[Cite as State v. Tatom, 2018-Ohio-5143.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 17AP-758 

v. : (C.P.C. No. 15CR-77)

Roshawn L. Tatom, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 20, 2018 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Barbara A. Farnbacher, for appellee. 

On brief: James Anzelmo, for appellant.

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Roshawn L. Tatom, appeals the October 4, 2017 

judgment entry of the Franklin County Court of Common Pleas convicting him, pursuant 

to a guilty plea, and imposing sentence. For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} This matter arises out of an incident that occurred on February 13, 1996. On 

January 8, 2015, a Franklin County Grand Jury filed an indictment charging Tatom with 

two criminal counts: kidnapping, in violation of R.C. 2905.01, a felony of the first degree, 

and rape, in violation of R.C. 2907.02, a felony of the first degree. On May 31, 2016, Tatom 

filed a motion pursuant to Crim.R. 12(C) to dismiss the matter based on preindictment 

delay. On August 29, 2016, plaintiff-appellee, State of Ohio, filed a memorandum contra 
No. 17AP-758 2 

Tatom's motion to dismiss. On February 3, 2017, the state filed a supplemental 

memorandum contra Tatom's motion to dismiss. 

{¶ 3} On July 24, 2017, the trial court held a hearing at which Tatom entered a plea 

of guilty to felonious assault, in violation of R.C. 2903.11, a felony of the second degree. At 

the plea hearing, the state offered the factual basis for the plea. According to the facts set 

forth at the plea hearing, on February 13, 1996, the victim, A.D., exited a bus at the 

intersection of Obetz Road and Parsons Avenue in Columbus. As she walked across a 

parking lot toward her residence, she was approached from behind by a man who choked 

her with her scarf. The man kicked A.D. and forced her to the ground, at which point she 

lost consciousness. 

{¶ 4} When A.D. regained consciousness, she found herself in a field. Her stockings 

were torn and her panties had been removed. A.D. had no recollection of having been 

sexually assaulted, but believed she had been. A.D. went to a nearby residence and called 

911. A.D. was taken to a hospital where she underwent a sexual assault examination. The 

following day, February 14, 1996, a condom was recovered at the scene. When the condom 

was tested in 2014, the DNA recovered from the inside of the condom matched that of 

Tatom. Tatom stipulated to the factual basis of the plea with regard to A.D.'s assault. 

{¶ 5} On July 24, 2017, the trial court filed an entry, which was signed by Tatom 

and his attorney, reflecting Tatom's guilty plea. On September 21, 2017, the trial court held 

a sentencing hearing, at which the trial court imposed a six-year term of imprisonment. On 

October 4, 2017, the trial court filed a judgment entry reflecting Tatom's conviction and 

sentence. 

II. Assignments of Error 

{¶ 6} Tatom appeals and assigns the following three assignments of error for our 

review: 

[I.] THE TRIAL COURT IMPROPERLY SENTENCED MR. 

TATOM UNDER CURRENT LAW INSTEAD OF THE 

AVAILABLE SENTENCES AT THE TIME OF HIS CRIME. 

[II.] THE RETROACTIVE APPLICATION OF OHIO'S 

STATUTE DEFINING "CHILD" CONSTITUTES AN 

IMPERMISSIBLE EX POST FACTO LAW. 
No. 17AP-758 3 

[III.] APPELLANT RECEIVED INEFFECTIVE ASSISTANCE 

OF COUNSEL. 

III. First and Second Assignments of Error 

{¶ 7} In his first assignment of error, Tatom argues the trial court improperly 

applied current sentencing law instead of the law in effect at the time of the offense. In his 

second assignment of error, Tatom asserts the retroactive application of the statutory 

definition of "child" violates the constitutional prohibition on ex post facto laws. As Tatom 

concedes, because he failed to raise these issues in the trial court, he has forfeited all but 

plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15-16. Pursuant 

to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed 

although they were not brought to the attention of the court." See State v. Lindsey, 87 Ohio 

St.3d 479, 482 (2000). "A showing of plain error requires 'a reasonable probability that 

the error resulted in prejudice.' " (Emphasis sic.) State v. Myers, __ Ohio St.3d __, 2018-

Ohio-1903, ¶ 130, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. 

A. Whether Trial Court Erred by Applying Current Sentencing Law 

{¶ 8} We first consider Tatom's argument that the trial court erred by applying 

current sentencing law instead of the law in effect at the time the offense occurred. 

Specifically, Tatom argues the sentencing laws at the time of the offense provided for a 

potentially lower penalty and, therefore, should have been applied. 

