State v. McHargue

2024 Ohio 924, 239 N.E.3d 423

• Court: Ohio Court of Appeals
• Decided: March 8, 2024
• Docket: 22CA12
• Status: Published

Opinion

[Cite as State v. McHargue, 2024-Ohio-924.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 22CA12 : v. : : DECISION AND CAROLYN ANN MCHARGUE, : JUDGMENT ENTRY : Defendant-Appellant. : RELEASED 3/8/2024 _____________________________________________________________ APPEARANCES:

Christopher Pagan, Repper-Pagan Law, Ltd., Middletown, Ohio, for Appellant.

Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Assistant Gallia County Prosecuting Attorney, Gallipolis, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} Carolyn McHargue, Appellant, appeals from the judgment of the

Gallia County Court of Common Pleas convicting her of one count of endangering

children resulting in serious physical harm, a second-degree felony in violation of

R.C. 2919.22(B)(1) and (E)(2)(d). On appeal, McHargue contends: 1) that the

trial court erred by failing to adjudicate competency; 2) that the trial court imposed

an unlawful sentence; and 3) that it is unlawful to deny her appellate counsel a

copy of her presentence investigation report to investigate, research, and present

issues for appeal. However, because we have found no merit to the assignments of Gallia App. No. 22CA12 2

error raised by McHargue, they are overruled. Accordingly, the judgment of the

trial court is affirmed.

FACTS

{¶2} On November 10, 2021, McHargue was indicted on three felony

counts of endangering children. Count one charged McHargue with endangering

children in violation of R.C. 2919.22(A) and 2919.22(E)(2)(c), a felony of the third

degree. Count two charged McHargue with endangering children in violation of

R.C. 2919.22(B)(1) and 2919.22(E)(2)(d), a felony of the second degree. Count

three charged McHargue with endangering children in violation of R.C.

2919.22(B)(2) and 2919.22(E)(3), also a felony of the second degree. Because

McHargue had a history of mental illness and had been recently hospitalized,

defense counsel moved for a competency evaluation, which the trial court ordered.

When the matter came on for the scheduled competency hearing, defense counsel

stipulated to the report, waived the competency hearing, and asked that the matter

proceed. The trial court thereafter issued an order with a new pre-trial date and

jury trial date. The competency report was not made part of the record.

{¶3} Prior to the scheduled jury trial, McHargue entered into plea

negotiations with the State whereby she would plead guilty to one second-degree-

felony endangering children in violation of R.C. 2919.22(B)(1) and (E)(2)(d) and

she would also pay costs, in exchange for the dismissal of the remaining counts. Gallia App. No. 22CA12 3

At the change of plea hearing, the trial court inquired as to McHargue’s

competency to enter a plea and engaged in an on-the-record colloquy with both

McHargue and her counsel before accepting her guilty plea. The trial court further

ordered that a pre-sentence investigation be performed and ultimately sentenced

McHargue to a seven to ten and one-half year term of imprisonment under the

Reagan Tokes Law. The trial court further imposed a mandatory term of post-

release control and ordered that McHargue pay court costs as well as costs of

confinement and supervision.

{¶4} McHargue now brings her timely appeal, setting forth three

assignments of error for our review. She notes that her appellate counsel was

denied a copy of the pre-sentence investigation report to review for purposes of her

appeal.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY FAILING TO ADJUDICATE COMPETENCY.

II. THE TRIAL COURT IMPOSED AN UNLAWFUL SENTENCE.

III. IT IS UNLAWFUL TO DENY APPELLANT [SIC] COUNSEL A COPY OF MCHARGUE’S PSI TO INVESTIGATE, RESEARCH, AND PRESENT ISSUES FOR APPEAL. Gallia App. No. 22CA12 4

ASSIGNMENT OF ERROR I

{¶5} In her first assignment of error, McHargue contends that the trial court

erred by failing to adjudicate competency. More specifically, McHargue argues

that the trial court’s failure to determine competency violated R.C. 2945.38(A), left

the competency determination outstanding, and prevented a reliable determination

of her ability to enter a knowing, intelligent, and voluntary plea. The State

responds by arguing that McHargue was competent and that the trial court

acknowledged a stipulation of competency. The State further argues that although

there was “no specific finding of competency in the entry, it was not error and

should not cause a reversal of the conviction.”

Competency

{¶6} “Due process requires a criminal defendant be competent to stand

trial.” State v. Smith, 4th Dist. Pickaway No. 19CA33, 2021-Ohio-2866, ¶ 14

(hereinafter “Smith I”); State v. Lechner, 4th Dist. Highland No. 19CA3, 2019-

Ohio-4071, ¶ 25; State v. Berry, 72 Ohio St.3d 354, 359, 1995-Ohio-310, 650

N.E.2d 433.1 The United States Supreme Court has observed that:

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.

1 There are three Smith cases cited in this opinion, none of which are related, but which have been labeled numerically to eliminate confusion. Gallia App. No. 22CA12 5

Drope v. Missouri, 95 S.Ct. 896, 420 U.S. 162, 171 (1975). Thus, the

“[c]onviction of an accused while he or she is legally incompetent is a violation of

due process.” State v. Merryman, 4th Dist. Athens No. 12CA28, 2013-Ohio-4810,

¶ 14.

