[Cite as State v. Booker , 2022
- Ohio
- 3433.]

COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 111222 v. : DOMINIC BOOKER , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: Septem ber 29 , 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 20
- 649048

- A
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney , and Jeffrey Schnatte r, Assistant Prosecuting Attorney, for a

ppellee

. Jonathan N. Garver , for a ppellant

. MARY J. BOYLE, J.:

In this delayed appeal, d efendant

- appellant, Dominic Booker (“Booker”), appeals his sentence for rape, kidnapping, aggravated burglary, burglary, and having weapon s while under disability. He challenges theconstitutionality of his sentence under the R eagan Tokes Act and contends his

sentence is contrary to law. For the reasons set forth below, we affirm. I. Facts and Procedural History

In April 2020, Booker was charged in a 14

- count indictment. Counts

1
- 3 charged him with rape. Count 4 charged him with kidnapping. Counts 5, 7, and 10 charged him with aggravated burglary. Counts 6 and 13 charged him with burglary. Counts 8 and 11 charged him with having weapons while under disability (“HWUD”). Count 9 charged him with theft. Count 12 charged him with attempted theft. Cou nt 14 charged him with theft. 1 Th e charges arise from incidents involving three victims

— Jane Doe (Counts 1

- 6), T.G. (Counts 7, 9, 10, 12), and J.L. (C oun ts 13 and 14). In May 30, 2020, Booker entered into a plea agreement with plaintiff

appellee, the state of Ohio (“State”). Booker pled guilty to an amended C ount 1 (rape) by the deletion of the sexual violent predator specification , an amended Count
4 (kidnapping) by the d eletion of the sexual motivation specification and the sexual violent predator specification , Count 5 (aggravated burglary) as charged, an amended Count 7 (aggravated burglary) by the deletion of the one

- year firearm specification , Count 8 (HWUD) as charged, an amended Count 10 (aggravated burglary) by the deletion of the on e - and three

- year firearm specifications, and Count 13 (burglary) as charged. C ounts 2, 3, 6, 9, 11, 12, and 14 were nolled. Booker

1 Each of Counts 1

- 4 carried a sexually violent predator specification. Count 4 also carried a sexual motivation specification. Count 10 carried both a one - and three

- year firearm specification.also agreed that the offenses were not allied offenses of similar import. The trial

court advised Booker that Counts 1, 4 , 5 , and 7 would fall under the Reagan Tokes Act and that he would be classified as a Tier III sex offender with lifetime registration. Booker was sentenced at a hearing in June 2020 , and a nunc pro tunc sentencing entry was filed on September 1, 2020. Th e court held a resentencing hearing in October 2020 because the original sentencing hearing did not include a sentence on Count 5. The trial court sentenced Booker to 3 year(s) on the specifications to be served prior to and consecutive with a minimum pri son term of 10 year(s) and a maximum prison term of 15 year(s) on the underlying offense(s). T he total stated prison term is 23

- 28 years [.] C ount 1: F 1, an indefinite minimum prison term of 10

- 15 year(s), 5 years mandatory post release control.
C ount 4: F 1, an indefinite minimum prison term of 10

- 15 year(s), 5 years mandatory post release control.
Co unt 5: F 1, an indefinite minimum prison term of 10

- 15 year(s), 5 years mandatory post release control.
C ount 7: F 1, an indefinite minimum prison ter m of 10

- 15 year(s), 3 year firearm specificat i on, 5 years mandatory post release control.
C ount 8: F 3, 36 month(s), up to 3 years discretionary post release control.
C ount 10: F 1, a definite minimum prison term of 10 year(s), 5 years mandatory post release control.
C ount 13: F 2, a definite minimum prison term of 8 year(s), 3 years mandatory post release control.
Count [s] 1 and 4 to be served consecutively.T he court impose s prison terms consecutively finding that consecutive

service of the prison term is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant ’ s conduct and to the danger defendant poses to the public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple offenses was so great or unusual that no single pri son term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the defendant ’ s conduct.
* * *
** D efendant is a T ier III sex offender. ** (Trial Court’s Judgment, Oct. 30, 2020.) Th e trial court also “ considered all required factors of the law [and found] that prison is consistent with the purpose of
R

. C . 2929.11. ” Id.

