State v. Pierce

[Cite as State v. Pierce, 2022-Ohio-3912.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110791
v. :
PHILLIP PIERCE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 3, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-651185-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Phillip Pierce, appeals his convictions following
a jury trial. For the reasons that follow, we affirm.
In June 2020, Pierce was named in a five-count indictment charging
him as follows: Count 1, rape in violation of R.C. 2907.02(A)(2) (vaginal
penetration); Count 2, rape in violation of R.C. 2907.02(A)(2) (anal penetration);
Count 3, rape in violation of R.C. 2907.02(A)(2) (fellatio); Court 4, kidnapping, in
violation of R.C. 2905.01(A)(4); and Count 5, assault, in violation of R.C.
2903.12(A).
On April 28, 2021, a jury trial commenced. After the close of evidence
and following a Howard charge, the jury returned a verdict of not guilty of vaginal
rape, as charged in Count 1, and guilty of assault, as charged in Count 5. The court
declared the jury hung on Counts 2, 3, and 4.
On July 6, 2021, the court renumbered the indictment to read that
Count 1 charged Pierce with rape in violation of R.C. 2907.02(A)(2) (anal
penetration); Count 2, rape, in violation of R.C. 2907.02(A)(2) (fellatio); and Count
3, kidnapping, in violation of R.C. 2905.01(A)(4). The following day, a second jury
trial commenced on those remaining counts, and the following evidence was
presented.
Donna Majoros, a 911 dispatch operator, testified that around 5:00
a.m. on June 14, 2020, she received a call from an unknown caller reporting an
assault in a nearby apartment. The state played the 911 call for the jury. The jury
heard the unidentified caller saying that someone was getting “whupped” and “torn
up.” See exhibit No. 22; tr. 567.
Euclid Police Officer Nicholas Eddington testified that he was
dispatched for a disturbance to an apartment complex on Sidney Drive in Euclid,
Ohio. He stated that it was unknown which apartment the disturbance was coming
from, so he shined his flashlight into windows. In doing so, he noticed movement
of some curtains in a specific apartment and shined his flashlight through that
apartment’s front-door glass window. He said that he saw a female, later identified
as the victim, running down the stairs of the apartment. Officer Eddington testified
that when she opened the door, she was yelling and sobbing uncontrollably. He
stated that the victim’s face was swollen and he observed scratches on her cheek.
According to the officer, the victim then collapsed onto the floor, curled up into the
fetal position, and continued crying. He stated that the victim was only wearing a
pink tank top that was wet around the chest area.
Officer Eddington testified that while he was talking to the victim, a
male, later identified as Pierce, casually walked down the stairs wearing only boxer
shorts. The officer said that he detained Pierce for safety purposes and placed him
in the back of a police cruiser. Officer Eddington testified that after speaking with
the victim, he learned that she and Pierce were dating. Based on additional
information received from the victim, Officer Eddington advised Pierce that he was
under arrest for rape.
The victim testified that on the morning of June 14, 2020, she was
physically assaulted and raped by Pierce, her on-and-off boyfriend. She stated that
on June 13, she picked him up from his house and drove them back to her house for
the purposes of “hanging out.” The victim testified that they were watching
television, drinking alcohol, and smoking marijuana. She said that Pierce was
drinking excessively. The victim stated that she did not feel well and wanted to go
to bed upstairs, but Pierce wanted to have sex — she did not. The victim testified
that she went upstairs and Pierce followed her, telling her that if they did not have
sex, he would “beat [my] ass.” (Tr. 633.) She stated that she engaged in sexual
conduct with Pierce out of fear. According to the victim, the activity began with her
giving him fellatio, but she stated that Pierce was acting aggressively by holding her
head and pushing it down. She stated that Pierce kept telling her to “do it right,”
and even though she did not want to do it at all, she “only did it so he [would not]
hurt [her].” (Tr. 634.)
