[Cite as State v. Griffin, 2021-Ohio-4128.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 Nos. 110474, 110475, and 110476 

 v. : 

 

EUGENE GRIFFIN, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: VACATED AND REMANDED 

RELEASED AND JOURNALIZED: November 18, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-19-647119-A, CR-20-650595-A, and 

CR-20-655484-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and John D. Kirkland, Assistant Prosecuting 

Attorney, for appellee. 

Timothy Young, Ohio Public Defender, Lauren 

Hammersmith and Abigail Christopher, Assistant State 

Public Defenders, for appellant. 
MARY J. BOYLE, A.J.: 

Defendant-appellant Eugene Griffin appeals the trial court’s 

imposition of an indefinite sentence in Cuyahoga C.P. Nos. CR-19-647119-A, CR-20-

650595-A, and CR-20-655484-A. Griffin raises two assignments of error: 

1. The trial court committed plain error by imposing an indefinite 

sentence because Griffin did not plead guilty to a qualifying offense 

pursuant to R.C. 2929.144(A). 

2. Griffin was denied his right to effective assistance of counsel when 

his counsel failed to object to the imposition of an indefinite sentence 

because Griffin did not plead guilty to a qualifying offense pursuant to 

R.C. 2929.144(A). 

The state, pursuant to Loc.App.R. 16(B), has conceded Griffin’s first 

assignment of error. Finding merit in Griffin’s first assignment of error, we vacate 

the sentence and remand for resentencing, which renders Griffin’s second 

assignment of error moot. 

I. Procedural History 

In December 2019, Griffin was charged in CR-19-647119-A with 

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

(Count 1); kidnapping in violation of R.C. 2905.01(A)(3), a first-degree felony 

(Count 2); and aggravated riot in violation of R.C. 2917.02(A)(2), a fourth-degree 

felony (Count 3). 

In May 2020,1 Griffin was charged in CR-20-650595 with aggravated 

robbery in violation of R.C. 2911.01(A)(1), a first-degree felony (Count 1); robbery in 

1 In May 2020, Griffin was reindicted in CR-20-650595 on the same charges that 

were initially filed in May 2019 in CR-19-639742-A. 
violation of R.C. 2911.02(A)(1), a second-degree felony (Count 2); robbery in 

violation of R.C. 2911.02(A)(2), a second-degree felony (Count 3); robbery in 

violation of R.C. 2911.02(A)(3), a third-degree felony (Count 4); grand theft in 

violation of R.C. 2913.02(A)(1), a fourth-degree felony (Count 5); theft in violation 

of R.C. 2913.02(A)(1), a fifth-degree felony (Count 6); theft in violation of 

R.C. 2913.02(A)(1), a first-degree misdemeanor (Count 7); having weapons while 

under disability in violation of R.C. 2923.13(A)(2), a third-degree felony (Count 8); 

improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), a 

fourth-degree felony (Count 9); and failure to comply in violation of 

R.C. 2921.331(B), a fourth-degree felony (Count 10). Counts 1-6 included one- and 

three-year firearm specifications pursuant to R.C. 2941.141(A) and 

R.C. 2941.145(A). All counts except Counts 7 and 10 included forfeiture of a weapon 

pursuant to R.C. 2941.1417(A). These charges arose from offenses that occurred on 

November 25, 2018. 

In January 2021, Griffin was charged in CR-20-655484-A with 

assault in violation of R.C. 2903.13(A), a fifth-degree felony (Count 1), and 

harassment by inmate in violation of R.C. 2921.38(A), a fifth-degree felony 

(Count 2). 

In April 2021, Griffin entered a negotiated plea. Case Nos. CR-19-

647119-A, CR-20-650595-A, and CR-20-655484-A were consolidated.2 Griffin pled 

2 Case No. CR-19-639742-A was dismissed because Griffin was reindicted in CR20-650595-A. 
guilty in CR-19-647119-A to Count 1 as amended to assault in violation of 

2903.13(A), a first-degree misdemeanor; Count 2 as amended to abduction in 

violation of R.C. 2905.02(A)(1), a third-degree felony; and Count 3, aggravated riot, 

as charged. Griffin pled guilty in CR-20-650595 to Count 1, aggravated robbery with 

a one-year firearm specification; Count 5, grand theft; Count 8, having a weapon 

while under disability; and the forfeiture specification on all three counts. All other 

counts and specifications in CR-20-650595 were nolled. Griffin pled guilty in CR20-655484-A to Count 1, assault, as charged. Count 2, harassment by an inmate, 

was nolled. The parties recommended a four-year sentence with no judicial release. 

The trial court accepted Griffin’s guilty plea and sentenced Griffin to 

an aggregate of four to five and a half years in prison: In CR-20-650595-A, the trial 

court sentenced Griffin to three to four and a half years for aggravated robbery and 

a consecutive one-year firearm specification (Count 1), a concurrent ten months for 

grand theft (Count 5), and a concurrent two years for having a weapon while under 

disability (Count 8). The trial court ordered forfeiture of the weapon and nolled all 

other counts and specifications. In CR-19-647119-A, the trial court sentenced 

Griffin to six months for assault (Count 1), two years for abduction (Count 2), and 

ten months for aggravated riot (Count 3). In CR-20-655484-A, the trial court 

sentenced Griffin to ten months for assault (Count 1) and nolled Count 2. All 

sentences the trial court imposed in CR-19-647119-A and CR-20-655484-A were to 

run concurrently with those imposed in CR-20-650595-A. The trial court credited 

Griffin with 858 days of jail time and waived court costs and fines. 
During sentencing, the trial court advised Griffin of the effect of the 

Reagan Tokes Act in calculating the indefinite sentence of three to four and a half 

years for aggravated robbery. Griffin now appeals this judgment. 

