[Cite as State v. Blaylock , 2021-Ohio-2631.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

LORIE BLAYLOCK, Appellant. :

:

:

:

:

: CASE NO. CA2020-11-113

O P I N I O N 8/2/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2019-06-0962

Michael T. Gmoser, Butler County Prosecuting Attorney, and Mich ael Greer, Assistant Prosecuting Attorney, for appellee. Addison M. Spriggs, Assistant State Public Defender, for appell ant.

S. POWELL, J. {¶ 1} Appellant, Lorie Blaylock, appeals her conviction in the Butler County Court of Common Pleas after a jury found her guilty of one count of a ggravated possession of drugs. For the reasons outlined below, we affirm. {¶ 2} On September 11, 2019, the Butler County Grand Jury returned an indictment charging Blaylock with one count of aggravated possession of dr ugs in violation of R.C.Butler CA2020-11-113

- 2 - 2925.11(A), a second-degree felony. The matter ultimately proc eeded to a two-day jury trial held on March 9 and 10, 2020. At trial, the state presen ted evidence indicating Blaylock was selling methamphetamine from a Butler County residence at t he behest for another individual, Joel Quincy, while Quincy was at work. Following d eliberations, the jury returned a verdict finding Blaylock guilty as charged. {¶ 3} On April 23, 2020, the trial court held a sentencing hearing. During this hearing, Quincy interrupted the proceedings and stated, "I didn 't get to testify," but "I know [Blaylock] didn't do it." Despite Quincy's protestations, the trial court nevertheless sentenced Blaylock pursuant to the Reagan Tokes Law, Ohio's ind efinite sentencing structure as set forth in R.C. 2967.271, to an indefinite manda tory term of a minimum of four years in prison to a maximum of six years in prison. Ther e is no dispute that Blaylock did not raise any challenge to the constitutionality of the Rea gan Tokes Law with the trial court either before, during, or after the trial court issued it s sentencing decision. {¶ 4} Blaylock now appeals her conviction, raising two assignments of error for

review. {¶ 5} Assignment of Error No. 1: {¶ 6} BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND UNITED STATES CONSTITUTIONS, MS. BLAYL OCK'S SENTENCE IS CONTRARY TO LA W. {¶ 7} In her first assignment of error, Blaylock challenges the const itutionality the Reagan Tokes Law, Ohio's indefinite sentencing structure as set forth in R.C. 2967.271. However, as noted above, Blaylock never raised this issue with the trial court either before, during, or after the trial court issued its sentencing decision . As this court has now repeatedly held, arguments challenging the constitutionality of the Reagan Tokes Law are forfeited and will not be heard for the first time on appeal in cases where the appellant did

not first raise the issue with the trial court. See, e.g., State v. Hodgkin , 12th Dist. WarrenButler CA2020-11-113

- 3 - No. CA2020-08-048, 2021-Ohio-1353, ¶ 11 (appellant's arguments challenging the constitutionality of the Reagan Tokes Law were forfeited and th is court declined to hear them for the first time on appeal where appellant did not first raise the issue with the trial court); State v. Teasley , 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9 (appellant's arguments challenging the constitutionality of the Reagan Tokes Law were

forfeited and this court declined to hear them for the first ti me on appeal where appellant did not first raise the issue with the trial court); and State v. Alexander , 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8-9 (appellant's arguments cha llenging the constitutionality of the Reagan Tokes Law were forfeited and th is court declined to hear them for the first time on appeal where appellant did not first raise the issue with the trial court). Therefore, given this court's precedent declining to h ear any arguments challenging the constitutionality of the Reagan Tokes Law in cases where th e issue was not first raised with the trial court, Blaylock' s first assignment of error is o verruled. 1 {¶ 8} Assignment of Error No. 2: {¶ 9} LORIE BLAYLOCK WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL. {¶ 10} In her second assignment of error, Blaylock argues she received ineffective assistance of trial counsel. We disagree. {¶ 11} "To prevail on an ineffective assistance of counsel claim, an a ppellant must satisfy the two-prong test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct.

