[Cite as State v. Sealey , 2022

- Ohio

- 1166.]

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

Plaintiff

- Appell ant , : No. 109 670
v. :
ANTOINE SEALEY , JR., :

Defendant

- Appell ee
. :

JOURNAL ENTRY AND OPINION EN BANC
JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: April 7, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 19
- 6 44811

- A

Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, an d Daniel T. Van , Assistant Prosecuting Attorney , for a

ppell ant

. Cullen Sweeney , Cuyahoga County Public Defender, and Frank Cavallo, Assistant Publi c Defender, for a ppel lee

. SEAN C. GALLAGHER , A. J. : {¶ 1} The state of Ohio appeals the trial court’s conclusion declaring the Reagan Tokes Law to be unconstitutional. For the following reasons, the trial court’s decision is reversed and the matter remanded for further proceedings.{¶ 2} Antoine Sealey, Jr. , pleaded g uilty to aggravated robbery in violation of

R.C. 2911.01(A)(1) , a first

- degree felony, with a one

- year firearm specification. The trial court concluded that the Reagan Tokes Law was unconstitutional and did not sentence Sealey under R.C. 2929.144 or 2929. 14(A)(1)(a) , instead reverting to the sentencing structure before the effective date of the Reagan Tokes Act . Sealey was
sentenced to a definite term of three years in prison for the aggravated robbery and one year in prison for the firearm specification, to run consecutive to one another, resulting in an aggregate four

- year term of imprisonment. {¶ 3} T he panel decision in State v. Sealey , 2021
- Ohio

- 1949, 173 N.E.3d 894, ¶ 45 (8th Dist.) , affirmed the trial court’s decision, concluding that “the Reagan Tokes Law” violates Sealey’s constitutional rights and, as a result, “the trial court’ s finding the Reagan Tokes Law unconstitutional is affirmed * * *.” Id. a t ¶ 44

- 45. Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ ., 120 Ohio St.3d 54, 2008

- Ohio

- 4914, 896 N.E.2d 672, this court sua sponte determine d that the panel decision in Sealey conflicts with State v. Gamble , 8th Dist. Cuyahog a No. 109613, 2021

- Ohio

- 1810, State v. Simmons , 8th Dist. Cuyahoga No. 109476,

2021
- Ohio

- 939, and State v. Wilburn , 8th Dist. Cuyahoga No. 109507, 2021

- Ohio

578 , which overruled the same arguments advanced in this case

. {¶ 4} In this appeal, in support of the t rial court’s conclusion, Sealey claims, citing the Fourteenth Amendment to the United States Constitution and Article I, Section 16, of the Ohio Constitution , (1) that the Reagan Tokes Law violates the right to trial by jury , (2) that the Reagan Tokes Law violates the separation

- of

- powersdoctrine , or (3) that R.C. 2967.271(C) and (D), which provide offenders with the

right to a hearing before imposition of the maximum term imposed under R.C. 2929.144, fail to provide the full panoply of constitutional pret rial rights in violation of their due process rights. We need not dwell on the arguments presented. Based on the authority established by this district’s en banc holding in State v. Delvallie , 8th Dist. Cuyahoga No. 109315, 2021

- Ohio

- 470 , th ose challenges advanced against
the constitutional vali dity of the Reagan Tokes Law have been overru led, contrary
to the conclusions reached in Sealey , which was vacated through this court’s majority en banc decision and is no longer the decision in this case

. See id. at ¶ 17

-
51, 103 ; App.R. 26(A)(2). {¶ 5} Upon review of the case under App.R. 26, the arguments presented in this case do not present novel issues or any new theory challenging the constitutional validity of the Reagan Tokes Law. As a result, Sealey ’s sentence imposed upon the aggravated robbery conviction without consideration of R.C. 2929.144 or 2929.14(A)(1)(a) is void

. Sealey’s sentence is therefore vacated. This
case is remanded for a new sentencing hearing to be conducted in accordance with R.C. 2929.144 , 2929.14(A)(1)(a) , and all other applicable statutory sections. {¶ 6} Vacated and remanded

. It is ordered that appell ant recover from appell ee 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. Case remanded to the
trial court for further proceedings consistent with this opinion

. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

__ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

MARY J

. BOYLE, FRANK DANIEL CELEBREZZE, III, EILEEN A. GALLAGHER, KATHLEEN ANN KEOUGH, CORNELIUS J. O’SULLIVAN, JR., and MICHELLE J. SHEEHAN, J J., CONCUR; LISA B. FORBES, EILEEN T. GALLAGHER, EMANUELLA D. GROVES, MARY EILEEN KILBANE, and ANITA LASTER MAYS, J J., CONCUR IN JUDGMENT ONLY N.B. Judge Lisa B. Forbes is constrained to apply Delvallie . For a full explanation, see State v

. Delvallie , 8 th Dist. Cuyahoga No. 109315, 2022

- Ohio

- 470 (Forbes, J., dissenting). Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis see State v. Delvallie , 8 th Dist. Cuyahoga No. 109315, 2022
- Ohio

- 470. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that R.C. 2 967.271(C) and (D) of the Reagan Tokes Law are unconstitutional. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judg e Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional

. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes and the concurring in part and dissenting in part opinion by Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.