[Cite as State v. Roberson , 2021-Ohio-3705.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

MASON D. ROBERSON, Appellant. :

:

:

:

:

: CASE NO. CA2021-01-003

O P I N I O N

10/18/2021

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 20CR37166

David P. Fornshell, Warren County Prosecuting Attorney, and Kir sten A. Brandt, Assistant Prosecuting Attorney, for appellee. Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant

.

HENDRICKSON, J. {¶1} Appellant, Mason D. Roberson, appeals from his conviction and s entence in the Warren County Court of Common Pleas for aggravated robbery with a firearm specification. For the reasons discussed below, we affirm in p art, reverse in part, and remand for the limited purpose of resentencing in compliance wi th R.C. 2929.19(B)(2)(c). {¶2} On September 21, 2020, appellant was indicted on one count of a ggravatedWarren CA2021-01-003

- 2 - robbery in violation of R.C. 2911.01(A)(1), a felony of the fir st degree, and one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the sec ond degree. Both counts were accompanied by a firearm specification as set forth in R.C. 294 1.145(A). The charges arose out of allegations that on May 30, 2020, appellant, accompanied by two associates, robbed the Days Inn Hotel in Middletown, Warren County, Ohio at gunpoi nt, stealing $160 from the hotel's cash register. {¶3} Appellant pled not guilty to the charges and waived his right t o a jury trial. On November 23, 2020, a bench trial commenced, at which time the s tate presented testimony from various law enforcement officers who participated in the i nvestigation and from Mukund Patel, the front desk clerk working at Days Inn at the t ime of the robbery. Appellant did not testify or present any witnesses on his behalf. Securi ty camera footage of the robbery was admitted into evidence. The testimony and exhibits introduced at trial established the following facts. {¶4} At 10:28 a.m. on May 30, 2020, three men entered the Middletown Days Inn and robbed the hotel at gunpoint. The three men wore masks, al though the mask of the first robber ("Male #1") slipped down at one point, making his face visible to the hotel's security system. Male #1 leapt over the front desk and entered the back office carrying what appeared to be an AR-15 assault rifle in his left hand. A second man ("Male #2") took a handgun from the third man ("Male #3") and followed Male #1 i nto the back office. Once Male #2 joined Male #1 in the back office, they swapped guns, w ith Male #1 again holding the weapon in his left hand. While Male #1 and Male #2 demande d money from Patel, Male #3 acted as a lookout in the hotel lobby. {¶5} Patel informed the robbers that he did not have access to the s afe but could open the hotel's cash register. Patel opened the cash register and Male #1 took out $160. The three robbers then fled the hotel, exiting out the front do or. Patel called 9-1-1 to reportWarren CA2021-01-003

- 3 - the incident, and officers from the Middletown Police Departmen t responded to the scene. {¶6} The police were unable to locate the perpetrators in the immedi ate aftermath of the robbery. Patel was unable to identify the robbers, as h e had been focused on the guns pointed at him rather than the perpetrators' faces. Detec tive Kristi Hughes reviewed the security camera footage an d still photographs produced from the video footage. She noted that Male #1's facial covering had fallen during the robb ery, permitting a clear, unobstructed view of his face. The security footage depicted M ale #1 as a thin, light-skinned black man, about 6'2" to 6'3" tall, with light facial hair arou nd his lip, chin, and jaw, and a dimple in his chin. The security footage also depicted Male #1 as having a tattoo on his right arm, a small portion of which was visible around his wris t, where his shirtsleeve had ridden up. From the way Male #1 had handled the handgun and AR -15, he was believed

to be left-handed. Male #2 was a darker-skinned black man. Ma le #3 appeared to be hiding an Afro under his head covering. All three men appeared to be in their twenties. {¶7} In an effort to develop leads, Detective Hughes posted the surv eillance footage from the robbery on the Middletown Police Department's Facebook page. Although tips of possible suspects were provided by the public, the name d suspects were excluded as they did not match the description of the men who robbed the hotel. Detective Hughes' investigation had started to stall out when, on August 4, 2020, she received a telephone call from Detective Ruwe of the Delhi Township Police Departmen t. Delhi Township, in conjunction with the Amberly Village Police Department and the Wyoming Police Department, had been investigating a series of vehicle thefts. Pursuant to this investigation, one of the stolen vehicles, a Dodge Journey, was found in the d riveway of an apartment building located at 7810 Dawn Road, Cincinnati, Ohio. Another stolen vehicle, an Acura RDX, was seen driving away from the 7810 Dawn Road apartment bu ilding. Officers who stopped the Acura were informed by the occupants that they had spent the night at 7810Warren CA2021-01-003