The victim testified that after forcing her to perform fellatio, Pierce
told her that he wanted anal intercourse. She said that she did not want to engage
in this conduct. The victim testified that as he was aggressively having anal sex with
her, she vomited and screamed that she did not want to do it. According to the
victim, Pierce threatened that if she did not engage in this sexual activity, she would
“suffer the consequences” by getting her “ass beat.” (Tr. 635.) The victim testified
that after Pierce ejaculated, she attempted to lie down, but Pierce told her that he
was going to have sex with her again. She stated that she tried to leave the room,
but Pierce grabbed her, threw her on the floor, and proceeded to punch, smack, kick,
and choke her while telling her that he was going to “kill her.” (Tr. 637.) The victim
testified that the police arrived during this physical assault, and she ran down the
stairs and told the officer Pierce had assaulted and raped her.
The victim testified that she was transported by ambulance to the
hospital where a rape kit was performed. Additionally, she identified the
photographs that Euclid police officers took, which she said accurately depicted the
injuries she sustained from Pierce, and the wetness on her tank top, which according
to the victim was from vomit. The victim also told the jury that after Pierce was
arrested, she started receiving phone calls from Pierce’s family members asking her
to help them get Pierce out of jail.
Melissa Wilhelm, a forensic scientist in the DNA section of the Ohio
Bureau of Criminal Investigation, testified that DNA evidence from the victim’s rape
kit was compared with a DNA standard from Pierce. She testified that the vaginal,
perianal, labia, and thigh samples taken from the victim contained a male DNA
profile that was consistent with Pierce’s DNA.
Jennifer Kroczak, a detective from the city of Euclid, testified that she
was assigned the case following Pierce’s arrest. She testified that she reviewed dash
camera footage from inside the zone car when Pierce was transported to the county
jail. The state played a portion of that recording — exhibit No. 27 — for the jury.
Over objection, Detective Kroczak repeated statements that Pierce made during the
video, including his disbelief of being charged with rape when the victim is his
girlfriend and they engage in sexual activity.
Detective Kroczak testified that she also obtained and listened to
recordings of phone calls Pierce made from the county jail after he was arrested. The
state played the agreed-upon portions of those calls — exhibit Nos. 24, 25, 26 — for
the jury.1 Over objection, Detective Kroczak testified as to what she heard when the
state played the jail calls for the jury. Specifically, she testified as to the “gist” of one
of Pierce’s conversations where she claimed that Pierce stated that he would pay the
victim because he cannot “be messing with this rape charge.” (Tr. 686.) The
detective also testified that Pierce could be heard on the calls “encouraging [others]
to contact [the victim], to go to Euclid, meaning the police, and recant her
accusation.” (Tr. 687-688.) On cross-examination, Detective Kroczak stated that
her interpretation of Pierce’s jail calls was that he wanted the victim to “recant” her
statement, even though Pierce was actually saying in the jail calls “drop the charges.”
(Tr. 702.)
Pierce testified in his defense. He admitted that he and the victim
were at the victim’s house, drinking and smoking. He stated that the victim had
more to drink than what she said during her testimony. Pierce stated that during
the evening he and the victim argued about him engaging in sexual conduct with
another female. According to Pierce, the victim went upstairs because she was
upset. After ten minutes, he went upstairs and according to Pierce, they engaged in
consensual anal intercourse. He said that after he ejaculated, the victim
consensually performed fellatio. He stated that during this conduct, the victim
began to use her teeth, causing him to push her off of him. Pierce testified that he
told her that she was “not doing it right,” and knew “another girl who could do it
1 From the transcript, it appears that defense counsel agreed that only certain
relevant and admissible portions of the jail calls would be played for the jury. See tr. 679-
680.
better.” (Tr. 729-730.) According to Pierce, the victim then hit him with a glass
candle and a physical altercation ensued between them. He denied raping the
victim, but maintained that they engaged in consensual sexual conduct, including
both fellatio and anal intercourse.