{¶ 9} In cases of statutory interpretation, "our paramount concern is the legislative 

intent in enacting the statute." State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-

Ohio-4960, ¶ 21, citing State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 

2003-Ohio-1630, ¶ 12 "In determining this intent, we first review the statutory language, 

reading words and phrases in context and construing them according to the rules of 

grammar and common usage." Id., citing State ex rel. Rose v. Lorain Cty. Bd. of Elections, 

90 Ohio St.3d 229, 231 (2000), and R.C. 1.42. However, "when legislative intent is unclear, 

we invoke statutory-construction principles." State v. Thomas, 148 Ohio St.3d 248, 2016-

Ohio-5567, ¶ 7, citing Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97 (1991). 

{¶ 10} R.C. 1.58(B) provides that "[i]f the penalty, forfeiture, or punishment for any 

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or 

punishment, if not already imposed, shall be imposed according to the statute as amended." 
No. 17AP-758 4 

R.C. 1.52(A) provides that "[i]f statutes enacted at the same or different sessions of the 

legislature are irreconcilable, the statute latest in date of enactment prevails." 

{¶ 11} Under the sentencing scheme in effect at the time of the commission of the 

offense, felonious assault was classified as an aggravated felony of the second degree, which 

was punishable by a minimum prison term of 3, 4, 5, 6, 7, or 8 years, and a maximum prison 

term of 15 years.1 See former R.C. 2903.11; former R.C. 2929.11. Since that time, Ohio's 

felony sentencing scheme has been significantly altered through legislative enactments. 

{¶ 12} The General Assembly made the first major change with the enactment of 

1996 Am.Sub.S.B. No. 2 ("S.B. 2"), which became effective on July 1, 1996. The purpose of 

S.B. 2 was to create "truth in sentencing," by "eliminating indefinite sentences and 

replacing parole with postrelease control." Thomas at ¶ 10. Next, the General Assembly 

enacted 2011 Am.Sub.H.B. No. 86 ("H.B. 86"), which became effective on September 30, 

2011. The purpose of H.B. 86 was "to reduce the state's prison population and to save the 

associated costs of incarceration by diverting certain offenders from prison and by 

shortening the terms of other offenders sentenced to prison." State v. Taylor, 138 Ohio 

St.3d 194, 2014-Ohio-460, ¶ 17, citing Ohio Legislative Service Commission, Fiscal Note & 

Local Impact Statement to H.B. 86 at 3 (Sept. 30, 2011).2 Under the sentencing scheme 

created by H.B. 86, felonious assault is classified as a felony of the second degree, which is 

punishable by a prison term of 2, 3, 4, 5, 6, 7, or 8 years. R.C. 2903.11; 2929.14. The trial 

court sentenced Tatom to a prison term of six years. 

{¶ 13} The Supreme Court of Ohio, in Thomas, recently addressed the impact of 

H.B. 86 on defendants who committed offenses prior to its effective date. In that case, the 

offenses giving rise to the defendant's conviction occurred in 1993, but the defendant was 

not convicted until 2014, after the effective date of H.B. 86. Under the sentencing scheme 

at the time of the offense, the defendant was subject to potential prison sentences ranging 

from 5 to 25 years, to 10 to 25 years. However, under the sentencing scheme put in place 

 

1 We note Tatom incorrectly asserts that under the law in effect at the time of the offense "a Felonious Assault 

would have been subject to a 2, 3, 4, or 5 to 15 year sentence." (Appellant's Brief at 4.) 

2 We note that the General Assembly has amended R.C. 2929.14, the felony sentencing statute in effect at the 

time of sentencing, several times since the enactment of H.B. 86. However, such amendments did not alter 

the underlying sentencing scheme enacted by H.B. 86, and are not relevant to the disposition of the instant 

matter. 
No. 17AP-758 5 

by H.B. 86, the defendant was subject to potential prison sentences of 3, 4, 5, 6, 7, 8, 9, 10, 

or 11 years. The trial court applied the sentencing scheme in effect at the time of the 

offenses, imposing a prison term of 8 to 25 years on the count of rape, and a prison term of 

8 to 25 years on the count of kidnapping. 

{¶ 14} The Supreme Court noted "the uncodified law of H.B. 86 specifies that its 

sentencing provisions apply to any unsentenced offender whose potential sentence would 

be reduced under H.B. 86, regardless of when the offense was committed." Thomas at ¶ 

16. Because the amendments to R.C. 2929.14(A) in H.B. 86 reduced the defendant's 

potential sentences for his offenses, the court found that H.B. 86 was applicable to the 

defendant under its own terms and R.C. 1.58. Therefore, the court concluded that the 

defendant "must be sentenced under the reduced-sentence provisions of H.B. 86." Id. at 

¶ 17. 

