State v. McMannis

[Cite as State v. McMannis, 2024-Ohio-415.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

GERALD LEE McMANNIS,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 22 MA 0049

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 21 CR 767

BEFORE:

William A. Klatt, Retired Judge of the Tenth District Court of Appeals,

Sitting by Assignment,

Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Edward A. Czopur,

Assistant Prosecuting Attorney, Plaintiff-Appellee and

Atty. Mark J. Lavelle, for Defendant-Appellant.

Dated: February 6, 2024

–2–

KLATT, J.

{¶1} Appellant, Gerald Lee McMannis, appeals from the May 13, 2022 judgment

of the Mahoning County Court of Common Pleas consecutively sentencing him to a total

indefinite prison term of 12 years (minimum) to 16 and one-half years (maximum) for

manslaughter and grand theft of a motor vehicle following a guilty plea. On appeal,

Appellant argues the Reagan Tokes Act is unconstitutional and alleges the trial court

erred in imposing consecutive sentences. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶2} On December 16, 2021, Appellant was indicted by the Mahoning County

Grand Jury on two counts: count one, murder, an unclassified felony in violation of R.C.

2903.02(A) and (D), and R.C. 2929.02(B); and count two, grand theft of a motor vehicle,

a felony of the fourth degree in violation of R.C. 2913.02(A)(1) and (B)(5).1 Appellant was

appointed counsel, pled not guilty at his arraignment, and waived his right to a speedy

trial.

{¶3} Appellant subsequently entered into plea negotiations with Appellee, the

State of Ohio. On March 24, 2022, Appellant withdrew his former not guilty plea and pled

guilty to: count one (amended), involuntary manslaughter, a felony of the first degree in

violation of R.C. 2903.04(A)(1); and count two (as charged), grand theft of a motor vehicle,

a felony of the fourth degree in violation of R.C. 2913.02(A)(1) and (B)(5). The trial court

accepted Appellant’s guilty plea after finding it was made in a knowing, intelligent, and

voluntary manner pursuant to Crim.R. 11. The court found Appellant guilty, ordered a

pre-sentence investigation (“PSI”), and deferred sentencing.

{¶4} A sentencing hearing was held on May 11, 2022. The trial court considered

the record, the PSI, the report from Community Corrections Association, and the

statements and recommendations of counsel and of Appellant. The court also considered

the purposes and principles of sentencing under R.C. 2929.11, the seriousness and

recidivism factors under R.C. 2929.12, the prison factors under R.C. 2929.13, and found

1 The charges stem from Appellant stabbing the victim to death then fleeing the scene in the victim’s vehicle.

Case No. 22 MA 0049

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that consecutive sentences pursuant to R.C. 2929.14 are necessary to protect the public

from future crimes and to punish Appellant.

{¶5} On May 13, 2022, the trial court consecutively sentenced Appellant to 11

years (minimum) to 16 and one-half years (maximum) on count one and 12 months on

count two. Thus, Appellant was ordered to serve a total indefinite prison term of 12 years

(minimum) to 16 and one-half years (maximum), less 174 days of jail-time credit. The

court further notified Appellant that he would be subject to mandatory post-release control

for up to five years, but not less than two years.

{¶6} Appellant filed a timely appeal and raises two assignments of error.2

ASSIGNMENT OF ERROR NO. 1

AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE’S

SENTENCES FOR QUALIFYING FELONIES VIOLATES THE

CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO.

{¶7} In his first assignment of error, Appellant argues the Reagan Tokes Act is

unconstitutional. In support of his argument, Appellant takes issue with the right to trial

by jury, the doctrine of separation of powers, the hearing requirement under R.C.

2967.271, due process of law, and the void-for-vagueness doctrine. (7/24/2022

Appellant’s Brief, p. 10-15).

{¶8} Am. Sub. S.B. No. 201, 2018 Ohio Laws 157, known as the “Reagan Tokes

Law,” significantly altered the sentencing structure for many of Ohio’s most serious

felonies by implementing an indefinite sentencing system for those non-life felonies of the

first and second degree, committed on or after March 22, 2019. “The Reagan-Tokes Act

is a massive piece of legislation amending dozens of statutes.” State v. Evans, 7th Dist.

Columbiana No. 22 CO 0031, 2023-Ohio-2373, ¶ 19.

