[Cite as State v. Atkinson, 2020-Ohio-3522.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       19CA011481

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JAMES L. ATKINSON, III                                COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   17CR095486

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2020



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, James Atkinson, III, appeals his convictions by the Lorain County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On December 18, 2016, at approximately 11:15 p.m., Elyria police officer Paige

Mitchell noticed a black, four-door sedan with a license plate light that was not operational. When

she ran the license plate through LEADS, she learned that the registered owner of the vehicle, Mr.

Atkinson, had an outstanding bench warrant from Elyria Municipal Court. Officer Mitchell pulled

alongside the car and compared Mr. Atkinson’s BMV photograph with the driver, noted that they

appeared to be the same individual, then initiated a traffic stop. Mr. Atkinson acknowledged that

he was the owner of the vehicle and provided the officer with his driver’s license, and Officer

Mitchell placed him under arrest on the outstanding warrant.
                                                 2


       {¶3}    Officer Mitchell determined that Mr. Atkinson’s vehicle should be impounded

pursuant to department policy, and she contacted a towing service to move the vehicle. In the

meantime, she and two officers who had arrived to assist her began conducting an inventory of the

vehicle’s contents. As she inventoried the contents of the trunk, Officer Mitchell noticed a

backpack that was zipped, but not locked or sealed. She discovered a large quantity of what

appeared to be marijuana in a vacuum-sealed bag in the main compartment and, in the front

compartment, “a very large, substantial amount” of suspected cocaine in rock form. Officer

Mitchell’s supervisor advised her to have the vehicle towed to the police department, where the

officers later completed a search of the vehicle. Officer Mitchell discovered several other large

and small bags of marijuana in the trunk, a bag containing a white, powdery substance, and a large

bag holding smaller plastic bags containing a white, powdery substance. The officers who

inventoried the passenger compartment of the vehicle found a digital scale with white, powdery

residue on it; a box of plastic sandwich baggies; and five cellular phones. Mr. Atkinson carried a

sixth. He also had $1,267.76 cash on his person.

       {¶4}    Mr. Atkinson was indicted on one count of trafficking cocaine in an amount equal

to or in excess of 100 grams and one count of possessing cocaine in an amount equal to or in excess

of 100 grams.     Both cocaine-related charges were accompanied by a major drug offender

specification. He was also indicted on one count of trafficking in marijuana in an amount equal to

or in excess of 1,000 grams but less than 5,000 grams and one count of possession of marijuana in

the same amount. Mr. Atkinson was also charged with one count of possessing criminal tools and

one count of using or possessing with the purpose to use drug paraphernalia. Five of the six

charges were accompanied by a forfeiture specification in connection with the cash found on Mr.

Atkinson’s person, the six cellular phones, and his vehicle.
                                                  3


        {¶5}    One day before trial was scheduled to begin, Mr. Atkinson moved to suppress all

of the evidence gained as a result of the stop and subsequent inventory search of his vehicle. The

trial court denied the motion to suppress as untimely. Mr. Atkinson failed to appear for trial the

next day, and a capias issued for his arrest. Eight months later, Mr. Atkinson was arrested on the

outstanding capias. A new attorney filed a second motion to suppress on behalf of Mr. Atkinson

that reiterated some, but not all, of the arguments made in the earlier motion. The trial court denied

the motion to suppress after conducting a hearing the day before trial was scheduled to begin.

        {¶6}    The day after voir dire concluded and the jury was empaneled, immediately before

trial commenced, Mr. Atkinson’s attorney objected to the composition of the jury array and moved

for a mistrial. The trial court denied the motion. After the State presented its case, Mr. Atkinson

moved to dismiss the major drug offender specifications as unconstitutional. The trial court denied

the motion. The jury found Mr. Atkinson guilty of all charges. After the jury rendered its verdict,

Mr. Atkinson filed a written motion requesting that the trial court declare the major drug offender

specifications unconstitutional.

