[Cite as State v. Polk, 2022-Ohio-706.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109826 

 v. : 

 

LAMAR POLK, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED IN PART; VACATED IN PART; 

 AND REMANDED 

RELEASED AND JOURNALIZED: March 10, 2022 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-642808-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel A Cleary, Assistant Prosecuting 

Attorney, for appellee. 

Jeffrey M. Gamso, for appellant. 

SEAN C. GALLAGHER, A.J.: 

Defendant-appellant Lamar Polk brings this appeal challenging his 

indefinite sentence, imposed under the Reagan Tokes Act, with a minimum prison 

term of 17 years and a maximum prison term of 25.5 years. Polk argues that the 
Reagan Tokes Law is unconstitutional, the trial court erred in calculating the 

maximum prison term, and that he was denied his constitutional right to the 

effective assistance of counsel. For the following reasons, we overrule Polk’s 

challenges to the Reagan Tokes Law but vacate Polk’s convictions for voluntary 

manslaughter, a first-degree felony in violation of R.C. 2903.03(A), which included 

a five-year firearm specification, and discharge of a firearm on or near prohibited 

premises, a first-degree felony in violation of R.C. 2923.162(A)(3), and remand for 

further proceedings. 

The instant matter pertains to the murder of Tavion Hollins on July 21, 

2019. On August 19, 2019, Polk was charged for his involvement in Hollins’s death. 

The parties reached a plea agreement during pretrial proceedings. On 

April 23, 2020, the trial court held a change-of-plea hearing. In outlining the terms 

of the plea agreement, the prosecutor asserted that the Reagan Tokes Law applied 

to the proposed amendments to Count 1, amending murder to voluntary 

manslaughter, and Count 4, discharging a firearm on or near prohibited premises. 

The prosecutor explained that the voluntary manslaughter and discharging a 

firearm offenses are both felonies of the first degree and that both offenses “carry 

with it the possibility of three to 16-and-a-half years in prison.” (Tr. 5.) The 

prosecutor also advised appellant and the trial court that Sierah’s Law applied to the 

voluntary manslaughter offense charged in Count 1 and that Polk “will have to 

register as a violent offender in the State of Ohio.” (Tr. 6.) 
Following the prosecutor’s recitation of the plea agreement, defense 

counsel objected to the “Reagan Tokes aspect of the plea for the record[.]” (Tr. 7.) 

The trial court advised Polk that he would face indefinite sentences on 

the voluntary manslaughter and discharging a firearm on or near prohibited 

premises offenses under the Reagan Tokes Act. (Tr. 11-12.) The trial court explained 

that Polk would face indefinite prison sentences on these counts with a minimum 

prison term of three years and a maximum prison term of 16 and one-half years; 

that the five-year firearm specification underlying Count 1 would run consecutively 

to the indefinite sentence on the voluntary manslaughter offense, and that the fiveyear firearm specification underlying Count 4 would run concurrently with the fiveyear firearm specification on Count 1. 

The trial court also advised Polk that as a result of the plea agreement 

and his voluntary manslaughter conviction, he would have to register as a violent 

offender pursuant to R.C. 2903.41. (Tr. 15.) Defense counsel objected to the violentoffender designation. (Tr. 15.) 

Polk pled guilty to voluntary manslaughter (amended Count 1), a firstdegree felony in violation of R.C. 2903.03(A), with a five-year firearm specification; 

discharge of a firearm on or near prohibited premises (amended Count 4), a firstdegree felony in violation of R.C. 2923.162(A)(3), with a five-year firearm 

specification; improperly handling firearms in a motor vehicle (amended Count 6), 

a fourth-degree felony in violation of R.C. 2923.16(B); and having weapons while 
under disability (Count 8), a third-degree felony in violation of R.C. 2923.13(A)(2). 

The remaining counts and specifications charged in the indictment were nolled. 

