State v. Tolliver

[Cite as State v. Tolliver, 2022-Ohio-826.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110739
v. :
SABRA TOLLIVER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644899-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anna Faraglia and Daniel T. Van, Assistant
Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Jonathan Sidney, Assistant Public Defender, for
appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Sabra Tolliver (“Tolliver”), appeals her sentence
and claims the following error:
As amended by the Reagan Tokes Act, the revised code’s sentences for
first and second-degree qualifying felonies violates the constitutions of
the United States and the state of Ohio; the trial court erred in imposing
a Reagan Tokes indefinite sentence.
After reviewing the record and applicable law, we affirm the trial court’s
judgment.
I. Facts and Procedural History
Tolliver pleaded guilty to one count of aggravated vehicular homicide
(C0unt 1); one count of aggravated vehicular assault (Count 3); one count of failure
to stop after an accident (Count 5); and one count of operating a vehicle under the
influence (“OVI”) (Count 7). Over objection, the trial court sentenced Tolliver to a
presumptive minimum sentence of eight years on the aggravated vehicular homicide
charge, pursuant to the Reagan Tokes Law. The trial court sentenced Tolliver to one
year on the aggravated vehicular assault charge, one year on the failure to stop after
an accident charge, and time served on the OVI charge. The court’s journal entry
states, in relevant part, that “Counts 1, 3, and 5 are to run consecutive to each other.
Total aggregate sentence is 10 years to 12 years.”1 Tolliver now brings this appeal
challenging the constitutionality of her indefinite sentence under the Reagan Tokes
Law.
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.
II. Law and Analysis
In her sole assignment of error, Tolliver argues her indefinite sentence
under the Reagan Tokes Law is unconstitutional. She contends the Reagan Tokes
Law violates her Sixth Amendment right to a jury trial, the separation-of-powers
doctrine, and due process of law.
In accordance with this court’s en banc decision in State v. Delvallie,
8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, the constitutional challenges
presented in this appeal are overruled.
Therefore, 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. The defendant’s
conviction having been affirmed, any bail pending 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.
EILEEN T. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
CORNELIUS J. O’SULLIVAN, JR., 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.