The trial court denied Pierce’s renewed Crim.R. 29 motion for
judgment of acquittal. The jury subsequently received its instructions and retired
for deliberation. On July 12, 2021, the jury notified the court that they were hung
on all three counts. Following the receipt of a Howard charge from the court, the
jury returned a guilty verdict on all counts.
The court sentenced Pierce under the Reagan Tokes Law.
Accordingly, he received an indefinite sentence of 10 to 15 years on renumbered
Counts 1, 2, and 3, and six months on the assault charge. All counts were ordered to
run concurrently.
Pierce now appeals, raising four assignments of error.
I. Evidentiary Issues
Pierce contends in his first assignment of error that the trial court
erred in the admission of testimonial statements that did not qualify under any
exceptions to the hearsay rule, in violation of his right to confrontation under the
Sixth and Fourteenth Amendments to the United States Constitution. Specifically,
he contends that the trial court erred in allowing (1) hearsay statements through
Officer Eddington’s testimony; and (2) Detective Kroczak to interpret the jail calls.
A. Hearsay Statements
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Consequently, a statement is, by definition, not hearsay
when it is offered for a purpose other than to prove the truth of the matter asserted.
State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 118.
One instance where testimony has been permitted as non-hearsay is
when a police officer is offering testimony to explain “the next investigative step.”
State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 186, citing
State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. When
the testimony is being offered to explain why an officer took the next particular step
in an investigation, it falls outside of the hearsay classification because it is not being
offered for the truth of the matter asserted.
The Ohio Supreme Court has cautioned, however, that “the well-worn
phrase ‘not offered for the truth of the matter asserted’ is not a talismanic
incantation that opens the door to everything said outside the courtroom.” Ricks at
¶ 25, quoting State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d
442, ¶ 26 (6th Dist.). Testimony offered to explain police conduct is admissible as
non-hearsay only if (1) the explained conduct is “relevant, equivocal, and
contemporaneous with the statements; (2) the probative value of statements [is not]
substantially outweighed by the danger of unfair prejudice; and (3) the statements
cannot connect the accused with the crime charged.” Ricks at ¶ 27.
It is particularly important to emphasize that careful analysis of an
officer’s statement explaining “the next investigative step” is required when the
officer’s testimony touches on statements made by an individual who is not
testifying because “[t]he Sixth Amendment to the United States Constitution
guarantees an accused the right to confront witnesses against him.” Crawford v.
Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As a general
rule, the Confrontation Clause is implicated by the admission of out-of-court
statements that are testimonial in nature when the declarant does not testify in the
proceeding. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-310, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009).
In this case, Officer Eddington provided the following testimony
regarding what steps he took during his investigation:
[Officer Eddington]. I then went back down and assisted Officer
Schwedt in speaking with the victim. And that’s when I learned that ─
she was upset with her boyfriend — Mr. Pierce was her boyfriend, and
they had been involved in a physical altercation. She stated that ─
[The Prosecutor]. Let me ask you a new question. Without telling us
exactly what she told you, you touched on it a little bit, was she able to
provide you a narrative of what happened to her that evening?
A. Yes, she was.
Q. Based on what she told you, what did you do?
A. I went back out to the patrol car and advised Mr. Pierce that he was
under arrest for rape.
(Tr. 579.)
Q. You talked about only taking or only documenting injuries that
someone indicates happened during the crime that you’re
investigating. For each of these photographs, would someone have
asked [the victim] either if this particular injury was caused that night
by Mr. Pierce, or just indicate the injuries that were caused by Mr.
Pierce, or something of that nature?
A. Yes.
(Tr. 602.) No objection was made regarding this testimony.
Pierce contends that the trial court impermissibly allowed these
statements made by the victim through Officer Eddington’s testimony. According
to Pierce the admission of this testimony warrants a reversal of his convictions. We
disagree.
