[Cite as State v. Waggle, 2021-Ohio-3457.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

PAUL WAGGLE : Case No. CT2020-55 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. CR2020-0326 

JUDGMENT: Affirmed in part; remanded in part 

DATE OF JUDGMENT: September 30, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

TAYLOR BENNINGTON JAMES A. ANZELMO 

27 North Fifth Street 446 Howland Drive 

P.O. Box 189 Gahanna, OH 43230 

Zanesville, OH 43701 
Muskingum County, Case No. CT2020-55 2 

 

Wise, Earle, J. 

{¶ 1} Defendant-Appellant Paul Waggle appeals the November 5, 2020 judgment 

of the Muskingum County Court of Common Pleas convicting him of two counts of 

felonious assault, one count of tampering with evidence, one count of kidnapping, and 

classifying him as a violent offender subject to in-person registration for a period of 10 

years. Plaintiff-Appellee is the state of Ohio. 

{¶ 2} On July 18, 2020 Appellant savagely beat and stabbed R.S. as she sat in 

the passenger seat of his Chevy Impala. R.S. suffered blunt-force trauma to her face and 

head resulting in fractures to her mandible and missing teeth as well as multiple stab 

wounds all over her body. Following the incident Appellant showered and then burned the 

clothing he had been wearing during the assault in his backyard. 

{¶ 3} As a result of these events, on July 28, 2020, the Muskingum County Grand 

Jury returned a seven-count indictment charging Appellant with three counts of felonious 

assault, one count of tampering with evidence, two counts of kidnapping and one count 

of attempted murder. 

{¶ 4} On September 28, 2020, following negotiations with the state, Appellant 

entered pleas of guilty to two counts of felonious assault, violations of R.C. 2903.11(A)(2), 

felonies of the second degree, one count of tampering with evidence, a violation of R.C. 

2921.12(A)(1), a felony of the third degree, and one count of kidnapping, a violation of 

R.C. 2905.01(A)(3), a felony of the first degree. The state agreed to nolle the balance of 

the indictment. Before entering his pleas, Appellant was provided with a plea of guilty 

packet which included written notification of his obligation to enroll on the violent offender 
Muskingum County, Case No. CT2020-55 3 

database. The notification included an explanation of the presumption of his ten-year duty 

to enroll in the database and the procedure and requirements for rebutting the 

presumption. 

{¶ 5} Appellant appeared for sentencing on November 2, 2020. The trial court 

determined one count of felonious assault and kidnapping were allied offenses and the 

state elected to proceed to sentencing on the kidnapping. Appellant was thereafter 

sentenced to an aggregate prison term of 16 to 21 years with 10 years being mandatory. 

{¶ 6} On November 16, 2020 an additional hearing was held to address 

Appellant's placement in the Violent Offender Registry Database (VOD). Both Appellant 

and the state agreed the matter could be handled "without voiding the sentence and 

starting over." Transcript of hearing (TH) at 3. Counsel for Appellant then indicated that 

Appellant understood the requirements of the VOD as the information was contained in 

his plea form packet but "[w]e were just remiss in doing the paperwork at the sentencing 

hearing." T.H at 3-4. The trial court then addressed Appellant who stated he understood 

his duty to enroll in the VOD for a 10-year period based upon his conviction. A nunc pro 

tunc sentencing entry followed which addressed Appellant's duties as a violent offender 

and his enrollment in the VOD. 

{¶ 7} Appellant timely filed an appeal and the matter is now before this court for 

consideration. He raises four assignments of error for our consideration as follow: 

I 

{¶ 8} "AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S 

SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES 
Muskingum County, Case No. CT2020-55 4 

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF 

OHIO." 

II 

{¶ 9} "THE TRIAL COURT UNLAWFULLY ORDERED WAGGLE TO SERVE 

CONSECUTIVE SENTENCES FOR HIS OFFENSES, IN VIOLATION OF HIS RIGHTS 

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION." 

III 

{¶ 10} "THE TRIAL COURT ERRED BY ORDERING WAGGLE TO BE PLACED 

ON THE VIOLENT OFFENDER REGISTRY." 

IV 

{¶ 11} "PAUL WAGGLE RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION." 

