[Cite as State v. Russell , 2022
- Ohio
- 2595.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr. , P.J. Plaintiff

- Appell ee : Hon. W. Scott Gwin , J. : Hon. Craig R. Baldwin , J.

- vs - : : DALE M. RUSSELL, JR. : Case No. 22CA0007 : Defendant

- Appell ant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20

- CR

- 00259

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 28, 2022

APPEARANCES:
For Plaintiff

- Appell ee For Defendant

- Appell ant ROBERT N. ABDALLA WILLIAM T. CRAMER 20 South second Street 470 Olde Worthington Road Newark, OH 43055 Suite 200 Westerville, OH 43082Licking County, Case No. 22CA0007 2

Wise, Earle, P. J. {¶ 1} Defendant

- Appellant Dale M. Russell, Jr. appeals the judgment of the Licking County Court of Common Pleas convicting him of two counts of felonious assault and sentencing him to an indeterminate term of incarceration of eight to twelve years. Plaintiff

- App ellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} A recitation of the underlying facts is unnecessary to our resolution of this appeal. {¶ 3} Russell was indicted on two counts of felonious assault . Count one alleged assault with use of a deadly weapon, a nd count two alleged felonious assault resulting in serious physical harm

. Russell was found guilty of both counts following a jury trial. The trial court proceeded directly to sentencing and imposed concurrent indeterminate prison terms of eight to twelve years on each count. {¶ 4} Russell timely appealed and argued in part that the trial court erred by sentencing him on both counts of f elonious a ssault in its judgment entry because it did
not sentence him on both counts during the actual sentencing hearing. Sta te v. Russell , 5th Dist. Licking No. 2021 CA 0026, 2021

- Ohio

- 3982 ¶ 28. {¶ 5} Upon review, w e concluded that both felonious assault charge s were committed through a single criminal act with single state of mind , and were therefore allied offenses which should have been merged. W e further f ound that the trial court committed plain error in failing to merge the offenses for sentencing and reman ded the matter for resentencing. Id

. ¶ 36.Licking County, Case No. 22CA0007 3

{¶ 6} On remand, the state elected to proceed to sentencing on count two and the trial court imposed the same indeterminate sentence of eight to twelve years. {¶ 7} Russell filed an appeal, and the matter is now before this court for review. He raises two assignments of error as follow:
I {¶ 8} " INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE FEDERAL AND STAT E CONSTITUTIONS. "
II {¶ 9} " APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTIONS WHEN TRIAL COUNSEL FAILED TO ARGUE THAT THE REAGAN TOKES LAW IS UNCONSTITUTIONAL. "
I {¶ 10} In his first assignment of error, Russell challenges the constitutionality of the Reagan Tokes Act. Specifically, Russell argues it violates his constitutional rights to trial by jury, equal protection and due process of law, and further violates the const itutional requirement of separation of powers by permitting the Ohio Department of Rehabilitation and Corrections to potentially add additional time to appellant's sentence based upon his behavior in the institution. We disagree. {¶ 11} As an initial matter, w e n ote Russell raises Tokes challenge for the first time in this appeal , even though he was sentenced to an indefinite term of incarcerationLicking County, Case No. 22CA0007 4

pursuant to the Reagan Tokes Act during his first sentencing hearing. Russell therefore
could have raised his Tokes ch allenges in his first appeal, but failed to do so. {¶ 12} In State v. Perry , 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), the Ohio Supreme Court stated:

Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or
on an app eal from that judgment.

{¶ 13} Because Russell could have raised his challenge to the Reagan Tokes Act in his initial appeal, but failed to do so, the matter is now barred. But even if that were not
true , in State v. Householder , 5th Dist. Muskingum No. CT2021

- 0 026, 2022

- Ohio

- 1542, we set forth this c ourt's position on Russell's arguments:

For the reasons stated in the dissenting opinion of The Honorable W. Scott Gwin in State v. Wolfe , 5th Dist. Licking No. 2020CA00021,
2020

- Ohio

- 5501, we find the Reagan Tokes Law does not violate Appellant's constitutional rights to trial by jury and due process of law, and does not violate the constitutional requirement of separation of powers. We hereby adopt the dissenting opinion in Wolfe as theLicking County, Case No. 22CA0007 5 opinion of this Court. In so holding, we also note the sentencing law has been found constitutional by the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth District sitting en banc. See,
e.g., State v. Ferguson , 2nd Dist. Montgomery No. 28644, 2020

- Ohio

- 4153; State v. Hacker , 3rd Dist. Logan No. 8

- 20

- 01, 2020

- Ohio

5048; State v. Maddox , 6th Dist. Lucas No. L

- 19

- 1253, 2022

- Ohio

1350; State v. Guyton , 12th Dist. Butler No. CA2019

- 12

- 203, 2020

- Ohio

- 3837; State v. Delvallie , 8th Dist. Cuyahoga No. 109315, 2022

- Ohio

- 470. Further, we reject Appellant's claim the Reagan Tokes Act violates equal protection for the reasons stated in State v. Hodgkin , 12th Dist. Warren No. CA2020

- 08

- 048, 2021

- Ohio

- 1353.

{¶ 14} Based on the forgoing, Russell's first assignment of error is overruled.
II {¶ 15} Russell next argues his trial counsel rendered ineffective assistance by failing to challenge the constitutionality of the Reagan Tokes Act . We disagree. {¶ 16} 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
pr ejudiced 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. "ReasonableLicking County, Case No. 22CA0007 6

probability" is "probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052. {¶ 17} Because we have found Russell's Tokes challenge is barred in this proceeding, and further, because we have previously found the Reagan Tokes Act is constitutional, Russell cannot demonstrate prejudice from counsel's failure to raise the
claim in the trial court. {¶ 18} The second assignment of error is overruled. {¶ 19} The judgment of the Licking County Court of Common Pleas is affirmed.

By Wise, Earle , P.J. Gwin , J. and
Baldwin , J. concur.

EEW/ rw