        {¶7}    At the beginning of the sentencing hearing, the trial court denied all outstanding

motions, including Mr. Atkinsons’s pending motion to declare the major drug offender

specifications unconstitutional, and asked whether Mr. Atkinson’s attorney intended to present any

evidence with respect to the forfeiture specifications. Counsel declined to present evidence and

did not raise any objection to the forfeiture. The trial court merged the possession counts with the

trafficking counts; sentenced Mr. Atkinson to prison terms totaling thirteen years, six months; and

fined him $10,000. The trial court also ordered the forfeiture of the cellular phones, cash, and

vehicle listed in the specifications.
                                                   4


       {¶8}    Mr. Atkinson appealed. His six assignments of error are rearranged for purposes

of this Court’s disposition.

                                                  II.

                                ASSIGNMENT OF ERROR NO. 6

       THE IMPOUNDMENT OF ATKINSON’S VEHICLE, AND THE
       WARRANTLESS SEARCH OF THE VEHICLE, VIOLATED ATKINSON’S
       RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND
       SEIZURES UNDER THE FOURTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTION 14, OF THE OHIO
       CONSTITUTION.

       {¶9}    In his sixth assignment of error, Mr. Atkinson argues that the trial court erred by

denying his motion to suppress the evidence gained as a result of the inventory of his vehicle before

it was impounded. Specifically, he has argued that the evidence should have been suppressed

because Officer Mitchell did not have a reasonable, articulable suspicion of criminal activity to

justify the traffic stop and that the inventory of his vehicle that led to the discovery of the drugs in

the backpack was a warrantless search that was not justified by any recognized exception to the

warrant requirement.

       {¶10} This Court’s review of the trial court’s ruling on the motion to suppress presents a

mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The

trial court acts as the trier of fact during a suppression hearing and is best equipped to evaluate the

credibility of witnesses and resolve questions of fact. Id.; State v. Hopfer, 112 Ohio App.3d 521,

548 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653 (4th Dist.1994).

Consequently, this Court accepts a trial court’s findings of fact if supported by competent, credible

evidence. Burnside at ¶ 8. Once this Court has determined that the trial court’s factual findings

are supported by the evidence, we consider the trial court’s legal conclusions de novo. See id. In

other words, this Court then accepts the trial court’s findings of fact as true and “must then
                                                   5


independently determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 710

(4th Dist.1997). Mr. Atkinson has not challenged the trial court’s findings of fact, so this Court’s

analysis focuses on the legal questions presented.

        {¶11} Mr. Atkinson’s first argument is that the trial court erred by denying his motion to

suppress because Officer Mitchell did not have a reasonable, articulable suspicion of criminal

activity to justify the traffic stop. Although Mr. Atkinson raised this issue in his first motion to

suppress, which was denied by the trial court as untimely, he did not raise it in his subsequent

motion and it was not addressed during the hearing. Because Mr. Atkinson did not raise this issue

in the trial court, it cannot be raised on appeal in the first instance. See State v. Tyburski, 9th Dist.

Lorain No. 18CA011291, 2018-Ohio-4248, ¶ 14, citing State v. Gegia, 157 Ohio App.3d 112,

2004-Ohio-2124, ¶ 26 (9th Dist.) and State v. Nelson, 9th Dist. Summit No. 20808, 2002-Ohio-

3745, ¶ 6.

        {¶12} Mr. Atkinson’s second argument is that the evidence gained as a result of the

inventory search of his vehicle should have been suppressed because the decision to impound his

vehicle was improper and, regardless, the inventory search of the backpack found in the trunk of

the vehicle was unconstitutional. This Court disagrees.

        {¶13} Subject to specific exceptions, which the State has the burden of establishing,

warrantless searches are unreasonable per se under the Fourth Amendment. State v. Roberts, 110

Ohio St.3d 71, 2006-Ohio-3665, ¶ 98, citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455

(1971). “An inventory search of a lawfully impounded vehicle is a well-defined exception to the

warrant requirement of the Fourth Amendment to the United States Constitution.” State v.