I 

{¶ 12} Appellant's first assignment of error challenges the constitutionality of the 

Regan Tokes Act which codified hybrid indefinite prison terms for first and second degree 

felonies. Appellant challenges the presumptive release feature of the act, R.C. 2967.271, 

advancing several arguments including it violates his constitutional rights to trial by jury 

and due process of law, and further violates the constitutional requirement of separation 

of powers and equal protection. 
Muskingum County, Case No. CT2020-55 5 

{¶ 13} R.C. 2967.271 provides in relevant part: 

(B) When an offender is sentenced to a non-life felony indefinite 

prison term, there shall be a presumption that the person shall be 

released from service of the sentence on the expiration of the 

offender's minimum prison term or on the offender's presumptive

earned early release date, whichever is earlier. 

(C) The presumption established under division (B) of this section is 

a rebuttable presumption that the department of rehabilitation and 

correction may rebut as provided in this division. Unless the 

department rebuts the presumption, the offender shall be released 

from service of the sentence on the expiration of the offender's 

minimum prison term or on the offender's presumptive earned early 

release date, whichever is earlier. The department may rebut the 

presumption only if the department determines, at a hearing, that one 

or more of the following applies: 

(1) Regardless of the security level in which the offender is classified 

at the time of the hearing, both of the following apply: 

(a) During the offender's incarceration, the offender committed

institutional rule infractions that involved compromising the security 

of a state correctional institution, compromising the safety of the staff 

of a state correctional institution or its inmates, or physical harm or 

the threat of physical harm to the staff of a state correctional 
Muskingum County, Case No. CT2020-55 6 

institution or its inmates, or committed a violation of law that was not 

prosecuted, and the infractions or violations demonstrate that the 

offender has not been rehabilitated. 

(b) The offender's behavior while incarcerated, including, but not 

limited to the infractions and violations specified in division (C)(1)(a) 

of this section, demonstrate that the offender continues to pose a 

threat to society. 

(2) Regardless of the security level in which the offender is classified 

at the time of the hearing, the offender has been placed by the

department in extended restrictive housing at any time within the 

year preceding the date of the hearing. 

(3) At the time of the hearing, the offender is classified by the 

department as a security level three, four, or five, or at a higher 

security level. 

(D)(1) If the department of rehabilitation and correction, pursuant to 

division (C) of this section, rebuts the presumption established under 

division (B) of this section, the department may maintain the 

offender's incarceration in a state correctional institution under the 

sentence after the expiration of the offender's minimum prison term 

or, for offenders who have a presumptive earned early release date, 

after the offender's presumptive earned early release date. The

department may maintain the offender's incarceration under this

division for an additional period of incarceration determined by the 
Muskingum County, Case No. CT2020-55 7 

department. The additional period of incarceration shall be a 

reasonable period determined by the department, shall be specified 

by the department, and shall not exceed the offender's maximum 

prison term. 

(2) If the department maintains an offender's incarceration for an 

additional period under division (D)(1) of this section, there shall be 

a presumption that the offender shall be released on the expiration 

of the offender's minimum prison term plus the additional period of 

incarceration specified by the department as provided under that 

division or, for offenders who have a presumptive earned early 

release date, on the expiration of the additional period of 

incarceration to be served after the offender's presumptive earned 

early release date that is specified by the department as provided 

under that division. The presumption is a rebuttable presumption that 

the department may rebut, but only if it conducts a hearing and

makes the determinations specified in division (C) of this section, and 

if the department rebuts the presumption, it may maintain the 

offender's incarceration in a state correctional institution for an 

additional period determined as specified in division (D)(1) of this 

section. Unless the department rebuts the presumption at the 

hearing, the offender shall be released from service of the sentence 

on the expiration of the offender's minimum prison term plus the 

additional period of incarceration specified by the department or, for 
Muskingum County, Case No. CT2020-55 8 

offenders who have a presumptive earned early release date, on the 

expiration of the additional period of incarceration to be served after 

the offender's presumptive earned early release date as specified by 

the department. 

