First District Roundup!

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10/12/2022
In re: R.Z.
C-210660
Quote from Judge Bock:
In 2015, Carolyn Johnson woke up and found her house in disarray. Suspecting a burglary, she called the police. As part of the investigation, detective Carl Blackwell swabbed an out-of place kitchen knife and two liquor bottles for biological evidence and submitted the swabs to the Hamilton County Crime Laboratory for DNA testing. In March 2016, Blackwell received a testing report, which noted the presence of “a mixture of DNA from at least three individuals” on the knife. From that mixture, the laboratory identified a major DNA profile that “originated from a male individual.” The police uploaded that profile to the Combined DNA Index System (“CODIS”).

        The juvenile was a “child” under R.C. 2152.02 and fell within the juvenile court’s exclusive subject-matter jurisdiction under R.C. 2151.23(A)(1) because he was apprehended before his 21st birthday for an alleged act committed before his 18th birthday.
                 The state properly exercised its right to appeal under R.C. 2945.67(A) because the juvenile court’s finding of no probable cause, and subsequent sua sponte dismissal of the charge, was the functional equivalent of granting a motion to dismiss.
                    The juvenile court’s order dismissing the juvenile complaint without prejudice was a final, appealable order under R.C. 2505.02(B)(4), because the dismissal prevented an adjudication of the delinquency charges alleged in the complaint.
            The state did not meet its burden of establishing probable cause to believe that the juvenile engaged in conduct that would have constituted burglary if he was an adult when the only evidence connecting the juvenile to the crime consisted of a BCI notification, which established only a preliminary association between the juvenile and biological evidence recovered from the scene, was an investigative lead, and required additional verification, and the state failed to present evidence explaining the meaning of a preliminary association to the juvenile court. [But see DISSENT:  Where the state presented evidence that a DNA hit in CODIS identified a preliminary association between the juvenile and the DNA found on evidence from the scene, that the victim did not know the juvenile, and that there was no reason for the juvenile to have been in victim’s home, there was probable cause to find that the juvenile engaged in conduct that would have constituted the offense of burglary if committed by an adult.]
JUDGMENT:   AFFIRMED

10/12/2022
State of Ohio v. James Kelly
C-200013
Quote from Judge Bock:
Kelly was indicted on one count of conspiracy to commit murder in violation of R.C. 2923.01(A)(1) and one count of having a weapon while under a disability in violation of R.C. 2923.13(A)(2). Kelly entered a guilty plea to the conspiracy count in exchange for the state’s dismissal of the having-a-weapon-while under-a-disability charge. The court continued the matter for a presentence investigation. Before his sentencing hearing, Kelly moved to strike the indefinite sentencing provision of R.C. 2967.271 (“Regan Tokes Law”).
The trial court overruled Kelly’s motion. The trial court accepted Kelly’s plea, found him guilty, and, after a presentence investigation, sentenced him.
            The trial court did not err by sentencing defendant under the Reagan Tokes Law as this court previously held that the law is facially constitutionalin State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962.
The trial court failed to comply with the R.C. 2929.19(B)(2)(c) notification requirements during sentencing, and, therefore, the cause must be remanded for the trial court to provide the notifications.
Defendant received the effective assistance of counsel where the indictment reflected that there was no coconspirator charged; therefore, defendant’s argument that the coconspirator was the principal fails because defendant was the sole person indicted and convicted of conspiracy to commit murder, and the record does not support that a challenge to the violent-offender-database registration requirement would have been successful.
JUDGMENT:    AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED

10/12/2022
State of Ohio v. Sherry Smith
C-210449
Quote from Judge Bock:
Smith entered no contest pleas to (1) aggravated vehicular homicide, a second-degree-felony offense in violation of R.C. 2903.06(A)(1 (a), (2) aggravated vehicular homicide, a third-degree-felony offense in violation of R.C. 2903.06(A)(2)(a), (3) aggravated vehicular assault, a third-degree-felony offense in violation of R.C. 2903.08(A)(1)(a), and (4) vehicular assault, a fourth-degree-felony offense in violation of R.C. 2903.08(A)(2)(b). The offenses occurred on or about December 24, 2020, subjecting Smith to the indefinite sentencing provisions of the Reagan Tokes Law, effective March 22, 2019.
Smith filed a motion to strike the indefinite sentencing provisions of the Reagan Tokes Law, arguing that the law was unconstitutional because it violated the separation-of-powers doctrine and deprived an offender of adequate procedural due process. The trial court rejected Smith’s constitutional challenges.

Constitutional challenges to the Reagan Tokes Law are ripe for review on direct appeal.
The Reagan Tokes Law does not violate the separation-of-powers doctrine or substantive- and procedural-due-process rights. 
Where the provisions of the Reagan Tokes Law do not allow the Ohio Department of Rehabilitation and Correction to increase an offender’s penalty based upon facts not found by a jury, the law does not violate the right to a trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 5 of the Ohio Constitution. 