2 On July 24, 2022, Appellant filed an appellate brief taking issue with his consecutive sentence and alleging

the Reagan Tokes Act is unconstitutional. On August 2, 2022, the parties filed a joint motion to stay pending

the Supreme Court of Ohio’s resolution regarding the constitutionality of the Reagan Tokes Act, which this

court granted. On July 26, 2023, the Supreme Court decided State v. Hacker, Slip Opinion No. 2023-Ohio-

2535, holding that the Reagan Tokes Act is constitutional. Thereafter, this court lifted the stay and

reactivated this appeal. The State filed its appellate brief on August 2, 2023.

Case No. 22 MA 0049

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{¶9} “This Court and others have upheld the general constitutionality of the

Reagan-Tokes Act, particularly with respect to due process, jury trial, separation of

powers, and equal protection.” Id., citing State v. Rose, 7th Dist. Jefferson No. 21 JE

0014, 2022-Ohio-3529; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-

470; State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372; see also

State v. Runner, 7th Dist. Belmont No. 22 BE 0004, 2022-Ohio-4756, ¶ 67 (“Ohio’s

indefinite sentencing structure does not violate the doctrine of the separation of powers,

nor does it violate [the] Appellant’s constitutional rights to due process of law or a trial by

jury.”) We have already found the Reagan Tokes Law “is constitutional beyond a

reasonable doubt.” Rose, supra, at ¶ 78.

{¶10} Appellant is concerned that the hearing requirement in R.C. 2967.271 is

too vague and fails to provide a minimum of due process.

However “(t)he fundamental requirement of due process is the opportunity

to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews

v. Eldridge, 424 U.S. 319, 333, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976), quoting

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62

(1965). As stated by the Eighth District Court of Appeals, “the procedures

employed under the Reagan Tokes Law provide at a minimum for notice of

a hearing at which an inmate has an opportunity to be heard” and therefore

“we hold that the law does not violate (the defendant’s) right to procedural

due process.” State v. Wilburn, 8th Dist. No. 109507, 2021-Ohio-578, 168

N.E.3d 873, ¶ 37.

Evans, supra, at ¶ 20.

{¶11} In Evans, relying on Rose, this court stated:

We thoroughly reviewed a due process challenge to the Reagan-Tokes Act

(specifically related to R.C. 2967.271) and held that “(t)he law under review

does not give the DRC [Department of Rehabilitation and Correction]

unfettered discretion to require an offender to serve more than the minimum

term. And it affords an offender notice and an opportunity to be heard before

more than the minimum may be required.’” Rose, supra, at ¶ 77, quoting

Case No. 22 MA 0049

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State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶

25. * * *

Evans, supra, at ¶ 21.

{¶12} Based on our prior review of this issue, we reject Appellant’s argument.

{¶13} Regarding Appellant’s void-for-vagueness claim, this court stated:

“‘(A) law will survive a void-for-vagueness challenge if it is written so that a

person of common intelligence is able to ascertain what conduct is

prohibited, and if the law provides sufficient standards to prevent arbitrary

and discriminatory enforcement.’” Klein v. Leis, 99 Ohio St.3d 537, 2003-

Ohio-4779, 795 N.E.2d 633, ¶ 16, quoting State v. Williams, 88 Ohio St.3d

513, 533, 728 N.E.2d 342 (2000). * * * The void-for-vagueness doctrine

arises when a statute is unclear regarding the types of behavior that is

prohibited.

Evans, supra, at ¶ 22.

{¶14} A contention that R.C. 2967.271 is vague because it does not provide

coherent due process rights is not a void-for-vagueness argument. Id. There is no

showing here that R.C. 2967.271 is not clear about some behavior being prohibited. See

Id. “In Rose, we determined that R.C. 2967.271 does not violate due process.” Id. at ¶

23, citing Rose at ¶ 77.

{¶15} Importantly, as stated, the Supreme Court of Ohio recently upheld the

constitutionality of Reagan Tokes. Specifically, the Supreme Court held that indefinite

sentencing under the Reagan Tokes Law is constitutional. Hacker, supra, at ¶ 1. The

Supreme Court found that Reagan Tokes does not violate the separation-of-powers

doctrine, the offender’s right to a trial by jury, or procedural due process. Id.

{¶16} Accordingly, Appellant’s claims are not well-taken as this court and the

Supreme Court of Ohio have upheld the constitutionality of Reagan Tokes. Rose, supra,

at ¶ 78; Evans, supra, at ¶ 25; Hacker, supra, at ¶ 1.

