State v. Foster

[Cite as State v. Foster, 2023-Ohio-1615.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-22-64
v.
LEROY D. FOSTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2021 0207
Judgment Affirmed
Date of Decision: May 15, 2023
APPEARANCES:
Chima R. Ekeh for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-22-64
ZIMMERMAN, J.
{¶1} Defendant-appellant, Leroy D. Foster (“Foster”), appeals the October
3, 2022 judgment entry of sentencing of the Allen County Court of Common Pleas.
We affirm.
{¶2} On June 17, 2021, the Allen County Grand Jury indicted Foster for
felonious assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), a second-degree
felony along with a firearm specification and a repeat-violent-offender (“RVO”)
specification. On June 23, 2021, Foster filed a written plea of not guilty.
{¶3} On August 23, 2022, Foster withdrew his plea of not guilty and entered
a guilty plea, under a negotiated-plea agreement, to felonious assault with a three-
year firearm specification. In exchange, the State agreed to recommend dismissal
of the RVO specification. The trial court accepted Foster’s guilty plea, found him
guilty of felonious assault with a three-year firearm specification and dismissed the
RVO specification. That negotiated-plea agreement also included a joint-
sentencing recommendation under R.C. 2953.08(D)(1) wherein the parties jointly
recommended and stipulated to a three-year mandatory prison term as to the firearm
specification to be served prior to and consecutively to the a three-year minimum
prison term for felonious assault.1 Further, the sentence included “No PRC tack on
time”. (Doc. No. 147).
1
Foster was on postrelease control (“PRC”) at the time of the sentencing hearing and had three years
remaining on PRC.
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Case No. 1-22-64
{¶4} On October 3, 2022, the trial court sentenced Foster to an indefinite
sentence of a minimum of three years to a maximum of four and one-half years in
prison for felonious assault and to a three-year mandatory prison term for the firearm
specification. Thereafter, the trial court ordered that Foster serve the sentence for
the mandatory firearm specification first followed by the indefinite sentence
imposed for the felonious assault for an aggregate minimum term of six years and a
maximum term of seven and one-half years.
{¶5} Foster filed a timely appeal on October 31, 2022, and raises three
assignments of error for our review, which we will review together.
First Assignment of Error
Foster’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 [sic] Of The United States
Constitution, And Article I, Section 5 Of The Ohio Constitution.
(Sentencing Tr. Pg. 11-120) [sic]
Second Assignment of Error
R.C. 2967.271 (The Reagan Tokes Law) Unconstitutionally
Violates The Separation Of Powers Doctrine Of The United States
And Ohio Constitution. (Sentencing Tr. Pg. 11-12) [sic]
Third Assignment of Error
R.C. 2967.271 (The Reagan Tokes Law) Violates The Right To
Due Process Under The Fourteenth Amendment [sic] Of The
United States Coonstitution [sic], And Article 1, Section 16, Of
The Ohio Constitution. (Sentencing Tr. Pg. 11-12) [sic]
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Case No. 1-22-64
{¶6} In his assignments of error, Foster argues that the indefinite sentence of
incarceration imposed for the felonious assault pursuant to the Reagan Tokes Law
is unconstitutional. Specifically, Foster asserts that these provisions violate the
separation-of-powers doctrine, infringe on his right to due process, and violate his
right to a jury trial.
{¶7} Before we begin, we must address a jurisdictional question. Here, the
trial court adopted the parties’ joint-sentencing recommendation in its entirety and
without deviation. In his assignments of error, Foster challenges the
constitutionality of the Reagan Tokes Law. Even though R.C. 2953.08(D)(1)
precludes review of agreed sentences, the Supreme Court of Ohio has held that
constitutional challenges are not within the scope of R.C. 2953.08, and thus, the
statute “does not preclude an appeal of a sentence on constitutional grounds.” State
v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, ¶ 22. Because Foster’s
constitutional challenge to his sentence is not barred by R.C. 2953.08(D)(1), we
may consider his argument with respect to the constitutionality of the Reagan Tokes
Law. State v. Hartline, 3d Dist. Logan Nos. 8-21-13 and 8-21-14, 2022-Ohio-2997,
¶ 16
{¶8} Nevertheless, as this Court has noted in State v. Ball, 3d Dist. Allen No.
1-21-16, 2022-Ohio-1549, challenges to the Reagan Tokes Law do not present a
matter of first impression to this Court. Ball at ¶ 59. “Since the indefinite sentencing
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Case No. 1-22-64
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.” Id., citing 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. Further, for the reasons stated in Ball, the remaining constitutional issue under
Reagan Tokes related to a jury trial is also unavailing. Id. at ¶ 61-63. Thus, on the
basis of Ball and our prior precedent, we find no merit to Foster’s arguments.
{¶9} Accordingly, Foster’s first, second, and third assignments of error are
overruled.
{¶10} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and EPLEY, J., concur.
/jlr
** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.
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