JUDGMENT:        Affirmed

10/14/2022
State of Ohio v. Raeshawn Wilson
C-220117
Quote from Judge Bergeron:
In June 2021, Mr. Wilson—already intoxicated—stumbled into a bar seeking a good place to continue consuming. Victims Cody Page, Ethan Greene, and Charles Gerhardt IV confronted Mr. Wilson as he entered and told him that he couldn’t bring the bottle of alcohol that he was clutching into their bar. A physical and verbal altercation ensued when Mr. Wilson refused to comply. He then started a fight with a bouncer in the bar. As the fracas grew and morphed into a bar brawl, Mr. Wilson removed a firearm from his waistband, racked the slide, and pointed the firearm at each of the three victims. Understandably, the victims feared for their lives. Tensions eventually deescalated after this (fortunately no shots were fired), and the victims reported the incident to authorities later that day.
In December 2021, Mr. Wilson entered guilty pleas to the three charges of aggravated menacing based on these events. At the sentencing hearing, the trial court imposed three consecutive 180-day sentences. On a motion to reconsider, the trial court modified Mr. Wilson’s sentences to allow for two-for-one and three-for-one jail-time credit. Mr. Wilson now appeals, challenging the length of the aggregate sentence imposed.

                     The trial court did not abuse its discretion in sentencing defendant to consecutive maximum sentences where the trial court considered the relevant statutory factors in determining defendant’s sentences.
JUDGMENT:  AFFIRMED

10/14/2022
State of Ohio v. Lewis Thomas, III
C-210659
Judgement Entry:
Defendant-appellant Lewis Thomas, III, appeals the common pleas court’s judgment denying his R.C. 2953.21 petition for postconviction relief. Because Mr. Thomas’s postconviction claim challenging the trial court’s alleged lack of subject-matter jurisdiction over his felony trial has previously been considered by this court as well as the common pleas court, Mr. Thomas’s petition is barred by res judicata. Accordingly, we affirm the common pleas court’s judgment.

10/14/2022
State of Ohio v. Deraun Dixon
C-210502
Quote from Judge Bock:
Dixon pled guilty to one count of felonious assault in violation of R.C. 2903.11(A)(2), with a firearm specification. The parties agreed to a recommended indefinite sentence under the Reagan Tokes Law. The trial court imposed the agreed sentence. Dixon now appeals.

The trial court did not err by sentencing defendant pursuant to the Reagan Tokes Law as this court previously held that the law is facially constitutional and does not violate the separation-of-powers doctrine or due process in State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, and that the law does not violate an inmate’s right to trial by jury in State v. Smith, 1st Dist. Hamilton No. C-210449, 2022-Ohio-3629.
Defendant received the effective assistance of counsel as the Reagan Tokes Law is facially constitutional; therefore, any challenge to defendant’s being sentenced under the law would have been futile.

JUDGMENT: AFFIRMED

10/14/2022
State of Ohio v. Keesean Savage
C-190756
Quote from Judge Bock:
Before trial, the state moved for a finding that the counts were not allied offenses of similar import.
Detective Antonio Hamilton, the only witness at the hearing on the motion, testified that T.H. was waiting to catch a bus to work when Savage asked her for a cigarette. T.H. gave Savage the cigarette and Savage walked away through a gate. He came back and told T.H. that the car that had recently hit his car was located behind a building in the parking lot. Savage asked T.H. to take photos with her phone.
Hamilton testified that T.H. had turned to take another picture when Savage grabbed her from behind by the throat, lifted her up, and dragged her to an alleyway “quite a few feet” away “where there’s crates out of sight of the parking lot.” The only way to get out of the alley, which was out of the view of the public, was through the parking lot. Once Savage got T.H. in the alley, he made her put her shirt over her face and pull down her pants. Savage then raped T.H. Once he completed the rape, he told her to wait ten minutes, picked up the phone that she dropped when he grabbed her, and “took off.” T.H. went to a nearby fire station for help.
Defendant’s offenses of rape and kidnapping were not allied as the act of dragging the victim into the alley to rape her exposed her to the risk of additional harm.
The trial court’s failure to inform defendant of the rebuttable presumption of release under R.C. 2929.19(B)(2)(c) was harmless error as it strictly complied with Crim.R. 11(C)(2)(c) and substantially complied with Crim.R. 11(C)(2)(a)-(b).
The trial court properly considered the purposes and principles of sentencing under R.C. 2929.11(A)-(B) and 2929.12 and did not err in finding that defendant entered his pleas voluntarily, knowingly, and intelligently.
The trial court did not err by sentencing defendant pursuant to the Reagan Tokes Law as this court previously held that the law is facially constitutionalin State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962 [But see DISSENT: The Reagan Tokes Law is unconstitutional because it violates the fundamental requirements of procedural due process.].
JUDGMENT:  AFFIRMED