We initially note that the victim testified at trial and was subject to
cross-examination, thereby remedying any potential Confrontation Clause
violation. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,
¶ 127. Accordingly, this court is concerned only with whether the admission of the
officer’s testimony amounted to plain error. Notice of plain error is to be taken “with
the utmost caution, under exceptional circumstances, and only to prevent a
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 23; State v. West, Slip Opinion No. 2022-Ohio-1556, ¶ 22.
Even if this court were to find that Officer Eddington’s testimony
contained hearsay statements, Pierce’s substantial rights were not affected and no
miscarriage of justice occurred by the admission of the officer’s statements because
the victim testified that Pierce physically assaulted and raped her, and caused the
physical injuries depicted in the photographs presented to the jury. Additionally,
Pierce admitted during his testimony that he and the victim got into a physical
altercation. Based on the subsequent testimony by the victim and Pierce, Officer
Eddington’s testimony is duplicative and we find no error, plain or otherwise.
B. Interpretation of Pierce’s Jail Calls
During Detective Kroczak’s testimony, the state introduced and
played exhibit Nos. 24, 25, and 26 — recordings of the phone calls Pierce made while
he was in the county jail. Over objection, the detective was permitted to interpret or
repeat what the detective believed Pierce said during the purported inaudible or
incomprehensible portions of those calls. Without identifying what part of the jail
calls were inaudible, incomprehensible, or violated the principles of inadmissible
hearsay, Pierce generally contends that allowing the detective to give her own “slant”
to the calls was improper and the testimony constituted inadmissible hearsay.
We agree with Pierce that the best evidence is the jail calls themselves,
and these calls were in fact provided to the jury during their deliberations.
Accordingly, even if this court determined that Detective Kroczak’s testimony
constituted inadmissible hearsay, we find that the testimony is merely duplicative of
the jail calls themselves, which were properly admitted into evidence. This court has
held that recorded jail call statements are admissible under Evid.R. 801(D)(2)(a) —
admissions by a party-opponent. State v. Castellon, 8th Dist. Cuyahoga No. 106813,
2019-Ohio-628; see also State v. Wallace, 8th Dist. Cuyahoga No. 109847, 2021-
Ohio-4612, ¶ 34; State v. Williams, 38 Ohio St.3d 346, 528 N.E.2d 910 (1988)
(erroneous admission of inadmissible hearsay that is cumulative to properly
admitted evidence constitutes harmless error). Because the jail calls were properly
admitted as exhibits, the jury was able to independently listen to the calls and
determine what Pierce said during those calls. Accordingly, the testimony from
Detective Kroczak was, at best, harmless error because it was duplicative of other
admissible evidence.
Finally, we note that Pierce testified at trial. If Detective Kroczak’s
interpretation or testimony about the jail calls was incorrect, Pierce could have
testified about the true meaning of the content of his jail calls. In fact, during his
testimony, he admitted that he made the calls from the jail “to try to get people to
get [the victim] to drop the charges” because he was “in jail on false charges.” (Tr.
732.) Pierce’s first assignment of error is overruled.
II. Allied Offenses
In his second assignment of error, Pierce contends that the trial court
erred in failing to merge his convictions for rape and kidnapping, in violation of his
rights against double jeopardy under the Fifth and Fourteenth Amendments to the
United States Constitution.
The allied offenses statute, R.C. 2941.25, codifies Ohio’s double
jeopardy protections regarding when multiple punishments may be imposed. State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12. Under the statute,
where the same conduct by a defendant can be construed to constitute two or more
allied offenses of similar import, the indictment may contain counts for all such
offenses, but the defendant may be convicted of only one offense. However, a
defendant charged with multiple offenses may be convicted of all the offenses if (1)
the defendant’s conduct constitutes offenses of dissimilar import, i.e., each offense
caused separate, identifiable harm; (2) the offenses were committed separately; or
(3) the offenses were committed with separate animus or motivation. R.C.
2941.25(B); Ruff at paragraph three of the syllabus. Thus, to determine whether
offenses are allied, this court must consider the defendant’s conduct, the animus,
and the import. Id. at paragraph one of the syllabus.
