State v. Ludwig

2022 Ohio 2350

• Court: Ohio Court of Appeals
• Decided: July 5, 2022
• Docket: CT2020-0008
• Status: Published

Opinion

[Cite as State v. Ludwig, 2022-Ohio-2350.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : TODD LUDWIG : Case No. CT2020-0008 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: On remand from the Supreme Court of Ohio, Case No. 2021-0383

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 5, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TAYLOR BENNINGTON CHRISTOPHER BRIGDON 27 North Fifth Street 8138 Somerset Rd. P.O. Box 189 Thornville, OH 43076 Zanesville, OH 43702 Muskingum County, Case No. CT2020-0008 2

Wise, Earle, J.

{¶ 1} This matter is before this court on remand from the Supreme Court of Ohio.

In Defendant-Appellant Todd Ludwig's direct appeal, State v. Ludwig, 5th Dist. No.

CT2020-0008, 2021-Ohio-383,1 we declined to address his first assignment of error which

challenged the constitutionality of the Reagan Tokes Act, and his second assignment of

error regarding trial counsel's failure to challenge the Act, as we found the challenges

were not ripe for review. In State v. Maddox, slip opinion No. 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 Ludwig's' first assignment

of error and second assignments of error.2

FACTS AND PROCEDURAL HISTORY

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

resolution of this appeal.

{¶ 2} On May 16, 2019, the Muskingum County Grand Jury returned an

indictment charging Ludwig as follows:

{¶ 3} Count one – trafficking in drugs (methamphetamine) a felony of the first

degree;

{¶ 4} Count two – possession of drugs (methamphetamine) a felony of the

second degree;

{¶ 5} Count three – engaging in a pattern of corrupt activity, a felony of the second

degree; and

1 Judge W. Scott Gwin concurring in part and dissenting in part. 2 We have previously addressed Ludwig's remaining assignment of error in our original opinion and will not revisit that matter. Muskingum County, Case No. CT2020-0008 3

{¶ 6} Count four – possession of criminal tools, a felony of the fifth degree.

{¶ 7} Counts one through four contained various firearm and forfeiture

specifications. The forfeiture specifications pertained to cash, real estate, and 18 guns.

{¶ 8} On September 18, 2019, Ludwig pled guilty to count one of the indictment

and the attendant firearm and forfeiture specifications. The state dismissed the balance

of the indictment. A sentencing hearing was held on December 18, 2019, following

completion of a pre-sentence investigation. The trial court sentenced Ludwig to a

mandatory minimum 10-year prison term, and an indefinite term of 15 years pursuant to

the Regan Tokes Act.

{¶ 9} The two assignments of error left unaddressed by this court on direct appeal

are as follow:

I

{¶ 10} "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

{¶ 11} "TODD LUDWIG 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."

{¶ 12} In his first assignment of error, Ludwig challenges the constitutionality of the

Reagan Tokes Act. Specifically, Ludwig argues it violates his constitutional rights to trial Muskingum County, Case No. CT2020-0008 4

by jury, equal protection and due process of law, and further violates the constitutional

requirement of separation of powers by permitting the Ohio Department of Rehabilitation

and Corrections to potentially add additional time to Ludwig's sentence based upon his

behavior in the institution. We disagree.

{¶ 13} Recently, in State v. Householder, 5th Dist. Muskingum No. CT2021-0026,

2022-Ohio-1542, we set forth this Court's position on Ludwig'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 the

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 Muskingum County, Case No. CT2020-0008 5

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 authority, Ludwig's first assignment of error is

overruled.

{¶ 15} Ludwig's second assignment of error argues Ludwig's 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

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

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

at 694, 104 S.Ct. 2052.

{¶ 17} Because we have found the Reagan Tokes Act is constitutional, Ludwig

cannot demonstrate prejudice from counsel's failure to raise the claim in the trial court.

{¶ 18} The second assignment of error is overruled. Muskingum County, Case No. CT2020-0008 6

{¶ 19} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Wise, Earle, P.J.

Gwin, J. and

Hoffman, J. concur.

EEW/rw