- 4 - Dawn Road, Apt. 2 (hereafter, the "Dawn Road apartment"), with Kamico Evans, Matthew Lyons, and appellant. The Dawn Road apartment was leased to ap pellant and Jamanuel Wright. {¶8} The officers investigating the vehicle thefts executed a search warrant of the Dawn Road apartment on August 4, 2020. During the search, offi cers found three magazines to an AR-15 assault rifle in one of the bedrooms. Th e magazines were consistent with an AR-15 assault rifle, like the one used in th e armed robbery of the Days Inn. Inside the stolen Dodge Journey that had been located in the driveway of the residence, officers found a .9 mm Taurus handgun. The handgun was the same style, size, and color as the handgun used in the Days Inn robbery. The DNA of appellant's roommate was found on the gun. {¶9} While the search warrant was being executed, appellant, Evans, and Wright arrived on scene. All three men were taken into custody and tr ansported to the Amberly Village Police Department. Detective James Drake spent between three-and-one-half hours to four hours with appellant at the police station. Dete ctive Drake noted that appellant physically matched the description of Male #1 from the Days Inn robbery, as appellant was about 6'2" or 6'3" tall and was "thin and looked pretty athleti c." Detective Drake also noted that appellant had a tattoo on his wrist and arm that was simil ar to Male #1. Detective Drake observed that when appellant signed his Miranda rights form and a waiver form for DNA collection, appellant signed with his left hand. Based on his review of the security footage of the robbery and his observations and interactions with appel lant, Detective Drake believed appellant was Male #1. {¶10} Police recovered communications between Evans and appellant and Evans and Wright from their respective cell phones. After the stolen Dodge Journey had been recovered, Wright had texted Evans, "Bruh my gun in dat bitch." Wright further texted, "ThisWarren CA2021-01-003

- 5 - don't make sense like they woulda been tracked it I swear one o f da neighbors is snitching." Videos on Evans' phone depicted Evans and Lyons in possession o f an AR-15 assault rifle and a black handgun on June 19 and June 26, 2020. Appellant an d Lyons were also together in a video recorded on June 26, 2020. The video showe d the tattoo on appellant's right forearm and wrist, which appeared similar to the tattoo o n Male #1's arm. Evans' phone's GPS location data placed him in Middletown, about one t o two miles away from the Days Inn, approximately three hours after the robbery occurred. Also found on Evans' phone was the security footage of the Days Inn robbery, which E vans' had saved after it was posted to the Middletown Police Department's Facebook page. {¶11} Detective Hughes attempted to interview appellant on August 7, 2020, and she spent about two hours with appellant that day. During her contact with appellant, Hughes was able to observe his height, his build, his facial fe atures, including his facial hair and dimpled chin, and his forearm and wrist tattoo. She observ ed that appellant signed the

Miranda waiver form with his left hand, indicating he was left-handed. Based on her observations, Detective Hughes believed appellant was Male #1 f rom the Days Inn robbery. Detective Hughes arrested appellant and transported him to the Middletown Jail. While being transported, appellant commented to Detective Hughes that "he thought that his neighbor was a snitch but he didn't want to el aborate." After appellant was booked into the Middletown Jail, he made a phone call, and Detective Hughes ove rheard appellant state that "he was in the Middletown jail for the robbery he did and that it was bull crap because he didn't get any money out of it." {¶12} The trial court found appellant guilty on all offenses and fire arm specifications. Appellant was subsequently sentenced on December 11, 2020. App ellant's convictions for robbery and aggravated robbery we re merged as allied offenses, and the state elected to proceed on the aggravated robbery conviction. Appellant was se ntenced to an indefiniteWarren CA2021-01-003

- 6 - sentence of six to nine years in prison for aggravated robbery and an additional consecutive three-year prison term for the accompanying firearm specificati on, for an aggregate prison term of nine to twelve years. {¶13} Appellant appealed his conviction and sentence, raising two ass ignments of

error for review. 1 {¶14} Assignment of Error No. 1: {¶15} THE TRIAL COURT ERRED IN CONVICTING APPELLANT. {¶16} In his first assignment of error, appellant raises two issues f or review relating to his conviction. He first argues that the trial court "erred in convicting [him] without a jury after an invalid jury waiver" since the jury waiver form was no t signed or acknowledged in open court. He then argues that his conviction for aggravated robbery is against the manifest weight of the evidence as the state failed to introduc e evidence connecting him to the robbery. We begin by addressing whether there was a valid jury waiver. Jury Waiver {¶17} At a pretrial hearing held on October 29, 2020, appellant, with counsel present, indicated his desire to waive his right to a jury tria l and be tried by the bench. The following discussion was then held between the court and appell ant: THE COURT: All right. So, Mr. R oberson, in the State of Ohio, we divide the responsibility at a jury trial. I determine what the law is, and the jury determines what the facts are. The jury would have to be convinced unanimously, that means all twelve of them have to agree, beyond a reasonable doubt that you are guilty of this, in order for them to render a guilty verdict. Now, they also, all twelve have to agree that you're not guilty of t his, and if they can't agree, that's what we call a mistrial. That doesn't mean that you win by forfeit. It just means that there is no verdict for that particular trial.