{¶7} “ ‘The United States Supreme Court established the test for

competency and requires the court to determine if an accused “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual understanding of

the proceedings against him.” ’ ” Smith I, at ¶ 15, quoting Lechner, supra, at ¶ 26,

in turn quoting Dusky v. United States, 80 S.Ct. 788, 789, 362 U.S. 402 (1960).

Ohio has codified the competency test in R.C. 2945.37(G) as follows:

A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.

Under this subjective test, if a defendant is capable of understanding the nature and

objective of the proceedings and assisting in the defense, then the defendant is

competent to stand trial. Smith I, supra, at ¶ 16. A defendant with mental illness

or intellectual deficiencies may still be competent to stand trial. See Lechner, at ¶

27. Gallia App. No. 22CA12 6

{¶8} As explained in Lechner:

“Incompetency must not be equated with mere mental or emotional instability or even with outright insanity. A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.”

Id., quoting State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986).

Of relevance herein, we note that “the competency standard for entering a plea ‘is

the same as the competency standard for standing trial.’ ” State v. Morrison, 4th

Dist. Adams No. 07CA854, 2008-Ohio-4913, at ¶ 11, quoting Godinez v. Moran,

509 U.S. 389, 391, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); State v. Mink, 101

Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57; State v. Bolin, 128 Ohio

App.3d 58, 713 N.E.2d 1092 (8th Dist. 1998); State v. Jenkins, 3d. Dist. Henry No.

07-05-06, 2005-Ohio-5616, ¶ 8.

Legal Analysis

{¶9} The Supreme Court of Ohio has determined that competency to stand

trial is presumed and the defendant bears the burden of proving his or her

incompetency by a preponderance of the evidence. See State v. Roberts, 137 Ohio

St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 89, citing R.C. 2945.37(G). See

also State v. Smith, 8th Dist. Cuyahoga No. 108793, 2020-Ohio-3666, ¶ 11

(hereinafter “Smith II”) and State v. Ingram, 8th Dist. Cuyahoga Nos. 107587 and

107588, 2019-Ohio-2438, ¶ 6. However, once the issue of a defendant’s Gallia App. No. 22CA12 7

competency is raised, the court is required to hold a competency hearing. See State

v. Were, 94 Ohio St.3d 173, 2002-Ohio-481, 761 N.E.2d 591, paragraph one of the

syllabus; R.C. 2945.37(B). Following the hearing, “if the court * * * finds that the

defendant is competent to stand trial, the defendant shall be proceeded against as

provided by law.” R.C. 2945.38(A).

{¶10} As explained in Smith II, supra, at ¶ 12:

Either party may submit evidence on the issue of the defendant's competency, and a “written report of the evaluation of the defendant may be admitted into evidence at the hearing by stipulation[.] * * *” R.C. 2945.37(E). A stipulation is “ ‘[a] voluntary agreement between opposing counsel concerning the disposition of some relevant matter so that evidence on the matter does not have to be introduced at the trial.’ ” State v. Hardley, 8th Dist. Cuyahoga Nos. 88456 and 88457, 2007-Ohio-3530, ¶ 18, quoting West's Legal Thesaurus/Dictionary 716-717 (1985). Where a defendant stipulates to competency, “a trial court need not hold a hearing pursuant to R.C. 2945.37(B) because a hearing is only needed to introduce evidence rebutting the presumption of competency established in R.C. 2945.37(G).” State v. Dienes, 8th Dist. Cuyahoga No. 97578, 2012-Ohio-4588, ¶ 9, citing State v. Smith, 8th Dist. Cuyahoga No. 95505, 2011-Ohio-2400, ¶ 6 [hereinafter “Smith III”]. And the statute does not require the court to make specific findings on the record regarding a defendant's competency, “above and beyond the report itself.” Dienes at ¶ 10.

{¶11} As set forth above, McHargue’s counsel raised the issue of

competency in light of her “history of mental health issues and recent

hospitalizations,” which apparently included a diagnosis of “post traumatic stress

syndrome.” As a result, the trial court promptly issued an order directing that Gallia App. No. 22CA12 8

McHargue undergo an evaluation to determine her competency to stand trial. After

delaying the competency hearing several times due to delays on the part of the

evaluator, the matter came on for the scheduled competency hearing on April 4,

2022. The hearing transcript, which is short, reveals that defense counsel simply

informed the court that the competency evaluation had been received and that the

defendant was stipulating to the competency evaluation. The following exchange

occurred:

Court: Mr. Hedges is here on her behalf. Mr. Fisher is here on behalf of the State. Um, there’s been, we do have, this is a motion regarding the competency report as well as the status. Um, Mr. Fisher or Mr. Hedges where are we on this?