Pierce contends that his trial counsel failed to raise the issue of allied
offenses of similar import, and thus our review is for plain error. See Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 3 (plain error is that which
affects the outcome of the proceedings, and should only be found in exceptional
circumstances and to prevent a miscarriage of justice). Our review of the record,
however, reveals that Pierce’s counsel addressed the issue of allied offenses. See tr.
831-832. In this colloquy, Pierce’s counsel arguably agreed that the offenses did not
merge.
I think it is probably legally correct that three things he has been
convicted of you could — they do not merge and that you can
theoretically run them consecutively. The maximum would be 33
years.
I’m going to ask that this is a, essentially, single event with multiple
legal implications, but the just thing to do would be to sentence these
three counts, they’re all first[-]degree felonies, concurrently.
(Tr. 831-832.) Accordingly, this court could perceive this alleged error as invited
error.2
This court finds no error, however, regardless of how the alleged error
is reviewed on appeal. It is axiomatic that R.C. 2905.01, kidnapping, does not
require movement of the victim. The act of restraint by “force, threat, or deception”
is sufficient. R.C. 2905.01; State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-
Ohio-5138, ¶ 38, citing State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979).
“[I]mplicit within every forcible rape is a kidnapping.” Logan at 130. However, we
must also look at the three Ruff factors in considering whether each offense: (1)
caused separate identifiable harm (2) was committed separately, and (3) was
committed with separate animus or motivation. An affirmative answer to any one
of these questions results in denial of the merger. Echols at ¶ 25.
In determining whether a separate animus existed with respect to
Pierce’s actions, we look at the guiding principles established in Logan. “The
primary issue * * * is whether the restraint or movement of the victim is merely
incidental to a separate underlying crime or, instead, whether it has a significance
independent of the other offense.” Logan at 135. Put another way, courts must ask
“whether the victim, by such limited asportation or restraint, was subjected to a
2“‘Invited’ error is a doctrine that prevents a party from benefitting from an action
that the party induced the court to make.” State v. James, 2015-Ohio-4987, 53 N.E.3d
770, ¶ 28 (8th Dist.), citing State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114, 772
N.E.2d 1225, ¶ 30 (8th Dist.). In James, this court applied the invited error doctrine when
defense counsel agreed that offenses do not merge for sentencing.
substantial increase in the risk of harm separate from that involved in the underlying
crime.” Id.In this case, Pierce contends that there was no asportation, no
substantial harm apart from the rape, and no prolonged captivity. We disagree and
find that Pierce engaged in conduct that created a substantially greater risk of harm
to the victim by preventing her from leaving the bedroom and then subjecting her to
additional acts of violence. The victim testified that after Pierce forced her to have
both fellatio and anal intercourse, he told her that he was going to have sex with her
again. She testified that she “tried to walk out of the room. And that’s when he
grabbed me, and he through [sic] me to the floor, and that’s when he proceeded to
punch me, and smack me, and choke me, and kick me in my head.” (Tr. 636.)
Based on the victim’s testimony, we find that Pierce’s convictions for
rape and kidnapping were not allied offenses and thus, not subject to merger. The
assignment of error is overruled.
III. Effective Assistance of Counsel
In his third assignment of error, Pierce contends that he was denied
effective assistance of counsel, in violation of his right to counsel under the Sixth
and Fourteenth Amendments to the United States Constitution, because counsel
failed to (1) object to the hearsay statements made by Officer Eddington; (2)
impeach the victim’s credibility; (3) object to Detective Kroczak’s “interpretation” of
Pierce’s jail calls; (4) object to the trial court’s failure to merge the kidnapping and
rape convictions; and (5) object to the imposition of the maximum sentence under
the Reagan Tokes Law.
Reversal of a conviction for ineffective assistance of counsel requires
that the defendant show that counsel’s performance was deficient and that the
deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial. State v. Nieves, 8th Dist. Cuyahoga No. 111161, 2022-Ohio-3040, ¶ 27, citing
State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109.