1. We note with disapproval appellant's shotgun approach of ra ising several issues that require different legal analyses under each assignment of error, instead of properly ra ising each specific issue in separate assignments of error. See Loc.R. 11(B)(3); State v. Cook, 12th Dist. Warren No. CA2020-08-053, 2021-Ohio2157, ¶ 15, fn. 1; State v. Harner , 12th Dist. Brown No. CA2019-10-012, 2020-Ohio-3071, ¶ 6, fn. 2.Warren CA2021-01-003

- 7 - If you waive your right to a jury, then we combine those two tasks and I will determine the fact s in the case and the law. You retain all the other rights that you have. You still have the right to confront witnesses, the right to compel witnesses to testify on your own behalf, the right to remain silent, proof beyond a reasonable doubt. All of those things remain the same, except I will determine whether or not the State of Ohio has proven th at you are guilty of this, beyond a reasonable doubt. Do you understand all of this? [APPELLANT]: Yes. THE COURT: Have you had the opportunity to talk about it with your lawyer? [APPELLANT]: Yes. THE COURT: Are you satisfied with the representation you've received so far? [APPELLANT]: Yes. THE COURT: All right, and you want to waive your right to a jury? [APPELLANT]: Yes. THE COURT: All right. There is a written document that tells me in writing, that you want to waive your right to a jury. * * * A signed written jury waiver was filed that same day with the t rial court. {¶18} Appellant contends that despite the foregoing discussion and a signed jury waiver form filed with the court, his jury waiver was not valid because the jury waiver form was not signed or acknowledged in open court. Appellant conten ds that absent an acknowledgement on the record that he personally signed the jur y waiver form, the requirements of R.C. 2945.05 were not met and the trial court l acked jurisdiction to conduct

a bench trial. {¶19} The Sixth Amendment to the United States Constitution, made app licable to the states through the Fourteenth Amendment, guarantees an accu sed the right to trial byWarren CA2021-01-003

- 8 - jury. Duncan v. Louisiana , 391 U.S. 145, 88 S.Ct. 1444 (1968). Likewise, Section 5, Art icle I of the Ohio Constitution states that the "right of trial by j ury shall be inviolate." "However, Crim.R. 23(A) allows a defendant to waive his right to a trial by jury in serious offense cases provided that the waiver is made knowingly, intelligently, and voluntarily, and in writing."

State v. Lomax , 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 6. The manner in which a defendant may waive his right to a jury trial is set forth in R .C. 2945.05. This provision

states: In all criminal cases pending in courts of record in this state , the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writin g, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I ______________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried b y a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. (Emphasis added.) "Absent strict compliance with the requirem ents of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury." State v. Pless , 74 Ohio St.3d 333 (1996), paragraph one of the syllabus. {¶20} "Therefore, to be valid, a waiver must meet five conditions. I t must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open court." Lomax at ¶ 9. {¶21} In Lomax , the Ohio Supreme Court construed the "made in open court" language to determine what R.C. 2945.05 required in order for a jury waiver to be valid. There, the defendant signed a written waiver, which was filed o n the first day of trial andWarren CA2021-01-003

- 9 - made part of the record. Id. at ¶ 10. The trial court mentioned the jury waiver only in passing, stating, "Since there's going to be a jury waiver, doe s the State care to make an opening statement at this time?" Id. at ¶ 45. Thereafter, a bench trial ensued, at which time the defendant was found guilty of murder. Id. at ¶ 2. The court of appeals reversed the conviction, finding that the mere mention on the record of a ju ry waiver did not comply with the "open court" requirement of R.C. 2945.05. Id. at ¶ 4. {¶22} On appeal, the supreme court affirmed, agreeing that the "open court" requirement had not been met under the facts of the case. The court found that while "a trial court does not need to engage in an extended colloquy wit h the defendant in order to comply with the statutory requirement that a jury waiver be mad e in open court," there nonetheless had to be "some evidence in the record of the proce edings that the defendant acknowledged the waiver to the trial court while in the presenc e of counsel, if any." Id. at ¶

42. "We do not mandate magic words, or a prolonged colloquy, but si mply what Ohio law intends – that a defendant while in the courtroom and in the pr esence of counsel, if any, acknowledge to the trial court that the defendant wishes to wai ve the right to a jury trial."

