[Cite as State v. Mitchell , 2021-Ohio-2802.]

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

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-21-02

v. FARRAKHAN J. MITCHELL, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2020 0069 Judgment Affirmed Date of Decision: August 9, 2021

APPEARANCES: 

### Thomas J. Lucente, Jr. for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-21-02

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Farrakhan J. Mitchell (“Mitchell”), appeal s the December 18, 2020 judgment entry of sentence of the Allen Count y Court of

Common Pleas. We affirm. {¶2} This case stems from the November 20, 2019 armed robbery of a D ollar General in Lima, Ohio by Mitchell (who was a juvenile at the ti me of the offense). On December 30, 2019, a delinquency complaint was filed in the Allen County Court of Common Pleas, Juvenile Division, alleging that Mitchel l committed aggravated robbery in violation of R.C. 2911.01(A), a first-deg ree felony if committed by an adult. (Juv. Doc. No. 3). The complaint also included a firearm specification and alleged that Mitchell was subject to a mandat ory bindover under R.C. 2152.10(A) to transfer jurisdiction of the case to the com mon pleas court’s general division so that Mitchell would be prosecuted as an adu lt. ( Id. ). On January 7, 2020, Mitchell appeared for arraignment and denied the charg es. (Juv. Doc. No. 14). {¶3} After a hearing on February 12, 2020, the juvenile trial court concluded that there was probable cause to find that Mitchell committed t he act charged in the complaint and to find that the alleged specification is true. (Juv. Doc. No. 22). Consequently, Mitchell’s case was transferred to the Allen Coun ty Court of Common Pleas, General Division, for Mitchell to be prosecuted a s an adult. ( Id. ).Case No. 1-21-02

-3- {¶4} Following the transfer of Mitchell’s case, on March 12, 2020, t he Allen County Grand Jury indicted Mitchell on a single count of aggrav ated robbery in violation of R.C. 2911.01(A)(1), (C), a first-degree felony. ( Doc. No. 3). The indictment also included a firearm specification under R.C. 294 1.145(A) as to the count. ( Id. ). Mitchell filed written pleas of not guilty to the indictmen t on March 20, 2020. (Doc. Nos. 11, 13). {¶5} On August 18, 2020, Mitchell withdrew his pleas of not guilty a nd entered guilty pleas, under a negotiated-plea agreement, to an amended count and the specification in the indictment. (Doc. No. 34). Specifica lly, in exchange for Mitchell’s change of pleas, the State agreed to amend the aggra vated-robbery charge to robbery in violation of R.C. 2911.02(A)(1), a second-degree felony. ( Id. ). The trial court accepted Mitchell’s guilty pleas, found him guilty, and ordered a presentence investigation (“PSI”). (Doc. No. 35). {¶6} On October 2, 2020, the trial court sentenced Mitchell to a min imum term of seven years in prison to a maximum term of ten and one- half years in prison as to the count and to three years in prison as to the specific ation. (Doc. No. 39).

The trial court further ordered that Mitchell serve the mandato ry term imposed as to the firearm specification prior to and consecutive to the seven -year minimum term. 1 ( Id. ). The trial court stayed Mitchell’s sentence pending the reso lution of his

1 The trial court filed its judgment entry of sentence on Octobe r 19, 2020. (Doc. No. 39).Case No. 1-21-02

-4- reverse-bindover case in the Allen County Court of Common Pleas , Juvenile Division. ( Id. ). {¶7} After the Allen County Court of Common Pleas, Juvenile Division , concluded on December 11, 2020 that Mitchell “is not amenable t o care or rehabilitation in the juvenile system and that the safety of th e community may require that he be subject solely to the adult sanctions,” Mitc hell’s case was transferred back to the trial court for Mitchell’s previously i mposed sentenced to “be invoked.” (Juv. Doc. No. 32); (Doc. No. 46). On December 18, 2020, the trial court ordered Mitchell to serve the previously imposed sentence . (Doc. No. 46). {¶8} On January 15, 2021, Mitchell filed a notice of appeal. (Doc. No. 49). He raises one assignment of error. Assignment of Error The indefinite sentencing scheme set forth in the Reagan Tokes Act and imposed by the trial court in this case violates the fe deral and state constitutions. {¶9} In his assignment of error, Mitchell argues that his sentence, imposed under Ohio’s current sentencing scheme (commonly known as the “ Reagan Tokes Law”), is unconstitutional. Specifically, Mitchell alleges tha t the portion of the Reagan Tokes Law that permits his sentence to be “enhanced” by decision of the Ohio Department Rehabilitation and Correction (“ORDC”) (an agen cy within theCase No. 1-21-02

-5- executive function of Ohio’s government) runs afoul of the Ohio and United States

Constitutions. Standard of Review {¶10} Under R.C. 2953.08(G)(2), an appellate court will reverse a sen tence “only if it determines by clear and convincing evidence that th e record does not support the trial court’s findings under relevant statutes or t hat the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “‘which will produc e in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.’” Id. at ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. Analysis {¶11} In this case, Mitchell challenges the constitutionality of the Reagan Tokes Law—namely, Mitchell alleges that the Reagan Tokes Law vi olates the separation-of-powers doctrine and due-process clause of the Ohi o and United States Constitutions. Specifically, Mitchell argues that the Reagan T okes Law violates the separation-of-powers doctrine of Ohio and United States Constit utions because it “removes the sentencing enhancement from the prerogative of the judicial branch and transfers it to the executive branch [because] ORDC decides if a sentence will be enhanced.” (Appellant’s Brief at 8). Furthermore, Mitchell argues that theCase No. 1-21-02