The provisions of this division regarding the establishment of a 

rebuttable presumption, the department's rebuttal of the 

presumption, and the department's maintenance of an offender's 

incarceration for an additional period of incarceration apply, and may 

be utilized more than one time, during the remainder of the offender's 

incarceration. If the offender has not been released under division 

(C) of this section or this division prior to the expiration of the 

offender's maximum prison term imposed as part of the offender's 

non-life felony indefinite prison term, the offender shall be released 

upon the expiration of that maximum term. 

{¶ 14} Appellant argues these portions of R.C 2967.271 permitting the Department 

of Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond 

his presumptive minimum prison term violate the United States and Ohio Constitutions. 

However, as the state points out, appellant has not yet been subject to the application of 

these provisions, as he has not yet served his minimum term, and therefore has not been 

denied release at the expiration of his minimum term of incarceration. 

{¶ 15} We addressed the concept of ripeness for review in regard to the Regan 

Tokes Act in State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227: 
Muskingum County, Case No. CT2020-55 9 

The Ohio Supreme Court discussed the concept of ripeness for 

review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio 

St.3d 88, 1998-Ohio-366, 694 N.E.2d 459: 

Ripeness “is peculiarly a question of timing.” Regional Rail 

Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 

357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in part 

by the desire "to prevent the courts, through avoidance of premature 

adjudication, from entangling themselves in abstract disagreements 

over administrative policies * * *." Abbott Laboratories v. Gardner

(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681,

691. As one writer has observed: 

The basic principle of ripeness may be derived from the conclusion 

that 'judicial machinery should be conserved for problems which are 

real or present and imminent, not squandered on problems which are 

abstract or hypothetical or remote.' * * * [T]he prerequisite of ripeness 

is a limitation on jurisdiction that is nevertheless basically optimistic 

as regards the prospects of a day in court: the time for judicial relief 

is simply not yet arrived, even though the alleged action of the 

defendant foretells legal injury to the plaintiff. Comment, Mootness 

and Ripeness: The Postman Always Rings Twice (1965), 65 Colum. 

L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460. 
Muskingum County, Case No. CT2020-55 10 

In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, 

the defendant argued because the Parole Board, pursuant to R.C.

2967.28, could extend his sentence by up to an additional five years 

for violation of post-release control, the statute was unconstitutional. 

The Eighth District Court of Appeals concluded because McCann 

was not currently the subject of such action by the Parole Board, the 

issue was not yet ripe for review. Id. at ¶6. 

Likewise, in the instant case, while R.C. 2967.271 allows the DRC to 

rebut the presumption Appellant will be released after serving his 

nine year minimum sentence and potentially continue his 

incarceration to a term not exceeding thirteen years, Appellant has 

not yet been subject to such action by the DRC, and thus the 

constitutional issue is not yet ripe for our review. 

{¶ 16} Downard, at ¶8-11. See also, State v. Buckner, 5th Dist. Muskingum Nos. 

CT2020-0023 & CT2020-0024, 2020-Ohio-7017; State v. Wolfe, 5th Dist. Licking No. 

2020CA00021, 2020-Ohio-5501; State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 

2020-Ohio-5329; State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-5013; 

State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230; State v. 

Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631. 

{¶ 17} Appellant does not dispute he had not yet been subject to the provisions of 

R.C. 2967.271. We therefore find here as we did in Downard, Appellant's constitutional 

challenges are not yet ripe for review. 
Muskingum County, Case No. CT2020-55 11 

{¶ 18} The first assignment of error is overruled. 

II 

{¶ 19} In his second assignment of error, Appellant argues the trial court unlawfully 

ordered him to serve consecutive sentences. We disagree. 

{¶ 20} R.C. 2929.14(C)(4) addresses consecutive sentences. That section 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 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 
Muskingum County, Case No. CT2020-55 12 

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. 

{¶ 21} When imposing consecutive sentences, a trial court must state the required 

findings at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 

16 N.E.3d 659, ¶ 29. Because a court speaks through its journal, the court should also 

incorporate its statutory findings into the sentencing entry. Id. However, a word-for-word 

recitation of the language of the statute is not required. Id. As long as the reviewing court 

can discern the trial court engaged in the correct analysis and can determine the record 

contains evidence to support the findings, consecutive sentences should be upheld. Id. 

{¶ 22} The trial court here made the appropriate findings and Appellant concedes 

the same. Transcript of sentencing (TS) 16-17. He argues instead that he was 

undeserving of consecutive sentences because he has no prior criminal record, is 

remorseful, and the instant matter involved only one victim. 