Id. at ¶ 48. The court went on to sum marize its holdings, stating : We therefore hold that a waiver of the right to a jury trial mu st not only be made in writing, signed by the defendant, and filed as part of the record, but must also be made in open court. To satisfy the "in open court" requirement in R.C. 2945.05, there must be some evidence in the record that the defendant while in the courtroom and in the presence of counsel, if any, acknowledged the jury waiver to the trial court.

Id. at ¶ 49. {¶23} The supreme court has found that the "in open court" requiremen t is satisfied when the trial court inquires whether the defendant has volunta rily signed a jury trial waiver.

Id. at ¶ 42, citing State v. Jells , 53 Ohio St.3d 22 (1990) and State v. Bays , 87 Ohio St.3d 15 (1999). However, this is not the only way the "in open cour t" requirement can be met.Warren CA2021-01-003

- 10 - While it might be the better practice for the court to question the defendant as to whether he has voluntarily signed the jury waiver form while on the rec ord, the requirements of R.C. 2945.05 can still be met absent this procedure. See State v. Thomas , 8th Dist. Cuyahoga No. 82130, 2003-Ohio-6157, ¶ 14-16. An oral acknowledgement by the accused, in open court, that he wishes to waive the right to a jury trial, in co mbination with a written, signed waiver form that is filed with the court and made part of the r ecord also meets the requirements of R.C. 2945.05. See id. at ¶ 14-15 (finding the requirements of R.C. 2945.05 were met where the defendant, following a colloquy, affirmative ly indicated on the record that he wished to waive his right to a jury trial prior to sign ing a written waiver form during a court recess and the waiver form was filed with the court); State v. Reynolds , 12th Dist. Warren No. CA2019-08-077, 2020-Ohio-4354, ¶ 9 (noting that a "p assing reference" to a signed waiver does not satisfy the "in open court" requirement but the requirement is met where a defendant "orally acknowledge[s] in the courtroom and i n the presence of counsel that he or she is waiving the right to a jury trial"); State v. Banks , 10th Dist. Franklin No. 18AP-808, 2019-Ohio-5440, ¶ 25 (noting that in addition to a fi led and recorded signed jury waiver, "there must be an oral acknowledgement by the accused, in open court, that he or she wishes to waive the right to a jury trial in order to compl y with the requirements of R.C. 2945.05 and for the jury waiver to be valid"). {¶24} In the present case, the trial court engaged in a colloquy with appellant, wherein the court explained to appellant his constitutional rig ht to a jury trial and questioned appellant about his desire to waive such right. The court inqu ired whether appellant had discussed waiving a jury trial with his attorney. Appellant in dicated that he had discussed the issue with his counsel, that he was satisfied with counsel' s representation, and that he wanted to waive his right to a jury. Additionally, the record reveals that a signed jury waiver was filed with the court that same day. Contrary to appellant' s assertions, "[t]he writtenWarren CA2021-01-003

- 11 - waiver need not be actually signed in open court 'as long as th e signed writing has been made part of the record and the waiver is reaffirmed in open co urt.'" State v. Allen , 12th Dist. Fayette No. CA97-02-004, 1997 Ohio App. LEXIS 4522, * 7 ( Oct. 6, 1997), quoting

State v. Walker , 90 Ohio App.3d 352, 358 (3d Dist.1993). {¶25} Appellant suggests that the signature on the waiver form may no t be his – contending there is no record of who actually signed the docume nt. However, neither appellant nor trial counsel objected to the commencement of tri al after the signed form was filed or asserted at trial that appellant had not signed the fo rm. In light of the facts presented in the present case, we find that the requirements of R.C. 2945 .05 were met and that appellant waived his right to a jury trial. See Thomas at ¶ 19. {¶26} We further find that appellant's reliance on this court's decis ions in State v.

