[Cite as State v. Torres, 2022-Ohio-2678.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111047
v. :
CELLISTINE TORRES, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 4, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649571-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellee.
ANITA LASTER MAYS, P.J.:
Plaintiff-appellant, state of Ohio, appeals the trial court’s refusal to
sentence defendant-appellee, Cellistine Torres (“Torres”), under S.B. 201 known as
the Reagan Tokes Law on the ground that the law is unconstitutional.
We reverse the trial court’s judgment and remand the case for
resentencing pursuant to the Reagan Tokes Law.
I. Facts and Procedural History
Torres pleaded guilty to: (1) felonious assault, R.C. 2903.11(A)(2), a
second-degree felony as amended in Count 1 of the indictment; (2) attempted
aggravated robbery, R.C. 2923.02 and 2911.01(A)(1), a second-degree felony with a
three-year firearm specification, R.C. 2941.145, as amended in Count 2 of the
indictment; and (3) criminal damaging, R.C. 2909.06(A)(1), a second-degree
misdemeanor, as charged in Count 9 of the indictment.
The trial court declined to impose sentence under the Reagan Tokes
Law finding it unconstitutional pursuant to State v. Delvallie, 2021-Ohio-1809, 173
N.E.3d 544 (8th Dist.). Torres was sentenced to two years on Counts 1 and 2 to be
served concurrently and consecutive to the three-year term for the firearm
specification for a total of five years.
The state appeals as a matter of right and poses a single assigned
error: “The trial court plainly erred when it found S.B. 201 to be unconstitutional
and did not impose an indefinite sentence pursuant to S.B. 201.” We agree.
The parties acknowledge familiarity with this court’s en banc decision
in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), finding the Reagan
Tokes Law constitutional. The state offers that until the Ohio Supreme Court holds
otherwise, this court must reverse the trial court’s refusal to impose sentence under
the law. Torres counters that the Delvallie en banc decision was incorrectly decided.
This court is indeed bound by the authority established in the en banc
Delvallie decision. The state’s assigned error is sustained. The sentence is reversed
and remanded for resentencing under the Reagan Tokes Law.
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.
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MARY J. BOYLE, J., CONCUR
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).