State v. Brazo

2022 Ohio 2066

• Court: Ohio Court of Appeals
• Decided: June 16, 2022
• Docket: 2021 CA 0016
• Status: Published

Opinion

[Cite as State v. Brazo, 2022-Ohio-2066.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2021 CA 0016 STEPHEN BRAZO

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: On Remand from Supreme Court of Ohio, Case No. 2021-1590

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 16, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES KIMBERLY SECCURO PROSECUTING ATTORNEY 720 S. High Street PAULA M. SAWYERS Columbus, Ohio 43206 ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 2021 CA 0016 2

Wise, J.

{¶1} This matter is before us on remand from the Ohio Supreme Court. In

Defendant-Appellant Stephen Brazo’s direct appeal, State v. Brazos, 5th Dist. Licking

2021-CA-16, 2021-Ohio-4006, Judge W. Scott Gwin concurring in part and dissenting in

part, we declined to address his sole assignment of error which challenged the

constitutionality of the Reagan Tokes Act, as we found the challenge was not ripe for

review. In State v. Maddox, ---N.E.3d---, 2022-Ohio-764, however, the Supreme Court of

Ohio found constitutional challenges to the Reagan Tokes Act are ripe for review on direct

appeal. We therefore herein address Appellant’s sole assignment of error.

STATEMENT OF THE FACTS AND CASE

{¶2} A recitation of the underlying facts in this matter is unnecessary for our

resolution of this appeal on remand.

{¶3} On November 21, 2019, Appellant Stephen Brazo was indicted on one

count of Aggravated Possession of Drugs (Methamphetamine), a violation of R.C.

§2925.11(A)(C)(1)(c), a felony of the 2nd degree. The case was scheduled for jury trial on

October 8, 2020.

{¶4} On October 8, 2020, the date scheduled for trial, Appellant arrived

approximately an hour and a half late. At that time, Appellant indicated that he wished to

plead guilty to the charge.

{¶5} Appellant completed a plea form which his attorney reviewed with him and

which he stated that he understood. The trial court reviewed with Appellant the rights that

he was giving up by pleading to the Indictment, including the right to a trial, the right to

have the State prove the case beyond a reasonable doubt, the right to confront his Licking County, Case No. 2021 CA 0016 3

accuser, the right to call and question and cross-examine witnesses, and the right to

testify himself if he chose to. (T. at 8-11). When Appellant hesitated during his plea of

guilty, the trial court made it clear that he was entitled to a jury trial if he so desired. (T. at

12-13). After advising Appellant of that fact, the trial court asked Appellant if he wanted

to plead guilty to the charge, and Appellant stated in the affirmative. (T. at 13).

{¶6} After Appellant was advised of the facts of the case as set forth above

Appellant was advised as to the nature of the charge against him and the maximum

penalty he could face if he pled to the charge. (T. at 6-10, 14-16).

{¶7} Appellant agreed with the facts as presented by Appellee. (T. at 16).

{¶8} The trial court ultimately found Appellant guilty based on his plea, and

sentenced Appellant to three (3) to four and a half (4 ½) years in prison, pursuant to the

Reagan Tokes Law. (T. at 25). (See Oct. 8, 2020 Judgment Entry).

{¶9} Appellant then moved to withdraw his guilty plea. The trial court denied

Appellant’s motion to withdraw.

{¶10} The assignments of error left unaddressed by this Court on direct appeal

are as follow:

ASSIGNMENTS OF ERROR

{¶11} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S

SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF

OHIO. Licking County, Case No. 2021 CA 0016 4

{¶12} “II. STEPHEN BRAZO 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.

{¶13} Appellant challenges the constitutionality of the Reagan Tokes Act,

specifically R.C. §2967.271, which codified hybrid indefinite prison terms for first- and

second-degree felonies. Appellant argues that the Act violates the separation of powers

doctrine, the constitutional right to trial by jury, and due process.

{¶14} For the reasons set forth in this Court’s recent Opinions in State v. Burris,

Guernsey App. No. 21CA000021, 2022-Ohio-1481 and State v. Ratliff, Guernsey App.

No. 21CA00016, 2022-Ohio-1372, we find the Reagan Tokes Act constitutional and

overrule Appellant’s assignment of error.

II.

{¶15} Appellant next argues his trial counsel rendered ineffective assistance by

failing to challenge the constitutionality of R.C. §2967.271. 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

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 Licking County, Case No. 2021 CA 0016 5

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

at 694, 104 S.Ct. 2052.

{¶17} Because we have found R.C. §2967.271 is constitutional, Appellant cannot

demonstrate prejudice from counsel's failure to raise the claim in the trial court.

{¶18} Appellant’s second assignment of error is overruled.

{¶19} Accordingly, the judgment of the Court of Common Pleas of Licking County,

Ohio, is affirmed.

By: Wise, J.

Baldwin, P. J., and

Gwin, J., concur. Licking County, Case No. 2021 CA 0016 6