State v. Daniel

[Cite as State v. Daniel, 2022-Ohio-934.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110644
v. :
DALVIN DANIEL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-640871-B, CR-19-641146-A and CR-19-641149-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Margaret Graham, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Dalvin Daniel appeals his sentences arising
from three different prosecutions.
In Cuyahoga C.P. No. CR-19-640871-B, Daniel pleaded guilty to
aggravated robbery with a one-year firearm specification, notice of prior conviction
and a repeat violent offender specification, felonious assault and having weapons
while under disability. Daniel was sentenced to three years minimum and four years,
six months maximum on the felonious assault charge and three years on the
remaining two charges with the sentences to be served concurrently. The term 0f
one year on the firearm specification was ordered to be served prior to, and
consecutive with the minimum term of three years and maximum term of four years,
six months on Count 1. Mandatory postrelease control for five years was ordered on
Count 1, three years of mandatory postrelease control on Count 3 and up to three
years of discretionary postrelease control on Count 7.
In Cuyahoga C.P. No. CR-19-641146-A, Daniel pleaded guilty to
felonious assault, aggravated theft and menacing by stalking and was sentenced to
a minimum of three years and a maximum of four years, six months incarceration
on the felonious assault charge, one year incarceration on the charge of aggravated
theft and 18 months for menacing by stalking. The trial court also imposed terms of
five years mandatory postrelease control on Count 1 and up to three years
discretionary postrelease control on Counts 3 and 6.
In Cuyahoga C.P. No. CR-19-641149-A, Daniel pleaded guilty to
felonious assault with a three-year firearm specification, improper discharging
firearm at or into habitation or school, discharge of firearm on or near prohibited
premises and having a firearm under a disability. The court below sentenced the
defendant to a minimum term of three years and maximum term of four years, six
months on the charge of felonious assault and three years for each of the other
convictions in this case. Daniel was also sentenced to three years on the firearm
specification. The firearm specification was to be served consecutive to the other
sentences. Postrelease control was also ordered on these charges, both five years
mandatory and up to three years discretionary.
The sentences for the firearm specifications in the first and third cases
were ordered to be served consecutive to the other counts with all other counts to
run concurrently for an aggregate sentence of seven years. Additionally, Daniel’s
sentence is subject to Reagan Tokes. The act does not apply to the one-year firearm
specifications on case CR-19-640871-B and three years on CR-19-641149-A. R.C.
2929.144(B)(4). Thus, we calculate the maximum sentence from the qualifying
felony sentences. R.C. 2929.144(B)(3). Accordingly, Daniel’s aggregate sentence is
seven to eight-and-a-half years under Reagan Tokes.
Daniel appeals his sentence on the aggravated robbery count, arguing
that the indefinite sentence, imposed under the Reagan Tokes Law, is
unconstitutional. He raises the following assignment of error for our review:
Assignment of Error: The trial court violated Dalvin Daniel’s
Constitutional Rights by imposing a Reagan-Tokes Sentence, under
S.B. 201.
For the reasons set forth in this court’s en banc decision in State v.
Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, we overrule Daniel’s
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the 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
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s convictions having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___
EILEEN A. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
LISA B. FORBES, J., CONCUR
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J.,
dissenting).