Mr. Hedges: Uh, Your Honor, we’re going to stipulate to the uh, to the uh, competency evaluation and then uh, basically we’re going to leave the schedule as it is.2

The same day as the hearing, the trial court issued a journal entry stating that “[t]he

Defendant, through counsel, waived the hearing on competency and stipulated that

the findings in the report are accurate.” The journal entry further granted a

continuance requested by the defense, vacated the scheduled May 9, 2022 jury

2 At that time, the matter was scheduled for a final pre-trial hearing on April 25, 2022 and a jury trial on May 9, 2022. Gallia App. No. 22CA12 9

trial, and continued the trial to June 29, 2022. Thereafter, McHargue decided to

plead guilty.

{¶12} McHargue essentially argues on appeal that because the trial court

did not journalize an entry finding her to be competent to stand trial that the issue

of her competency was never determined. She cites State v. Whitling, 2018-Ohio-

1360, 110 N.E.3d 63 (12th Dist.) in support of her argument that “there had to be a

journalized determination of competency before her plea and sentencing.” Much

like the present case, Whitling involved a situation where a competency evaluation

was performed but was not made part of the record. Id. at ¶ 14. Whitling also

involved a situation where the matter came on for the scheduled competency

hearing, but in light of the contents of the report, the defense made no argument,

offered no evidence, and simply requested a pretrial hearing. Id. at ¶ 4.

Admittedly, these facts in Whitling are similar to the facts presently before us. The

Whitling court ultimately found fault with the trial court’s failure to issue an entry

finding Whitling competent to stand trial. Id. at ¶ 17. In reaching its decision, the

court reasoned as follows:

At the conclusion of the September 7, 2016 hearing, the trial court was left with the unrebutted presumption that appellant was competent to stand trial. See R.C. 2945.37(G). Utilizing this statutory presumption, the trial court was required to make a determination of appellant's competency to stand trial. See R.C. 2945.38(A). Gallia App. No. 22CA12 10

Once the issue of competency has been raised, the procedures set forth in R.C. 2945.37 and 2945.38 are required to be followed so that the question of appellant's competence to stand trial may be put to rest. Until the trial court resolves this issue by putting on an entry, there remains an issue as to whether appellant is competent to stand trial. Therefore, for the reasons stated above, we find that the trial court erred in accepting appellant's guilty plea without first determining defendant's competency in accordance with R.C. 2945.38(A). Appellant's first assignment of error is sustained.

Whitling at ¶ 21-22.

{¶13} However, contrary to the reasoning in Whitling, the competency

statute does not require that the trial court put on an entry in order to resolve the

issue of competency prior to accepting a plea. The Eighth District Court of

Appeals recently acknowledged this in Smith II, supra. The facts in Smith II are

more similar to the facts before us than are the facts in Whitling. For instance,

Smith was referred for a competency evaluation upon the request of the defense.

Id. at ¶ 2. The parties thereafter “waived the hearing and stipulated to the court

psychiatric clinic report.” Id. at ¶ 3. Like the situation sub judice, the competency

report was not made part of the record; however, in Smith II the prosecution did

mention at the hearing that the report found Smith competent to stand trial. Id. at ¶

4. No such express statement was made in the present case. In Smith II, the

subsequent journal entry filed by the trial court simply stated that “both parties

stipulate to psych findings[]” and did not include any finding by the trial court

regarding Smith’s competency. Id. at ¶ 5. Gallia App. No. 22CA12 11

{¶14} On appeal, Smith argued that the trial court had never actually found

him competent after he was referred for a psychiatric evaluation. Id. at ¶ 9.

However, the trial court determined that defense counsel had raised the issue of

competency, that Smith had been evaluated (despite the fact that a copy of the

report was not part of the record), that defense counsel had reviewed the report,

and that the parties had “stipulated to the psychiatrist’s finding of Smith’s

competency.” Id. at ¶ 13. Importantly, as set forth above, the court found that “the

statute does not require the court to make specific findings on the record regarding

a defendant’s competency ‘above and beyond the report itself.’ ” Id. at ¶ 12,

quoting State v. Dienes, supra, at ¶ 9. In State v. Dienes, the court stated that “ ‘[a]

hearing is not required in all situations, only those where the competency issue is

raised and maintained.’ ” Dienes at ¶ 9, quoting Smith III, supra, at ¶ 5. See also

State v. Jones, 4th Dist. Gallia No. 19CA9, 2020-Ohio-7037, ¶ 27. The Dienes

court observed that it had previously held in Smith III that “where a defendant

stipulates to competency, a trial court need not hold a hearing pursuant to R.C.

2945.37(B) because a hearing is only needed to introduce evidence rebutting the

presumption of competency established in R.C. 2945.37(G).” Dienes at ¶ 9, citing

Smith III at ¶ 6.

{¶15} We hold that here, although neither the defense, prosecution, or court

expressly stated that the competency evaluation resulted in a finding that Gallia App. No. 22CA12 12

McHargue was competent to stand trial, it is obvious from the exchange on the

record as well as the subsequent journal entry that everyone understood McHargue

to be competent. The defense stipulated to the findings in the report and

essentially requested that the matter proceed to trial. A journal entry was filed the

same day setting a jury trial date. We reject Whitling’s non-binding authority

stating that “[u]ntil the trial court resolves this issue by putting on an entry, there

remains an issue as to whether appellant is competent to stand trial.” Whitling at ¶

22. We instead find persuasive the reasoning of the Eighth District Court of

Appeals which determined that “the statute does not require the court to make

specific findings on the record regarding a defendant’s competency, ‘above and

beyond the report itself.’ ” Smith II at ¶ 12, quoting Dienes at ¶ 10.