Hathman, 65 Ohio St.3d 403, 405 (1992), citing South Dakota v. Opperman, 428 U.S. 364 (1976).
                                                   6


Inventory searches serve to protect the owner’s property while in police custody, to protect the

police from claims that property has been lost or stolen, and to protect officers from danger that

may be at hand. Opperman at 369.

          {¶14} The first step in this Court’s analysis is to consider whether Mr. Atkinson’s car was

lawfully impounded. See State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 23-29. See also

Hathman at paragraph two of the syllabus. The Codified Ordinances of the City of Elyria authorize

police officers to impound a vehicle “left unattended due to the removal of an * * * arrested

operator.” Codified Ordinances of the City of Elyria 303.08(a)(7). See generally Leak at ¶ 23-25.

Officer Mitchell testified that she impounded Mr. Atkinson’s vehicle pursuant to the Elyria Police

Department’s written policy, which was introduced as an exhibit during the suppression hearing.

That policy references and incorporates the language of Codified Ordinances of the City of Elyria

303.08(a)(7). Officer Mitchell testified that Mr. Atkinson was the driver and only occupant of his

vehicle, and he was arrested on an outstanding bench warrant. Although Mr. Atkinson has argued

that the policy required Officer Mitchell to exercise her discretion, which in his view, warranted

an exception, the policy states that it “does not impose a duty upon the officer to release a vehicle

when a city ordinance authorizes impoundment.” The impoundment of his vehicle was, therefore,

lawful.

          {¶15} Having determined that the impoundment of Mr. Atkinson’s vehicle was lawful,

this Court must consider whether the inventory search of the vehicle was reasonable for purposes

of the Fourth Amendment. See Leak at ¶ 30-33. An inventory search of a lawfully impounded

vehicle satisfies the Fourth Amendment’s requirement of reasonableness when the search is

conducted “in good faith and in accordance with reasonable standardized procedure(s) or

established routine.” Hathman at paragraph one of the syllabus. “Conversely, a search conducted
                                                  7


with investigatory intent, and which is not conducted in the manner of an inventory search, does

not constitute an ‘inventory search’ and may not be used as a pretext to conduct a warrantless

evidentiary search.” State v. Williams, 9th Dist. Summit No. 17727, 1996 WL 539194, *6 (Sept.

25, 1996), citing State v. Caponi, 12 Ohio St.3d 302, syllabus (1984), certiorari denied 469 U.S.

1209 (1985).

       {¶16} Officer Mitchell testified that she and her fellow officers conducted an inventory

search of Mr. Atkinson’s vehicle pursuant to established department policy. That policy provides

that “[i]t is the policy of the Elyria Police Department to inventory the contents of all vehicles

impounded by the Department.” It further explains that “[t]he purpose of the inventory is to protect

the owner’s property while it remains in police custody, to protect the Department against claims

or disputes over lost or stolen property and/or damage to the vehicle or its contents, and finally,

for the protection of the officers from potential danger from items in the vehicle.” Compare

Opperman, 428 U.S. at 369. There is no evidence in the record from which this Court could draw

the conclusion that Officer Mitchell, who acted in accordance with established policy, was

motivated by pretext. It remains, then, to consider whether Officer Mitchell’s search of the

backpack comported with the requirements of the Fourth Amendment.

