[Cite as State v. Maxcy-Tipton, 2020-Ohio-6983.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-19-093
Appellee Trial Court No. 2019CR0277
v.
Brooke Marie Maxcy-Tipton DECISION AND JUDGMENT
Appellant Decided: December 30, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
SINGER, J.
{¶ 1} Appellant, Brooke Marie Maxcy-Tipton, appeals from the December 24,
2019 judgment of the Wood County Court of Common Pleas, convicting her of arson, a
violation of R.C. 2909.03(A)(1) and 2909.03(D)(2)(b), a felony of the fourth degree,
following acceptance of her guilty plea, and sentencing her to community control
sanctions. For the reasons which follow, we reverse. {¶ 2} Appellant asserts the following assignments of error:
I. Trial counsel rendered ineffective assistance of counsel.
II. The arson registry is unconstitutional on its face as it violates the
Separation of Powers Doctrine.
{¶ 3} This appeal involves the operation of R.C. 2909.15(D)(2)(a)-(b), Ohio’s
arson offender registry statute. The statute imposes a duty upon an arson offender to
yearly register as an arson offender with the county sheriff unless the trial court limits the
registration requirement to more than a mandatory minimum of ten years but less than a
lifetime obligation. However, the trial court can only exercise its discretion to do so if a
member of the executive branch (the prosecutor and investigation law enforcement
agency) recommends limiting the arson offender’s registration period.
{¶ 4} In her first assignment of error, appellant argues her trial counsel rendered
ineffective assistance by failing to assert a constitutional objection to the arson registry
and for failing to request less than a lifetime registration. She asserts that the failure to
assert a constitutional argument resulted in the constitutional error being subject to
appellate review under a plain error standard or at the appellate court’s discretion. As to
the failure to request less than a lifetime registration, she asserts it would have been
granted. Therefore, she argues the trial court’s sentence should be vacated and this case
remanded for resentencing.
{¶ 5} Appellee argues that appellant waived the right to assert ineffective
assistance of counsel by entering a guilty plea. We disagree.
2. {¶ 6} By entering a guilty plea, appellant waived the right on appeal to assert Sixth
Amendment claims of ineffective assistance of trial counsel relating to any issue prior to
the entry of the guilty plea. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855
N.E.2d 48, ¶ 105. However, the entry of a guilty plea does not result in waiver of an
issue relating to issues arising after conviction or relating to sentencing. Application of
the arson registration statute would not be waived because it operates automatically once
an arson offender is convicted. Therefore, the waiver doctrine is not applicable to this
appeal.
{¶ 7} Appellant bears the burden of proving that trial counsel was ineffective since
an attorney is presumed competent. Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293
(1990). To meet this burden of proof, appellant must show that: (1) there was a
substantial violation of the attorney’s duty to his client, and (2) the defense was
prejudiced by the attorney’s actions or breach of duty in that there is a reasonable
probability of a different result in the case. Strickland, supra, at 687; State v. Davis, 159
Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10, quoting State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The
reasonableness of the attorney’s conduct must be considered in light of the facts of each
case. Davis at ¶ 15.
{¶ 8} It is not ineffective assistance for a lawyer to “maneuver within the existing
law, declining to present untested or rejected legal theories.” State v. McNeill, 83 Ohio
3. St.3d 438, 449, 700 N.E.2d 596 (1998). Therefore, the failure to assert a constitutional
challenge is not ineffective assistance where the issue has already been resolved. State v.
Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 102; State v. Cornwell,
86 Ohio St.3d 560, 569, 715 N.E.2d 1144 (1999).
{¶ 9} However, in the case before us, at the time appellant was sentenced, the
issue of the constitutionality of R.C. 2909.15 was before the Eleventh District Court of
Appeals, State v. Carlisle, 2019-Ohio-4651, 136 N.E.3d 570, ¶ 18, and, more
importantly, the statute had already been declared unconstitutional by the Fourth District
Court of Appeals. State v. Dingus, 2017-Ohio-2619, 81 N.E.3d 513, ¶ 2 (4th Dist.).