After appellant tendered his plea, the trial court reviewed his duties to 

enroll as a violent offender under R.C. 2903.01. The trial court provided the form to 

defense counsel that detailed the enrollment duties. The trial court advised Polk of 

his duty to enroll as a violent offender pursuant to R.C. 2903.41 et seq. The trial 

court did not, however, advise Polk that he could file a motion to rebut the 

presumption of enrollment or review the information set forth in R.C. 2903.02. 

(Tr. 20-22.) 

The trial court advised Polk about the Reagan Tokes Law and that it 

applied to Counts 1 and 4. Finally, the trial court ordered a presentenceinvestigation report and set the matter for sentencing. 

The trial court held a sentencing hearing on June 19, 2020. The trial 

court noted defense counsel’s objection to the constitutionality of the Reagan Tokes 

Law and the application of Sierah’s Law. The trial court confirmed that the five-year 

firearm specifications underlying Counts 1 and 4 would run concurrently, but that 

the indefinite sentence on Count 4 ran consecutively to the indefinite sentence on 

Count 1. (Tr. 28-29.) 

Regarding Polk’s duty to register as a violent offender under Sierah’s 

Law, R.C. 2903.41, the trial court stated, “[w]e had a notice of duties to enroll sent 

over to [Polk] in the jail.” (Tr. 29.) Polk confirmed receiving the form but indicated 
that he had not signed it. The trial court reviewed the form and registration duties 

with Polk. 

The trial court imposed an indefinite prison term pursuant to the 

Reagan Tokes Law, with a minimum prison term of 17 years and a maximum prison 

term of 25.5 years: an 11-year minimum term of imprisonment on Count 1, 

consecutive to the 5-year firearm specification; a minimum 6-year term of 

imprisonment on Count 4; 1.5 years on Count 6; and 3 years on Count 8. The trial 

court ordered Counts 1 and 4 to run consecutively to one another, but concurrently 

with Counts 6 and 8. 

The trial court’s June 19, 2020 sentencing journal entry provides, in 

relevant part, “[d]efendant was advised of his duty to report as a violent offender[.]” 

On July 14, 2020, Polk filed the instant appeal challenging the trial 

court’s sentence. He assigns three errors for review: 

I. The indefinite sentencing scheme set forth in the Reagan Tokes Act 

and imposed by the trial court in this case violates the federal and state 

[c]onstitutions. 

II. The aggregate indefinite sentence of 17 to 25.5 years is not 

authorized by statute and is therefore contrary to law. 

III. Mr. Polk was denied his right to the effective assistance of counsel 

as protected by the Sixth and Fourteenth Amendments to the United 

States Constitution and by Article I, Section 10 of the Ohio 

Constitution[.] 
I. Law and Analysis 

A. Reagan Tokes Law 

As noted above, the trial court sentenced Polk pursuant to the 

indefinite sentencing scheme set forth under the Reagan Tokes Law. In his first 

assignment of error, Polk claims, citing the Fourteenth Amendment to the United 

States Constitution and Article I, Section 16, of the Ohio Constitution, (1) that the 

Reagan Tokes Law violates the right to trial by jury (2) that the Reagan Tokes Law 

violates the separation-of-powers doctrine, or (3) that R.C. 2967.271(C) and (D), 

which provide offenders with the right to a hearing before imposition of the 

maximum term imposed under R.C. 2929.144, fail to provide the full panoply of 

constitutional pretrial rights in violation of their due process rights. 

We need not dwell on the arguments presented as to the constitutional 

validity of the Reagan Tokes Law. Based on the authority established by this 

district’s en banc holding in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-

Ohio-470, the challenges Polk advanced against the constitutional validity of the 

Reagan Tokes Law have been overruled and the law as defined under R.C. 2901.011 

has been deemed to be enforceable. See id. at ¶ 17-51. Polk does not advance any 

novel argument left unaddressed by the Delvallie decision. As a result, Polk’s 

convictions for voluntary manslaughter in Count 1, and discharge of a firearm on or 

near prohibited premises, as charged in Count 2, with sentences imposed under the 

Reagan Tokes Law, are not unconstitutional. 
With respect to Polk’s second assignment of error pertaining to the 

imposition of the sentences under R.C. 2929.144, the state concedes the error. The 

trial court imposed non-life indefinite sentences on two qualifying felony offenses: 

a minimum term of 11 years for the underlying sentence on the involuntary 

manslaughter conviction and a minimum term of 6 years on the unlawful discharge 

of a firearm — both minimums were imposed under R.C. 2929.14(A)(1)(a). The trial 

court aggregated the two indefinite sentences, for a combined term of 17-25.5 years. 

