[Cite as State v. Daniel,
2022-Ohio-1165.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109583
v. :
KEIWAUN DANIEL, :
Defendant-Appellant. :
EN BANC DECISION AND JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED IN PART
RELEASED AND JOURNALIZED: April 7, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640871-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ashley Gilkerson Elias, Assistant
Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, for
appellant.
SEAN C. GALLAGHER, A.J.:
Keiwaun Daniel appeals his three- to four-year prison sentence,
imposed under R.C. 2929.144 challenging the constitutionality of the Reagan Tokes
Law, as well as the no-contact order that the court imposed as part of his sentence.
The state concedes the error with respect to the no-contact order; however, based
on this court’s en banc policy, this opinion is divided into two parts: (1) the decision
of the en banc court with respect to the constitutional validity of Daniel’s final
sentence, and (2) the decision of the merit panel resolving the no-contact order
issue, which is outside the scope of the en banc review.
Decision of the En Banc Court
After reviewing the facts of the case and pertinent law, we conclude that
the Reagan Tokes Law does not violate Daniel’s constitutional rights based on the
arguments presented, and the panel decision in State v. Daniel, 2021-Ohio-1963,
173 N.E.3d 184, ¶ 46 (8th Dist.), because it was vacated by a majority of this court
sitting en banc in State v. Delvallie, 8th Dist. Cuyahoga No. 109315,
2021-Ohio-470,
¶ 103, and is no longer the decision for this case. App.R. 26(A)(2).
Daniel pleaded guilty to robbery in violation of R.C. 2911.02(A)(1), a
second-degree felony, with a one-year firearm specification. The trial court held a
sentencing hearing at which it was noted that although “[t]his Court has found in
the past that Reagan Tokes is unconstitutional[,]” the court nonetheless sentenced
Daniel to an indefinite prison term under R.C. 2929.144 and 2929.14(A)(2)(a), a
minimum two-year term of imprisonment for the robbery and one year in prison for
the firearm specification, to run consecutively, for a minimum prison sentence of
three years and a maximum prison sentence of four years (the maximum term being
calculated as 50 percent of the minimum term imposed under R.C. 2929.144(B)(1)).
The panel decision in Daniel, however, vacated the sentence,
concluding that “the Reagan Tokes Law does not satisfy the requirements of due
process and, as such, violates Daniel’s constitutional rights.” Id. at ¶ 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 determined that
the panel decision in Daniel conflicts with State v. Gamble, 8th Dist. Cuyahoga 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, in
which Daniel’s similar arguments challenging the constitutional validity of the
Reagan Tokes Law were overruled.
In this appeal, Daniel 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-powers doctrine, 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 pretrial 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, 2022-
Ohio-470, the challenges advanced against the constitutional validity of the Reagan
Tokes Law have been overruled, contrary to the conclusions reached in Daniel,
which is no longer the decision in this case. See Delvallie at ¶ 17-54, 103.
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 any aspect of the Reagan Tokes Law left unaddressed by
Delvallie. As a result, Daniel’s robbery conviction, imposed in compliance with the
Reagan Tokes Law sentencing scheme, is not unconstitutional based on the
arguments he presents. To secure and maintain uniformity of decisions within the
district, we vacate the panel decision in Daniel and issue this decision as the final
decision in this appeal based on the outcome reached in this court’s en banc decision
in Delvallie.
__
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, JJ., CONCUR;
LISA B. FORBES, EILEEN T. GALLAGHER, EMANUELLA D. GROVES, MARY
EILEEN KILBANE, and ANITA LASTER MAYS, JJ., CONCUR IN JUDGMENT
ONLY
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 8th 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, 8th 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. 2967.271(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 Judge 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.
Decision of the Merit Panel
LISA B. FORBES, P.J.:
Keiwaun Daniel (“Daniel”) appeals his three- to four-year prison
sentence, challenging the no-contact order that the trial court imposed as part of his
sentence. The state of Ohio concedes this error. After reviewing the facts of the case
and pertinent law, we find that the court erred by imposing a no-contact order in
this case. The no-contact order is vacated, and this case is remanded to the trial
court for proceedings consistent with this opinion.
I. Facts and Procedural History
On January 29, 2020, Daniel entered a guilty plea to robbery in
violation of R.C. 2911.02(A)(1), a second-degree felony, with a one-year firearm
specification. On February 13, 2020, the court sentenced Daniel to two-to-three
years in prison for the robbery and one year in prison for the firearm specification,
to run consecutively, for a minimum prison sentence of three years and a maximum
prison sentence of four years. The court also imposed a no-contact order prohibiting
any contact with the victim. It is from this sentence that Daniel appeals.
II. Law and Analysis
In his second assignment of error, Daniel argues the trial court erred by
imposing a prison sentence while also imposing a no-contact order. The state
concedes the trial court’s error concerning this issue. In State v. Anderson, 143 Ohio
St.3d 173,
2015-Ohio-2089,
35 N.E.3d 512, ¶ 32, the Ohio Supreme Court held that
courts “cannot impose a prison term and a community-control sanction for the same
offense.” A no-contact order is a community-control sanction. Id. at ¶ 17.
Daniel’s second assignment of error is sustained.
The no-contact order is vacated, and this case is remanded for further
proceedings consistent with this opinion.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__
LISA B. FORBES, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR
