State v. Downard

2022 Ohio 2393

• Court: Ohio Court of Appeals
• Decided: July 11, 2022
• Docket: CT2019-0079
• Status: Published

Opinion

[Cite as State v. Downard, 2022-Ohio-2393.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2019-0079 DAMON K. DOWNARD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0370

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 11, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076

TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43701-0189 Muskingum County, Case No. CT2019-0079 2

Hoffman, P.J. {¶1} This case comes before this Court from the judgment entered by the Ohio

Supreme Court on April 27, 2022, remanding this case for this Court to consider whether

the challenged provisions of the Reagan Tokes Law are constitutional. Defendant-

appellant is Damon K. Downard. Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On July 10, 2019, Appellant was indicted by the Muskingum County Grand

Jury on one count of aggravated robbery, a first degree felony, and one count of assault

on a peace officer, a fourth degree felony. On September 18, 2019, Appellant entered

guilty pleas to an amended charge of robbery, a second degree felony, and assault on a

peace officer, a fourth degree felony, and was convicted of both charges.

{¶3} The case proceeded to sentencing on September 23, 2019. Appellant was

sentenced pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act.

On the robbery conviction, the trial court sentenced Appellant to a stated minimum prison

term of eight years. The trial court sentenced Appellant to a stated prison term of twelve

months for assault on a peace officer. The trial court ordered the sentences to be served

consecutively, for an aggregate minimum prison term of nine years and an aggregate

indefinite maximum prison term of thirteen years. Appellant appealed the judgment of

conviction and sentence, assigning as error:

1 A rendition of the facts is unnecessary to our resolution of the issue raised on appeal Muskingum County, Case No. CT2019-0079 3

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.

II. DAMON DOWNARD 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.

{¶4} This Court found the issue of the constitutionality of the Reagan Tokes Law

to be not yet ripe for review. State v. Downard, 5th Dist. Muskingum No. CT2019-0079,

2020-Ohio-4227. This case came before the Ohio Supreme Court. The Ohio Supreme

Court reversed this Court's decision finding the issue of constitutionality not ripe for

review, and remanded to this Court with instructions to issue a ruling on the

constitutionality of the Reagan Tokes Law. In re Cases Held for the Decision in State v.

Maddox, 2022-Ohio-1352.

I.

{¶5} In his first assignment of error, Appellant challenges the presumptive

release feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury

and due process of law, and further violates the constitutional requirement of separation

of powers.

{¶6} 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, 2020 WL Muskingum County, Case No. CT2019-0079 4

7054428, 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 the opinion

of this Court. In so holding, we also note the sentencing law has been found constitutional

by the Second, Third, 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, 2020

WL 4919694; State v. Hacker, 3rd Dist., 2020-Ohio-5048, 161 N.E.3d 112; State v.

Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, 2020 WL 4279793; State

v. Delvallie, 8th Dist., 2022-Ohio-470, 185 N.E.3d 536.

{¶7} The first assignment of error is overruled.

II.

{¶8} In his second assignment of error, Appellant argues his trial counsel was

ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court.

{¶9} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as having

produced a just result. Id. Muskingum County, Case No. CT2019-0079 5

{¶10} Because we have found R.C. 2967.271 to be constitutional, Appellant has

not demonstrated prejudice from counsel's failure to raise the claim in the trial court.

{¶11} The second assignment of error is overruled.

{¶12} The judgment of the Muskingum County Common Pleas Court is affirmed.

By: Hoffman, P.J. Delaney, J. and Baldwin, J. concur