{¶16} The record before us indicates that both parties and the court had

reviewed a copy of the competency report, that the defense stipulated to the

contents of the report, and based upon the contents, waived the scheduled

competency hearing and requested that the matter proceed to trial. Further, and of

importance, when McHargue decided to enter a guilty plea, the trial court inquired

as to her competency before accepting her plea. The following exchange occurred

on the record:

Court: Okay. Today are you under the influence of any medications, drugs or alcohol?

Ms. McHargue: No. Gallia App. No. 22CA12 13

Court: All right. Um, Mr. Hedges, you’ve spoken with, wit, excuse me, with Ms. McHargue today do you have any reason to believe she’s under the influence?

Mr. Hedges: I do not believe she is, Your Honor.

Court: Any concerns about her competency?

Mr. Hedges: No.

Court: All right. Um, and um, Ms. McHargue, do you have any mental illness or condition that would interfere with your understanding of what we’re doing here today?

Ms. McHargue: No.

Court: Okay. I believe that we had at one point um, had a competency um, issue raised and we um, had an evaluation?

Ms. McHargue: Yes.

Court: Okay. Um . . .

Ms. McHargue: I have, I have mental illness but not . . .

Court: Okay. But it’s not going to interfere today?

Ms. McHargue: Right.

Court: Okay. And we addressed that also on the record when we got the report back, so I appreciate um, the information you’ve provided me there Ms. McHargue. Um, Mr. Holdren or Mr. Hedges is there anything else you want to add on that issue today? Gallia App. No. 22CA12 14

Mr. Holdren: No, Your Honor.

Court: Okay.

Mr. Hedges: No, Your Honor.

Furthermore, although it took place contemporaneously with the acceptance of

McHargue’s guilty plea rather than prior to, defense counsel represented in writing

that his client was competent to proceed with her change of plea and counsel was a

signatory to the written plea agreement.

{¶17} Thus, collectively, the competency statutes at issue and relevant

caselaw provide that if the issue of a defendant’s competency is raised, the trial

court must set the matter for hearing. However, a defendant may stipulate to the

contents of the competency report and may also waive the competency hearing, or

at least may elect not to introduce evidence. In such a situation, the presumption of

competency remains unrebutted. Further, although a competency report may be

made part of the record, there is no requirement that it must be made part of the

record. Additionally, although the trial court must ensure a defendant is competent

before accepting a plea, the competency statutes do not mandate the type or

manner of findings the trial court must make and they do not expressly require that

the trial court issue a journal entry finding a defendant competent.

{¶18} We conclude that here, although defense counsel raised the issue of

competency, once the competency report was received, counsel did not maintain Gallia App. No. 22CA12 15

the claim that McHargue was incompetent. Instead, the defense stipulated to the

contents of the competency report and requested that the matter proceed to trial.

Based upon the facts before us, we reject McHargue’s argument that the trial court

failed to determine her competency. We further reject her argument that the trial

court erred in failing to issue a journal entry specifically finding her competent. As

set forth above, a defendant is presumed competent to stand trial. The defense’s

stipulation to the contents of the report and waiver of a competency hearing failed

to rebut the presumption of competency and thus, that presumption remained

intact. We further conclude that the trial court’s colloquy on the record with

McHargue and her counsel prior to accepting her guilty plea resolved any arguable

question that may have remained regarding her prior incompetency claim.

{¶19} As a result, finding no merit to the arguments raised under

McHargue’s first assignment of error, the assignment of error is overruled.

ASSIGNMENT OF ERROR II

{¶20} In her second assignment of error, McHargue contends that the trial

court imposed an unlawful sentence. McHargue raises two arguments under this

assignment of error. First, she argues that the trial court erred by imposing

supervision costs because they are limited to community-control supervision and

she received a prison sanction followed by post-release control. Second, she

argues that the Reagan Tokes sentence that was imposed was unconstitutional. Gallia App. No. 22CA12 16

The State does not contest the issue of supervision costs being improperly imposed

and simply acknowledges McHargue’s argument about the Reagan Tokes Law.

Reagan Tokes Law

{¶21} The Reagan Tokes Law encompasses four newly-enacted statutes and

amendments to 50 statutes. R.C. 2901.011. The law requires that a court imposing

a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second-degree

felony committed on or after March 22, 2019, impose a minimum prison term

under that provision and a maximum prison term determined under R.C.

2929.144(B). R.C. 2929.144(A) and (C). There is a presumption that the offender

“shall be released from service of the sentence on the expiration of the offender's

minimum prison term or on the offender's presumptive earned early release date,

whichever is earlier.” R.C. 2967.271(B). A “presumptive earned early release

date” is a date determined under procedures described in R.C. 2967.271(F) which

allows the sentencing court to reduce the minimum prison term under certain

circumstances. R.C. 2967.271(A)(2).