       {¶17} “If, during a valid inventory search of a lawfully impounded vehicle, a law-

enforcement official discovers a closed container, the container may only be opened as part of the

inventory process if there is in existence a standardized policy or practice specifically governing

the opening of such containers.” Hathman at paragraph two of the syllabus. A closed backpack,

for example, may be opened during an inventory search that is conducted pursuant to a

standardized procedure that promotes legitimate government objectives when there is no

demonstration that the police acted in bath faith or with the sole intent of investigation. Id. at 406-
                                                8


407, citing Colorado v. Bertine, 479 U.S. 367, 372-376 (1987). “When a police impoundment

policy specifically addresses the inventory of closed containers and governs the procedures to be

used by the police, the opening pursuant to this policy of a closed container by the police is not

pretextual and thus is reasonable for Fourth Amendment purposes.” State v. Peagler, 76 Ohio

St.3d 496 (1996), paragraph two of the syllabus.

       {¶18} The Elyria Police Department’s policy regarding the scope of inventory searches

provides:

       The inventory will be limited to areas of the vehicle that are open or for which a
       key is available. An officer should unlock the doors of the vehicle, if possible
       without damaging the vehicle, but should not force entry into a locked dash
       compartment or trunk. If the compartment is unlocked or a key is available,
       however, those compartments will also be checked. Any packages or containers
       located during the inventory inspection, and that are not sealed or locked when
       located, will be opened and the contents of same inventoried.

(Emphasis added.) Officer Mitchell testified that she was able to access the trunk by using the

mechanism for opening it located in the passenger compartment. She explained that inside the

trunk, she found a backpack that was zipped, but not locked or otherwise sealed. The plain

language of the Elyria Police Department’s policy contemplates that items such as the backpack

found in Mr. Atkinson’s trunk will be opened during the course of an inventory search. Officer

Mitchell’s decision to open the backpack during the course of the inventory search pursuant to

policy, therefore, comports with the requirements of the Fourth Amendment. See Hathman at

paragraph two of the syllabus. See generally Bertine at 372-375.

       {¶19} The trial court did not err by denying Mr. Atkinson’s motion to suppress. His sixth

assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO
       DECLARE A MISTRIAL AND ORDER A NEW TRIAL WITH A DIFFERENT
                                                 9


       JURY POOL BECAUSE THE COMPLETE EXCLUSION OF AFRICAN-
       AMERICANS FROM THE JURY POOL DEPRIVED ATKINSON OF HIS
       RIGHT TO TRIAL BY A JURY DRAWN FROM A “FAIR CROSS-SECTION
       OF THE COMMUNITY” GUARANTEED BY THE CONSTITUTIONS OF THE
       UNITED STATES AND THE STATE OF OHIO.

       {¶20} In his first assignment of error, Mr. Atkinson has argued that the trial court erred

by denying his motion for a mistrial based on the composition of the jury array.

       {¶21} Crim.R. 24(F) provides that counsel may challenge a jury array “on the ground that

it was not selected, drawn or summoned in accordance with law[.]” Any such challenge must be

made before voir dire commences. Id. See also State v. Fears, 86 Ohio St.3d 329, 347-348 (1999);

State v. Curry, 2d Dist. Greene No. 2012-CA-50, 2014-Ohio-3836, ¶ 30; State v. Reed, 6th Dist.

Lucas No. L-97-1133, 1998 WL 336317, *2 (June 12, 1998), fn.1; State v. Flinn, 9th Dist. Summit

No. 8786, 1978 WL 215316, *3 (Aug. 9, 1978). In this case, however, Mr. Atkinson did not object

to the composition of the array until the day after voir dire was completed, immediately prior to

the commencement of trial. His objection was untimely, and his first assignment of error is

overruled on that basis.

                               ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO HOLD
       THAT R.C. 2925.03(A)(2) IS UNCONSTITUTIONAL ON ITS FACE AND AS
       APPLIED TO ATKINSON BECAUSE IT ESTABLISHES A STATUTORY
       IRREBUTTABLE PRESUMPTION IN FAVOR OF THE PROSECUTION ON
       AN ESSENTIAL ELEMENT OF THE OFFENSE FOR WHICH ATKINSON
       WAS INDICTED, TRIED AND CONVICTED.