It is from this order that Booker appeals, raising the following two assignments of error for review. Assignment of Error One: [Booker’s] sentencing under the Reagan Tokes law violated the constitutional guarantees of due process of law and equal protection of the laws, contrary to the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, S ections 2 and 16 of the Constitution of the State of Ohio. Assignment of Error Two : The twenty

- three (23)

- year base prison term imposed by the trial court is excessive, unsupported by the record, and contrary to law. II. Law and Analysis
A. Reagan Tokes In the first assignment of error, Booker recog nizes that in State v. Delvallie , 2022
- Ohio

- 470, 185 N.E.3d 536 (8th Dist.) , this c ourt already determined that the sentencing provision s under the Reagan Tokes Act are constitutional, butchallenges the constitutionality of the Act since the issue has not yet been resolved

by the Ohio Supreme Court.

However, in light of our en banc decision in Delvallie , which found the Reagan Tokes Act to be constitutional , we overrule the first assignment of error

. B. B ooker’s Sentence

1. Standard of Review An appellate court reviews felony sentences under R.C. 2953.08(G)(2). State v. Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649, ¶ 27, citing State v. Marcum , 146 Ohio St.3d 516, 2016

- Ohio

- 1002, 59 N.E.3d
1231. Relevant to the instant appeal, u nder R.C. 2953.08(G)(2) (b) , an appellate

court “ may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter * * * for resentencing ” if it “ clearly and convincingly ” find s “[t] hat the sentence is otherwise contrary to law. ”

“ A sentence is contrary to law if it falls outside the statutory range for the offense or if the sentencing court fails to consider the purposes and principles of sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. ” State v. Angel , 8th Dist. Cuyahoga No. 110456, 2022

- Ohio

- 72, ¶ 8, citing State v. Pawlak , 8th Dist. Cuyahoga No. 103444, 2016

- Ohio

- 5926.

2. R.C. 2929.11 and 2929.12
R .C. 2929.11 addresses the over riding purposes of felony sentencing, while R.C. 2929.12 addresses factors that are to be taken in account when imposing

a sentence. Jones at ¶ 18

- 19. Under R.C. 2929.11(A), the overriding purposes offelony sentencing are to (1) “ protect the public from future crime by the offender and

others ”; (2) “ punish the offender ”; and (3) “ promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on st ate or local government resources. ” Additionally, the imposed sentence must be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar
crimes commi tted by similar offenders.” R.C. 2929.11(B).

R.C. 2929.12 provides the sentencing court with the discretion to determine the best way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11 when imposing a sentence. State v. Br idges , 8th Dist. Cuyahoga No. 107281, 2019

- Ohio

- 1769, ¶ 10

. R.C. 2929.12 sets forth a nonexhaustive list of factors a trial court must consider in determining the seriousness of the offender’s conduct and the likelihood of recidivism, including the offend er’s history of criminal convictions, whether the offender has responded favorably to sanctions previously imposed for criminal convictions, whether the offender has demonstrated remorse, and any other factors relevant to achieving the purposes and princip les of sentencing. R.C. 2929.12(A), (D)(2)

- (3) , and (D)(5).

Although the sentencing court must consider the factors in R.C. 2929.11 and 2929.12, the court is not required to make specific findings on the record regarding its consideration of those factors , even when imposing a more

than

- minimum sentence. Bridges at ¶ 11, citing State v. Keith , 8th Dist. CuyahogaNos. 103413 and 103414, 2016

- Ohio

- 5234; State v. Rouse , 8th Dist. Cuyahoga No.