{¶ 23} First, Appellant's claim that he has no prior record is not borne out by the 

record. In fact, Appellant had just been released from prison for aggravated assault and 

domestic violence before he committed the instant crimes. TS 13. Additionally, after 

Appellant engaged in victim blaming during his sentencing hearing, the trial court 

specifically found Appellant failed to take responsibility for his actions and demonstrated 

no remorse. TS 9-12. Based upon these facts as well as the balance of the record, we 
Muskingum County, Case No. CT2020-55 13 

cannot say that we clearly and convincingly find that the trial court's order for consecutive 

service was not supported by the R.C. 2929.14(C) factors or that it was contrary to law. 

{¶ 24} The second assignment of error is overruled. 

III 

{¶ 25} In his third assignment of error Appellant argues the trial court failed to 

properly inform him, before sentencing, of the procedure and criteria for rebutting the 

presumption he would be placed in the Violent Offender Registry Database (VOD) and 

therefore his placement in the same was error. We agree the trial court left out required 

information regarding the VOD. 

Sierah's Law 

{¶ 26} R.C. 2903.41 et seq., known as Sierah's Law, became effective on March 

20, 2019. See 2018 S.B. No. 231. The law created the VOD and requires violent offenders 

convicted of specified offenses, including kidnapping, to enroll in the database. Sierah's 

Law creates a presumption that violent offenders enroll in the database. Once enrolled, 

an offender is required to re-enroll in the database on an annual basis for a minimum of 

10 years. 

{¶ 27} Enrollment in the VOD further requires an offender to complete and sign an 

enrollment form providing various information about his or herself as well as finger and 

palm prints and annual photographs. R.C. 2903.42(C)(2)(a)-(i); R.C. 2903.43(C)(3), 

(D)(1). An offender who recklessly fails to enroll, re-enroll, or notify the sheriff of a change 

of address is guilty of a felony of the fifth degree. R.C. 2903.43(I)(1) and (2). 

The Trial Court's Obligations 
Muskingum County, Case No. CT2020-55 14 

{¶ 28} R.C. 2903.42(A)(1) governs enrollment in the VOD and places certain 

notification obligations on the trial court before sentencing. Relevant to the instant matter 

that section states: 

(A)(1) For each person who is classified a violent offender, it is 

presumed that the violent offender shall be required to enroll in the 

violent offender database with respect to the offense that so 

classifies the person and shall have all violent offender database 

duties with respect to that offense for ten years after the offender 

initially enrolls in the database. The presumption is a rebuttable 

presumption that the violent offender may rebut as provided in 

division (A)(4) of this section, after filing a motion in accordance with 

division (A)(2)(a) or (b) of this section, whichever is applicable. Each 

violent offender shall be informed of the presumption established 

under this division, of the offender's right to file a motion to rebut the 

presumption, of the procedure and criteria for rebutting the 

presumption, and of the effect of a rebuttal and the post-rebuttal 

hearing procedures and possible outcome, as follows: 

(a) If the person is classified a violent offender under division (A)(1) 

of section 2903.41 of the Revised Code, the court that is sentencing 

the offender for the offense that so classifies the person shall inform 

the offender before sentencing of the presumption, the right, and the 

procedure, criteria, and possible outcome. 
Muskingum County, Case No. CT2020-55 15 

{¶ 29} R.C. 2903.42(A)(1)(a), emphasis added. 

The Offender's Obligations 

{¶ 30} Should an offender wish to rebut the presumption of enrollment into the 

VOD the process for doing so is set forth in R.C. 2903.42(A)(2)(a): 

(2) A violent offender who wishes to rebut the presumption 

established under division (A)(1) of this section shall file a motion in 

accordance with whichever of the following is applicable, and shall 

serve a copy of the motion on the prosecutor: 

(a) If the person is classified a violent offender under division (A)(1) 

of section 2903.41 of the Revised Code, the offender shall file the 

motion with the court that is sentencing the offender for the offense 

that classifies the person a violent offender. The motion shall assert 

that the offender was not the principal offender in the commission of 

that offense and request that the court not require the offender to 

enroll in the violent offender database and not have all VOD duties 

with respect to that offense. The motion shall be filed prior to or at 

the time of sentencing. 

