State v. Dixon

2022 Ohio 3654

Opinion

[Cite as State v. Dixon, 2022-Ohio-3654.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210502 TRIAL NO. B-2101203 Plaintiff-Appellee, :

vs. : O P I N I O N. DERAUN DIXON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 14, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Derek W. Gustafuson, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant Deraun Dixon appeals his sentences, arguing that

the indefinite-sentencing scheme under R.C. 2967.271 (“Reagan Tokes Law”) is

unconstitutional and he received ineffective assistance of counsel where counsel failed

to challenge the constitutionality of the Reagan Tokes Law. Because the Reagan Tokes

Law is facially constitutional, we affirm the trial court’s judgment.

I. Facts and Procedure

{¶2} Dixon pled guilty to one count of felonious assault in violation of R.C.

2903.11(A)(2), with a firearm specification. The parties agreed to a recommended

indefinite sentence under the Reagan Tokes Law. The trial court imposed the agreed

sentence. Dixon now appeals.

II. Law and Analysis

This Court Has Determined that the Reagan Tokes Law is Facially Constitutional

{¶3} The failure to raise a constitutional issue at the trial level acts as a waiver

of such issue and a deviation from Ohio’s orderly procedure, and therefore it need not

be heard for the first time on appeal. In re D.L., 1st Dist. Hamilton Nos. C-170152, C-

170153 and C-170154, 2018-Ohio-2161. But an appellate court may, in its discretion,

review a statute’s constitutionality for plain error. Id.; see State v. Pleatman, 1st Dist.

Hamilton No. C-160234, 2016-Ohio-7659, ¶ 19.

{¶4} A “plain error” is both obvious and prejudicial, and, if permitted, would

have a materially adverse effect on the character and public confidence in judicial

proceedings. Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001

(1982).

{¶5} Dixon did not specify whether he was raising a facial or an as-applied

2 OHIO FIRST DISTRICT COURT OF APPEALS

constitutional challenge to the Reagan Tokes Law. But at this stage, only a facial

challenge would be ripe for review because Dixon had not been subject to the

provisions of the Reagan Tokes Law when he filed his notice of appeal. See State v.

Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, ¶ 10.

{¶6} This court determined that the Reagan Tokes Law was facially

constitutional and not violative of the separation-of-powers doctrine or an inmate’s

procedural-due-process rights in Guyton. This court has further held that the law does

not violate an inmate’s right to a jury trial. See State v. Smith, 1st Dist. Hamilton No.

C-210449, 2022-Ohio-3629, ¶ 10-13. Accordingly, we overrule Dixon’s first

assignment of error.

Ineffective Assistance of Counsel

{¶7} Dixon’s second assignment of error asserts that his trial counsel was

ineffective for failing to raise the constitutionality of the Reagan Tokes Law. Based on

our holding that the Reagan Tokes Law is facially constitutional, any alleged error by

counsel was not prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Dixon’s second assignment of error is overruled.

III. Conclusion

{¶8} The Reagan Tokes Law is facially constitutional and Dixon received the

effective assistance of counsel. Therefore, we affirm the trial court’s judgment.

Judgment affirmed.

MYERS, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.