107379, 2019
- Ohio

- 708. Indeed, consideration of the factors is pr esumed unless the defendant affirmatively shows otherwise. State v. Wright , 2018

- Ohio

- 965, 108 N.E.3d 1109 , ¶ 16 (8th Dist.). ( The “trial court’s statement in its sentencing journal entry that it considered the required statutory factors is alone sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.” ) Id. , citing Keith , citing State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015

- Ohio

- 4074, and State v. Clayton , 8th Dist. Cuyahoga No. 99700, 2014

- Ohio

- 112
.

3. 23 - Year Base Sentence Booker argues his 23
- year base sentence exceeds the minimum sentence that can be legally imposed. He contends that there are three important mitigating factors not re flecte d in his sentence : (1) “ minimal ” criminal history consisting of a third

- degree felony burglary offense in 2016 and a fourth

- degree felony receiving stolen property offense in 2011 ; (2) he apologized and expressed remorse for his misconduct ; and (3) Jane Doe told the court that she had forgiven
him

. He a dditionally contends th at the presence of the city of Cleveland ’s Ward 1 Councilman at his sentencing hearing was a highly unusual occurrence and the Councilman ’s statements appear to have impacted his excessive sentence.

Booker’s argument, however, does not dispute the legality of the trial court’s term of incarceration , nor does it dispute the trial court’s findings supporting
consecutive sentences. A fter the Ohio Supreme released its decision in Jones , our review of a sentence imposed by the trial court under R.C. 2953.08(G)(2) is limitedto the legality of the sentence, meaning was it imposed after consideration of the

statutory factors and is it within the range authorized by the Revised Code. See State

v . Olsen , 8th Dist. Cuyahoga No. 110740, 2022

- Ohio

- 1402, ¶ 18. “Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649 , at ¶ 42. In particular, “ R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry [.]” Id. In the instant case, a review of the record reveals that at the sentencing hearing in June 2020 , the trial court heard from the victim of Counts 1

- 6 and the city of Cleveland’s Ward 1 Councilman , as well as Booker, defense counsel, and the state. The victim aske d the court for justice and stated that she forgave Booker. (Tr. 37, June 23, 2020.) The Councilman advised the court that he was present because this incident not only impacted the victim but the neighborhood. (Tr. 38, June 23, 2020.) He stated that “ [w]ord had got out that there was a rapist trying to break into people’s houses. * * * I just come before you today on behalf of the citizens of the Lee/Harvard Ward 1 area asking * * * you, Judge, to sentence him to the fullest lengths possible. This t ype of crime against women and children and terrorizing the neighborhood is absolutely unacceptable[.] And to come to find out that he is now a predator because he has done this on multiple occasions.” (Tr. 38

- 39 , June 23, 2020.)During its recitation of the facts , t he s tate noted that counts involv ing

the victim arose from Booker breaking into her home while she was asleep . Booker

w ore a black ski mask and vaginally, anally, and orally raped the victim. He kept her from leaving her home. (Tr. 40, Ju ne 23, 2020.) The next day, the victim came back

to her home (she was living with her mother at the time) and found that the house was broken into again. Booker broke in through a back window, and when doing so , he cut himself and left blood on the windo w shades. Th e blood was linked to Booker through DNA testing . (Tr. 42

- 43, June 23, 2020.)

The state also described the details regarding the burglaries listing
T.G. as the victim. The burglar ies were captured on surveillance cameras. In one burglary , Booker took a television, some cash, and a comforter . With the other burglary, it appears that Booker was nervous because the camera captured him talking with his accomplice and they left without taking anything. (Tr. 43, June 23, 2020.) Regarding the burglary listing J

. L

. as the victim , the state advised the trial court that this burglary was also captured on video surveillance. Booker took a television, a sound bar , and possibly some cash . (Tr. 43

- 44, June 23, 2020.)