{¶ 15} Tatom acknowledges that the Supreme Court in Thomas previously 

considered and rejected an argument similar to his own. Nevertheless, Tatom argues 

Thomas is inapposite because "Ohio's new sentencing scheme does not actually reduce the 

penalty for his crime." (Appellant's Brief at 5.) In support of this argument, Tatom points 

to the potential to petition for parole under the sentencing scheme in effect at the time of 

the offense. Tatom argues that "[e]ven pessimistically assuming only a one-quarter 

reduction and 'maximum-minimum' sentence [he] would have been petitioning for parole 

in roughly four years under the old sentencing scheme." (Appellant's Brief at 5.) 

{¶ 16} In Thomas, the court compared the "ranges" of "potential sentences" when 

determining the defendant was entitled to receive the benefit of a reduced sentence under 

H.B. 86. Thomas at ¶ 15. The court did not specifically discuss the potential for parole 

pursuant to the sentencing scheme in effect at the time Thomas committed the offense. 

Nevertheless, Tatom's argument that he could have been released in less time by seeking 

parole under the prior sentencing scheme is not determinative of the issue at hand because 

it is merely speculative and does not address whether the range of potential sentences to 

which he was subject was less under current law than the law at the time of the offense. 

Here, the amendments to R.C. 2929.14(A) in H.B. 86 reduced both the maximum and 

minimum potential sentence for Tatom's offense. Thus, pursuant to R.C. 1.58(B) and the 
No. 17AP-758 6 

provisions of H.B. 86, we cannot say the trial court plainly erred in applying the reduced 

sentence provisions of H.B. 86. Thomas at ¶ 17. 

{¶ 17} Accordingly, we overrule Tatom's first assignment of error. 

B. Whether Application of Statute Violated Ex Post Facto Clause 

{¶ 18} Next, we turn to Tatom's argument in his second assignment of error that it 

was plain error for the trial court to retain jurisdiction although Tatom was under 18 years 

of age at the time of the offense. Specifically, Tatom contends that statutory amendments 

to the definition of "child," when retroactively applied to him, are ex post facto laws 

prohibited by Article I, Section 10, of the United States Constitution. 

{¶ 19} The Ex Post Facto Clause of the United States Constitution "incorporated 'a 

term of art with an established meaning at the time of the framing of the Constitution.' " 

California Dept. of Corr. v. Morales, 514 U.S. 499, 504 (1995), quoting Collins v. 

Youngblood, 497 U.S. 37, 41 (1990). " 'Although the Latin phrase "ex post facto" literally 

encompasses any law passed "after the fact," it has long been recognized by [the United 

States Supreme Court] that the constitutional prohibition on ex post facto laws applies only 

to penal statutes which disadvantage the offender affected by them.' " State v. Walls, 96 

Ohio St.3d 437, 2002-Ohio-5059, ¶ 21, quoting Collins at 41. 

{¶ 20} Regarding ex post facto laws, the Supreme Court of the United States has 

stated: 

It is settled, by decisions of this Court so well known that their 

citation may be dispensed with, that any statute which 

punishes as a crime an act previously committed, which was 

innocent when done; which makes more burdensome the 

punishment for a crime, after its commission, or which 

deprives one charged with crime of any defense available 

according to law at the time when the act was committed, is 

prohibited as ex post facto. 

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925). In other words, the Ex Post Facto Clause 

provides that "[l]egislatures may not retroactively alter the definition of crimes or increase 

the punishment for criminal acts." Collins at 43. 

{¶ 21} In Walls, the Supreme Court of Ohio examined 1997 amendments to R.C. 

Chapter 2151, the statutory scheme providing for juvenile court jurisdiction. See former 

R.C. 2151.011(B)(6)(c) and 2151.23(I). The court summarized the changes as "effectively 
No. 17AP-758 7 

remov[ing] anyone over 21 years of age from juvenile-court jurisdiction, regardless of the 

date on which the person allegedly committed the offense." Walls at ¶ 14. Furthermore, 

the court stated that "the statutory amendments made the age of the offender upon 

apprehension the touchstone of determining juvenile-court jurisdiction without regard to 

whether the alleged offense occurred prior to the amendments' effective date." (Emphasis 

sic.) Id. Based on these changes, the court concluded the "General Assembly intended that 

the 1997 amendments to R.C. Chapter 2151 apply retrospectively." Id. 

{¶ 22} In determining whether the amendments to the juvenile law applied in 

Walls's case constituted an ex post facto violation, the court stated that it was necessary to 

show that the amendments actually " 'produced a sufficient risk of increasing the measure 

of punishment attached to' " the particular crime, and that a " 'speculative and attenuated' 

possibility that the statutory change has increased the measure of punishment will not 

constitute an ex post facto violation." Walls at ¶ 30, quoting Morales at 509. The court 

found that "[w]hile [the defendant] perhaps remained eligible for retention within the 

jurisdiction of the juvenile court under a technical reading of the old statutes, the practical 

reality is that [the defendant] had virtually no chance of being kept in the juvenile system." 

