[Cite as State v. Sharp,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : Nos. 111359 and 111360 v. :

MARTEZ SHARP, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 23, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-21-662312-A and CR-21-662313-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 John T. Martin, Assistant Public Defender, for appellee.

KATHLEEN ANN KEOUGH, J.:

In this consolidated appeal, plaintiff-appellant, the state of Ohio,

appeals from the judgments of conviction entered against defendant-appellee,

Martez Sharp, wherein the trial court did not impose an indefinite sentence pursuant to the Reagan Tokes Law. For the reasons that follow, we reverse and

remand the cases to the trial court for resentencing.

In Cuyahoga C.P. No. CR-21-662312, Sharp pleaded guilty to

amended Count 1, aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of

the first degree, and an accompanying one-year firearm specification; amended

Count 6, felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree

felony; and Count 8, having weapons while under disability, in violation of R.C.

2923.13(A)(3), a third-degree felony. All other counts were nolled.

In Cuyahoga C.P. No. CR-21-662313, Sharp pleaded guilty to

amended Count 1, aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of

the first degree, and an accompanying one-year firearm specification; and amended

Count 5, having weapons while under disability, in violation of R.C. 2923.13(A)(3),

a third-degree felony. All other counts were nolled.

On March 8, 2022, the trial court sentenced Sharp on both cases but

did not impose an indefinite sentence pursuant to the Reagan Tokes Law because it

found the indefinite sentencing provisions of the law “to be unconstitutional.” In

both cases, the trial court imposed a total sentence of four years and ordered Sharp

to serve those sentences concurrently.1

1 Neither party has raised any issues as to the imposed sentence; therefore the validity of the individual sentences is beyond the scope of this appeal. State v. Harper,

,

,

, ¶ 26; State v. Henderson,

,

,

, ¶ 27. We note, however, that there appears to be an ambiguity in the trial court’s sentencing journal entries. The trial court stated that it was imposing a prison sentence “of four years” in both cases, but in ordering the The state now appeals both cases, contending in its sole assignment

of error 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 pursuant to S.B. 201.

R.C. 2953.08(B)(2) provides the state the right to appeal a sentence if

it is contrary to law. A sentence that fails to impose a mandatory provision is

contrary to law. State v. McCalpine, 8th Dist. Cuyahoga No. 110665, 2022-Ohio-

842, ¶ 4, citing State v. Underwood,

,

,

, ¶ 21.

The Reagan Tokes Law provides that certain first- and second-degree

felonies are qualifying offenses subject to an indefinite sentencing scheme. R.C.

2929.14. When imposing prison terms for offenders with qualifying offenses,

sentencing courts are required to impose an indefinite sentence by imposing a stated

minimum prison term as provided in R.C. 2929.14(A)(2)(a) and an accompanying

maximum prison term as provided in R.C. 2929.14(B).

Sharp pleaded guilty in CR-662312 to two qualifying felonies —

aggravated robbery and felonious assault. In CR-662313, Sharp pleaded guilty to

aggravated robbery, a qualifying felony. Accordingly, the law required the trial court

to sentence Sharp to an indefinite sentence under R.C. 2929.14 on these qualifying

offenses. The trial court, however, did not, finding the Reagan Tokes Law

unconstitutional.

sentences on both cases to be served concurrently, the trial court stated: “[d]efendant serving an aggregate sentence of five years on cases CR-662312 and CR-662313.” The state contends that the Reagan Tokes Law is constitutional, such

that it does not violate (1) the Sixth Amendment right to a jury trial, (2) the doctrine

of separation of powers, or (3) due process rights. We agree based on this district’s

en banc holding in State v. Delvallie,

,

. In Delvallie,

this court rejected the constitutional challenges advanced against the constitutional

validity of the Reagan Tokes Law. Id. at ¶ 17-54. Specifically, this court held that

the Reagan Tokes Law did not violate a defendant’s right to due process or to a jury

trial afforded under the Sixth Amendment and that it did not violate the doctrine of

separation of powers. Id.

Accordingly, the state’s appeal has merit and its assignment of error

is sustained. The sentences imposed by the trial court are reversed, and the cases

are remanded for resentencing in accordance with the Reagan Tokes Law.

Judgments 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. Cases remanded to the

trial court for resentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and CORNELIUS J. O’SULLIVAN, JR., J., CONCUR