1. We note that even if Blaylock had not forfeited her challeng e to the constitutionality of the Reagan Tokes Law, this court has already determined that the Reagan Tokes La w does not run afoul of an offender's due process rights as guaranteed by the Fifth and Fourteenth Amendm ents to the United States Constitution and Article I, Section 16 of the Ohio Constitution. State v. Jackson , 12th Dist. Butler No. CA2020-07-077, 2021- Ohio-778, ¶ 15; State v. Morris , 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103, ¶ 10; State v. Guyton , 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 17. Thi s court has also determined that the Reagan Tokes Law does not violate the separation-of-powers doctrine. State v. Suder , 12th Dist. Clermont Nos. CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 25. The same is true as it relates to a challenge alleging the Reagan Tokes Law impinges on an offender's constit utional right to a jury. State v. Singh , 12th Dist. Warren No. CA2020-09-056, 2021-Ohio-2158, ¶ 52-54.Butler CA2020-11-113

- 4 - 2052 (1984)." State v. Ford , 12th Dist. Madison No. CA2019-10-027, 2021-Ohio-782, ¶ 13. "[U]nder Strickland , in order to prevail on a claim that counsel was ineffective, a criminal defendant must show (1) that his [or her] counsel's performance was deficient and (2) that that performance prejudiced him [or her]." State v. Simpson , Slip Opinion No. 2020-Ohio6719, ¶ 18, citing Strickland at 687. To that end, in order for Blaylock to establish she received ineffective assistance in this case, Blaylock must "(1 ) show that [her trial] counsel's performance 'fell below an objective standard of reasonableness ' as determined by 'prevailing professional norms' and (2) demonstrate 'a reasonab le probability that, but for [her trial] counsel's unprofessional errors, the result of the proceeding would have been

different.'" State v. Graham , Slip Opinion No. 2020-Ohio-6700 at ¶ 46, quoting Strickland at 688; and citing State v. Bradley , 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. "The failure to make an adequate showing on eith er prong is fatal to an

ineffective assistance of counsel claim." State v. Kaufhold , 12th Dist. Butler No. CA2019- 09-148, 2020-Ohio-3835, ¶ 54, citing State v. Zielinski , 12th Dist. Warren No. CA2010-12- 121, 2011-Ohio-6535, ¶ 50. {¶ 12} Blaylock argues she received ineffective assistance because her trial counsel failed to present a "complete defense" on her behalf by not fil ing "any subpoenas," "any reciprocal discovery," or "submit a witness list to the state." To support this claim, Blaylock cites to Quincy's statements made at sentencing, wherein, as no ted above, Quincy interrupted the proceedings and stated, "I didn't get to testif y," but "I know [Blaylock] didn't do it." Given these statements, Blaylock argues it is "likely" that Quincy "would have testified if subpoenaed," which would have allowed Quincy to testify at t rial as to how he knew Blaylock "didn't do this." Blaylock's argument, however, is pu rely speculative as to what Quincy's testimony might have disclosed had he been called to testify. That is to say, while Blaylock believes Quincy's testimony would have been helpful to her defense, Quincy'sButler CA2020-11-113

- 5 - testimony could have just as easily aided the state in proving its case against her. "Mere speculation and unsupported suggestions of what might have been established," such as Blaylock's argument here, "does not demonstrate counsel's defic ient performance nor the prejudice required to support an ineffective assistance of coun sel claim." State v. Gazaway , 12th Dist. Butler CA2018-12-236, 2019-Ohio-5164, ¶ 51. {¶ 13} The same holds true as it relates to Blaylock's arguments chall enging her trial counsel's decision on what defense strategy should be employed at trial. State v. Baughn , 12th Dist. Clermont No. CA2020-04-020, 2020-Ohio-5566, ¶ 34 ("[ t]he decision regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy decisions are not the basis of a finding of ineffective assistance of counsel "), citing State v. Murphy , 91 Ohio St.3d 516, 524 (2001). This applies even in cases where t he trial strategy used was ultimately unsuccessful and where there was another possible an d better trial strategy

available. State v. Murphy , 12th Dist. Butler No. CA2009-05-128, 2009-Ohio-6745, ¶ 43 ("the fact that the trial strategy was ultimately unsuccessful or that there was another possible and better strategy available does not amount to ineff ective assistance of counsel"). This would include, for instance, Blaylock's trial counsel's decision whether to call Quincy as a witness in her defense. State v. Jones , 12th Dist. Butler No. CA2004-06- 144, 2005-Ohio-3887, ¶ 15 ("[i]n general, the decision whether to call a witness falls wi thin the rubric of trial strategy and will not be second-guessed by a reviewing court"), citing State

v. Williams , 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 125-127. Therefore, fin ding no merit to any of the arguments raised herein, Blaylock's second assignmen t of error lacks merit and

is overruled. {¶ 14} Judgment affirmed.

PIPER, P.J., and M. POWELL, J., concur.