{¶17} Appellant’s first assignment of error is without merit.

Case No. 22 MA 0049

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ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES.

{¶18} In his second assignment of error, Appellant contends the trial court erred

in imposing consecutive sentences. Specifically, Appellant claims the “imposition of

consecutive sentences was not supported by the record.” (7/24/2022 Appellant’s Brief,

p. 19). Appellant also stresses he only had one prior criminal conviction and has shown

“genuine remorse for [these] crime[s].” (Id.)

{¶19} When reviewing a felony sentence, an appellate court must uphold the

sentence unless the evidence clearly and convincingly does not support the trial court’s

findings under the applicable sentencing statutes or the sentence is otherwise contrary to

law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; R.C.

2953.08(G)(2)(a)-(b).

Although trial courts have full discretion to impose any term of imprisonment

within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

R.C. 2929.11(A) provides that the overriding purposes of felony sentencing

are (1) “to protect the public from future crime by the offender and others”;

and (2) “to punish the offender (* * *) using the minimum sanctions that the

court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources.” Further, the

sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial

court must consider when determining the seriousness of the offense and

the likelihood that the offender will commit future offenses. The court that

imposes a felony sentence “has discretion to determine the most effective

Case No. 22 MA 0049

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way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). The factors a trial court may consider include the “more

serious” factors, such as “(t)he physical or mental injury suffered by the

victim of the offense due to the conduct of the offender was exacerbated

because of the physical or mental condition or age of the victim” and “(t)he

victim of the offense suffered serious physical, psychological, or economic

harm as a result of the offense.” R.C. 2929.12(B)(1) and (2). The court may

also consider the “less serious” factors, any recidivism factors, and any

mitigating factors listed in R.C. 2929.12(C)-(F).

R.C. 2929.11 does not require the trial court to make any specific findings

as to the purposes and principles of sentencing. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R.C. 2929.12

does not require the trial court to “use specific language or make specific

findings on the record in order to evince the requisite consideration of the

applicable seriousness and recidivism factors.” State v. Arnett, 88 Ohio

St.3d 208, 215, 724 N.E.2d 793 (2000).

State v. Scott, 7th Dist. Columbiana No. 22 CO 0034, 2023-Ohio-2640, ¶ 10-12, citing

State v. Shaw, 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36.

{¶20} Regarding consecutive sentences, R.C. 2929.14(C)(4) states:

(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

Case No. 22 MA 0049

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was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

R.C. 2929.14(C)(4)(a)-(c).

It has been held that although the trial court is not required to recite the

statute verbatim or utter “magic” or “talismanic” words, there must be an

indication that the court found (1) that consecutive sentences are necessary

to protect the public from future crime or to punish the offender, (2) that

consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger posed to the public, and (3) one of the

findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. Bellard, 7th

Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not

give its reasons for making those findings however. State v. Power, 7th Dist.

Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 38. A trial court must make

the consecutive sentence findings at the sentencing hearing and must

additionally incorporate the findings into the sentencing entry. State v.

Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100, ¶ 33-34,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37.

State v. Thomas, 7th Dist. Mahoning No. 18 MA 0025, 2020-Ohio-633, ¶ 41.

{¶21} At the sentencing hearing, the trial court heard from the prosecutor on

behalf of the State, defense counsel on behalf of Appellant, the victim’s two aunts, the

victim’s uncle, and Appellant (who apologized).

Case No. 22 MA 0049

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{¶22} It was revealed that Appellant lived with the victim when the two got into an

argument over money that was owed for drugs. (5/11/2022 Sentencing Hearing Tr., p.

11). Appellant pulled a knife and stabbed the victim 19 times until he was no longer

moving. (Id. at p. 10, 16). Appellant then stole the victim’s car after the killing. (Id. at p.

10).

{¶23} The trial court noted that due to the number of stab wounds, it was apparent

that Appellant’s purpose was to kill the victim. (Id. at p. 22). The court stated, “I’m going

to punish you appropriate[ly] for taking the life of another human being.” (Id. at p. 23).

Regarding R.C. 2929.11 and 2929.12, the court said, “I have to follow the statutory

guidance and look at your prior record.” (Id.) The court noted that even though

Appellant’s prior criminal record was short, it did include a probation violation which the

court found to be indicative of Appellant not being able to positively respond to sanctions

in the past. (Id. at p. 24). The court stated, “I look at the seriousness factors and, of

course, the victim suffered as serious a physical harm as he could suffer.” (Id. at p. 25).

The court additionally noted this was a homicide and Appellant’s relationship with the

victim facilitated the offense. (Id.) The court indicated, “I don’t find anything to say that it

is less serious. So recidivism is more likely than not and the crime is far more serious.”

(Id.) The court then proceeded to explain the Reagan Tokes Act, post-release control,

and Appllant’s appellate rights. (Id. at p. 25-27, 29-32).

{¶24} Regarding consecutive sentences, the trial court stated:

The Court feels that * * * consecutive sentences are necessary because of

the harm that was caused and because of the fact that you have a prior

criminal record. The harm caused in this case is so great that the concurrent

sentences would not satisfy the purposes and principles of sentencing, as

the legislature so prescribes. The history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from future

crime by you and by others.

(Id. at p. 27-28).

{¶25} Also, in its May 13, 2022 sentencing entry, the trial court stated:

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The Court has considered the record, the pre-sentence investigation and

report prepared by the Community Corrections Association in this matter,

the statements and recommendations of counsel and of [Appellant], as well

as the purposes and principles of sentencing under O.R.C. 2929.11. The

Court has balanced the seriousness and recidivism factors under O.R.C.

2929.12 and has followed the guidance by degree of felony in O.R.C.

2929.13. The Court has further considered the dictates of S.B. 201.

***

The Court finds that consecutive service is necessary to protect the public

from future crime or to punish the offender and that consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to

the danger the offender poses to the public. The Court further finds pursuant

to O.R.C. 2929.14(C)(4)(b) that at least two of the multiple offenses were

committed as part of one or more courses of conduct, and the harm caused

by two or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses committed as part

of any of the courses of conduct adequately reflects the seriousness of the

offender’s conduct; and finds pursuant to O.R.C. 2929.14(C)(4)(c) that the

offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

(5/13/2022 Sentencing Entry, p. 2).

{¶26} The record in this case reflects no sentencing error. The trial court gave

due deliberation to the relevant statutory considerations and properly advised Appellant

regarding post-release control. The court considered the purposes and principles of

felony sentencing under R.C. 2929.11, balanced the seriousness and recidivism factors

under R.C. 2929.12, and considered the prison factors under R.C. 2929.13.

{¶27} In addition, there is no dispute that the trial court made the requisite

consecutive sentence findings at the sentencing hearing and in its sentencing entry.

Case No. 22 MA 0049

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Appellant only challenges whether those findings, pursuant to subsections (b) and (c)

under R.C. 2929.14(C)(4), are supported by the record.

{¶28} Regarding R.C. 2929.14(C)(4)(b), the record establishes Appellant

committed both offenses as part of one course of conduct; the harm of Appellant’s

conduct caused the loss of the victim’s life; the grand theft simply exacerbated the injury;

and the harm caused to the victim was so great or unusual that a single prison term cannot

adequately punish Appellant due to the seriousness of his conduct.

{¶29} Regarding R.C. 2929.14(C)(4)(c), the record establishes that although

Appellant’s prior criminal record is short, it does include a probation violation (which is

indicative of Appellant not being able to positively respond to prior sanctions), and

Appellant’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime.

{¶30} Accordingly, the trial court considered R.C. 2929.11, 2929.12, and 2929.13,

and its imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4)(b)-(c) is

supported by the record. The court did not err in finding that consecutive sentences are

necessary to protect the public from future crime or to punish Appellant and that

consecutive sentences are not disproportionate to the seriousness of his conduct and to

the danger he poses to the public. R.C. 2929.14(C)(4).

{¶31} Appellant’s second assignment of error is without merit.

CONCLUSION

{¶32} For the foregoing reasons, Appellant’s assignments of error are not well-

taken. The May 13, 2022 judgment of the Mahoning County Court of Common Pleas

consecutively sentencing Appellant to a total indefinite prison term of 12 years (minimum)

to 16 and one-half years (maximum) for manslaughter and grand theft of a motor vehicle

following a guilty plea is affirmed.

Robb, P.J., concurs.

Hanni, J., concurs.

Case No. 22 MA 0049

[Cite as State v. McMannis, 2024-Ohio-415.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall constitute the mandate

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.