Stanton , 12th Dist. Butler No. CA97-08-0156, 1997 Ohio App. LEXIS 5713 (Dec. 22, 1997); State v. Reynolds, 2020-Ohio-4354; and State v. VonStein , 12th Dist. Butler No. CA2020- 11-111, 2021-Ohio-2984, as authority for vacating his convictio n on the basis of an invalid jury waiver is misplaced. Not only is the present case factual ly distinguishable from the

circumstances in Stanton – as there the defendant failed to sign a written jury waiver and there was no discussion of the defendant affirming his desire t o waive a jury trial on the

record after consultation with counsel – but the Stanton case also predated the Ohio Supreme Court's decision in Lomax explaining the "in open court" requirement. Additionally, in both Reynolds and VonStein , there was only a brief or passing reference made by the trial court to its r eceipt of a written jury waiver

. Reynolds at ¶ 13; VonStein at ¶ 11. There was no evidence in the record that either defendan t acknowledged their respective jury waivers to the trial court while in the presenc e of counsel and the courts' passing references to receiving the forms did not satisfy the r equirements of R.C. 2945.05.Warren CA2021-01-003

- 12 - Id. ; Reynolds at ¶ 14. 2 {¶27} Accordingly, for the reasons stated above, we find that the jur y waiver in this case met the requirements of R.C. 2945.05 and that the trial co urt had jurisdiction to conduct a bench trial. To the extent appellant's first assignment of e rror challenges the validity of his jury waiver, appellant's arguments are overruled. Manifest Weight of the Evidence {¶28} Appellant also challenges his conviction for aggravated robbery , contending his conviction is against the m anifest weight of the evidence. {¶29} A manifest weight of the evidence challenge examines the "incli nation of the greater amount of credible evidence, offered at a trial, to sup port one side of the issue rather

than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evide nce and all reasonable inferences, consider the credibility of the witnesses, and dete rmine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its w ay and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. " While appellate review includes the responsibilit y to consider the credibility of witnesses and weight given to the evidence, 'these issues are primarily matters for the tr ier of fact to decide.'" State v.

Barnes , 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quo ting State v.

2. Appellant also cited State v. Riggins , 9th Dist. Summit No. 28080, 2017-Ohio-80; and State v. Sweeting , 1st Dist. Hamilton No. C-180161, 2019-Ohio-2360, in support of his argument that there was an invalid jury waiver. We find these cases inapplicable and distinguishable t o the facts in the case at hand. In Riggins , the defendant did not sign the written jury waiver, there was no di scussion of a jury waiver in open court in the defendant's presence, and there no evidence that the defendant fully understood that he had a right to a jury trial. Riggins at ¶ 8. In Sweeting , the defendant did not sign a jury waiver and there was no evi dence that the defendant understood he had a constitutional right to a jury tr ial as the court did not read the full jury waiver form to the defendant and the defendant did not personally read or review the form. Sweeting at ¶ 14-21.Warren CA2021-01-003

- 13 - Walker , 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court, therefore, will overturn a conviction due to the manifest weigh t of the evidence only in extraordinary circumstances when the evidence presented at tria l weighs heavily in favor of acquittal. Id ., citing Thompkins , 78 Ohio St.3d at 387. {¶30} Appellant was convicted of aggravated robbery in violation of R .C. 2911.01(A)(1), which provides that "[n]o person, in attempting or committing a theft offense, * * * or in fleeing immediately after the attempt or offense, s hall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's contr ol and either display the weapon, brandish it, indicate the offender possesses it, or use it." The sole issue in this case was the identity of appellant as Male #1 in the Days Inn r obbery. Appellant contends there was no evidence connecting him to the robbery other than his "association with others who might have had knowledge of the robbery." {¶31} "It is well settled that in order to warrant a conviction, the evidence must establish beyond a reasonable doubt the identity of the accused as the person who

committed the crime at issue." State v. Jividen , 12th Dist. Warren No. CA2020-10-067, 2021-Ohio-2720, ¶ 11. "The identity of the accused as the perp etrator of the crime may be established by direct or circumstantial evidence." State v. Harner , 12th Dist. Brown No. CA2019-10-012, 2020-Ohio-3071, ¶ 13. Circumstantial and direct evidence have the same probative value. Jividen at ¶ 11, citing State v. Lee , 12th Dist. Fayette Nos. CA2020-09- 014 and CA2020-09-015, 2021-Ohio-2544, ¶ 25. {¶32} Upon review of the record, we find appellant's conviction for a ggravated robbery with a firearm specification is not against the manifes t weight of the evidence. Though the state's case was largely based on circumstantial evi dence, the state presented ample credible evidence that appellant was Male #1 in the Days Inn robbery. Surveillance footage of the robbery provided law enforcement with a clear, u nobstructed view of MaleWarren CA2021-01-003

- 14 - #1's face as he entered the back office of the Days Inn hotel w hile holding a firearm to demand money. In addition to capturing Male #1's face, the sur veillance footage captured Male #1's build, a portion of the tattoo he had on his right wr ist and arm, and his use of his left hand to hold the firearms used during the robbery. After viewing the surveillance footage of the robberies, and still images of Male #1's face taken from the video footage, Detective Hughes and Detective Drake spent multiple hours in appellant's presence. They observed that appellant, like Male #1, was left-handed. Additionally, t hey testified that appellant's height, build, facial features, including his facial hair and d impled chin, and his forearm and

wrist tattoos matched the features and build of Male #1. Both detectives identified appellant as one of the perpetrators of the robbery. {¶33} In addition to the detectives' identifications, corroborating e vidence was found during the course of law enforcement's investigation into stole n vehicles. Inside appellant's residence, a residence where Evans and Lyons stayed, officers f ound three magazines to an AR-15 rifle, the same type of weapon used during the robbery . Officers also found a .9 mm handgun in one of the stolen vehicles that had been parked a t appellant's apartment, and the gun was the same style, size, and color as the gun used during the robbery. Though the magazines were found in the bedroom believed to belong to W right and the .9 mm handgun had Wright's DNA on it, the location of the weapon and magazines nonetheless demonstrated appellant's access to the weapons. Additionally, cell phone videos recovered from Evans' phone and communications between Evans and Wright i ndicated appellant's association with Wright, Evans, and Lyons and his access to an AR-15 assault rifle and a handgun. {¶34} Finally, appellant's statements to Detective Hughes following h is arrest for robbery provided evidence that he was a perpetrator of the Days Inn robbery. When being transported to Middletown Jail, appellant indicated he thought his neighbor had "snitch[ed]."Warren CA2021-01-003

- 15 - At the jail, he was overheard stating that he "was in the Middl etown jail for the robbery he did and that it was bull crap because he didn't get any money o ut of it." {¶35} Though appellant challenged the thoroughness of Detective Hughe s' investigation into the robbery and questioned Detectives Hughes ' and Drake's identification of him as Male #1, the greater amount of credible evidence offe red at trial established beyond a reasonable doubt that appellant was a perpetrator of t he robbery. The evidence presented at trial, therefore, does not weigh heavily in favor of acquittal and the trial court did not clearly lose its way and create a manifest miscarriage of justice in finding appellant guilty of aggravated robbery and the accompanying firearm speci fication. To the extent appellant's first assignment of error challenges his conviction for aggravated robbery and the accompanying firearm specification, we find his arguments t o be without merit and they are hereby overruled. {¶36} Assignment of Error No. 2: {¶37} THE TRIAL COURT ERRED IN SENTENCING APPELLANT. {¶38} In his second assignment of error, appellant raises three issue s for review relating to his sentence. Appellant argues (1) the indefinite sentence imposed by the trial court pursuant to the Reagan Tokes Law is unconstitutional, (2) he received ineffective assistance of counsel as trial counsel failed to challenge the constitutionality of the Reagan Tokes Law, and (3) his sentence is contrary to law as the tria l court did not provide the mandatory notices set forth in R.C. 2929.19(B)(2)(c) at the sen tencing hearing when imposing the indefinite sentence. Constitutionality of Reagan Tokes {¶39} Appellant seeks to challenge the constitutionality of Ohio's in definite sentencing structure, as set forth in R.C. 2967.271. However, it is undisputed that appellant did not raise a challenge to the constitutionality of the Reaga n Tokes Law with the trial court.Warren CA2021-01-003

- 16 - As this court has repeatedly held, "arguments challenging the c onstitutionality of the Reagan Tokes Law are forfeited and will not be heard for the fi rst time on appeal in cases where the appellant did not first raise the issue with the tria l court." State v. Blaylock , 12th Dist. Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, citing State v. Hodgkin , 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 11; State v. Teasley , 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; and State v. Alexander , 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8-9. {¶40} Given this court's precedent declining to hear any arguments ch allenging the constitutionality of the Reagan Tokes Law in cases where the is sue was not first raised with the trial court, appellant's second assignment of error is over ruled to this extent. 3

Ineffective Assistance {¶41} Appellant asserts his trial counsel was ineffective because cou nsel failed to challenge the constitutionality of the Reagan Tokes Law, thereb y failing to preserve the

issue. {¶42} "In order to prevail on an ineffective-assistance-of-counsel cl aim, a defendant must prove that counsel's performance was deficient and that th e defendant was prejudiced by counsel's deficient performance." State v. Davis , 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 10, citing State v. Bradley , 42 Ohio St.3d 136, 141-142 (1989) and Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). "Thus, the defendant must demonstrate that

