[Cite as State v. Primm,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : Nos. 110479 and 110480 v. :

DION R. PRIMM, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED, VACATED, AND REMANDED RELEASED AND JOURNALIZED: March 24, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-654818-A and CR-20-651405-C

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 John T. Martin, Assistant Public Defender, for appellee.

MARY EILEEN KILBANE, J.:

The state of Ohio, raising a single assignment of error, appeals from

the trial court’s sentence imposed on defendant-appellee Dion R. Primm (“Primm”)

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, vacate, and remand.

Factual and Procedural History

CR-20-654818

On December 14, 2020, in Cuyahoga C.P. No. CR-20-654818-A, a

Cuyahoga County Grand Jury indicted Primm on four counts of trafficking in

violation of R.C. 2925.03(A)(2), five counts of drug possession in violation of R.C.

2925.11(A), one count of possessing criminal tools in violation of R.C. 2923.24(A),

and one count of having weapons while under disability in violation of R.C.

2923.13(A)(3). With the exception of the having weapons while under disability

charge, the counts carried various firearm and forfeiture specifications.

On March 3, 2021, Primm pleaded guilty to four counts of trafficking

with various forfeiture specifications and one count of having weapons while under

disability. Three of the trafficking counts were felonies of the first degree, and the

remaining trafficking count was a felony of the second degree.

On March 31, 2021, the court sentenced Primm to six years on each

trafficking count and two years on the having weapons while under disability count,

to be served concurrently, for an aggregate sentence of six years.

CR-20-651405-C

On December 23, 2020, in Cuyahoga C.P. No. CR-20-651405-C, a

Cuyahoga County Grand Jury indicted Primm on five counts of trafficking in

violation of R.C. 2925.03(A)(2), five counts of drug possession in violation of R.C. 2925.11(A), one count of having weapons while under disability in violation of R.C.

2923.13(A)(3), and one count of possessing criminal tools in violation of R.C.

2923.24(A). With the exception of the having weapons while under disability count,

the charges carried various firearm, forfeiture, and major drug offender

specifications.

On March 3, 2021, Primm pleaded guilty to four counts of drug

trafficking, a one-year firearm specification, and various forfeiture specifications.

Two of the drug trafficking counts were felonies of the first degree and two were

felonies of the second degree.

On March 31, 2021, the court sentenced Primm to three years on each

trafficking count, to be served concurrently to each other and consecutively to the

one-year firearm specification, for an aggregate sentence of four years. At the

sentencing hearing, the court and the assistant prosecuting attorney engaged in a

brief discussion regarding the Reagan Tokes Law and the state of various appeals

pending before this court on the question of the law’s constitutionality. Ultimately,

the court stated that it was not going to impose a Reagan Tokes sentence on Primm.

The state appealed the sentence in both cases, 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 found S.B. 201, the Reagan Tokes Law, to be unconstitutional

and did not impose an indefinite sentence on Primm pursuant to the 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,

. 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,

, and

State v. Wilburn, 8th Dist. Cuyahoga

. 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. Primm’s sentence,

therefore, is vacated, and the case is remanded for the imposition of a sentence

pursuant to S.B. 201.

Judgment reversed, 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

FRANK DANIEL CELEBREZZE, III, P.J., and KATHLEEN ANN KEOUGH, 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.