[Cite as State v. Freshwater, 2023-Ohio-1248.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- vs -

JOSHUA C. FRESHWATER,

Defendant-Appellant.

CASE NO. 2022-L-071

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2021 CR 001210

O P I N I O N

Decided: April 17, 2023

Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, 

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 

44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public 

Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Joshua C. Freshwater, appeals his sentence, following his nocontest pleas and the trial court’s findings of guilt, on one count of obstructing official 

business and one count of possession of cocaine. We affirm.

{¶2} In 2021, a police officer stopped Freshwater for a traffic violation. During 

the traffic stop, the officer smelled the odor of raw marijuana. The officer asked 

Freshwater to have a seat in the back of his cruiser. Freshwater did not comply with the 

request, and a physical altercation ensued between Freshwater and the officer, during 
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which the officer deployed his taser on Freshwater. The assistance of backup officers 

was required to detain Freshwater. Ultimately, officers searched and inventoried 

Freshwater’s vehicle, locating $1,000.00 in cash, together with certain instrumentalities

and contraband, including three individual baggies of cocaine, in the total amount of 83.92 

grams. 

{¶3} Thereafter, Freshwater was indicted on the following charges: (1) 

obstructing official business, in violation of R.C. 2921.31, a fifth-degree felony; (2) 

trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a first-degree felony; (3) 

possession of cocaine, in violation of R.C. 2925.11, a first-degree felony; (4) trafficking 

in marihuana, in violation of R.C. 2925.03(A)(2), a fourth-degree felony; (5) possession 

of marihuana, in violation of R.C. 2925.11, a fifth-degree felony; (6-8) three counts of 

aggravated possession of drugs, in violation of R.C. 2925.11, fifth-degree felonies; and

(9) possession of a fentanyl-related compound, in violation of R.C. 2925.11, a fourthdegree felony; and two forfeiture specifications attendant on each charge. 

{¶4} Freshwater initially pleaded not guilty and moved to suppress evidence. 

After hearing, the trial court denied the motion to suppress. Thereafter, Freshwater 

amended his plea to no-contest to the first and third counts (obstructing official business 

and possession of cocaine) and their attendant specifications, and the state agreed to 

move to dismiss the remaining counts pursuant to a plea agreement. The court found 

Freshwater guilty on the first and third counts, ordered a presentence investigation and 

victim impact statement, and set the matter for sentencing. Freshwater filed a sentencing 

memorandum, raising constitutional challenges to the Reagan Tokes Law, which governs 

his sentence on the possession of cocaine count. At sentencing, the court overruled 
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Freshwater’s challenges to the Reagan Tokes Law, imposed a prison term of 12 months 

on the first count and an indefinite prison term of five to seven and one-half years on the 

third count, to run concurrently, and ordered forfeiture of the items and cash set forth in 

the specifications.

{¶5} In his first assigned error, Freshwater argues:

The trial court erred in ordering the individual prison terms as 

outlined on each count, as the sentences are unsupported by 

the factors outlined in R.C. 2929.12 and are thus contrary to 

law.

{¶6} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a 

felony shall be guided by the overriding purposes of felony sentencing,” and it “shall 

consider the factors * * * relating to the seriousness of the conduct” and “to the likelihood 

of the offender’s recidivism.” R.C. 2929.12(A).

{¶7} R.C. 2953.08(G) governs our review of felony sentences, and provides, in 

relevant part, that after an appellate court’s review of the record, and it “may increase, 

reduce, or otherwise modify a sentence that is appealed under this section or may vacate 

the sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence 

is * * * contrary to law.” R.C. 2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No. 

2022-A-0060, 2023-Ohio-988, ¶ 11. 

{¶8} “A sentence is contrary to law when it is ‘in violation of statute or legal 

regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[a] sentence is contrary to law when it does not fall 

within the statutory range for the offense or if the trial court fails to consider the purposes 

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors 

set forth in R.C. 2929.12.’” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-
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Ohio-789, ¶ 11, quoting State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-

Ohio-199, ¶74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio7127, ¶18. The Supreme Court has further held that a sentence is contrary to law if “it is 

imposed ‘based on factors or considerations that are extraneous to those [seriousness 

and recidivism factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11, 

quoting State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. “But 

an appellate court’s determination that the record does not support a sentence does not 

equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is 

used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.

{¶9} Further, this court has frequently noted that “even though a trial court is 

required to consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make 

specific findings on the record to comport with its statutory obligations.” Shannon at ¶ 17, 

citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003, ¶ 24; State 

v. Blake, 11th Dist. Lake No. 2003-L-196, 2005-Ohio-686, ¶ 16.

