State v. White

[Cite as State v. White, 2021-Ohio-2441.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109945
v. :
KENNETH M. WHITE, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 15, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-646073-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Kenneth M. White, Jr., appeals his sentence,
contending that the law under which he was sentenced ─ the Reagan Tokes Law ─
is unconstitutional. Finding no merit to the appeal, we affirm.
I. Background
In November 2019, a Cuyahoga County Grand Jury indicted White on
a 24-count indictment. The charges included involuntary manslaughter, drug
trafficking, and other counts related to the overdose death of the victim, as well as
counts for drug trafficking, drug possession, and weapons charges related to the
execution of a search warrant at White’s home.
In July 2020, White entered into a plea agreement with the state in
which he agreed to enter guilty pleas in this case and another pending case. In this
case, White pleaded guilty to Count 1, as amended, reckless homicide in violation of
R.C. 2903.031(A), a third-degree felony; Counts 3 and 11, drug trafficking in
violation of R.C. 2925.03(A)(1), fifth-degree felonies; Counts 5 and 8, drug
trafficking in violation of R.C. 2925.03(A)(1), fourth-degree felonies; Counts 14 and
16, drug trafficking in violation of R.C. 2925.03(A)(2), with juvenile, schoolyard,
forfeiture, and one-year firearm specifications, first-degree felonies; Count 20,
having weapons while under disability in violation of R.C. 2923.13(A)(3), with a
forfeiture specification, a third-degree felony; Count 22, possessing criminal tools
with a forfeiture specification, in violation of R.C. 2923.24(A), a fifth-degree felony;
and Count 24, endangering children in violation of R.C. 2919.22(A), a first-degree
misdemeanor. Pursuant to the plea agreement, all remaining counts were nolled.
The record reflects that at the plea hearing, before White entered his
plea, the prosecutor explained that the Reagan Tokes Law applied to Counts 14 and
16, and that as part of the plea agreement, the parties had stipulated to an agreed
minimum sentencing range of 6 to 12 years, irrespective of the one-year firearm
specifications in both cases. Defense counsel confirmed that the prosecutor’s
explanation of the plea agreement was correct. In discussing possible penalties with
White prior to his plea, the trial judge reviewed the agreed minimum sentencing
range with him and confirmed his understanding of the agreed range. The judge
also explained to White that because there were one-year firearm specifications in
both this case and the other case in which he would be pleading guilty, the court was
required to impose a one-year prison term on each firearm specification, to be
served prior to and consecutive with whatever time the court imposed on the
underlying offenses. White indicated that he so understood.
At the sentencing hearing, prior to sentencing White, the trial court
confirmed with both the prosecutor and defense counsel that the Reagan Tokes Law
was applicable to Counts 14 and 16. The trial court then sentenced White to one year
incarceration on each of the firearm specifications, to be served prior to and
consecutive with a minimum sentence of 10 years and a maximum term of 15 years
on Count 14. The trial court ordered the sentences imposed on the remaining counts
to be served concurrently with the sentence on Count 14 and the firearm
specifications, for a total sentence of 12 to 17 years.
This appeal followed.
II. Law and Analysis
Senate Bill 201, commonly known as the Reagan Tokes Law, became
effective on March 22, 2019. Under the law, qualifying first- and second-degree
offenses committed on or after March 22, 2019, are subject to the imposition of an
indefinite prison sentence. The law specifies that these terms will consist of a
minimum term selected by the sentencing judge from a range of terms set forth in
R.C. 2929.14(A) and a maximum term determined by formulas set forth in R.C.
2929.144.
The law establishes a presumptive release date at the end of the
minimum term. R.C. 2967.271(B). The Ohio Department of Rehabilitation and
Correction (“ODRC”) may rebut that presumption, however, and keep the offender
in prison for an additional period not to exceed the maximum term imposed by the
trial judge. R.C. 2967.271(C). In order to rebut the presumption, the ODRC must
hold a hearing and determine whether one or more of the factors set forth in R.C.
2967.271(C)(1), (2), and (3) apply.
In his single assignment of error, White contends that the indefinite
sentencing scheme established by the Reagan Tokes Law, as applied in this case to
Counts 14 and 16, is unconstitutional because it violates constitutional guarantees
of a right to trial by jury and the separation of powers doctrine. We decline to
consider White’s assignment of error, however, because he did not object to his
sentence nor raise any constitutional challenge to the Reagan Tokes Law in the trial
court.
“It is well established that ‘an appellate court will not consider any
error which counsel for a party complaining of the trial court’s judgment could have
called but did not call to the trial court’s attention at a time when such error could
have been avoided or corrected by the trial court.’” State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio
St.3d 120, 122, 489 N.E.2d 277 (1986). As the Ohio Supreme Court explained in
Awan, “the question of the constitutionality of a statute must generally be raised at
the first opportunity and, in a criminal prosecution, this means in the trial court.”
Id. By not raising the constitutionality of the Reagan Tokes Law in the trial court,
White forfeited his constitutional challenges to the law, and we will not consider
them for the first time on appeal.1
Our holding is consistent with other decisions by this court that have
declined to address constitutional challenges to the Reagan Tokes Law when
defendants did not object to their sentences or otherwise raise the issue of the
constitutionality of the law in the trial court. See, e.g., State v. White, 8th Dist.
Cuyahoga No. 109652, 2021-Ohio-126, ¶ 9; State v. Medina, 8th Dist. Cuyahoga No.
109693, ¶ 24-25; State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991,
1 White’s citation to Reading v. Pub. Util. Comm. of Ohio, 109 Ohio St.3d 193,
2006-Ohio-2181, 846 N.E.2d 840, as support for his assertion that facial challenges to a
statute may be raised by a criminal defendant for the first time on appeal is unavailing.
Reading involved an appeal from a decision of an administrative agency. As the Ohio
Supreme Court explained, because administrative agencies do not have the authority to
declare a statute unconstitutional, and because extrinsic facts are not necessary to
determine whether a statute is unconstitutional on its face, the court could consider the
appellant’s facial challenge to the statute at issue for the first time on appeal. Id. at ¶ 13-
15. The same reasoning does not apply in criminal cases, however, where the trial court
does indeed have the authority to declare a statute unconstitutional. Accordingly, the
Ohio Supreme Court has made it clear that in criminal cases, constitutional challenges —
whether facial or applied — must first be raised in the trial court. State v. Buttery, 162
Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, citing Awan at 122; State v.
Anderson, 151 Ohio St.3d 212, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 44, citing Quarterman
at ¶ 15.
¶ 12-19; State v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-54;
State v. Stone, 8th Dist. Cuyahoga No. 109322, 2020-Ohio-5263, ¶ 6-10.
We recognize that an appellate court has discretion “to consider
constitutional challenges to the application of statutes in specific cases of plain error
or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d
149, 151, 527 N.E.2d 286 (1988); see also Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, at ¶ 16. We decline to exercise this discretion, however,
because as part of the plea agreement, White agreed to the minimum sentencing
range he now challenges, and he was sentenced within that range. The assignment
of error is therefore 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
EMANUELLA D. GROVES, J., CONCUR