{¶22} R.C. 2967.271(C) states that the department of rehabilitation and

correction (hereinafter “DRC”) may rebut the presumption in R.C. 2967.271(B) if

it determines, at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: Gallia App. No. 22CA12 17

(a) During the offender's incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.

If DRC rebuts the presumption, it “may maintain the offender's incarceration” after

the expiration of the minimum prison term or presumptive earned early release

date for a reasonable period, determined and specified by DRC, which “shall not

exceed the offender's maximum prison term.” R.C. 2967.271(D)(1).

Standard of Review

{¶23} “When reviewing felony sentences appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2).” State v. Johnson, 4th Dist.

Adams No. 19CA1082, 2019-Ohio-3479, ¶ 7, citing State v. Marcum, 146 Ohio Gallia App. No. 22CA12 18

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. R.C. 2953.08(G)(2) states as

follows:

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶24} “Clear and convincing evidence is ‘that measure or degree of proof

which * * * will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123

Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

This Court has explained as follows regarding the review of felony sentences:

“ ‘[R.C. 2953.08(G)(2)] does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.’ ” Gallia App. No. 22CA12 19

State v. Spangler, 4th Dist. Athens No. 21CA17, 2023-Ohio-2003, ¶ 17, quoting

State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8, in turn

quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992

N.E.2d 453, ¶ 20-21.

{¶25} The constitutionality of a statute presents a question of law we

review de novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th

Dist.). “ ‘[L]aws are entitled to a strong presumption of constitutionality.’ ” Ohio

Renal Assn. v. Kidney Dialysis Patient Protection Amendment Commt., 154 Ohio

St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 26, quoting Yajnik v. Akron Dept.

of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16.

“A party may challenge a statute as unconstitutional on its face or as applied to a

particular set of facts.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334,

836 N.E.2d 1165, ¶ 37. McHargue asserts a facial challenge to the Reagan Tokes

Law and therefore “must prove beyond a reasonable doubt ‘that no set of

circumstances exists under which the act would be valid.’ ” Ohio Renal Assn. at ¶

26, quoting Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970

N.E.2d 898, ¶ 21.

{¶26} “ ‘[T]he question of the constitutionality of a statute must generally

be raised at the first opportunity and, in a criminal prosecution, this means in the

trial court.’ ” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 Gallia App. No. 22CA12 20

N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277

(1986). A reviewing court does have “discretion to consider a forfeited

constitutional challenge to a statute” and “may review the trial court decision for

plain error, but we require a showing that but for a plain or obvious error, the

outcome of the proceeding would have been otherwise, and reversal must be

necessary to correct a manifest miscarriage of justice.” (Citation omitted.)

Quarterman at ¶ 16. “The burden of demonstrating plain error is on the party

asserting it.” Id. The Supreme Court of Ohio has stated that “a forfeited

constitutional challenge to a statute is subject to review ‘where the rights and

interests involved may warrant it.’ ” Id., quoting In re M.D., 38 Ohio St.3d 149,

527 N.E.2d 286 (1988), syllabus.

{¶27} For ease of analysis, we address McHargue’s sentencing arguments

out of order. As set forth above, McHargue contends that the trial court imposed

an unconstitutional Reagan Tokes sentence. She raises three sub-arguments as

follows: 1) “Reagan Tokes violates the Apprendi-Alleyne doctrine because the

facts for increased prison, beyond the presumptive minimum, are not determined

by a jury upon proof beyond a reasonable doubt”; 2) Reagan Tokes violates

“separation of powers because ODRC employees, in the executive branch, decide a

violation and impose the increased punishment—invading the judicial function”; Gallia App. No. 22CA12 21

and, 3) Reagan Tokes violates procedural due process because it “fails to provide

notice about potential violations and fails to provide meaningful procedures for fair

hearings.” McHargue acknowledges that these very questions have been pending

before the Supreme Court of Ohio and requests that this Court “apply the Ohio

Supreme Court’s Reagan Tokes holding to her Reagan Tokes sentence.”

{¶28} We initially note, sua sponte, that McHargue did not challenge the

constitutionality of the Reagan Tokes Law at the trial level. Moreover, McHargue

did not argue plain error on appeal, and we decline to construct a plain error

argument on her behalf. State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-

Ohio-4319, ¶ 40 (declining to construct plain error argument for appellant

challenging Reagan Tokes Law). Nevertheless, we conclude that even if

McHargue had argued plain error, her argument would fail.

{¶29} After briefing was concluded in this matter, the Supreme Court of

Ohio issued its decision determining the constitutionality of the Reagan Tokes

Law. State v. Hacker, 2023-Ohio-2535, -- N.E.3d --. In Hacker, the Court upheld

the constitutionality of the Reagan Tokes Law, specifically finding that the law

does not violate the right to a trial by jury, does not violate the separation-of-

powers doctrine, and does not violate procedural due process on its face. Hacker

at ¶ 25, 28 and 40. See also State v. Nesbitt, 4th Dist. Ross No. 23CA14, 2023-

Ohio-3434, ¶ 53-55. Thus, in light of the holding in Hacker, McHargue’s Gallia App. No. 22CA12 22

constitutionality arguments are without merit. Further, because the arguments

presented by McHargue “do not present novel issues or any new theory

challenging the constitutional validity of any aspect of the Reagan Tokes Law left

unaddressed by the Ohio Supreme Court’s decision in Hacker,” this portion of her

second assignment of error is overruled. State v. Spencer, 8th Dist. Cuyahoga No.

