State v. Bond

• Decision Date: 05 May 2022
• Docket Number: 110022
• Citation: 2022 Ohio 1487
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. STEVEN BOND, JR., Defendant-Appellant.
• Court: Ohio Court of Appeals

2022-Ohio-1487

STATE OF OHIO, Plaintiff-Appellee, v. STEVEN BOND, JR., Defendant-Appellant.

No. 110022

Court of Appeals of Ohio, Eighth District

May 5, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-643079-B and CR-19-643142-A

JUDGMENT AFFIRMED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carl J. Mazzone, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V Wilhelm, Assistant Public Defender, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.

{¶ 1} Defendant-appellant, Steven Bond ("Bond"), appeals his sentence and claims the following errors:

1. The indefinite sentencing scheme set forth in the Reagan Tokes Law and imposed by the trial court in this case violates the federal and state Constitutions.

2. Mr. Bond's aggregate indefinite sentence of 12 to 16 years is not authorized by statute and is therefore contrary to law.

3. Mr. Bond was denied his right to the effective assistance of counsel as protected by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 10 of the Ohio Constitution when his attorney (1) did not object to the trial court's improper aggregating of indefinite terms in violation of R.C. 2929.144(B)(2), and (2) did not object to the improper application of the Reagan Tokes Law that resulted in a potential maximum sentence two years greater than the law allows.

{¶ 2} After reviewing the record and applicable law, we affirm the trial court's judgment.

I. Facts and Procedural History

{¶13} Bond pleaded guilty to multiple offenses in three separate cases. In Cuyahoga C.P. No. CR-19-639466-A, Bond pleaded guilty to one count of receiving stolen property. In Cuyahoga C.P. No. CR-19-643079-B, Bond pleaded guilty to one count of robbery, with a one-year firearm specification; one count of grand theft; and one count of aggravated theft. In Cuyahoga C.P. No. CR-19-643142-A, Bond pleaded guilty to one count of aggravated robbery, with a three-year firearm specification; and one count of having weapons while under disability.

{¶ 14} The robbery charge in C.P. No. CR-19-643079-B was a second-degree felony and the aggravated robbery charge in C.P. No. CR-19-643142-A was a first-degree felony. These charges were subject to the provisions of the Reagan Tokes Law, which sets forth an indefinite sentencing scheme for certain qualifying first-and second-degree felonies committed on or after March 22, 2019. R.C. 2967.271.

{¶15} In C.P. No. CR-19-643142-A, the court sentenced Bond to nine months on the having weapons while under disability charge. On the aggravated robbery charge, the court sentenced Bond to three years on the attendant firearm specification to be served prior to and consecutive with an indefinite prison term of four to six years. The court ordered the indefinite prison term on the aggravated robbery charge to be served concurrently with the nine months on the having weapons while under disability charge.

{¶ 6} In C.P. No. CR-19-643079-B, the court sentenced Bond to nine months on the grand theft conviction and 18 months on the aggravated theft, to be served concurrently with each other and to the sentence on the robbery charge in that case. On the robbery charge, the court sentenced Bond to one year on the attendant firearm specification to be served prior to and consecutive with an indefinite prison term of four to six years. After making the necessary findings, the court ordered the sentences in C.P. No. CR-19-643079-B and C.P. No. CR-19-643142-A to be served consecutively. Bond now appeals his sentences.

II. Law and Analysis

A. Reagan Tokes Act

{¶17} In the first assignment of error, Bond argues the indefinite sentences imposed by the trial court pursuant to the Reagan Tokes Law violates the Ohio and United States Constitutions. He contends the Reagan Tokes Law violates the separation-of-powers doctrine as well as his right to a jury trial and due process of law.

{¶ 8} Bond's first assignment of error is overruled pursuant to this court's en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.

B. Consecutive Indefinite Terms

{¶ 9} In the second assignment of error, Bond argues the trial court erred by ordering the two indefinite sentences, imposed under the Reagan Tokes Law in two separate cases, to be served consecutively.