R.C. 2929.144(B)(2) provides: 

If the offender is being sentenced for more than one felony, if one or 

more of the felonies is a qualifying felony of the first or second degree, 

and if the court orders that some or all of the prison terms imposed are 

to be served consecutively, the court shall add all of the minimum terms 

imposed on the offender under division (A)(1)(a) or (2)(a) of section 

2929.14 of the Revised Code for a qualifying felony of the first or second 

degree that are to be served consecutively and all of the definite terms 

of the felonies that are not qualifying felonies of the first or second 

degree that are to be served consecutively, and the maximum term 

shall be equal to the total of those terms so added by the court plus fifty 

per cent of the longest minimum term or definite term for the most 

serious felony being sentenced. 

(Emphasis added.) Thus, under the plain language of the statute, the maximum 

term for the qualifying felony offenses is equal to the total aggregate of the minimum 

and definite terms to be consecutively served (the 11 years on Count 1 and the six 

years on Count 4), plus 50 percent of the longest minimum or definite term for the 

most serious felony offense, which in this case is the 11-year term imposed on the 

involuntary manslaughter count. Thus, the maximum term should be 22.5 years (11 

+ 6 + 5.5). The maximum term should be 22.5 years, so that the indefinite term on 
the qualifying non-life indefinite sentences is 17-22.5 years in consideration of the 

concurrent service of the remaining, lesser sentences. 

On this issue, we vacate the two convictions for involuntary 

manslaughter and the wrongful discharge of a firearm and remand for the sole 

purpose of imposing the proper maximum-term sentence. 

B. Ineffective Assistance of Counsel 

In his third assignment of error, Polk argues that he was denied his 

constitutional right to effective assistance of counsel. 

To succeed on an ineffective assistance of counsel claim, a defendant 

must establish that counsel’s performance was deficient and that the defendant was 

prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel will only be considered 

deficient if his or her conduct fell below an objective standard of reasonableness. Id. 

at 688. The defendant must also demonstrate that he or she was prejudiced by 

counsel’s ineffectiveness. Id. at 694. 

In reviewing an ineffective assistance of counsel claim, this court must 

be highly deferential to counsel’s performance and “must indulge a strong 

presumption that counsel’s conduct [fell] within the wide range of reasonable 

professional assistance.” Id. at 689. In order to establish prejudice, a “defendant 

must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. 
at 694. “A reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” Id. 

Polk further argues that counsel’s failure to file a motion to rebut the 

presumption of enrollment in the violent offenders’ database (“VOD”) under R.C. 

2903.42 constituted deficient performance. Polk contends that he was prejudiced 

by counsel’s failure to file a motion to rebut the presumption of enrollment because 

the record supported counsel’s argument at sentencing that Polk was a “follower” 

and his codefendant Kelly Quarles was “the leader of this event.” (Tr. 43.) After 

reviewing the record, we disagree. 

As an initial matter, we note that Polk preserved the issue regarding 

R.C. 2903.42 for appellate purposes. See, e.g., State v. McKee, 91 Ohio St.3d 292, 

294, 744 N.E.2d 737 (2000), citing Crim.R. 52(B) and State v. Johnson, 88 Ohio 

St.3d 95, 111, 723 N.E.2d 1054 (2000) (issues and errors that are not brought to the 

trial court’s attention are ordinarily waived, except for plain error, and may not be 

raised on appeal). As noted above, defense counsel objected to the application of 

R.C. 2903.41 and Polk’s designation as a violent offender during the change-of-plea 

hearing. (Tr. 15.) During the sentencing hearing, the trial court noted defense 

counsel’s objection to Sierah’s Law and its application in this case on the record. 