{¶10} Given the holding in Jones, we are precluded from reviewing whether

Freshwater’s sentence is supported by the record under R.C. 2929.12. However, we will 

address Freshwater’s argument to the extent that he claims the trial court explicitly relied 

on facts that it was prohibited from considering or explicitly disregarded facts that it is 

mandated to consider. State v. Chase, 11th Dist. Lake Nos. 2020-L-070 & 2020-L-071, 

2021-Ohio-1006, ¶ 10, citing Jones at ¶ 47-49 (Fischer, J., concurring). 

{¶11} At the sentencing hearing and in the presentence report, Freshwater

detailed his struggles with drug addiction and indicated that he had historically been the 
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victim of violence as a result of his drug addiction. When discussing the R.C. 2929.12 

factors, the trial court stated:

Factors indicating the conduct is more or less serious, the 

Court does note other relevant factors indicating it more 

serious is the altercation, physical altercation, that the

Defendant engaged in with the Deputy at the time of the stop 

and the commission of the offense. That’s an indication of the 

type of stuff that can happen when committing drug offenses. 

There’s been comments about how the Defendant doesn’t 

have any history or convictions of violence and he doesn’t. 

But yet here’s an instance that because of drug use and 

because of trying to perhaps prevent officers from finding 

them, a physical altercation ensued.

There was a reference during the statements here that the 

Defendant has been, you know, beaten, he’s been stabbed 

and there’s just been a multitude of incidents where stuff like 

that has happened. Violent acts have happened. Not by the 

Defendant, but upon the Defendant. But it’s because of drug 

trafficking and drug dealing and that industry and being 

involved in that and that’s what happens. That’s why there’s 

a danger with the drug dealing because violence surrounds it.

While the Defendant may not have been the one that 

committed those violent acts, and they were committed upon 

him, that’s happening out in our community in our society right 

out in the open, these violent acts. That’s part of the danger 

and risks involved with drug dealing is that others, innocent 

people, could be injured or could be killed as a result of this 

stuff going on right out in the streets and in the communities. 

But in this particular case the Defendant did engage in a 

physical altercation with the police officer which makes this 

conduct more serious than normal.

No factors indicate it’s less serious.

As for the recidivism factors, the Court notes the Defendant 

does have a lengthy history of criminal convictions going back 

thirty years. He has not responded to previously imposed 

sanction. As noted, he’s been to prison on six prior occasions. 

Five in the State of Ohio; one Federal term. 

He had been released from probation just a couple months 

earlier, three, four months before the commission of this 
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offense. A drug abuse problem certainly relates to the 

commission of the offense and the Defendant is here today 

indicating that he knows, he knows he has an issue. He has 

attempted different steps at this point to address what’s 

happened over the past thirty years. But that’s just something 

that happened now. And we don’t know because we’ve gone 

through this before in the past.

No factors indicate recidivism is less likely. I will note the 

Defendant has put himself in this program at Ed Keating and 

for a decent amount of time and appears to be doing well. But 

we’re talking thirty years of conduct here. But that is 

something to be noted under the less likely recidivism factors.

{¶12} Based upon the trial court’s above statements at sentencing, Freshwater 

maintains that the court erred in considering the physical altercation that occurred in this 

case as a factor indicating his conduct was more serious than conduct normally 

constituting the offenses. Freshwater contends that the fact of the physical altercation 

“goes beyond the factors outlined in R.C. 2929.12(B) and is irrelevant as it has no bearing 

on the conduct he is actually being sentenced for.” However, the R.C. 2929.12(B) factors 

for the trial court to consider in sentencing is not exhaustive, as the court may consider 

“any other relevant factors.” We are not persuaded that the physical altercation is 

“irrelevant” to the possession of cocaine charge. However, even were this court to agree 

with Freshwater on its irrelevance to that charge, the altercation was the primary basis of 

the obstructing official business charge. Accordingly, the altercation is highly relevant in 

sentencing and was properly considered. 

{¶13} Freshwater next maintains that the trial court erred in considering the fact 

that Freshwater had been the victim of multiple violent acts in the past as a factor making 

his conduct more serious. However, we do not read the trial court’s statements as 

indicating that Freshwater’s history as a victim of violent crimes made his conduct more 
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serious in this case; instead, the court contrasted Freshwater’s history of not perpetuating 

violence and of being the victim of violence with his conduct at issue in the present case, 

where he acted violently toward a police officer. 

{¶14} Freshwater lastly contends that the trial court “completely ignored” the

mitigating factor of his remorse, particularly in light of his “significant steps in treatment to 

make changes in his life.” However, the trial court specifically acknowledged his 

treatment when discussing the recidivism factors. Further, to the extent that Freshwater 

expressed remorse for the offenses, the trial court was not required to expressly state 

that it had considered his remorse, nor was it required to find Freshwater’s statements of 

remorse credible. See State v. Rutherford, 11th Dist. Lake No. 2020-L-033, 2020-Ohio3934, ¶ 7.

{¶15} Based upon the foregoing, Freshwater’s first assigned error is without merit.

{¶16} In his second through fifth assigned errors, Freshwater argues:

[2.] The Defendant-Appellant’s indeterminate prison sentence 

on count three of five to seven and one-half years that was 

ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 

201, must be reversed as the Reagan Tokes Act is 

unconstitutionally void for vagueness.

[3.] The Defendant-Appellant’s indeterminate prison sentence 

on count three of five to seven and one-half years that was 

ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 

201, must be reversed as the Reagan Tokes Act 

unconstitutionally violates the doctrine of separation of 

powers.

[4.] The Defendant-Appellant’s indeterminate prison sentence 

on count three of five to seven and one-half years that was 

ordered pursuant to the “Reagan Tokes Act,” aka Senate Bill 

201, violates his constitutional right to trial by jury as 

guaranteed by the Sixth and Fourteenth Amendments to the 

United States Constitution and Article I, Section 5 of the Ohio 

Constitution.
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[5.] The Defendant-Appellant’s indeterminate prison sentence 

of five to seven and one-half years that was ordered pursuant 

to the “Reagan Tokes Act,” aka Senate Bill 201, violates his 

constitutional rights to fair trial and due process as guaranteed 

by the Fifth, Sixth and Fourteenth Amendments to the United 

States Constitution and Article I, Sections 5 & 10 of the Ohio 

Constitution.

{¶17} In Freshwater’s second through fifth assigned errors, he raises 

constitutional challenges to the Reagan Tokes Law, under which he received an 

indeterminate prison sentence of five to seven and one-half years on the possession of 

cocaine count. 

{¶18} Initially, we note that Freshwater did not raise the void for vagueness 

challenge contained in his second assigned error in the trial court. “While an appellate 

court may hear a constitutional challenge that has not been raised below, such an issue 

is evaluated only for plain error.” State v. Shannon, 11th Dist. Trumbull No. 2021-T-0049, 

2022-Ohio-4160, ¶ 42, citing State v. Freetage, 11th Dist. Portage No. 2020-P-0083, 

2021-Ohio-4050, ¶ 34. “‘When the court hears an appeal for plain error, it must presume 

the constitutionality of the statute at issue and will not invalidate it unless the challenger 

establishes that it is unconstitutional beyond a reasonable doubt.’” Shannon at ¶ 42, 

quoting Freetage at ¶ 34. Nonetheless, this court has previously considered the 

arguments raised in Freshwater’s second assigned error, as well as his third through fifth 

assigned errors, and for the reasons addressed below, the trial court did not err in finding

the Reagan Tokes Law constitutional. 

{¶19} The issue of the facial constitutionality of the Reagan Tokes Law is currently 

pending before the Supreme Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case 

No. 2020-1496; and State v. Simmons, Sup. Ct. Case No. 2021-0532. This court has 
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addressed the constitutional challenges that Freshwater advances in State v. Moran, 

2022-Ohio-3610, 198 N.E.3d 922 (11th Dist.), State v. Taylor, 2022-Ohio-3611, 198 

N.E.3d 956 (11th Dist.), and State v. Scott, 11th Dist. Trumbull No. 2022-T-0084, 2023-

Ohio-1091. Therein, we “determined that the Reagan Tokes Law does not violate the 

doctrine of separation of powers, an appellant’s constitutional rights to due process, fair 

trial, or trial by jury, and, further, that it is not void for vagueness.” State v. Stearns, 11th 

Dist. Lake No. 2021-L-091, 2022-Ohio-4245, ¶ 29, appeal allowed, 2023-Ohio-554. 

Further, “the constitutionality of the Reagan Tokes Law has been addressed by other 

Ohio appellate courts, each of which has declared that the sentencing scheme does not 

facially violate an inmate’s constitutional rights.” Moran at ¶ 4, citing State v. Barnes, 2d 

Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-Ohio-5048, 161 

N.E.3d 112 (3d Dist.), appeal allowed in part, 161 Ohio St.3d 1449, 2021-Ohio-534, 163 

N.E.3d 585; State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d 607 (4th Dist.); State v. 

Ratliff, 2022-Ohio-1372, 190 N.E.3d 684 (5th Dist.), appeal allowed, 167 Ohio St.3d 1481, 

2022-Ohio-2765, 192 N.E.3d 516; State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682 

(6th Dist.); State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc), appeal 

allowed, 166 Ohio St.3d 1496, 2022-Ohio-1485, 186 N.E.3d 830; and State v. Guyton, 

12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. See also State v. Guyton, 1st 

Dist. Hamilton No. C-190657, 2022-Ohio-2962, appeal allowed, 168 Ohio St.3d 1418, 

2022-Ohio-3752, 196 N.E.3d 850, ¶ 1; and State v. Runner, 2022-Ohio-4756, 204 N.E.3d 

162 (7th Dist.).

{¶20} For the reasons stated in Moran, Taylor, and Scott, Freshwater’s second

through fifth assigned errors are without merit.
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{¶21} The judgment is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.