[Cite as State v. Smith, 2022-Ohio-1667.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110677
v. :
CORDELL SMITH, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 19, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649816-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney,
for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellee.
JAMES A. BROGAN, J.:
The state of Ohio, raising a single assignment of error, appeals from
the trial court’s sentence imposed on defendant-appellee Cordell Smith (“Smith”)
based on the trial court’s finding the Reagan Tokes Law unconstitutional and
declining to impose a sentence in accordance with the Reagan Tokes Law. For the
following reasons, we reverse and remand.
Factual and Procedural History
On April 21, 2020, a Cuyahoga County Grand Jury indicted Smith on
one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony 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. The aggravated robbery charge also
carried one- and three-year firearm specifications.
On October 15, 2020, Smith pleaded guilty to an amended count of
aggravated robbery, a felony of the second degree, with a one-year firearm
specification. The three-year firearm specification and receiving stolen property
charge were dismissed. The court referred Smith to the probation department for
preparation of a presentence investigation report and set the sentencing hearing for
November 12, 2020.
Smith failed to appear for sentencing on November 12, 2020. The
court continued sentencing until November 17, 2020. On November 17, 2020,
Smith again failed to appear and the court issued a capias. The record in this case
reflects that Smith was arrested on June 11, 2021. On July 14, 2021, the court
sentenced Smith to one year on the firearm specification to be served prior to and
consecutive with three years on the aggravated robbery charge. The court declined
to impose an indefinite sentence pursuant to the Reagan Tokes Law.
The state appealed the sentence, presenting one assignment of error
for our review.
Legal Analysis
In its sole assignment of error, the state of Ohio argues that the trial
court erred when it declined to impose an indefinite sentence on Smith pursuant to
S.B. 201, the Reagan Tokes Law.
The question of whether the Reagan Tokes Law is constitutional was
recently decided in this court’s en banc opinion in State v. Delvallie, 8th Dist.
Cuyahoga No. 109315, 2022-Ohio-470. There, this court found “that the Reagan
Tokes Law, as defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed
the principles established in State v. Gamble, 8th Dist. Cuyahoga No. 109613, 2021-
Ohio-1810; State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939; and
State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578. Delvallie at ¶ 17.
Therefore, we find that the trial court was required to impose an indefinite sentence
pursuant to S.B. 201 and the failure to do so constitutes error. Smith’s sentence,
therefore, is vacated, and the case is remanded for the imposition of a sentence
pursuant to S.B. 201.
Judgment reversed 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.
JAMES A. BROGAN, JUDGE*
ANITA LASTER MAYS, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
(*Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see Delvallie, 8th Dist. Cuyahoga No. 109315,
2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in part).