{¶ 31} Thus, while R.C. 2903.43(A)(2)(a) does provide a mechanism to rebut the 

presumption of enrollment into the VOD, the only way a defendant can successfully 
Muskingum County, Case No. CT2020-55 16 

overcome that presumption is if he or she is not the principal offender of the subject 

offense. 

Sierah's Law as Applied to this Matter 

{¶ 32} At the change of plea hearing in this matter, the state first notified the trial 

court of the agreement between the parties, and then provided the trial court with "a fourpage signed plea agreement * * *. And in addition, there's additional pages consisting of 

four pages including * * * a notice of violent offender database provisions." Counsel for 

Appellant then indicated he had reviewed the information with Appellant and answered 

his questions. Transcript of Plea (TP) 4-5. 

{¶ 33} During Appellant's plea colloquy, the trial court made brief mention of the 

VOD advising Appellant: 

THE COURT: You'll be in the violent offender database, and that's 

for a period – there's a presumption for a period of ten years. There's 

some ways to rebut the presumption. But upon your release from 

prison, you'll have to be registered in the violent offender database. 

Are you aware of that? 

[APPELLANT]: Yes, Your Honor. 

THE COURT: And [defense counsel] went over that with you? 

[APPELLANT]: Yes, Your Honor. 

{¶ 34} TP. 11. 
Muskingum County, Case No. CT2020-55 17 

{¶ 35} Apparently realizing it had provided inadequate information to Appellant 

regarding the VOD during his change-of-plea hearing, the trial court held a hearing to 

remedy the situation. The hearing was held on November 16, 2020, after Appellant was 

sentenced. At that hearing the following exchange took place: 

[The State]: Thank you, Your Honor. We're here on Case No. 

CR2020-0326 for [Appellant]. The purpose of the hearing is involving 

[Appellant's] placement on the violent offender registry. 

The Court: And will both counsel agree that we can do that without 

voiding the sentence and going back and staring over? [Counsel for 

Appellant]? 

[Counsel for Appellant]: Yes, Your Honor. 

The Court: That all we have to do is go through the violent offender 

registry. 

[Counsel for Appellant]: He was aware. It's in the plea form. He 

understood his requirements. We just were remiss in doing the 

paperwork at the sentencing hearing. 

The Court: Thank you. I wanted to make sure everybody agreed 

that's it. That's my belief. I just wanted to make sure there was no 

objection. 

[The State]: State would agree, Your Honor. 
Muskingum County, Case No. CT2020-55 18 

The Court: All right. Thank you. [Appellant], you understand that you 

have a duty to enroll as a violent offender based upon your 

conviction? 

[Appellant]: Yes, Your Honor. 

The Court: What your – what your rules and requirements were – 

[Appellant]: Yes, sir. 

The Court: -- about registering? You also understand, that's for a 10-

year period? 

[Appellant]: Yes, Your Honor. 

The Court: And you also understand that if you fail to register

appropriately or don't follow the rules and regulations, that could lead 

to new and additional jail or prison time? 

[Appellant]: Yes, Your Honor. 

The Court: Do you have any questions about any of that? 

[Appellant]: No, Your Honor. 

The Court: [Counsel for Appellant], anything further we need to

address? 

[Counsel for Appellant]: No, Your Honor. 

The Court: Thank you. Based upon that, I do find that you are a

violent offender for the purpose of – of the necessity to enroll in the 

violent offender database. [Appellant], do you have any questions 

about anything? 

[Appellant]: No, Your Honor. 
Muskingum County, Case No. CT2020-55 19 

{¶ 36} Transcript of hearing 3-5. 

{¶ 37} As Appellant points out, the trial court failed to advise Appellant of the 

procedure and criteria for rebutting the presumption he would be enrolled in the VOD. In 

support of his argument, Appellant directs us to State v. Fabian, 12th Dist. Warren No. 

