[Cite as State v. Freeman,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-17

v.

JUAN E. FREEMAN, II, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-18

v.

JUAN E. FREEMAN, II, OPINION

DEFENDANT-APPELLANT.

Appeals from Allen County Common Pleas Court Trial Court Nos. CR2020 0159 and CR2020 0160

Judgments Affirmed

Date of Decision: June 13, 2022

APPEARANCES:

Chima R. Ekeh for Appellant

Jana E. Emerick for Appellee Case Nos. 1-21-17, 1-21-18

MILLER, J.

{¶1} Defendant-appellant, Juan E. Freeman, II, appeals the April 27, 2021

judgments of sentence of the Allen County Court of Common Pleas. For the reasons

that follow, we affirm.

I. Background

{¶2} At approximately 8:00 p.m. on January 14, 2020, Freeman, who was 17

years old at the time, robbed Hermie’s Party Shop in Lima. A short time later,

Freeman robbed a nearby Little Caesars Pizza shop. Freeman used a firearm during

both robberies.

{¶3} On July 16, 2020, after having been bound over from the Allen County

Juvenile Court, Freeman was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(1), a first-degree felony, in case number CR2020

0159, and two counts of aggravated robbery in violation of R.C. 2911.01(A)(1),

first-degree felonies, in case number CR2020 0160. Each of the three counts of

aggravated robbery was accompanied by a three-year firearm specification pursuant

to R.C. 2941.145(A). On July 27, 2020, Freeman appeared for arraignment and

pleaded not guilty to the counts and specifications of the two indictments.

{¶4} The cases proceeded to a bench trial on April 26, 2021, at the conclusion

of which the trial court found Freeman guilty of all the counts and specifications set

forth in the two indictments. The trial court then proceeded immediately to sentence

Freeman to an aggregate term of 28-32 years in prison.

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II. Assignments of Error

{¶5} On May 13, 2021, Freeman timely filed notices of appeal. He raises

the following three assignments of error for our review:

1. Freeman’s indefinite sentence pursuant to R.C. 2967.271 (the Reagan Tokes Law) violates the right to a jury trial as protected by the Sixth Amendment of the United States Constitution and Article I, Section 5 of the Ohio Constitution.

2. R.C. 2967.271 (the Reagan Tokes Law) unconstitutionally violates the separation of powers doctrine of the United States and Ohio Constitution.

3. R.C. 2967.271 (the Reagan Tokes Law) violates the right to due process under the Fourteenth Amendment of the United States Constitution and Article I, Section 16, of the Ohio Constitution.

As they concern related issues, we address Freeman’s assignments of error together.

III. Discussion

{¶6} In his three assignments of error, Freeman argues that his sentence is

contrary to law because the indefinite-sentencing provisions of the Reagan Tokes

Law are unconstitutional. He claims that these provisions violate his right to a jury

trial, his right to due process, and the separation of powers doctrine.

A. Standard of Review for Felony Sentences

{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum,

,

,

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¶ 1. 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,

(1954), paragraph three of the

syllabus.

B. Freeman’s sentence is not contrary to law because the indefinite- sentencing provisions of the Reagan Tokes Law do not violate the separation of powers doctrine, his right to due process, or his right to a jury trial.

{¶8} Freeman argues that his sentence is contrary to law because the

indefinite-sentencing provisions of the Reagan Tokes Law,1 under which he was

sentenced, run afoul of the separation of powers doctrine, infringe on his right to

due process, and deprive him of his right to a jury trial. At the outset, we note that

Freeman failed to object to the constitutionality of the Reagan Tokes Law in the trial

court. “The ‘[f]ailure to raise at the trial court level the issue of the constitutionality

of a statute or its application, which is apparent at the time of trial, constitutes a

waiver of such issue and a deviation from this state’s orderly procedure, and

therefore need not be heard for the first time on appeal.’” State v. Barnhart, 3d Dist.