112058, 2023-Ohio-3359, ¶ 28.

{¶30} McHargue next contends that the trial court erred by imposing

supervision costs. She argues that supervision costs are limited to community-

control supervision and that she received a prison sanction followed by post-

release control. Although the State concedes this argument and although this

appears to be a question of first impression in this district, there is a recent line of

cases from the Twelfth District Court of Appeals that addresses this specific

question. More specifically, the cases hold that supervision costs are not limited to

costs related to community control and that trial courts may impose supervision

costs for costs associated with post-release control. See State v. Patterson, 12th

Dist. Butler No. CA2021-01-004, 2021-Ohio-3959, ¶ 15 (“Upon review, we agree

that supervision costs are authorized in conjunction with postrelease control”);

State v. Murphy, 12th Dist. Butler No. CA2021-05-048, 2021-Ohio-4541, ¶ 44

(“For the reasons expressed in Patterson, we find that the trial court did not err in

imposing supervision costs.”); State v. Ross, 12th Dist. Butler No. CA2022-1-110, Gallia App. No. 22CA12 23

2023-Ohio-1421, ¶ 12 (relying on the doctrine of stare decisis to again reject the

argument that supervision costs associated with post-release control are not

authorized by R.C. 2929.18(A)(5)(a)).

{¶31} In Patterson, the court reasoned as follows in response to the

identical argument raised herein:

Under R.C. 2929.18(A), the court imposing sentence upon a felony offender may sentence the offender to “any financial sanction or combination of financial sanctions authorized under this section * * *.” Included among those authorized financial sanctions is “any or all of the costs of sanctions incurred by the government.” (Emphasis added.) R.C. 2929.18(A)(5)(a). The statute goes on to list some examples of such sanctions, including the costs of implementing any community control sanction, including a supervision fee, the costs of confinement, and the costs related to an immobilizing device. R.C. 2929.18(A)(5)(a)(i),(ii), and (iii). However, as stated, these are examples. The language in the statute does not preclude a court from imposing other costs of sanctions incurred by the government. Supervision fees related to postrelease control are within the ambit of “any or all of the costs of sanctions incurred by the government.” R.C. 2929.18(A). Accordingly, we conclude that the court did not err in imposing supervision costs.

Patterson at ¶ 15.

{¶32} In her brief, McHargue acknowledges the Patterson court’s

determination that post-release control supervision costs could be supported under

R.C. 2929.18(A)(5)(a), but she argues “that provision cannot override the

legislature’s more specific articulation of supervision costs under R.C.

2949.111(A).” We find no merit to McHargue’s argument. R.C. 2949.111 Gallia App. No. 22CA12 24

governs “[p]riority of assignment of payments to satisfaction of costs, restitution,

fines, and probation fees.” R.C. 2949.111(A)(4) defines “supervision fees,” “as

used in this section[,]” to mean “any fees that a court pursuant to sections 2929.18,

2929.28, and 2951.021 of the Revised Code * * * requires an offender who is

under a community control sanction to pay for supervision services.” Thus,

McHargue argues that the definition of “supervision fees” “thereby excludes PRC

supervision costs.” However, section (A)(3) of R.C. 2949.111, which defines

“reimbursement” for purposes of that code section, states that courts may order

“reimbursement” of supervision fees, “or any other costs that the court orders an

offender to pay.”

{¶33} Likewise, R.C. 2929.18(A) states that “the court imposing a sentence

upon an offender for a felony may sentence the offender to any financial sanction *

* * authorized under this section[.]” (Emphasis added). R.C. 2929.18(A) further

provides as follows:

Financial sanctions that either are required to be or may be imposed pursuant to this section include, but are not limited to, the following:

***

(5)(a) Reimbursement by the offender of any or all of the costs incurred by the government, including the following: (Emphasis added). Gallia App. No. 22CA12 25

Section (5)(a) goes on to list costs of implementing community control, costs of

confinement, and costs of purchasing certified ignition interlock devices. As set

forth above, the statute clearly states that the authorized financial sanctions are not

limited to the examples expressly set forth in the statute.