CA2019-10-119, 2020-Ohio-3926. In that matter, Fabian argued his pleas were not 

knowingly, intelligently, or voluntarily made because the trial court failed to comply with 

Crim.R. 11(C)(2)(a) when it failed to advise him of post-release control during his plea 

colloquy. The majority of the court agreed finding "the trial court's total failure to inform 

Fabian of postrelease control, which was a part of the maximum penalty, before it 

accepted the guilty plea, constituted "a trial court's complete failure to comply with a 

portion of Crim.R. 11(C)” pursuant to the second exception to the prejudice requirement." 

" Fabian ¶ 24. quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 

1224 ¶ 22. 

{¶ 38} But Appellant does not argue that his plea was rendered involuntary due to 

the trial court's failure to advise him of the procedure and criteria for rebutting the 

presumption he would be placed on the VOD, nor does he request his sentence be 

vacated. Rather, Appellant simply argues the trial court erred in placing him on the VOD. 

{¶ 39} Appellant's placement on the VOD is not itself erroneous as it is mandatory 

based on Appellant's conviction for kidnapping and as the sole offender in the matter. 

However, the trial court did not fulfill all of its notification requirements. 

{¶ 40} The Ohio General Assembly chose the term "shall" when describing the trial 

court's obligation to inform a violent offender of the procedure and criteria for rebutting 

the presumption that the offender will be enrolled in the VOD. R.C 2903.42(A)(1)(a). It is 
Muskingum County, Case No. CT2020-55 20 

well established that "shall" means must when used in a statute. State v. Noling, 153 Ohio 

St.3d 108, 2018-Ohio-795, 101 N.E.3d 435, ¶ 64. The use of the word shall "connotes a 

mandatory obligation unless other language evidences a clear and unequivocal intent to 

the contrary." Id., citing Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 

N.E.2d 1242, ¶ 13. 

{¶ 41} Because the sentencing court was required to inform Appellant of the 

procedure and criteria for rebutting the presumption he would be placed on the VOD and 

possible outcome, we vacate only Appellant's placement on the VOD and remand the 

matter to permit the proper advisements to be made. 

{¶ 42} The third assignment of error is sustained. 

IV 

{¶ 43} In his final assignment of error, Appellant argues his counsel rendered 

ineffective assistance. We disagree. 

{¶ 44} To prevail on a claim of ineffective assistance of counsel, a defendant must 

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell 

below an objective standard of reasonable representation, and (2) that counsel's errors 

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the 

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable 

probability" is "probability sufficient to undermine confidence in the outcome." Strickland

at 694, 104 S.Ct. 2052. 
Muskingum County, Case No. CT2020-55 21 

{¶ 45} Appellant makes two arguments under this assignment of error. First he 

argues trial counsel was ineffective because he failed to argue against the Regan Tokes 

Act. As we have found in the first assignment of error, however, the matter is not yet ripe 

for review. We therefore reject Appellant's argument. 

{¶ 46} Next Appellant argues his counsel was ineffective for failing to object to his 

placement on the VOD. This argument has been rendered moot by our resolution to the 

third assignment of error. 

{¶ 47} The judgment of the Muskingum County Court of Common pleas is affirmed 

in part. Appellant's placement on the Violent Offender Registry Database is vacated and 

remanded for proceedings consistent with this opinion. 

By Wise, Earle, J., 

Delaney, J. concur. 

Gwin, P.J. concurs in part, dissents in part. 

 

EEW/rw 
Muskingum County, Case No. CT2020-55 22 

Gwin, P.J., concurs, in part and dissents in part 

{¶48} I concur in the majority’s disposition of Appellant’s Second, Third, and 

Fourth Assignments of Error. 

{¶49} I respectfully dissent from the majority’s opinion concerning ripeness and 

Appellant’s First Assignment of Error for the reasons set forth in my dissenting opinion in 

State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501. 

{¶50} I further note that the Ohio Supreme Court has accepted a certified conflict 

on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on 

direct appeal or only after the defendant has served the minimum term and been subject 

to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-

1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d 

1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table) The conflict cases are State v. Leet, 2d 

Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery 

No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-

Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; 

See also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227, 

appeal accepted on Appellant’s Proposition of Law No. II, State v. Downard, 160 Ohio 

St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507 (Table)(Sua sponte, cause held for the 

decision in 2020-1266, State v. Maddox). The Ohio Supreme Court heard oral arguments 

on Maddox on June 29, 2021.