[Cite as State v. Kelly , 2022

- Ohio

- 3628.]



### IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff

- Appell ee

,

vs.

JAMES KELLY

,

Defendant

- Appell ant

. :

:

:

:

: APPEAL NO. C

- 2000 1 3

TRIAL NO. B

- 1904 0 56

O P I N I O N.

Criminal A

ppeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Case Remanded

Date of Judgment Entry on Appeal: October 12, 2022

Joseph T. Deters

, Hamilton County Prosecuting Attorney, and Pa ula E. Adams

, Assistant Prosecuting Attorney, for Plaintiff

- Appell ee

,

Stagnaro Hannigan Koop, Co., LPA

, and Michaela Stagnaro

, for Defendant

Appell ant.OHIO FIRST DISTRICT COURT OF APPEALS

2 B OCK

, Judge.



### {¶1} Defendant

- appellant James Kelly appeals his conviction s for conspiracy

to commit murder and having a weapon while under a disability

. We affirm the trial

court’s judgment in part, reverse it in part, and remand the case for further

proceedings consistent with this opinion

.

I. Facts and Procedure



### {¶2} Kelly was indicted on one count of conspiracy to commit murder in

violation of R.C. 2923.01(A)(1) and one count of having a weapon while under a

disability in violation of R.C. 2923.13(A)(2). Kelly entered a guilty plea to the

conspiracy count in exchange for the state’s dismissal of the having

- a

- weapon

- while

under

- a

- d isability charge. The court continued the matter for a presentence

investigation. Before his sentencing hearing, Kelly moved to strike the indefinite

sentencing provision of R.C. 2967.271 (“Regan Tokes Law”)

.



### {¶3} The trial court overruled Kelly’ s motion. Th e trial court accepted Kelly’s

plea

, found him guilty , and, after a presentence investigation , sentenced him

.

II. Law and Analysis

A. The Reagan Tokes Law is Facially Constitutional



### {¶4} Kelly’s first assignment of error argues that the trial court erred by

overruling his motion to strike the indefinite

- sentencing provision in the Re a gan

Tokes Law because it violates the separation

- of

- powers doctrine and the D ue P rocess

C lause of the Fourteenth Amendment and, therefore, it is unconstitutional

.



### {¶5} “The interp retation of the constitutionality of a statute presents a

question of law.” In re Special Docket No. 73958 , 8th Dist. Cuyahoga Nos. 87777 and

87816, 2008

- Ohio

- 4444, ¶ 11. “Questions of law are reviewed d e novo, independentlyOHIO FIRST DISTRICT COURT OF APPEALS

3 and without deference to the tr ial court’s decision.” Id ., quoting Andreyko v.

Cincinnati , 153 Ohio App.3d 108, 2003

- Ohio

- 2759, 791 N.E.2d 1025, ¶ 112 (1st Dist.)

.



### {¶6} Kelly did not specify whether he was raising a facial or an as

- applied

constitutional challenge . But at this stage, only a facial challenge would be ripe for

review because Kelly had not been subject to the provisions of the Reagan Tokes Law

when he filed his notice of appeal. See State v. Guyton , 1st Dist. Hamilton No. C

1 90657, 2022

- Ohio

- 2962 , ¶ 10.



### {¶7} This court determined tha t the Reagan Tokes Law was facially

constitutional in Guyton

. Accordingly, we overrule Kelly’s first assignment of error.

B. Trial Court failed to Provide R.C. 2967.217(B) Notification s



### {¶8} Kelly’s second assignment of error argues that the trial court erred as a

matter of law by failing to properly inform him of the R.C. 2967.271(B)(2)(c)

notification s at the sentencing hearing. These notifications involve details about the

indefinite

- sentencing scheme con tained in the Reagan Tokes Law. R.C.

2929.19(B)(2)(c).



### {¶9} A trial court must advise a defendant of all five notifications set forth in

R.C. 2929.19(B)(2)(c) at the sentencing hearing. State v. Jackson , 1st Dist. Hamilton

No. C

- 200332, 2022

- Ohio

- 3449, ¶ 20. Th e failure to advise the defendant of any of

the five noti fications constitutes error and a remand is necessary for the limited

purpose of permitting the sentencing court to provide the mandatory notifications. Id

.



### {¶10} Th e trial court failed to notify Kelly t hat at a hearing to determine

whether an incarcerated perso n’s sentence could be extended beyond the presumptive

minimum, the Ohio Department of Rehabilitation and Correction (“ DRC ”) must make

specific determinations involving the incarcerated person’s conduct while confined,OHIO FIRST DISTRICT COURT OF APPEALS

4 rehabilitation, threat to society, res trictive housing, and security classification

. R.C.

2929.19(B)(2)(c)(ii)

. Instead, the trial court summed up these items as “bad conduct.”

The state concedes that this constitutes error

.



### {¶11} W e sustain Kelly’s second assignment of error and remand this case fo r

the trial court to provide the R.C. 2929.19(B)(2)(c) notifications.

C. Ineffective Assistance of Counsel



### {¶12} Kelly’s third assignment of error argues that he was denied the effective

assistance of counsel . He asserts that his trial counsel was ineffective for failing to file

a motion to rebut the presumption that Kelly would be required to register in the

violent

- offender database because he was not the principal offender. Kelly contends

that

, because there was a n uncharged coconspirator

, this uncharged coconsp irator

could have been the principal . Moreover, that the trial court stated that Kelly had

“got[ten] beyond” his prior record suggests that the issue should have been raised.



### {¶13} In an ineffective

- assistance

- of

- counsel claim, an appellant must show

(1) that c ounsel’s performance was deficient

, and (2) that the deficient performance

prejudiced the defense, thereby depriving appellant of a fair trial. Strickland v.

Washington

, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A defendant’s

failure to sa tisfy one prong of the Strickland test negates a court’s need to consider the

other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).



### {¶14} It is not enough for counsel to have erred or been incompetent; instead,

the defendant must show that

, bu t for that incompetence, “there is a reasonable

probability that * * * the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in theOHIO FIRST DISTRICT COURT OF APPEALS

5 outcome.” State v. Bradley , 42 Ohio St.3d 136 , 142, 538 N.E.2d 373 (1989)

, quoting

Strickland at 694

.



### {¶15} R.C. 2903.41 (“ Sierah’s Law ”) requires offenders who are convicted of

specified offenses to enroll in the violent

- offender database. State v. Tupuola

, 5th Dist.

Muskingum No. CT2020

- 0056, 2021

- Ohio

- 2 577, ¶ 36. Sierah’s Law creates a

presumption that violent offenders enroll in the database

. Id

. Violent offender s enroll

for a minimum of ten years and must re

- enroll on an annual basis. Id

.



### {¶16} Under R.C. 2903.42(A)(2)(a), a motion to rebut the presumption t hat a

defendant would be required to enroll in the violent

- offender database must be filed

before, or at the time of, sentencing. Kelly was required to assert that he was not the

principal offender in the commission of the conspiracy to commit murder and r equest

that the court refrain from requiring him to enroll in the violent

- offender database.

State v. Hall

, 2d Dist. Montgomery No. 28882, 2021

- Ohio

- 1894, ¶ 28; State v.

Williams

, 2d Dist. Montgomery No. 28648, 2021

- Ohio

- 1340. ¶ 12, 129. Kelly would

have h ad to prove that he was not the principal offender by a preponderance of the

evidence. Id

. No such motion was filed or orally raised

.



### {¶17} A defendant who pleads guilty waives all appealable issues, including

the right to assert an ineffective

- assistance

- of

- co unsel claim, except that the defendant

may claim ineffective assistance of counsel on the basis that the counsel’s deficient

performance caused the plea to be less than knowing, intelligent, and voluntary. State

v. Miller

, 5th Dist. Stark No. 2019CA00046, 2019

- Ohio

- 4275, ¶ 13

. In such cases, a

defendant can prevail only by demonstrating that there is a reasonable probability

that, but for counsel’s deficient performance, he would not have pleaded guilty and

would have insisted on going to trial. (Citations omitted.) Id

.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶18} Kelly ple d guilty . Therefore, Kelly waived this issue because he does not

argue on appeal that counsel’s performance caused his plea to be less than knowing,

voluntary, or intelligent.



### {¶19} Moreover, we have insufficient facts in the record to ev aluate whether

there was a coconspirator who could be the principal offender. See Tupuola , 5th Dist.

Muskingu m No. 2020

- 0056

, 2021

- Ohio

- 2577, at ¶ 52

. As Kelly was the sole person

charged in the indictment, and the sole person convicted of conspiracy to co mmit

murder, we cannot conclude that a challenge to the violent

- offender database

registration requirement wo uld have been successful.



### {¶20} This argument would be more appropriate for a postconviction petition

.

We overrule Kelly’s third assignment of error.

III. Co nclusion



### {¶21} W e r emand this matter for the limited purpose of permitting the

sentencing court to provide the mandatory notifications as required by R.C.

2929.19(B)(2)(c)

. In all other respects, we affirm the trial court’s judgment.

Judgment affirmed in part, reversed in part, and case remanded

.

M YERS

, P.J., and W INKLER

, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion

.