Putnam No. 12-20-08,

, quoting State v. Awan,

(1986), syllabus. “However, we retain the discretion to consider a waived

constitutional argument under a plain-error analysis.” Id. at ¶ 8. “An error qualifies

as ‘plain error’ only if it is obvious and but for the error, the outcome of the

1 Because we have thoroughly explained these provisions in previous opinions, we need not do so here. See, e.g., State v. Barnhart, 3d Dist. Putnam No. 12-20-08,

; State v. Hiles, 3d Dist. Union No. 14-20-21,

.

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proceeding clearly would have been otherwise.”

In this case, we elect to

exercise our discretion to review Freeman’s constitutional arguments for plain error.

See id. at ¶ 8, 15 (reviewing “waived” challenge to the constitutionality of the

Reagan Tokes Law for plain error).

{¶9} Freeman’s challenges do not present a matter of first impression in this

court. Since the indefinite-sentencing provisions of the Reagan Tokes Law went

into effect in March 2019, we have repeatedly been asked to address the

constitutionality of these provisions. We have invariably concluded that the

indefinite-sentencing provisions of the Reagan Tokes Law do not facially violate

the separation of powers doctrine or infringe on defendants’ due process rights.

E.g., State v. Crawford, 3d Dist. Henry No. 7-20-05,

; State

v. Hacker, 3d Dist. Logan No. 8-20-01,

; State v. Wolfe, 3d

Dist. Union No. 14-21-16,

, ¶ 21.

{¶10} In this case, Freeman asks us to reconsider our earlier decisions. In

recent months, a number of defendants have requested the same of us—requests that

we have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04,

; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist.

Allen No. 1-21-02,

; State v. Rodriguez, 3d Dist. Seneca No.

13-20-07,

. As Freeman has not presented us with any

compelling reason to depart from our earlier precedent on facial challenges to the

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indefinite-sentencing provisions of the Reagan Tokes Law, we once again decline

to do so.

{¶11} Freeman also challenges the indefinite-sentencing provisions of the

Reagan Tokes Law as applied to him, contending that they violate his constitutional

right to a trial by jury. In the past, we have held that certain as-applied challenges

to these provisions were not ripe for review. See, e.g., State v. Kepling, 3d Dist.

Hancock No. 5-20-23,

. However, the Supreme Court of Ohio

recently decided State v. Maddox, ___ Ohio St.3d ___,

, and

determined that constitutional challenges to the indefinite-sentencing provisions of

the Reagan Tokes Law are ripe for review. Based on the holding in Maddox, we

will address Freeman’s argument that the indefinite-sentencing provisions of the

Reagan Tokes Law violate his right to a jury trial.

{¶12} In reviewing the matter, we emphasize that statutes are presumed

constitutional, and it is Freeman’s burden to demonstrate that the statute at issue is

unconstitutional. State v. Thompkins,

,

. Freeman

has presented no compelling authority undermining the constitutionality of the

indefinite-sentencing provisions of the Reagan Tokes Law.

{¶13} Notwithstanding this point, numerous Ohio courts of appeals have

already rejected challenges similar to Freeman’s. State v. Rogers, 12th Dist. Butler

No. CA2021-02-010,

; State v. Thompson, 2d Dist. Clark No.

2020-CA-60,

; State v. Delvallie, 8th Dist. Cuyahoga No.

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109315,

(en banc). We agree with the reasoning expressed by

these courts and determine that Freeman’s “as-applied” challenge regarding the jury

trial issue is unavailing.

{¶14} In sum, we conclude that the indefiniteness of Freeman’s sentence

does not render his sentence contrary to law. Therefore, Freeman’s first, second,

and third assignments of error are overruled.

IV. Conclusion

{¶15} For the foregoing reasons, Freeman’s assignments of error are

overruled. Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the Allen County Court

of Common Pleas.

Judgments Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/jlr

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