca No.
13-20-07, 2021-Ohio-2295, ¶ 15. As Freeman has not presented us with any
compelling reason to depart from our earlier precedent on facial challenges to the
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Case Nos. 1-21-17, 1-21-18
indefinite-sentencing provisions of the Reagan Tokes Law, we once again decline
to do so.
{¶11} Freeman also challenges the indefinite-sentencing provisions of the
Reagan Tokes Law as applied to him, contending that they violate his constitutional
right to a trial by jury. In the past, we have held that certain as-applied challenges
to these provisions were not ripe for review. See, e.g., State v. Kepling, 3d Dist.
Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 11. However, the Supreme Court of Ohio
recently decided State v. Maddox, ___ Ohio St.3d ___, 2022-Ohio-764, and
determined that constitutional challenges to the indefinite-sentencing provisions of
the Reagan Tokes Law are ripe for review. Based on the holding in Maddox, we
will address Freeman’s argument that the indefinite-sentencing provisions of the
Reagan Tokes Law violate his right to a jury trial.
{¶12} In reviewing the matter, we emphasize that statutes are presumed
constitutional, and it is Freeman’s burden to demonstrate that the statute at issue is
unconstitutional. State v. Thompkins, 75 Ohio St.3d 558, 1996-Ohio-264. Freeman
has presented no compelling authority undermining the constitutionality of the
indefinite-sentencing provisions of the Reagan Tokes Law.
{¶13} Notwithstanding this point, numerous Ohio courts of appeals have
already rejected challenges similar to Freeman’s. State v. Rogers, 12th Dist. Butler
No. CA2021-02-010, 2021-Ohio-3282, ¶ 18; State v. Thompson, 2d Dist. Clark No.
2020-CA-60, 2021-Ohio-4027, ¶ 25; State v. Delvallie, 8th Dist. Cuyahoga No.
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Case Nos. 1-21-17, 1-21-18
109315, 2022-Ohio-470, ¶ 46 (en banc). We agree with the reasoning expressed by
these courts and determine that Freeman’s “as-applied” challenge regarding the jury
trial issue is unavailing.
{¶14} In sum, we conclude that the indefiniteness of Freeman’s sentence
does not render his sentence contrary to law. Therefore, Freeman’s first, second,
and third assignments of error are overruled.
IV. Conclusion
{¶15} For the foregoing reasons, Freeman’s assignments of error are
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the Allen County Court
of Common Pleas.
Judgments Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr
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