{¶10} Bond failed to object to this asserted sentencing error in the trial court and, therefore, forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Crim.R. 52(B) authorizes appellate courts to correct "'[p]lain errors or defects affecting substantial rights' notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court." Id. at ¶ 22, quoting Crim.R. 52(B). To prevail under a plain error analysis, the appellant bears the burden of demonstrating that, but for the error, the outcome of the trial would clearly have been different. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.

{¶11} Bond argues the trial court failed to comply with the requirements of R.C. 2929.144(B)(2), which states that

[i]f the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.

(Emphasis added.)

{¶12} As previously stated, the trial court imposed indefinite prison terms on two "qualifying offenses" under the Reagan Tokes Law: Bond's robbery conviction in C.P. No. CR-19-643079-B and his aggravated robbery conviction in C.P. No. CR-19-643142-A. Bond contends that when more than one "qualifying felony" is to be served consecutively, R.C. 2929.144(B)(2) requires that the maximum term "be equal to the total of those terms so added by the court plus fifty percent of the longest minimum term or definite term for the most serious felony being sentenced." Bond argues the trial court failed to comply with R.C. 2929.144(B)(2) when it ordered him to serve two indefinite prison terms consecutively.

{¶13} We agree that when one or more qualifying felonies are ordered to be served consecutively, R.C. 2929.144(B)(2) only allows the court to impose fifty percent of the longest minimum term for the most serious felony being sentenced and does not allow the court to impose consecutive indefinite prison terms. However, RC. 2929.144(B)(2) only applies to consecutive prison terms imposed within a single case. Nothing in RC. 2929.144(B)(2) authorizes the court to use an indefinite prison term imposed on a qualifying felony in one case to calculate the indefinite prison term on a qualifying felony in a different case. R.C. 2929.144(B) requires the court imposing a prison term on an offender under R.C. 2929.14(A)(1)(a) or (2)(a) for a felony of the first or second degree to determine "the maximum prison term that is part of the sentence." R.C. 2929.144(C) further requires the court to "impose this maximum term at sentencing as part of the sentence it imposes under [R.C. 2929.14]," and to state this maximum "in the sentencing entry."

{¶14} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the Ohio Supreme Court held that a judgment of conviction is not a final, appealable order under RC. 2505.02 unless it complies with Crim.R. 32(C). Id. at ¶ 10. In accordance with Crim.R. 32(C), the court in Baker explained that "[o]nly one document can constitute a final appealable order." Id. at ¶ 17. And, the final order in a criminal case must "'be reduced to writing signed by the judge and entered by the clerk.'" Id., quoting State v. Tripodo, 50 Ohio St.2d 124, 363 N.E.2d 719 (1977). The journal entry must include all of the convictions in the case as well as the sentences imposed on each of the convictions in the case. Baker at syllabus. It follows, therefore, that two separate cases must have two separate journal entries in order to comply with Crim.R. 32(C) and Baker.

{¶15} Nothing in RC. 2929.144(C) suggests that the maximum term stated in the sentencing entry may include prison terms imposed in other cases in the calculation. If the legislature had intended to allow courts to include indefinite prison terms in separate cases when calculating consecutive sentence under R.C. 2929.144(B)(2), it could have done so, but it did not. In accordance with Baker and Crim.R. 32(C), each case has its own sentencing entry, and the trial court may order the sentences in two or more cases to be served consecutively. But the fact that the trial court in this case ordered the concurrent sentences within each case to be served consecutively does not change the calculation of the maximum prison term imposed in each individual case.

{¶16} The trial court sentenced Bond on each count and imposed a maximum prison term as part of the sentence in each case CR-19-643079-B and CR-19-643142-A. The court then ran the sentences within each case concurrently. Therefore, R.C. 2929.144(B)(3) rather than (B)(2) applied to determine the...