Despite the opposing holdings, the Ohio Supreme Court dismissed the certification of a
conflict as having been improvidently allowed. State v. Carlisle, Slip Opinion No. 2020-
Ohio-6750 (Dec. 21, 2020). Therefore, in the case before us, we conclude that the failure
to preserve the issue of the constitutionality of the statute was ineffective assistance when
the conflicting holdings in the two appellate districts was apparent from a cursory review
of the annotated statute.
{¶ 10} Prejudice is established by showing the ineffectiveness of counsel deprived
“the defendant of a substantive or procedural right to which the law entitles him.”
Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
{¶ 11} We find appellant was prejudiced by the failure to assert the claim that the
registry statute was unconstitutional because an appellate court generally does not
consider constitutional errors which were not asserted in the trial court. State v. Awan,
4. 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus, limited by In re M.D., 38 Ohio St.3d
149, 527 N.E.2d 286 (1988), syllabus. While we can exercise our discretion to consider
the issue as plain error or where justice requires, we decline to do so in this case.
Appellant’s appellate counsel did not file a reply brief to address the issues of waiver and
ripeness raised by appellee. Therefore, appellant’s best interest is served by remanding
this case to the trial court for full consideration of all of the issues related to the
constitutionality of the statute.
{¶ 12} Furthermore, any reduction from the lifetime registration requirement must
be determined by the trial court at the time of sentencing for the arson offense. The
statute does not provide an avenue within the criminal proceedings for the defendant to
compel the prosecutor and investigating law enforcement officer to file such a motion.
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[Cite as State v. Maxcy-Tipton, 2020-Ohio-6983.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-19-093
Appellee Trial Court No. 2019CR0277
v.
Brooke Marie Maxcy-Tipton DECISION AND JUDGMENT
Appellant Decided: December 30, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
SINGER, J.
{¶ 1} Appellant, Brooke Marie Maxcy-Tipton, appeals from the December 24,
2019 judgment of the Wood County Court of Common Pleas, convicting her of arson, a
violation of R.C. 2909.03(A)(1) and 2909.03(D)(2)(b), a felony of the fourth degree,
following acceptance of her guilty plea, and sentencing her to community control
sanctions. For the reasons which follow, we reverse. {¶ 2} Appellant asserts the following assignments of error:
I. Trial counsel rendered ineffective assistance of counsel.
II. The arson registry is unconstitutional on its face as it violates the
Separation of Powers Doctrine.
{¶ 3} This appeal involves the operation of R.C. 2909.15(D)(2)(a)-(b), Ohio’s
arson offender registry statute. The statute imposes a duty upon an arson offender to
yearly register as an arson offender with the county sheriff unless the trial court limits the
registration requirement to more than a mandatory minimum of ten years but less than a
lifetime obligation. However, the trial court can only exercise its discretion to do so if a
member of the executive branch (the prosecutor and investigation law enforcement
agency) recommends limiting the arson offender’s registration period.
{¶ 4} In her first assignment of error, appellant argues her trial counsel rendered
ineffective assistance by failing to assert a constitutional objection to the arson registry
and for failing to request less than a lifetime registration. She asserts that the failure to
assert a constitutional argument resulted in the constitutional error being subject to
appellate review under a plain error standard or at the appellate court’s discretion. As to
the failure to request less than a lifetime registration, she asserts it would have been
granted. Therefore, she argues the trial court’s sentence should be vacated and this case
remanded for resentencing.
{¶ 5} Appellee argues that appellant waived the right to assert ineffective
assistance of counsel by entering a guilty plea. We disagree.
