State v. Rodriguez

[Cite as State v. Rodriguez, 2023-Ohio-805.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111466
v. :

ADAM RODRIGUEZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART,
AND REMANDED FOR RESENTENCING
RELEASED AND JOURNALIZED: March 16, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-647064-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory M. Paul, Assistant Prosecuting
Attorney, for appellee.

Brian R. McGraw, for appellant.

EILEEN T. GALLAGHER, P.J.:

Defendant-appellant, Adam Rodriguez (“Rodriguez”), appeals from his

sentence. He raises the following assignments of error for review:

1. The trial court erred in imposing an indefinite sentence (the “Reagan
Tokes” sentencing law).
 2. The trial court erred in ordering that all time given in this sentence
be served as “mandatory time.”

3. The trial court erred when it advised/ordered that Rodriguez is not
eligible for judicial release.

After careful review of the record and relevant case law, we affirm in

part, reverse in part, and remand for further proceedings consistent with this

opinion.

I. Procedural and Factual History

On December 27, 2019, Rodriguez was named in a five-count

indictment, charging him with kidnapping in violation of R.C. 2905.01(A)(2), with

one- and three-year firearm specifications, a repeat-violent-offender specification,

and a notice-of-prior-conviction specification (Count 1); kidnapping in violation of

R.C. 2905.01(B)(1), with one- and three-year firearm specifications, a repeat-

violent-offender specification, and a notice-of-prior-conviction specification (Count

2); aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year

firearm specifications, a repeat-violent-offender specification, and a notice-of-prior

conviction specification (Count 3); impersonation of certain officers in violation of

R.C. 2921.51(E), with one- and three-year firearm specifications, and a forfeiture-of-

property specification (Count 4); and having weapons while under disability in

violation of R.C. 2923.13(A)(2), with one- and three-year firearm specifications

(Count 5). The indictment stemmed from allegations that Rodriguez kidnapped the

teenage victim, A.G., under the guise that he was a police officer.
 On June 30, 2021, Rodriguez withdrew his previously entered plea of

not guilty and accepted the terms of a negotiated plea agreement with the state. At

the conclusion of a Crim.R. 11 plea colloquy, Rodriguez pleaded guilty to kidnapping

in violation of R.C. 2905.01(B)(1), a felony of the first degree, with a three-year

firearm specification, a repeat-violent-offender specification, and a notice-of-prior

conviction specification (amended Count 2); impersonation of certain officers in

violation of R.C. 2921.51(E), a felony of the third degree, with a forfeiture-of-

property specification (amended Count 4); and having weapons while under

disability in violation of R.C. 2923.13(A)(2), a felony of the third degree ( amended

Count 5). In exchange for his guilty pleas, the remaining counts and specifications

were nolled.

Satisfied that the pleas were knowingly, voluntarily, and intelligently

made, the trial court accepted Rodriguez’s guilty pleas and referred him to the

county probation department for a presentence-investigation report (“PSI”).

On August 23, 2021, the trial court sentenced Rodriguez to three years

in prison on the firearm specification attached to amended Count 2, to run prior and

consecutive to an indefinite prison term of 11 to 16.5 years on the underlying

kidnapping offense. Rodriguez was further sentenced to three years in prison on

amended Count 4, and three years in prison on amended Count 5. The sentences

imposed on amended Counts 2 and 4 were ordered to run consecutively. Finally,

the sentence imposed on amended Count 5 was ordered to run concurrently with

the remaining prison terms.
 Rodriguez now appeals from his sentence.

II. Law and Analysis

A. The Reagan Tokes Law

In the first assignment of error, Rodriguez argues the trial court erred

by imposing an indefinite sentence pursuant to the Reagan Tokes Law. He contends

the Reagan Tokes Law is unconstitutional because it violates the separation-of-

powers doctrine and his right to due process under the Ohio and United States

Constitutions.

Consistent with the well-establish precedent of this court, we find no

merit to the constitutional challenges raised within this assigned error. The

question of whether the Reagan Tokes Law is constitutional was decided in this

court’s en banc opinion in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th

Dist.). 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, 2021-Ohio-1810, 173 N.E.3d 132 (8th Dist.); State v. Simmons, 2021-

Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v. Wilburn, 2021-Ohio-578, 168

N.E.3d 873 (8th Dist.). See Delvallie at ¶ 17. Because Rodriguez does not advance

any novel argument left unaddressed by the Delvallie decision, we find the

constitutional challenges presented in this appeal are without merit.