3. We note that even if appellant had not forfeited his challe nge to the constitutionality of the Reagan Tokes Law, this court has already determined that R.C. 2967.271 does not run afoul of an offender's due process rights as guaranteed by the Fifth and Fourteenth Amendments 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. This 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 tru e as it relates to a challenge alleging the Reagan Tokes Law impinges on an offender's constitutional right to a jury. State v. Rogers , 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-3282, ¶ 20.Warren CA2021-01-003

- 17 - counsel's performance fell below an objective standard of reaso nableness and that there exists a reasonable probability that, but for counsel's error, the result of the proceeding

would have been different." Id. , citing Bradley at paragraphs two and three of the syllabus. "'A reasonable probability is a probability sufficient to under mine confidence in the

outcome.'" Bradley at 142, quoting Strickland at 694. The failure to satisfy either the deficiency prong or the prejudice prong of the test is fatal to a claim of ineffective assistance

of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389 (2000). {¶43} We find that trial counsel was not ineffective for failing to c hallenge the constitutionality of the Reagan Tokes Law. It is well establis hed that statutes are presumed

constitutional. State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17; State v. Cook , 83 Ohio St.3d 404, 409 (1998). At the time appellant was sentence d on December 11, 2020, no appellate court had found the Reagan Tokes Law unconstitutio nal. 4 Precedents from this court – all of which were decided before appellant was sen tenced – had already determined that the Reagan Tokes Law was not unconstitutional a s it does not violate an offender's right to due process. See State v. Guyton , 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Morris , 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103. Case law from other appellate courts decided before appellant's sentencing had likewise found the Reagan Tokes Law constitutional or not yet ripe for r eview. See State v. Ferguson , 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 (does not viola te an offender's

4. The first appellate decision finding the Reagan Tokes Law u nconstitutional was not decided until May 27, 2021 – more than five months after appellant was sentenced. See State v. Delvallie , Cuyahoga No. 109315, 2021-Ohio-1809. The Eighth District recognized that its decisi on in Delvallie was in conflict with prior decisions from its court finding Reagan Tokes constitutional. See State v. Simmons , 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939; State v. Wilburn , 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578; State v. Gamble , 8th Dist. Cuyahoga No. 109613, 2021-Ohio-810. As a result, the Eighth Di strict sua sponte determined it would "consider this matter en banc with respect to the issue of whet her the Reagan Tokes Law (SB 201) is unconstitutional under any of the following provisions: the Du e Process Clause, the Sixth Amendment right to trial by jury, and the Separations-of-Powers Doctrine." State v. Delvallie , 8th Dist. Cuyahoga No. 109315 (En Ban Journal Entry) (June 3, 2021). An en banc determinatio n has not yet been issued and the constitutionality of the Reagan Tokes Law remains unresolved in the Eighth District.Warren CA2021-01-003

- 18 - due process rights or the separation of powers doctrine); State v. Hacker , 3d Dist. Logan No. 8-20-01, 2020-Ohio-5408 (does not violate an offender's due process rights or the separation of powers doctrine); State v. Wolfe , 5th Dist. Licking No. 2020CA00021, 2020- Ohio-5501 (not yet ripe for review); State v. Velliquette , 6th Dist. Lucas No. L-19-1232, 2020-Ohio-4855 (not yet ripe for review). We conclude that cou nsel was not deficient for not challenging the constitutionality of a statute that was pre sumed constitutional and had previously been found constitutional by the appellate courts th at had reached the merits of

the issue. See Hodgkin , 2021-Ohio-1353 at ¶ 17-18; State v. Ferguson , 11th Dist. Lake No. 2020-L-031, 2020-Ohio-5578, ¶ 32. See also State v. McNeill , 83 Ohio St.3d 438,449 (1998) ("It is not ineffective assistance for a trial lawyer to maneuver within the existing law, declining to present untested or rejected legal theories"). 5 {¶44} Therefore, to the extent appellant's second assignment of error asserts he received ineffective representation by trial counsel, his argum ent is overruled. R.C. 2929.19(B)(2)(c) Notifications {¶45} Appellant argues the trial court erred during sentencing when i t failed to comply with R.C. 2929.19(B)(2)(c) by imposing the aggregate ind efinite prison term of nine to twelve years and neglected to provide the required statutory notifications at the sentencing hearing. {¶46} R.C. 2929.19(B)(2)(c) provides that "if the sentencing court de termines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following :