II. Indefinite Sentencing as Plain Error 

A sentencing error renders the sentence voidable. State v. 

Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776; State v. Harper, 

160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. A voidable judgment may 

be set aside if successfully challenged on direct appeal. Harper at ¶ 26, citing State 

v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28. 

When a party fails to object to an error in the trial court, a reviewing 

court may only notice plain errors or defects affecting substantial rights. 

Crim.R. 52(B). Payne at ¶ 15. A reviewing court is subject to three limits when 

correcting plain error:

“First, there must be an error, i.e., a deviation from the legal rule. * * * 

Second, the error must be plain. To be ‘plain’ within the meaning of 

CrimR. 52(B), an error must be an ‘obvious’ defect in the trial 

proceedings. * * * Third, the error must have affected ‘substantial 

rights[,]’ * * * mean[ing] that the trial court’s error must have affected 

the outcome of the trial.” 

Id. at ¶ 16, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 

1240. In the context of felony sentencing, an “outcome determinative” error would 

be a sentence that is clearly and convincingly contrary to law. 

R.C. 2953.08(G)(2)(b). See State v. Kellogg, 2013-Ohio-4702, 1 N.E.3d 457, ¶ 8 (8th 

Dist.). Reversal is warranted if the party asserting plain error can show that the 
outcome “would have been different absent the error.” Payne at ¶ 17, quoting State 

v. Hill, 92 Ohio St.3d 191, 203, 2001-Ohio-141, 749 N.E.2d 274. 

In his first assignment of error, Griffin argues that the trial court 

committed plain error by imposing an indefinite sentence under the Reagan Tokes 

Act. Specifically, Griffin argues that he did not plead guilty to a “qualifying offense” 

pursuant to R.C. 2929.144(A). 

The General Assembly enacted the Reagan Tokes Act in Am.Sub.S.B. 

No. 201, which went into effect on March 22, 2019. The Reagan Tokes Act applies 

to “qualifying felonies,” which are felonies “of the first or second degree committed 

on or after March 22, 2019.” R.C. 2929.144(A). The Act requires a sentencing court 

that is imposing a prison term for “qualifying felonies of the first or second degree” 

to impose an indefinite prison term for those offenses. It further specifies that these 

indefinite terms will consist of a stated minimum term selected by the sentencing 

judge from the range of basic prison terms set forth in R.C. 2929.14(A) “and a 

maximum term that is determined” by formulas provided in R.C. 2929.144. State v. 

Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 40.

None of the offenses to which Griffin pled guilty meets the definition 

of a “qualifying felony” under R.C. 2929.144(A). The Act applies only to felonies “of 

the first or second degree committed on or after March 22, 2019.” R.C. 2929.144(A). 

The only felony of the first or second degree to which Griffin pled guilty was 

aggravated robbery, a first-degree felony. However, Griffin committed this offense 
on November 25, 2018, before the Act’s effective date, so the robbery conviction does 

not qualify as felony “committed on or after March 22, 2019.” 

Because Griffin did not plead guilty to any qualifying felony, the trial 

court could not impose an indefinite sentence pursuant to R.C. 2929.14(A). 

Nevertheless, the trial court relied on the Reagan Tokes formula during the 

sentencing hearing and in its sentencing journal entry to reach an indefinite 

sentence of four to five and a half years. During the sentencing hearing, the trial 

court explained to Griffin that R.C. 2929.14(A) permits sentences ranging from 

three to eleven years for first-degree felonies. The trial court chose the minimum 

sentence of three years and, after detailing the Reagan Tokes sentencing scheme, 

added half this minimum, or one and a half years, to create a maximum sentence of 

four and a half years for the aggravated robbery. The trial court then added a 

consecutive year for the firearm specification, making Griffin’s aggregate sentence 

four to five and a half years in prison. The sentencing journal entry likewise cites 

the Reagan Tokes Act as informing Griffin’s indefinite sentence. 

Because none of the offenses to which Griffin pled guilty was a 

“qualifying offense” as that term is defined by R.C. 2929.144(A), the trial court 

improperly applied the sentencing formula provided by R.C. 2929.144 to impose on 

Griffin an indefinite sentence ranging four to five and a half years. This sentence is 

clearly and convincingly contrary to the plain language of R.C. 2929.144. Griffin 

requests this court to modify the sentence. We decline to do so. 
Accordingly, the sentence is vacated, and the matter is remanded to 

the trial court for resentencing. 

Appellant’s second assignment of error is moot. 

Judgment 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 J. BOYLE, ADMINISTRATIVE JUDGE 

SEAN C. GALLAGHER, J., and 

MICHELLE J. SHEEHAN, J., CONCUR