The first assignment of error is overruled.
 B. Mandatory Prison Term and Eligibility for Judicial Release

In the second assignment of error, Rodriguez argues the trial court

erred by advising him at the time of sentencing that each of his convictions carried

mandatory prison terms as contemplated under R.C. 2929.13(F). In the third

assignment of error, Rodriguez argues the trial court erred when it advised him at

the time of sentencing that he is not eligible for judicial release on amended Count

4. We address these assignments of error together because they are related.

Preliminarily, we note that Rodriquez failed to object to the imposition

of a mandatory sentence at the sentencing hearing and, therefore, has forfeited all

but plain error. See Crim.R. 52(B); State v. Worth, 10th Dist. Franklin No. 10AP-

1125, 2012-Ohio-666, ¶ 84. Under Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” For an error to be “plain” within the meaning of Crim.R. 52(B), it “‘must

be an “obvious” defect in the trial proceedings.’” State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002). A reviewing court notices plain error “‘with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus. “The burden of demonstrating

plain error is on the party asserting it.” Payne at ¶ 17.

When reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court

may increase, reduce, or modify a sentence, or it may vacate the sentence and

remand for resentencing, only if it clearly and convincingly finds either (1) the record

does not support the sentencing court’s findings under certain statutes, or (2) the

sentence is otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2). Clear

and convincing evidence is that “‘which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22,

quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

A criminal “sentence is a penalty or combination of penalties imposed

on a defendant as punishment for the offense he or she is found guilty of

committing.” State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509,

¶ 28. Fundamentally, “[c]rimes are statutory, as are the penalties.” Colegrove v.

Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). It is well recognized that “[a]

trial court has ‘no inherent power to create sentences, and the only sentence that a

trial judge may impose is that provided for by statute.’” State v. Bursley, 6th Dist.

Huron No. H-19-014, 2021-Ohio-1613 ¶ 9, quoting State v. Hitchcock, 157 Ohio

St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 18, citing State v. Anderson, 143 Ohio

St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 12. Thus, a sentence is contrary to

law when it is “in violation of statute or legal regulations at a given time.” State v.

Jones, 162 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34, citing Black’s
Law Dictionary 328 (6th Ed.1990); State v. Bryant, 168 Ohio St.3d 250, 2022-

Ohio-1878, 198 N.E.3d 68, ¶ 22.

As stated, Rodriguez’s conviction for impersonating a peace officer

was governed by R.C. 2921.51(E). That section states that “[n]o person shall commit

a felony while impersonating a peace officer, private police officer, a federal law

enforcement officer, officer, agent, or employee of the state, or investigator of the

bureau of criminal identification and investigation.” A violation of R.C. 2921.51(E)

is a felony of the third degree. R.C. 2921.51(G). Pursuant to R.C. 2929.14(A)(3)(b),

Rodriguez’s third-degree felony conviction carried a definite prison term of “nine,

twelve, eighteen, twenty-four, thirty, or thirty-six months.”

Relevant to this appeal, R.C. 2929.13(F) addresses mandatory prison

terms and prohibits a sentencing court from reducing the term of a sentence it

imposes for certain crimes. The statute provides, in relevant part:

(F) Notwithstanding divisions (A) to (E) of this section, the court shall
impose a prison term or terms under * * * section 2929.14 * * * of the
Revised Code and except as specifically provided in section 2929.20,
divisions (C) to (I) of section 2967.19, or section 2967.191 of the Revised
Code or when parole is authorized for the offense under section 2967.13
of the Revised Code shall not reduce the term or terms pursuant to * * *
section 2967.193, or any other provision of Chapter 2967 * * * for any
of the following offenses:

***

(6) Any offense that is a first or second degree felony and that is not set
forth in division (F)(1), (2), (3), or (4) of this section, if the offender
previously was convicted of or pleaded guilty to aggravated murder,
murder, any first or second degree felony, or an offense under an
existing or former law of this state, another state, or the United States
that is or was substantially equivalent to one of those offenses;
 ***

(8) Any offense, other than [carrying concealed weapons], that is a
felony, if the offender had a firearm on or about the offender’s person
or under the offender’s control while committing the felony, with
respect to a portion of the sentence imposed pursuant to division
(B)(1)(a) of section 2929.14 of the Revised Code for having the
firearm[.]

R.C. 2929.13(F)(4). Under the plain language of R.C. 2929.13(F), a sentencing court

is required to impose a prison term for certain serious offenses and may not reduce

the defendant’s prison term pursuant to R.C. 2929.20 (judicial release); R.C.

2967.193 (earned credit); or any other provision of R.C. Chapter 2967, except in

certain enumerated circumstances not implicated in this case. See State v. Johnson,

116 Ohio St.3d 541, 2008-Ohio-69, 880 N.E.2d 896, ¶ 16.

“[I]f the sentencing court determines at the sentencing hearing that a

prison term is necessary or required, the court shall * * * [i]mpose a stated prison

term and, if the court imposes a mandatory prison term, notify the offender that the

prison term is a mandatory prison term.” R.C. 2929.19(B)(2)(a). “The trial court is

also required by R.C. 2929.19(B)(2)(b) to include this information in the sentencing

entry.” State v. Stevens, 9th Dist. Summit No. 29131, 2019-Ohio-2808, ¶ 10.