The state also quoted from a text

- message conversation between Booker and another individual before and after the r ape of J ane Doe

. During the
conversation , Booker sent and replied to the following messages: [ Booker: ] I want to brea k in and steal some p *** y [.] [ Reply: ] LMAO. You got to be careful with that; might like it

. [ Booker: ] LOL. I want to tell you but goddamn

.* * *

Grr. I can’t even scare no one. Baby like you look good. Why you got to be mean. I give it to you. I be

— goddamn

— [ Reply: ] LMAO. That’s what I’m trying to tell you, they just got to go with it and give a little fight. [ Booker: ] S ** t crazy. I’ll tell you about it later. [ Booker: ] S** t, I just took somebo dy’s pride. Hee

- hee. Rape, rape, rape. LOL. I’m crazy for real. (Tr. 45, June 23, 2020.)

Defense counsel asked for an 8

- year prison term, noting that Booker does not have a lengthy history of assaultive behavior or sexually oriented behavior. Booker t hen apologized to the court, wishing he “could take it back.” (Tr. 52, June 23, 2020.) Prior to announcing its sentence , the trial court indicated that it considered the overall facts of the case, noting the facts were horrific . (Tr. 52, June 23, 2020.) The court also indicated it considered all the purposes and principles of the Ohio Revised Code section relating to sentencing , the statements made by all the parties, and the medical report, noting it gave “this case a great deal of thought” prior
to im posing the sentence

. (Tr. 54, June 23, 2020.)

The trial court found that consecutive sentences were “necessary to protect the public from future crime and to punish [Booker] ; that consecutive

sentences are not disproportionate to the seriousness of [Booke r’s] conduct, and that the danger [he] pose [s] to the public; and furthermore, that [ the crime s] were committed while [ Booker was ] on community control sanctions. ” (Tr. 56

- 57, June23, 2020.) The trial court also found that two of the multiple offenses w ere

committed as part of one or more courses of conduct by burglarizing Jane Doe’s house twice, and that the harm caused “ was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects the seriousness of [Booker’s] conduct [.]” (Tr. 57, June 23, 2020.) The trial

court further noted that Booker did ha ve prior felony convictions and that consecutive sentences were necessary to protect the public from future crime committed by him. (Tr. 57, June 23, 2020.)

At the resentencing hearing in October 2020, the trial court again indicated that it considered al l the purposes and princip le s of the Ohio Revised Code relating to sentencing. ( Tr. 64 , Oct. 22, 2020.) The court also reiterated its reasons for ordering the sentences to be served consecutively. (Tr. 65

- 66, Oct. 22, 2020.) In the corresponding senten cing entry, the court also incorporated its consideration of all the required factors of law, its determination that prison was consistent with R.C.
2929.11 , and its findings supporting consecutive sentences. (Trial Court’s Judgment, Oct. 30, 2020.)

Boo ker asks this c ourt to substitute its judgment for that of the trial court’s regarding how the princip le s and purposes of sentencing should have applied and what sentence was appropriate. We decline to do so. Booker committed multiple burglaries , rape, a nd then returned to burglarize his rape victim the next day , while he was on community

- control sanction s . Moreover, Booker’s texts reveal that he was going to commit the r ape and then joked about it afterwards.When applying the standard set forth in R. C. 2953.08(G)(2) to the

instant case, we find that Booker’s sentence of 23

- 28 years is within the statutory range, and the record reflects the trial court had considered the purposes and principles of felony sentencing in R.C. 2929.11 and the sentencing fa ctors in R.C.
2929.12. Furthermore, the trial court’s sentencing journal entry indicates that it

“ considered all required factors of the law , ” which this c ourt has held to be enough to find that the court considered the purposes and principles of felony s entencing set forth in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Keith at ¶ 11. Therefore, the second ass ignment of error is overruled

. III. Conclusion

We find that Booker’s sentence is not unconstitutional under the Reagan Tokes Act. Furthermore, the record demonstrates that the trial court imposed Booker’s sentence after consideration of the statutory factors , and his sentence is within the range authorized by the Revised Code.

Accordingly, j udgment is affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mand ate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.A certified copy of this entry shall constitute the mandate pursuan t to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE
ANITA LASTER MAYS , P. J., and KATHLEEN ANN KEOUGH , J., CONCUR N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022
- Ohio

- 470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and dissenting in part).