       {¶22} Mr. Atkinson’s fifth assignment of error argues that R.C. 2925.03(A)(2) is

unconstitutional on its face and as applied to him because, he maintains, proof that large quantities

of marijuana and cocaine were found in the trunk of his vehicle establishes a presumption that he

“[knew] or ha[d] reasonable cause to believe that the controlled substance[s] * * * [were] intended

for sale or resale by the offender or another person.” This Court does not agree.
                                                  10


        {¶23} R.C. 2925.03(A)(2) provides that “[n]o person shall knowingly * * * [p]repare for

shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a

controlled substance analog, when the offender knows or has reasonable cause to believe that the

controlled substance or a controlled substance analog is intended for sale or resale by the offender

or another person.” Mr. Atkinson’s brief does not explain by what tenets of statutory construction

he concludes that R.C. 2925.03(A)(2) establishes an “irrebuttable presumption,” but it appears that

his argument is that proof of possession necessarily implies proof of trafficking.

        {¶24} R.C. 2901.22(B) explains the culpable mental state required by R.C.

2925.03(A)(2):

        A person acts knowingly, regardless of purpose, when the person is aware that the
        person’s conduct will probably cause a certain result or will probably be of a certain
        nature. A person has knowledge of circumstances when the person is aware that
        such circumstances probably exist. When knowledge of the existence of a
        particular fact is an element of an offense, such knowledge is established if a person
        subjectively believes that there is a high probability of its existence and fails to
        make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2925.03(A)(2) requires a defendant to knowingly “[p]repare for shipment, ship, transport,

deliver, prepare for distribution, or distribute a controlled substance” – or, in other words, to take

these actions when he “is aware that [his] conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B). Proof that an individual possessed a controlled

substance, in any amount, does not relieve the State of its burden to prove that the defendant acted

knowingly under the plain terms of the statute. Mr. Atkinson’s conclusion that R.C. 2925.03(A)(2)

is unconstitutional on its face therefore is incorrect.

        {¶25} Although it is unclear from his brief, it appears that Mr. Atkinson’s argument may

also argue that R.C. 2925.03(A)(2) had the effect of establishing a presumption with respect to an

element of the offense in this case.        To that extent, his argument seems to relate to the
                                                11


circumstantial nature of the evidence that tended to demonstrate that he acted knowingly. This

Court notes that Mr. Atkinson did not challenge his convictions on the grounds that they were

supported by insufficient evidence. Nonetheless, this Court has recognized the well-established

principle that “[c]ircumstantial evidence and direct evidence inherently possess the same probative

value[.]” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus.

       {¶26}    “‘When the defendant’s culpable mental state is in issue, the proof of a mental

state must be derived from circumstantial evidence, as direct evidence will not be available.’”

(Emphasis added.) State v. Syed, 9th Dist. Medina Nos. 17CA0013-M, 17CA0014-M, 2018-Ohio-

1438, ¶ 23, quoting State v. Flowers, 9th Dist. Lorain No. 03CA008376, 2004-Ohio-4455, ¶ 15.

Similarly, “mere possession of drugs is insufficient to prove trafficking,” but constructive

possession of drugs that have been packaged for sale along with possession of other paraphernalia

associated with sale is sufficient evidence of trafficking. State v. Carlton, 9th Dist. Lorain No.

12CA010219, 2013-Ohio-2788, ¶ 10, citing State v. Mielke, 12th Dist. Warren No. CA2012–08–

079, 2013-Ohio-1612, ¶ 46. Possession of a large quantity of drugs involved in an offense may

also be one piece of circumstantial evidence that tends to prove a violation of R.C. 2925.03(A)(2).

See, e.g., State v. Floyd, 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, ¶ 32; State v.

Burton, 8th Dist. Cuyahoga No. 107054, 2019-Ohio-2431, ¶ 48; State v. Jackson, 9th Dist. Summit

No. 28691, 2018-Ohio-1285, ¶ 39.