-6- Reagan Tokes Law violates the due-process clause of the Ohio an d United States Constitutions because it (1) provides inadequate notice “as to what conduct on his part will trigger an increase in his sentence under R.C. 2967.2 71(A)(1)”; (2) provides “the executive’s ability to make whatever judgment cal ls it deems appropriate, without sufficient guidance, results in a criminal penalty”; and (3) deprives him of “certain core rights as fundamental to the tria l process.” ( Id. at 11, 15-16). {¶12} “‘An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutio nal it must appear beyond a reasonable doubt that the legislation and constitution al provisions are clearly incompatible.’” State v. Brown , 3d Dist. Marion No. 9-10-12, 2010-Ohio4546, ¶ 9, quoting State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142 (1955), paragraph one of the syllabus. “‘That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in question and some particular provisi on or provisions of

the Constitution.’” Id. , quoting Xenia v. Schmidt , 101 Ohio St. 437 (1920), paragraph two of the syllabus. {¶13} “A statute may be challenged on constitutional grounds in two w ays: (1) that the statute is unconstitutional on its face, or (2) th at it is unconstitutional as applied to the facts of the case.” Id. at ¶ 10, citing Harrold v. Collier , 107 OhioCase No. 1-21-02

-7- St.3d 44, 2005-Ohio-5334, ¶ 37, citing Belden v. Union Central Life Ins. Co. , 143 Ohio St. 329 (1944), paragraph four of the syllabus. “To mount a successful facial challenge, the party challenging the statute must demonstrate t hat there is no set of facts or circumstances under which the statute can be upheld.” Id. , citing Harrold at ¶ 37, citing United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095 (1987). “Where it is claimed that a statute is unconstitutional as appl ied, the challenger must present clear and convincing evidence of a presently existing s et of facts that make the statute unconstitutional and void when applied to those fac ts.” Id. , citing

Harrold at ¶ 38, citing Belden at paragraph six of the syllabus. {¶14} However, our review of the record reflects that Mitchell is att empting to, on appeal, raise his constitutional arguments for the first time. “‘“The question of constitutionality of a statute must generally be raised at t he first opportunity and, in a criminal prosecution this means in the trial court.”’” State v. Bagley , 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70, quoting State v. Rowland , 3d Dist. Hancock No. 5-01-28, 2002 WL 479163, *1 (Mar. 29, 2002), quotin g State v. Awan , 22 Ohio St.3d 120, 122 (1986). “This applies to challenges to the facial constitutionality of a statute and to the constitutionality of a statute’s application.”

Id. , citing Awan at syllabus. {¶15} “The Supreme Court of Ohio has held that, ‘“[f]ailure to raise at the trial court level the issue of the constitutionality of a statu te or its application, whichCase No. 1-21-02

-8- issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state’s orderly procedure, and therefore ne ed not be heard for the first time on appeal.”’” State v. Heft , 3d Dist. Logan No. 8-09-08, 2009-Ohio5908, ¶ 29, quoting State v. Rice , 3d Dist. Allen Nos. 1-02-15, 1-02-29, and 1-02- 30, 2002-Ohio-3951, ¶ 7, quoting Awan at syllabus. “However, the waiver doctrine set forth by Awan is discretionary; thus, ‘even where waiver is clear, a reviewi ng court may consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.’” Id. , quoting Rice at ¶ 7, citing In re M.D. , 38 Ohio St.3d 149 (1988), syllabus. Nevertheless, “‘“discretion will not ordinarily be exercised to review such claims, where the right sought to be vindicated was in existence prior to or at the time of

trial.”’” Id. , quoting Rice at ¶ 7, quoting State v. 1981 Dodge Ram Van , 36 Ohio St.3d 168, 170-71 (1988), quoting State v. Woodards , 6 Ohio St.2d 14, 21 (1966). {¶16} Here, Mitchell neither objected to the constitutionality of the Reagan Tokes Law while his case was pending before the trial court nor did he challenge the trial court’s application of the Reagan Tokes Law at his se ntencing hearings. Thus, Mitchell waived his arguments on appeal. {¶17} Notwithstanding Mitchell’s failure to raise his arguments in th e trial court, we will address the merits of his arguments in the inter est of justice. On appeal, Mitchell urges this court to diverge from our prior pre cedent in which weCase No. 1-21-02

-9- concluded that the Reagan Tokes Law does not violate the separa tion-of-powers doctrine or due-process clause of the Ohio and United States Co nstitutions. We

decline to do so. 2 E.g. , State v. Floyd , 3d Dist. Marion No. 9-20-44, 2021-Ohio1935, ¶ 23. Consequently, we conclude that Mitchell’s sentence is not contrary to

law. {¶18} Mitchell’s assignment of error is overruled. {¶19} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlr

2 To the extent that Mitchell alleges that his constitutional ar guments are ripe for review, this court has consistently “declined to resolve those claims as not being rip e for review.” State v. Floyd , 3d Dist. Marion No. 9-20-44, 2021-Ohio-1935, ¶ 22.