(Tr. 33.) 

On March 20, 2019, R.C. 2903.41 et seq., commonly known as 

Sierah’s Law, became effective. See 2018 Am.Sub.S.B. No. 231. Sierah’s Law created 

a violent offender database and requires violent offenders convicted of specified 
offenses, including voluntary manslaughter, to enroll in the VOD. Sierah’s Law 

creates a presumption that violent offenders enroll in the VOD, and provides 

enrollment for a minimum of ten years. Reenrollment in the VOD is required on an 

annual basis. 

In the instant matter, Sierah’s Law was effective at the time appellant 

committed the voluntary manslaughter offense on July 21, 2019. 

R.C. 2903.42(A)(1), governing enrollment in the VOD, provides, 

(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. 

Polk was classified as a violent offender under R.C. 2903.41(A)(1) 

based on his voluntary manslaughter conviction, a violation of R.C. 2903.03(A). 

Accordingly, the trial court was required to provide the advisements set forth in R.C. 

2903.42(A)(1)(a) — 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 postrebuttal hearing procedures and possible outcome — before the sentencing hearing. 

The record reflects that the trial court failed to do so. 

Nevertheless, after reviewing the record, we find that Polk’s 

ineffective assistance claim fails under the second Strickland prong, because he 

cannot demonstrate prejudice, or that but for counsel’s failure to file a motion to 

rebut the presumption of enrollment in the VOD, the trial court would not have 

ordered Polk to register as a violent offender and enroll in the VOD. 

As noted above, Polk was charged in Count 1 as a principal offender, 

rather than a conspirator, with murder. Polk pled guilty to an amended Count 1, 

voluntary manslaughter. 

Because Polk pled guilty, the factual information in the record 

regarding the July 21, 2019 shooting is limited. The state’s brief provides, however, 

that during the argument, “both [Polk] and Quarles opened fire on Hollins.” 

Appellee’s brief at 3. Quarles was shooting a 9 mm handgun, and Polk was shooting 

a .40-caliber handgun. Investigators recovered spent cartridge casings at the scene 

from both handguns. (Tr. 39-40.) Accordingly, the record reflects that Polk and 

Quarles were principal co-offenders. 

In order to rebut the presumption of enrollment in the VOD, Polk is 

required to prove, by a preponderance of the evidence, that he was not the principal 

offender in the commission of the voluntary manslaughter offense. R.C. 

2903.42(A)(2), (4). By pleading guilty to voluntary manslaughter as a principal 
co-offender, Polk cannot rebut the presumption of enrollment in the VOD. 

Accordingly, even if defense counsel had filed a motion to rebut the presumption of 

enrollment in the VOD, the motion would have been futile. “[T]he failure to do a 

futile act cannot be the basis for claims of ineffective assistance of counsel, nor could 

such a failure be prejudicial.” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, 

¶ 69 (8th Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio1228, ¶ 37. 

For all of the foregoing reasons, Polk’s ineffective assistance claim 

regarding counsel’s failure to file a motion to rebut the presumption of enrollment 

in the VOD fails. Polk’s third assignment of error is overruled. 

II. Conclusion 

After thoroughly reviewing the record, we affirm in part, vacate in 

part, and remand for further proceedings consistent with this opinion. The 

indefinite sentencing scheme established by the Reagan Tokes Law is not 

unconstitutional in light of Delvallie. Otherwise, Polk was not denied his 

constitutional right to effective assistance of counsel. 

Judgment affirmed in part, vacated in part, and remanded. 

It is ordered that appellant and appellee share costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 
conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 __ 

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE 

MICHELLE J. SHEEHAN, J., CONCURS; 

LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY 

N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, 

see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J., 

dissenting).