       {¶27} Officer Mitchell testified regarding the drugs that she found in Mr. Atkinson’s

vehicle and described the location where each item was found. Officer Mitchell testified that she

found a brightly colored folder containing a utility bill that bore Mr. Atkinson’s name and address

in the main compartment of the bag along with a large bag of marijuana. She noted that the

quantity of drugs found in Mr. Atkinson’s vehicle was remarkable in that it was not an amount
                                                 12


consistent with personal use. She also testified that one large bag found in the trunk contained

nineteen smaller baggies of a white, powdery substance, and she explained that the presentation of

that bag indicated drugs that had been prepared for sale. In addition, officers found a digital scale

that bore a white, powdery substance and five cellular phones in the passenger compartment of the

vehicle, and Mr. Atkinson carried an additional cellular phone and a large quantity of cash on his

person. All of this evidence, although circumstantial, tended to demonstrate that Mr. Atkinson

“knowingly * * * [p]repare[d] for shipment, ship[ped], transport[ed], deliver[ed], prepare[d] for

distribution, or distribute[d] a controlled substance” when he knew or had “reasonable cause to

believe that the controlled substance or a controlled substance analog [was] intended for sale or

resale[.]” R.C. 2925.03(A)(2).

       {¶28} R.C. 2925.03(A)(2) does not unconstitutionally establish a presumption that one

element of the offense is satisfied by proof of another, nor did it operate to do so in this case. Mr.

Atkinson’s fifth assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO
       GRANT ATKINSON A NEW TRIAL BASED ON NEW PRECEDENT
       ANNOUNCED BY THE UNITED STATES SUPREME COURT WITHIN TWO
       WEEKS OF ATKINSON’S SENTENCING IN THIS CASE.

       {¶29} In his fourth assignment of error, Mr. Atkinson argues that the trial court erred by

denying his motion for a new trial based on the United States Supreme Court’s decision in Timbs

v. Indiana, 586 U.S. ___ , 139 S.Ct. 682 (2019). This Court does not agree.

       {¶30} Crim.R. 33 provides that a new trial may be granted in the following circumstances:

       (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse
       of discretion by the court, because of which the defendant was prevented from
       having a fair trial;

       (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
                                                   13


        (3) Accident or surprise which ordinary prudence could not have guarded against;

        (4) That the verdict is not sustained by sufficient evidence or is contrary to law. If
        the evidence shows the defendant is not guilty of the degree of crime for which he
        was convicted, but guilty of a lesser degree thereof, or of a lesser crime included
        therein, the court may modify the verdict or finding accordingly, without granting
        or ordering a new trial, and shall pass sentence on such verdict or finding as
        modified;

        (5) Error of law occurring at the trial;

        (6) When new evidence material to the defense is discovered which the defendant
        could not with reasonable diligence have discovered and produced at the trial.
        When a motion for a new trial is made upon the ground of newly discovered
        evidence, the defendant must produce at the hearing on the motion, in support
        thereof, the affidavits of the witnesses by whom such evidence is expected to be
        given, and if time is required by the defendant to procure such affidavits, the court
        may postpone the hearing of the motion for such length of time as is reasonable
        under all the circumstances of the case. The prosecuting attorney may produce
        affidavits or other evidence to impeach the affidavits of such witnesses.

Crim.R. 33(E)(5), which lists invalid grounds for granting a new trial, also provides that a new

trial may not be granted for “[a]ny other cause, unless it affirmatively appears from the record that

the defendant was prejudiced thereby or was prevented from having a fair trial.” Even assuming,

without deciding, that a new trial may be granted on the basis of an intervening decision of a

superior court—and that a criminal forfeiture issue is one that would warrant relief in the form of

a new trial—Mr. Atkinson’s argument fails because he was neither prejudiced nor prevented from

having a fair trial on this basis.1

        {¶31} In Timbs, the State of Indiana brought an action for civil forfeiture of a vehicle

subsequent to the conviction of its owner for a drug-related offense. Id. at 686. The trial court

concluded that the vehicle’s worth was disproportionate to the offenses of which he had been