Deficient performance occurs when counsel’s performance falls below an objective
standard of reasonable representation. State v. Bell, 8th Dist. Cuyahoga No.
105000, 2017-Ohio-7168, ¶ 23. Prejudice is found when “there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceedings
would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
A. Hearsay Statements
Pierce contends that defense counsel’s failure to object to Officer
Eddington’s testimony relaying what he learned from the victim amounted to
deficient performance because the testimony tended to bolster the victim’s
credibility. Having previously determined that Pierce’s substantial rights were not
prejudiced by the admission of Officer Eddington’s statements, we similarly find
that Pierce was not prejudiced by counsel’s failure to object. Pierce has not
demonstrated prejudice such that the result of the proceedings would have been
different had counsel objected to Officer Eddington’s testimony.
B. Impeachment of Victim’s Credibility
Pierce contends that his trial counsel was ineffective for failing to
impeach the victim’s credibility by questioning her about her prior fourth-degree
felony conviction for burglary. He claims that the use of the prior conviction would
have adversely affected the victim’s credibility.
In evaluating a claim of ineffective assistance of counsel, a court must
be mindful that there are countless ways for an attorney to provide effective
assistance in any given case, and it must give great deference to counsel’s
performance. Strickland at 689. Counsel can provide effective assistance using a
number of tactics, and even debatable trial strategies do not constitute ineffective
assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189(1980). We find that counsel’s decision to not impeach the victim with her prior
conviction was a trial strategy that this court will not second-guess. A review of the
record reveals that counsel chose to focus on the inconsistencies in the victim’s
recitation of the events and whether the sexual conduct was consensual.
Accordingly, we cannot say that counsel’s performance was deficient.
C. Interpretation of Pierce’s Jail Call
Pierce contends that counsel’s failure to object to Detective Kroczak’s
interpretation of his jail calls improperly bolstered the victim’s credibility and
adversely impacted his credibility. As previously discussed, Detective Kroczak’s
interpretation or recitation of Pierce’s jail calls was duplicative because the jail calls
themselves were properly admitted into evidence. The jury was able to listen to the
calls and determine for themselves what Pierce actually stated. Additionally,
defense counsel provided effective cross-examination by pointing out that Detective
Kroczak’s testimony was merely an “interpretation” and did not relay what Pierce
actually stated. Finally, during his own testimony, Pierce admitted that he had
family members contact the victim to encourage her to drop the charges.
Accordingly, we find that counsel’s performance was not deficient nor has Pierce
demonstrated that the result of the trial would have been different had counsel
objected to this testimony.
D. Merger of Allied Offenses
Pierce contends that he also received ineffective assistance of counsel
when counsel failed to object to the trial court’s imposition of separate sentences on
the offenses of rape and kidnapping. Having previously determined that Pierce’s
convictions for rape and kidnapping are not allied, counsel cannot be deemed
ineffective for failing to raise — or acquiescing to — the issue of merger.
E. Reagan Tokes Law
Pierce lastly contends that he was denied effective assistance of
counsel when counsel failed to object to the trial court’s imposition of a sentence
pursuant to the Reagan Tokes Law. Our reading of the sentencing transcript reveals
that counsel objected to the imposition of a sentence under the Reagan Tokes Law
and generally objected to the law’s constitutionality. See tr. 842. Accordingly, we
find no merit to this argument.
Pierce’s third assignment of error is overruled.
IV. Reagan Tokes Law
In his fourth assignment of error, Pierce contends that the trial court
committed plain error in imposing a sentence under the Reagan Tokes Law because
it is unconstitutional since it violates the separation-of-powers doctrine and his
rights to a trial by jury and due process.
Based on the authority established by this district’s en banc holding
in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges
Pierce advances against the constitutional validity of the Reagan Tokes Law have
been overruled. Id. at ¶ 17-54. Accordingly, his fourth 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
convictions having been affirmed, any bail pending appeal 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR