[Cite as State v. Hunter , 2022
- Ohio
- 1072.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 1 10 738 v. : THEOPHOLIS HUNTER , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 31, 2022

C riminal Appeal from the Cuyahoga County Court of Common Pleas

Case No s . CR

- 20
- 654001

- A, CR

- 20
- 654024

- A, CR

- 20
- 652003

- A and CR

- 20
- 652029

- A

Appearances: Michael C. O’Malley, Cuyaho ga County Prosecuting Attorney, and Jonathan Block , Assistant Prosecuting Attorney , for a

ppellee

. Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for a p pellant

. EILEEN A. GALLAGHER , J.:

D efendant

- appellant Theopholis Hunter appeals his indefinite

sentence s after he pled guilty to multiple offenses in four criminal cases.

On July 8, 2021, Hunter pled guilty to the following charges:● In CR

- 20
- 652003

- A , Hunter pled guilty to one count of receiving stolen property in violation of R.C. 2913.5 1 (A) (a fourth

- degree felony) and one count of i mproper handling firearm s in a motor vehicle in violation of R.C. 2923.16(B) (a fourth

- degree felony) , with forfeiture specifications ;

● In CR

- 20
- 652029

- A , Hunter pled guilty to one count of f elonious assault in violation of R.C

. 2903. 11(A)(1) (a second

- degree felony ) with a one

- year firearm specification, one count of i mproper d ischarge i nto a h abitation i n violation of R.C. 2923.161(A)(1) (a second

- degree felony ) and one count of r eceiving s tolen p roperty in violation of R.C. 2913.51( A) (a fourth

- degree felony ) ;

● In CR

- 20
- 654001

- A , Hunter pled guilty to one count of a ttempted a ggravated r obbery in violation of R.C. 2923.02/2911.01(A)(1) (a second

- degree felony) with a one

- year firearm specification and

● In CR

- 20
- 654024

- A, Hunter p led guilty to one count of a ssault in violation of R.C. 2903.13(A) ( a fifth

- degree felony ) and one count of h arassment by an i nmate in violation of R.C. 2921.38(A) ( a fifth

- degree felony ). The trial court imposed a one

- year prison sentence on each of the firearm specifications in CR

- 20
- 652029

- A and CR

- 20
- 654001

- A to be served consecutively to each other and prior to an d consecutive ly to all other sentences.
T he trial court imposed an aggregate minimum prison term of two years and a
maximum prison term of three years on the underlying offenses as follows

. In CR

20
- 652029

- A , the trial court sentenced Hunter to a minimum term of two years and a maximum term of three years on the underlying offense in the felonious assault count, two y ears on the improper discharge into a habitation count and six months on the receiving stolen property count , to be served concurrently with each other and concurrently with the sentences on all other underlying offenses . In CR

- 20
-654001

- A , the trial cour t sentenced Hunter to a minimum term of t wo years and a maximum term of three years on the underly ing offense in the attempted aggravated robbery count and six months each on the as sault and h arassment by inmate counts , to be served concurrently with each other and concurrently with the sentences on all other underlying offenses . The court imposed six

- month sentences on each of the
counts in CR

- 20
- 652003

- A and CR

- 20
- 654024

- A , to be served concurrently with each other and concurrently with the sentences on all other underlying offenses

. Hunter appeals his indefinite sentence s imposed pursuant to the Reagan Tokes Law , arguing that the indefinite sentence s are unconstitutional and violate the right to trial by jury, the separation

- of

- powers doctr ine and due process

. He presents the following assignment of error for review: As amended by the Reagan To k es Act, the Revised Code’s sentences for first

- and second

- degree qualifying felonies violates the Constitutions of the United States and the State of Ohio; the trial court plainly erred in imposing a Reagan Tokes indefinite sentence. 1 The arguments presented in this case do not present novel issues or any new theory challenging the constitutional validity of any aspect of the Reagan Tokes Law left unaddressed by this court’s en banc decision in State v. Delvallie , 8th

1 Although Hunter asserts in his assignment of error that the trial court “plainly erred” in imposing indefinite sentences under the Reagan Tokes Law, Hunter did object to the constitutionality of his indefinite sentences below , specifically assertin g th at “the Reagan Tokes Act, as it amended the Ohio Revised Code sentences for first and second degree qualifying felonies * * * violates the defendant’s constitutional right to trial b y jury as well as violates the separation of powers and due process in both the federal and state constitution[s]

. ”Dist. Cuyahoga No. 109315, 202 2
- Ohio

- 470
. Accordingly, pursuant to Delvallie , we

overrule Hunter’s assignment of error.

Judgment affirmed

. It is ordered that appell ee recover from appell ant the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mand ate iss ue out of this court directing the Cuyahoga County Court of Common P leas to carry this judgment into ex ecution. The defendant’s conviction s having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

________________________ EILEEN A. GALL

AGHER , JUDGE
FRANK D ANIEL CELEBREZZE, III , P .J. , and EMANUELLA D. GROVES , J., C ONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.