        1
         To the extent that Mr. Atkinson’s argument is that “this Court should reverse the sentence
and remand with instructions for sentencing in conformity with Timbs[,]” we note that “an alleged
constitutional violation that occurred during the sentencing proceedings [] is not appropriately
raised in a Crim.R. 33 motion for new trial.” State v. Lorraine, 11th Dist. Trumbull No. 2017-T-
0028, 2018-Ohio-3325, ¶ 23.
                                                14


convicted and, therefore, that forfeiture of the vehicle was an excessive fine under the Eighth

Amendment. Id. The Indiana Supreme Court concluded that the Excessive Fines Clause of the

Eighth Amendment did not restrict state action. Id. The United States Supreme Court disagreed,

noting that in rem forfeitures fall within the ambit of the Excessive Fines Clause and holding that

it applies to the states by operation of the Due Process Clause of the Fourteenth Amendment. Id.

at 687, 689.

        {¶32} The Ohio Supreme Court, unlike the Supreme Court of Indiana in Timbs, has long

recognized that the Excessive Fines Clause of the Eight Amendment applies to the states. State v.

Hill, 70 Ohio St.3d 25 (1994), syllabus.     See also State v. O’Malley, 9th Dist. Medina No.

19CA0032-M, 2020-Ohio-3141, ¶ 9. Although the holding of Timbs has long been recognized as

a matter of law in Ohio, Mr. Atkinson declined the opportunity to present any evidence related to

the forfeiture during his sentencing hearing. Consequently, even assuming that a new decision of

a superior court could warrant a new trial under Crim.R. 33, Mr. Atkinson was not prejudiced in

this case.

        {¶33} Mr. Atkinson’s fourth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

        THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING
        ATKINSON’S MOTION TO STRIKE THE MANDATORY SENTENCING
        PROVISIONS OF R.C. 2925.03(C)(4)(G) AND R.C. 2925.11(C)(4)(F) AS
        VIOLATIVE OF THE SEPARATION OF POWERS DOCTRINE OF THE OHIO
        CONSTITUTION BECAUSE THE GENERAL ASSEMBLY HAS USURPED
        THE ROLE, FUNCTION AND DISCRETION OF THE COURT IN IMPOSING
        SENTENCE UPON CONVICTION OF THE APPLICABLE OFFENSES.

        {¶34} Mr. Atkinson’s second assignment of error argues that his mandatory sentences as

a major drug offender are unconstitutional because they violated the separation of powers doctrine.

This Court does not agree.
                                                 15


       {¶35} R.C. 2925.03(C)(4)(g) and R.C. 2925.11(C)(4)(f) provide that if the amount of

cocaine involved in a violation of R.C. 2925.03(A) and R.C. 2925.11(A), respectively, is greater

than or equal to 100 grams, the offense is a first-degree felony, and the offender is a “major drug

offender.” See also R.C. 2929.01(W). Under these circumstances, the offender must be sentenced

to the maximum prison term for a first-degree felony. See also R.C. 2929.13(F)(5); R.C.

2929.14(B)(3).2

       {¶36} “The legislature has the initial right to provide for sentences, mandatory or

otherwise, that are felt to be consistent with the nature of the crime committed. A mandatory

incarceration provision does not per se violate the separation of powers, even though it may restrict

the sentencing discretion of the trial court.” State v. Bonello, 3 Ohio App.3d 365, 367 (10th

Dist.1981). This is because “[t]he discretionary power of judges to sentence is granted by the

legislature and can be circumscribed by the legislature.” Cleveland v. Scott, 8 Ohio App.3d 358,

358 (8th Dist.1983). See also State v. Thompkins, 75 Ohio St.3d 558, 560 (1996) (“Pursuant to its

police powers, the General Assembly has the authority to enact laws defining criminal conduct

and to prescribe its punishment.”).