2. {¶ 6} By entering a guilty plea, appellant waived the right on appeal to assert Sixth
Amendment claims of ineffective assistance of trial counsel relating to any issue prior to
the entry of the guilty plea. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855
N.E.2d 48, ¶ 105. However, the entry of a guilty plea does not result in waiver of an
issue relating to issues arising after conviction or relating to sentencing. Application of
the arson registration statute would not be waived because it operates automatically once
an arson offender is convicted. Therefore, the waiver doctrine is not applicable to this
appeal.
{¶ 7} Appellant bears the burden of proving that trial counsel was ineffective since
an attorney is presumed competent. Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293
(1990). To meet this burden of proof, appellant must show that: (1) there was a
substantial violation of the attorney’s duty to his client, and (2) the defense was
prejudiced by the attorney’s actions or breach of duty in that there is a reasonable
probability of a different result in the case. Strickland, supra, at 687; State v. Davis, 159
Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10, quoting State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The
reasonableness of the attorney’s conduct must be considered in light of the facts of each
case. Davis at ¶ 15.
{¶ 8} It is not ineffective assistance for a lawyer to “maneuver within the existing
law, declining to present untested or rejected legal theories.” State v. McNeill, 83 Ohio
3. St.3d 438, 449, 700 N.E.2d 596 (1998). Therefore, the failure to assert a constitutional
challenge is not ineffective assistance where the issue has already been resolved. State v.
Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 102; State v. Cornwell,
86 Ohio St.3d 560, 569, 715 N.E.2d 1144 (1999).
{¶ 9} However, in the case before us, at the time appellant was sentenced, the
issue of the constitutionality of R.C. 2909.15 was before the Eleventh District Court of
Appeals, State v. Carlisle, 2019-Ohio-4651, 136 N.E.3d 570, ¶ 18, and, more
importantly, the statute had already been declared unconstitutional by the Fourth District
Court of Appeals. State v. Dingus, 2017-Ohio-2619, 81 N.E.3d 513, ¶ 2 (4th Dist.).
Despite the opposing holdings, the Ohio Supreme Court dismissed the certification of a
conflict as having been improvidently allowed. State v. Carlisle, Slip Opinion No. 2020-
Ohio-6750 (Dec. 21, 2020). Therefore, in the case before us, we conclude that the failure
to preserve the issue of the constitutionality of the statute was ineffective assistance when
the conflicting holdings in the two appellate districts was apparent from a cursory review
of the annotated statute.
{¶ 10} Prejudice is established by showing the ineffectiveness of counsel deprived
“the defendant of a substantive or procedural right to which the law entitles him.”
Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
{¶ 11} We find appellant was prejudiced by the failure to assert the claim that the
registry statute was unconstitutional because an appellate court generally does not
consider constitutional errors which were not asserted in the trial court. State v. Awan,
4. 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus, limited by In re M.D., 38 Ohio St.3d
149, 527 N.E.2d 286 (1988), syllabus. While we can exercise our discretion to consider
the issue as plain error or where justice requires, we decline to do so in this case.
Appellant’s appellate counsel did not file a reply brief to address the issues of waiver and
ripeness raised by appellee. Therefore, appellant’s best interest is served by remanding
this case to the trial court for full consideration of all of the issues related to the
constitutionality of the statute.
{¶ 12} Furthermore, any reduction from the lifetime registration requirement must
be determined by the trial court at the time of sentencing for the arson offense. The
statute does not provide an avenue within the criminal proceedings for the defendant to
compel the prosecutor and investigating law enforcement officer to file such a motion.
Therefore, we find appellant has not established that trial counsel rendered ineffective
assistance in this regard.
{¶ 13} In light of the foregoing, we need not reach the question of whether the
failure to request a reduction in the length of the registration requirement would
constitute ineffective assistance when the statute does not provide for this action.
Therefore, we find appellant’s first assignment of error well-taken and appellant’s second
assignment of error is moot.
5. {¶ 14} Having found that the trial court did commit error prejudicial to appellant
and that substantial justice has not been done, the judgment of the Wood County Court of
Common Pleas is reversed and remanded for further proceedings. Appellee is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
6.