However, “‘[t]he failure of the court to notify the offender that a prison term is a

mandatory prison term * * * or to include in the sentencing entry any information

required by [R.C. 2929.19(B)(2)(b)] does not affect the validity of the imposed

sentence or sentences.’” Id., quoting R.C. 2929.19(B)(7). See also State v. Dyer, 6th

Dist. Lucas No. L-17-1258, 2019-Ohio-1558, ¶ 17, citing State v. Vancleve, 12th Dist.

Clermont No. CA2016-06-039, 2016-Ohio-7546, ¶ 18.
 In this case, the trial court sentenced Rodriguez to a definite, three-

year term of imprisonment on amended Count 4. The trial court then sentenced

Rodriquez on the remaining felony offenses and explained its basis for running

amended Counts 2 and 4 consecutively. At the conclusion of the sentencing hearing,

the trial court made the following statement on the record:

The entirety of your prison sentence is mandatory and you are not
eligible for good time credit or judicial release.

(Tr. 64.) The trial court’s characterization of Rodriquez’s sentence and his

ineligibility for sentencing reductions under R.C. 2929.13(F) was not incorporated

into the court’s sentencing journal entry.

On appeal, Rodriguez does not challenge the trial court’s

consideration of the purposes and principles of felony sentencing, or the court’s

compliance with R.C. 2929.14(C)(4). Rather, Rodriguez argues the trial court

misapplied R.C. 2929.13(F) when determining that he was subject to a mandatory

prison term on amended Count 4, and therefore, was ineligible for judicial release

under R.C. 2929.20, or earned credit under R.C. 2967.193. Rodriquez contends that

“impersonation of a police officer is not listed as one of the offenses for which a

mandatory prison sentence is required and the trial judge, without statutory

authority, may not mandate that a sentence be mandatory.”1

1 Neither Rodriquez nor the state raise arguments relating to amended Counts 2 of
5. Because Rodriquez’s argument is limited to the sentence imposed on third-degree
felony offense of impersonation of certain officers, we decline to analyze the sentences
imposed on the remaining felony offenses. See App.R. 16(A)(7).
 Recognizing the narrow language of R.C. 2929.13(F), the state

concedes the error, agreeing that the three-year prison term imposed on amended

Count 4 is “not mandatory.” The state’s concession is substantial given the

implications of R.C. 2929.13(F) and its relevance to appellant’s eligibility for judicial

release and/or other sentencing reductions.

After careful consideration, we agree with the state’s interpretation of

the facts and the applicable sentencing provisions. In this case, Rodriquez’s three-

year prison sentence on amended Count 4 is clearly within the range indicated for a

third-degree felony. As recognized by the state, however, none of the provisions of

R.C. 2929.13(F) caused the three-year prison sentence to be a mandatory term.2 By

incorrectly concluding that amended Count 4 carried a mandatory prison term

pursuant to R.C. 2929.13(F), the trial court made an inaccurate statement on the

record concerning Rodrigues’s eligibility for earned credit and judicial release, and

likely failed to consider the directives of R.C. 2929.13(C) when imposing a sentence

on the third-degree felony offense. See State v. Robinson, 8th Dist. Cuyahoga No.

99080, 2013-Ohio-2698, ¶ 10 (Under R.C. 2929.13(C), “third degree felonies carry

no presumption for either prison or community control.”); State v. Stewart, 8th

Dist. Cuyahoga No. 104402, 2017-Ohio-740, ¶ 10 (“[T]he decision whether to

impose prison or community control sanctions lies squarely within the discretion of

the trial court.”).

2In this regard, the state’s decision to delete the firearm specification previously
attached to the impersonation offense during plea negotiations was significant. R.C.
2929.13(F)(8).
 Because the trial court imposed a mandatory prison term on amended

Count 4 when a mandatory term was not authorized by statute, we clearly and

convincingly find Rodriguez’s sentence contrary to law. See Bursley at ¶ 9 (“[A] trial

court errs if it imposes a mandatory prison term when a mandatory term is not

authorized by statute, and that sentence is contrary to law.”), citing State v.

McClellan, 2020-Ohio-5551, 163 N.E.3d 1202 ¶ 13 (6th Dist.). See also State v.

Thomas, 1st Dist. Hamilton No. C-210312, 2022-Ohio-451; State v. Whittenburg,

8th Dist. Cuyahoga No. 109700, 2022-Ohio-803, ¶ 6, citing State v. Walters, 4th

Dist. Adams No. 15CA1009, 2016-Ohio-5783, ¶ 2 (although appellant did not object

to the imposition of the sentence at the sentencing hearing, the sentence imposed

by the trial court was * * * contrary to law, and therefore constituted plain error).

Accordingly, we sustain the second and third assignments of error.

Judgment affirmed in part, reversed in part, and remanded for

resentencing on amended Count 4.

It is ordered that appellee and appellant share 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

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.

EILEEN T. GALLAGHER, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR

N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.

Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part)
in Delvallie and would have found the Reagan Tokes Law unconstitutional.