       {¶37} This Court has consistently rejected challenges to mandatory sentences on the basis

that those sentences violate the separation of powers doctrine. See, e.g., State v. Barnes, 9th Dist.

Lorain Nos. 13CA010502, 13CA010503, 2014-Ohio-2721, ¶ 7; State v. Meadows, 9th Dist.

Summit No. 26549, 2013-Ohio-4271, ¶ 26; State v. Thompson, 9th Dist. Medina No. 11CA0112–

M, 2012-Ohio-2559, ¶ 24; State v. Banks, 9th Dist. Summit No. 25279, 2011-Ohio-1039, ¶ 48.



       2
         The Reagan Tokes Law, Am.Sub.S.B. No. 201, 2018 Ohio Laws 157, effective March
22, 2019, made substantive amendments to Ohio’s felony sentencing statutes with respect to
felonies of the first and second degree committed after the effective date of the amendments.
Those changes are not at issue in this appeal.
                                                16


Mr. Atkinson’s challenge to the mandatory-sentence provisions of R.C. 2925.03(C)(4)(g) and R.C.

2925.11(C)(4)(f) fails on the same basis. See State v. Rosado, 8th Dist. Cuyahoga No. 88504,

2007-Ohio-2782, ¶ 13.

         {¶38} Mr. Atkinson’s second assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

         IN ADDITION, THE TRIAL COURT ERRED AS A MATTER OF LAW BY
         FAILING TO HOLD THAT 2925.03(C)(4)(G) AND R.C. 2925.11(C)(4)(F)
         VIOLATED ATKINSON’S RIGHTS TO NOT BE SUBJECTED TO
         SENTENCES     THAT   CONSTITUTE    CRUEL   AND      UNUSUAL
         PUNISHMENTS.

         {¶39} In his third assignment of error, Mr. Atkinson maintains that the mandatory

sentences required by R.C. 2925.03(C)(4)(g) and R.C. 2925.11(C)(4)(f) constitute cruel and

unusual punishment in violation of the United States and Ohio Constitutions. This Court does not

agree.

         {¶40} The United States Supreme Court has explained that claims that mandatory

sentences are cruel and unusual “[have] no support in the text and history of the Eighth

Amendment.” Harmelin v. Michigan, 501 U.S. 957, 994 (1991). “Severe, mandatory penalties

may be cruel, but they are not unusual in the constitutional sense, having been employed in various

forms throughout our Nation’s history.” Id. at 994-995. In rejecting a claim that the Eighth

Amendment required consideration of mitigating circumstances in sentencing, as Mr. Atkinson

argues in this case, the Supreme Court concluded that for these reasons, “[t]here can be no serious

contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply

because it is ‘mandatory.’” Id. at 995. This Court has also previously considered, and rejected,
                                                17


the argument that mandatory sentences constitute cruel and unusual punishment. Meadows, 2013-

Ohio-4271, at ¶ 25.3

       {¶41} Mr. Atkinson’s third assignment of error is overruled.

                                                III.

       {¶42} Mr. Atkinson’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.


       3
          In Harmelin, the Supreme Court acknowledged the line of cases that established the
“individualized capital sentencing doctrine,” but also recognized that “there is no comparable
requirement outside the capital context, because of the qualitative difference between death and
all other penalties.” Id. at 995. In recent years, the Supreme Court has recognized another
distinction with respect to juvenile offenders. See Miller v. Alabama, 567 U.S. 460, 480-482
(2012). This distinction, along with the cases to which Mr. Atkinson directs this Court’s attention,
is inapplicable in this case.
                                          18


      Costs taxed to Appellant.




                                               LYNNE S. CALLAHAN
                                               FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.


APPEARANCES:

ERIC H. ZAGRANS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
