State v. Dowdley

[Cite as State v. Dowdley, 2022-Ohio-815.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 110377
                 v.                                :

DIRK DOWDLEY,                                      :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: March 17, 2022


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-20-653044-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Eric Collins, Assistant Prosecuting
                 Attorney, for appellee.

                 Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
                 appellant.


MARY EILEEN KILBANE, J.:

                   Defendant-appellant Dirk Dowdley (“Dowdley”) appeals from his

sentence for burglary following a guilty plea. Specifically, Dowdley argues that his

sentence is invalid because it was imposed under the Reagan Tokes Law and is
therefore unconstitutional, and that the court erred by imposing both a prison

sentence and a community-control sanction. For the following reasons, we vacate

and remand.

Factual and Procedural History

               On October 1, 2020, a Cuyahoga County Grand Jury indicted

Dowdley on one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the

second degree; one count of petty theft in violation of R.C. 2913.02(A)(1), a

misdemeanor of the first degree; and one count of receiving stolen property in

violation of R.C. 2913.51(A), a felony of the fourth degree.

               Dowdley initially pleaded not guilty to these charges. On February 3,

2021, the assistant prosecuting attorney and Dowdley’s counsel informed the court

that they had negotiated a plea deal. The assistant prosecuting attorney informed

the court that Dowdley was agreeing to plead guilty to one count of burglary, as

indicted, and the remaining counts would be dismissed. The parties informed the

court that they were recommending a sentence of two years.

               The court engaged in a Crim.R. 11 colloquy with Dowdley and

accepted his guilty plea. As part of the plea colloquy, the court informed Dowdley

that the burglary charge was a qualifying offense under Senate Bill 201, the Reagan

Tokes law (“Reagan Tokes”), and explained the implications of the law. The court

then proceeded directly to sentencing.

               The state informed the court that the victim of the burglary had

expressed a desire that Dowdley go to prison, and that she was asking for $1,100 in
restitution. The court then imposed a sentence of two to three years in prison. The

court also imposed a suspended sentence of six years and ordered Dowdley to obtain

his GED. Finally, the court ordered Dowdley to pay restitution in the amount of

$1,100 by February 3, 2025. The state questioned whether the court’s sentence was

duplicative, to which the court responded that it was not.

               On February 26, 2021, Dowdley filed a pro se motion for jail-time

credit. On March 2, 2021, Dowdley’s counsel filed a motion for jail-time credit. On

March 24, 2021, the court granted Dowdley’s motion and he was credited with 149

days of jail-time credit.

               Dowdley appeals, presenting two assignments of error for our review.

Legal Analysis

               In his first assignment of error, Dowdley argues that his sentence is

invalid because it was imposed pursuant to Reagan Tokes, which violates the Ohio

and United States Constitutions. Specifically, Dowdley argues that the law violates

his due process rights. Dowdley’s arguments are overruled pursuant to this court’s

en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-

470, which overruled the challenges presented in this appeal to the Reagan Tokes

Law enacted through S.B. 201. Therefore, we find that Dowdley’s sentence pursuant

to Reagan Tokes was not a violation of his constitutional rights. Dowdley’s first

assignment of error is overruled.

               In his second assignment of error, Dowdley argues the trial court

committed plain error by imposing both a prison sentence and a community-control
sanction. Specifically, Dowdley argues that the court does not have statutory

authority to impose both a prison sentence and a community-control sanction — in

this case, the requirement that Dowdley obtain his GED — because such split

sentences are prohibited in Ohio. The state concedes that the trial court must

impose either a prison term or a community-control sanction, but disagrees that the

case should be remanded for resentencing because, according to the state, the plea

agreement specified that Dowdley was to receive a two-year prison sentence.

              The Ohio Supreme Court has held that “the General Assembly

intended prison and community-control sanctions as alternative sentences for a

felony offense” and therefore, “absent an express exception, the court must impose

either a prison term or a community-control sanction or sanctions.” State v.

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. See also State

v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 6 (“Split sentences

are prohibited in Ohio. [A] court must impose either a prison term or a community-

control sanction as a sentence for a particular felony offense — a court cannot

impose both for a single offense”).

              Therefore, upon review, we find that Dowdley’s sentence is contrary

to law. The trial court clearly imposed both a prison term and a community-control

sanction. The court imposed an indefinite prison term of two to three years

pursuant to Reagan Tokes, together with a community-control sanction in the form

of a requirement that Dowdley obtain his GED.
              Further, we are not persuaded by the state’s argument that the

appropriate remedy to this sentencing error is to vacate the portion of the sentence

that imposes a community-control sanction. Despite both the state’s assertion that

this case involved an agreed sentence and the trial court’s statement at sentencing

that it was “accepting” the parties’ recommendations, it is not clear that the trial

court was bound by this agreement. Whether the court was bound to accept the

parties’ recommendations depends on the specific facts and circumstances of the

case, but the issue need not be addressed in this appeal because the appropriate

prison sentence for a qualifying felony of the second degree pursuant to Reagan

Tokes and the formula in R.C. 2929.144(A) would be a minimum of two years and a

maximum of three years. Moreover, as described above, the trial court ultimately

deviated from this agreement both when it imposed a community-control sanction

and when it imposed an indefinite sentence pursuant to Reagan Tokes. Therefore,

Dowdley’s second assignment of error is sustained. Dowdley’s sentence is vacated

and the case is remanded for resentencing.

              Judgment vacated and remanded.

      It is ordered that appellant recover from appellee 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, A.J., and
MARY J. BOYLE, J., CONCUR


N.B. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B.
Forbes and the concurring in part and dissenting in part opinion by Judge Anita
Laster Mays in Delvallie and would have found the Reagan Tokes Law
unconstitutional.