Id. at ¶ 31. The court noted Walls's "mature age" and stated that the former bindover statute 

did not contemplate treatment of a 29-year-old adult within the juvenile justice system. Id. 

at ¶ 40-41. The court stated that "[a]ny bindover hearing under the [statute in effect at the 

time of the offense] would have been simply a procedural step in the process of transferring 

[the defendant] for prosecution as an adult." Id. at ¶ 41. Therefore, because "application of 

the amended statutes did not increase his available punishment in any manner other than 

a speculative and attenuated one," the court concluded the "change in the measure of 

punishment is not enough to constitute an ex post facto violation." Id.

{¶ 23} Tatom acknowledges the Supreme Court of Ohio in Walls previously 

considered and rejected an argument similar to his own. Nevertheless, Tatom argues that 

"removing the protections of Ohio's juvenile system[] constitutes a change in the law that 

increases the possible punishment and runs afoul of the Ex Post Facto Clause and asks this 

court to consider such a holding." (Appellant's Brief at 7.) Tatom argues that although 

"bind-over was a risk" at the time of the offense, "it was not mandatory." (Appellant's Brief 

at 7.) 
No. 17AP-758 8 

{¶ 24} As an intermediate appellate court, we are bound to follow precedent set by 

the Supreme Court of Ohio and we cannot issue a decision in conflict with a decision of the 

Supreme Court that has not been reversed or overruled. Three-C Body Shops, Inc. v. 

Nationwide Mut. Fire Ins. Co., 10th Dist. No. 16AP-748, 2017-Ohio-1462, ¶ 31; State ex rel. 

Cordell v. Pallet Cos., Inc., 10th Dist. No. 13AP-1017, 2014-Ohio-5561, ¶ 7; Wagner v. Ohio 

State Univ. Med. Ctr., 10th Dist. No. 12AP-399, 2013-Ohio-2451, ¶ 102 (finding that court 

of appeals cannot issue a decision in conflict with a decision of the Supreme Court of Ohio 

that has not been reversed or overruled). We find Walls to be dispositive of the issue raised 

by Tatom. 

{¶ 25} The date of the offense in this case was February 13, 1996. On January 8, 

2015, when Tatom was 35 years old, the indictment was filed. Tatom's bindover may not 

have been mandatory, nevertheless, as in Walls, "application of the amended statutes did 

not increase [Tatom's] available punishment in any manner other than a speculative and 

attenuated one." Walls at ¶ 41. Therefore, we cannot agree with Tatom that the trial court 

committed error, let alone plain error, by retaining jurisdiction. 

{¶ 26} Accordingly, we overrule Tatom's second assignment of error. 

IV. Third Assignment of Error 

{¶ 27} In his third assignment of error, Tatom asserts his trial counsel was 

ineffective for failing to raise the arguments contained in the first and second assignments 

of error. 

{¶ 28} A convicted defendant alleging ineffective assistance of counsel must 

demonstrate that: (1) counsel's performance was so deficient that he or she was not 

functioning as the counsel guaranteed under the Sixth Amendment to the United States 

Constitution, and (2) counsel's errors prejudiced defendant, depriving him or her of a trial 

whose result is reliable. Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 

42 Ohio St.3d 136 (1989), paragraph two of the syllabus. "To show that a defendant has 

been prejudiced by counsel's deficient performance, the defendant must prove that there 

exists a reasonable probability that, were it not for counsel's errors, the result of the trial 

would have been different." Bradley at paragraph three of the syllabus. "Judicial scrutiny 

of counsel's performance must be highly deferential [and] [b]ecause of the difficulties 

inherent in making the evaluation, a court must indulge a strong presumption that 
No. 17AP-758 9 

counsel's conduct falls within the wide range of reasonable professional assistance." 

Strickland at 689; Bradley at 141. 

{¶ 29} Tatom fails to demonstrate error under the Strickland test. In our analysis 

of Tatom's first and second assignments of error, we found that under established 

precedent, we could not find the challenged conduct constituted plain error. Furthermore, 

given the established precedent in Thomas and Walls, there was not a reasonable 

probability that the result of the trial would have been different but for counsel's failure to 

raise the issues. See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, ¶ 20 (finding 

counsel's failure to raise argument did not provide reasonable probability of different 

outcome given the existence of well-established precedent to the contrary). Therefore, we 

conclude that Tatom has failed to demonstrate he was denied effective assistance of 

counsel. 

{¶ 30} Accordingly, we overrule Tatom's third assignment of error. 

V. Conclusion 

{¶ 31} Having overruled Tatom's three assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

TYACK and SADLER, JJ., concur.