{¶34} Moreover, R.C. 2967.01(N) defines “[p]ost-release control” as “a

period of supervision by the adult parole authority after a prisoner’s release from

imprisonment, other than a term of life imprisonment, that includes one or more

post-release control sanctions imposed under section 2967.28 of the Revised

Code.” (Emphasis added). R.C. 2967.01(O) defines “post-release control

sanction” as “a sanction that is authorized under sections 2929.16 to 2929.18 of the

Revised Code and that is imposed upon a prisoner upon the prisoner’s release from

a prison term other than a term of life imprisonment.” Thus, the post-release

control statute expressly contemplates a financial sanction being imposed under

R.C. 2929.18 and although R.C. 2929.18(A)(5)(a)(i) expressly discusses

supervision fees related to the costs of implementing community control, that is

just one example of a financial sanction listed in the statute that is included in a

non-exhaustive list. Again, as set forth above, R.C. 2929.18(A) provides that the

financial sanctions permitted “are not limited to” the examples included in section

(A)(1)-(5). Gallia App. No. 22CA12 26

{¶35} In light of the foregoing reasoning and consistent with the Twelfth

District Court of Appeals’ holdings on this issue, and despite the State’s

concession on this issue, we conclude that the trial court did not err by imposing

supervision costs associated with post-release control. Accordingly, because we

find no merit to either of the arguments raised under McHargue’s second

assignment of error, it is overruled.

ASSIGNMENT OF ERROR III

{¶36} In her third assignment of error, McHargue contends that it is

unlawful to deny her appellate counsel a copy of her presentence investigation

report (hereinafter “PSI”) to investigate, research, and present issues for appeal.

She argues that her appellate counsel was entitled to obtain a copy of the PSI for

purposes of appeal under both R.C. 2951.03(D)(1) and R.C. 2953.08 and that

Gallia County’s policy allowing her to view the PSI in person, but denying her a

copy of the PSI, is contrary to law. She alternatively argues that if this Court

rejects her statutory claims that her appellate counsel is entitled to a copy of the

PSI, that the denial of her request for a copy of the PSI is unconstitutional under

the Ohio Equal Protection clause in that it creates a classification between defense

counsel and the trial court, probation officers, Ohio Department of Rehabilitations

and Corrections staff, law enforcement, and treatment providers, who are all Gallia App. No. 22CA12 27

entitled to copies of the PSI under R.C. 2951.03(A)(2)-(3). She argues that such a

classification is “over-inclusive, irrational, and thereby unconstitutional.”

{¶37} The State responds by arguing that although defense counsel and

appellate counsel are entitled to review the PSI prior to sentencing and for

purposes of appeal, McHargue’s argument that her appellate counsel is entitled to a

copy of the PSI is not supported by the law. The State further directs our attention

to the fact that appellate counsel here was not denied access to the PSI and it also

references the fact that Gallia County’s practices and procedures governing

counsel’s access to the PSI were consistent with “state-wide practices and the Ohio

Revised Code.” The State further argues there was no constitutional error in Gallia

County’s handling of the matter.

{¶38} McHargue asserts that in order to inspect the PSI in person in Gallia

County, her counsel would have had to travel two and one-half hours each way,

resulting in a five hour round trip. She further asserts that Gallia County limits

appellate representation by appointed counsel to a total of 20 hours and that

making the trip to view the PSI in person would have taken up one-fourth of the

time allotted for her case. As a result, it appears that counsel elected not to devote

the time needed for travel and instead decided to forego review of the PSI when the

request for a copy was denied. Gallia App. No. 22CA12 28

{¶39} PSIs are addressed in both Crim.R. 32.2 and R.C. 2951.03. Crim.R.

32.2 provides as follows:

Unless the defendant and the prosecutor in the case agree to waive the presentence investigation report, the court shall, in felony cases, order a presentence investigation and report before imposing community control sanctions or granting probation. The court may order a presentence investigation report notwithstanding the agreement to waive the report. In misdemeanor cases the court may order a presentence investigation before granting probation.

Likewise, R.C. 2951.03(A)(1) provides, in pertinent part, that “no person who has

been convicted of or pleaded guilty to a felony shall be placed under a community

control sanction until a written presentence investigation report has been

considered by the court.”

{¶40} R.C. 2951.03 permits access to these reports only in certain

circumstances. For example, R.C. 2951.03(B)(1) states that “the court, at a

reasonable time before imposing sentence, shall permit the defendant or the

defendant’s counsel to read the report.” R.C. 2951.03 further provides in section

(B)(2) as follows:

Prior to sentencing, the court shall permit the defendant and the defendant’s counsel to comment on the presentence investigation report and, in its discretion, may permit the defendant and the defendant’s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report. Gallia App. No. 22CA12 29

{¶41} R.C. 2951.03(D)(1) addresses when a defendant and/or her counsel

may seek access to the PSI, the contents of which is “confidential information” and

“not a public record.” For example, R.C. 2951.03(D)(1) states as follows:

The court, an appellate court, authorized probation officers, investigators, and court personnel, the defendant, the defendant's counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a presentence investigation report or a written or oral summary of a presentence investigation only for the purposes of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section 2947.06, or another section of the Revised Code.

However, R.C. 2951.03(D)(2) further provides as follows:

Immediately following the imposition of sentence upon the defendant, the defendant or the defendant's counsel and the prosecutor shall return to the court all copies of a presentence investigation report and of any written summary of a presentence investigation report or part of a presentence investigation report that the court made available to the defendant or the defendant's counsel and to the prosecutor pursuant to this section.