5. Appellant's reliance on State v. Maxcy-Tipton , 6th Dist. Wood No. WD-19-093, 2020-Ohio-6983, is misplaced. In Maxcy-Tipton , the Sixth District Court of Appeals found trial counsel provi ded ineffective representation for not challenging the constitutionality of R.C . 2909.15, Ohio's arson offender registry. Id. at ¶ 9. However, in that case, at the time of sentencing, "the co nflicting holdings in * * * two appellate districts [regarding the constitutionality of the statute] was apparent f rom a cursory review of the annotated statute." Id. Unlike in Maxcy-Tipton , at the time appellant was sentenced, there were no conflictin g decisions amongst the appellate courts regarding the constitutionality of the Rea gan Tokes Law.Warren CA2021-01-003

- 19 - (c) If the prison term is a non-life felony indefinite prison t erm, notify the offender of all of the following : (i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender's presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier; (ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of thi s section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender's conduct while confined, the offender's rehabilitation, the offender's threa t to society, the offender' s restrictive housing, if any, while confined, and the offender's security classification; (iii) That if, as described in division (B)(2)(c)(ii) of this s ection, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender's incar ceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines t o be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code; (iv) That the department may make the specified determinations and maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section mo re than one time, subject to the limitation specified in section 2967.271 of the Revised Code; (v) That if the offender has not been released prior to the expiration of the offender's maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term. (Emphasis added.) {¶47} By indicating that the sentencing court "shall do all of the fo llowing" and "notify the offender of all of the following," the legislature clearly placed a mandatory duty upon the

trial court to inform the defendant of all five relevant notifi cations. "Thus, when sentencing an offender to a non-life felony indefinite prison term under t he Reagan Tokes Law, a trial

court must advise the offender of the five notifications set fo rth in R.C. 2929.19(B)(2)(c) atWarren CA2021-01-003

- 20 - the sentencing hearing to fulfill the requirements of the statu te." State v. Hodgkin , 2021- Ohio-1353 at ¶ 24. The failure to advise the defendant of any of the five notifications constitutes error and a remand for the limited purpose of permi tting the sentencing court to provide the mandatory notifications required by R.C. 2929.19(B) (2)(c) is necessary. State

v. Paul , 12th Dist. Clinton No. CA2020-08-010, 2021-Ohio-1628, ¶ 22-23 (finding reversible error where three of the notifications listed in R.C. 2929.19[B ][2][c] were omitted by the trial court and remanding for the "sole and limited purpose of provid ing the mandatory notifications" required by the statute). {¶48} "While the trial court is not required to recite the statutory language verbatim in providing the notifications to the defendant at sentencing, the record must nonetheless reflect that each of the necessary notifications were provided. " State v. Suber Brown , 12th Dist. Butler No. CA2020-09-099, 2021-Ohio-2291, ¶ 17. After re viewing the record, we find that the trial court failed to advise appellant of all of the r equired notifications set forth in R.C. 2929.19(B)(2)(c). Although the trial court discussed the presumption of release upon the completion of appellant's nine-year minimum term and noted that the DRC could rebut that presumption and hold appellant "up to the maximum term," t he court failed to advise appellant that (1) the DRC must hold a hearing to rebut the pre sumption that he would be released after serving a minimum nine-year term; (2) the DRC ma y make specified determinations regarding his conduct while confined, his rehabi litation, his threat to society, his restrictive housing, if any, while confined, and his securi ty classification in rebutting the presumption; (3) the DRC can maintain appellant's incarceration after the expiration of the minimum term for the length th e DRC determines is reasonable, s ubject to his maximum penalty of 12 years; and (4) the DRC could maintain appellant's incarceration more than

one time. {¶49} Given the foregoing omissions in the trial court's notification when imposingWarren CA2021-01-003

- 21 - the indefinite sentence, we sustain appellant's second assignme nt of error to the extent it challenges the trial court's failure to comply with R.C. 2929.1 9(B)(2)(c). Appellant's sentence is reversed and this matter remanded for the sole purp ose of resentencing appellant in accordance with the requirements set forth in R.C. 2929.19(B)(2)(c). See, e.g.,

Brown Suber at ¶ 17-18; Paul at ¶ 22-23; Hodgkin at ¶ 25. However, we emphasize that our reversal and remand are only for the purpose of complying w ith the foregoing statute and in no way affects the validity of the underlying conviction or any other aspect of the sentence imposed by the trial court. In other words, appellant is not entitled to be sentenced

anew and the matter is remanded to the trial court for the sole and limited purpose of providing the mandatory notifications of R.C. 2929.19(B)(2)(c). {¶50} Judgment affirmed in part, reversed in part, and remanded for t he sole purpose of resentencing so that appellant's sentence complies w ith R.C. 2929.19(B)(2)(c).

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