{¶42} In 2014, the Supreme Court of Ohio agreed to address a certified

conflict on the question of “ ‘[w]hether, pursuant to R.C. 2951.03, newly-

appointed appellate counsel is entitled to obtain a copy of the defendant’s

presentence investigation report.’ ” State v. Johnson, 138 Ohio St.3d 282, 2014- Gallia App. No. 22CA12 30

Ohio-770, 6 N.E.3d 38, ¶ 1 (hereinafter “Johnson”), quoting State v. Johnson, 135

Ohio St.3d 1411, 2013-Ohio-1622, 986 N.E.2d 28.3

{¶43} In accepting the case, the Court stated that “the issue is whether

appellate counsel who was not trial counsel may obtain a copy of the presentence

investigation report for purposes of representing Johnson on appeal.” Johnson at ¶

7. The Court first determined that the term “ ‘defendant’s counsel’ as used in R.C.

2951.03(D)(1) [encompassed] both a defendant’s trial counsel and a defendant’s

appellate counsel.” Johnson at ¶ 2. The Court ultimately answered the certified

question in the affirmative, but only ordered on remand that the defendant’s

appellate counsel be provided “access to the report subject to similar restrictions as

contained in R.C. 2951.03 and 2953.08(F)(1) and any further directives of the

appellate court.” Id. at ¶ 2, 15. The Court’s full holding stated as follows:

Because of concerns for due process and the right to effective assistance of counsel on an appeal, and because the term “defendant's counsel” as used in R.C. 2951.03(D)(1) includes both a defendant's trial counsel and a defendant's appellate counsel, we answer the certified question in the affirmative and permit newly appointed appellate counsel to have access to a presentence investigation report upon a proper showing therefor, subject to similar restrictions as contained in R.C. 2951.03 and 2953.08(F)(1) and any further directives of the appellate court.

Id. at ¶ 14.

3 The Twelfth District certified the conflict between State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014- Ohio-3776 and State v. Jordan, 4th Dist. Scioto No. 03CA2878, 2004-Ohio-2111. Gallia App. No. 22CA12 31

{¶44} Relying on Johnson, this Court recently determined in State v.

Jackson, 4th Dist. Gallia No. 22CA8, 2023-Ohio-3895, that “[u]nder the relevant

statutes and Johnson, access to the PSI is very limited.” Jackson at ¶ 45. We

further determined that “Johnson permits appellate counsel to have access to a

defendant’s PSI, but does not permit unlimited access[]” and that “[t]his court may

not enlarge the Johnson holding.” Id. We ultimately held in Jackson “that R.C.

2951.03 does not permit appellant to retain a copy of the presentence investigation

report.” Id.

{¶45} Jackson was represented on appeal by the same counsel who

represents McHargue on appeal. Further, the arguments regarding appellate

counsel’s access to the PSI report in Jackson are identical to the arguments raised

sub judice and both cases originate from Gallia County. Thus, both involve the

same court’s practices and policies with respect to appellate counsel’s access to the

PSI report. As this Court expressed in Jackson, “we certainly understand and

appreciate appellate counsel’s frustration,” but “as an intermediate appellate court

we are obligated to follow Supreme Court of Ohio decisions.” Jackson at ¶ 45.

See also State v. Cihon, 4th Dist. Gallia No. 22CA13, 2023-Ohio-3108, -- N.E.3d -

-, ¶ 31 (“While we understand that this procedure appellant outlines could indeed

create a hardship for appellant's counsel, as an intermediate appellate court we may

not depart from Supreme Court of Ohio directives and statutory requirements.”). Gallia App. No. 22CA12 32

Accordingly, based upon the Supreme Court of Ohio’s holding in Johnson as well

as this Court’s recent reasoning in Jackson, the statutory claims raised in

McHargue’s third assignment of error are overruled.

{¶46} Further, with respect to McHargue’s alternative claims which assert

constitutional and equal protection violations, the Supreme Court of Ohio has

explained that:

the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See State v. Woodards (1966), 6 Ohio St.2d 14, 215 N.E.2d 568 [35 O.O.2d 8]. This rule applies both to appellant’s claim that the statute is unconstitutionally vague on its face and to his claim that the trial court interpreted the statute in such a way as to render the statute unconstitutionally vague. Both claims were apparent but yet not made at the trial court level.

State v. Awan, 22 Ohio St.3d 120, 122-123, 489 N.E.2d 277 (1986).

Because McHargue’s trial counsel was mandated to return the copy of the PSI at

trial and because R.C. 2951.03(D)(2) did not require other personnel/departments

who had a copy of the PSI to return it, this challenge could have been raised at

trial, but it was not. See State v. Stutes, 4th Dist. Gallia Nos. 22CA6, 22CA7,

2023-Ohio 4582, ¶ 45. Because McHargue’s constitutional challenge to R.C.

2951.03 could have been raised at the trial court level, but was not, we decline to

address it for the first time on appeal. Gallia App. No. 22CA12 33

{¶47} Having found no merit in any of the assignments of error raised by

McHargue, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Gallia App. No. 22CA12 34

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Hess, J., and Wilkin, J., Concur in Judgment and Opinion.

For the Court, _____________________________ Jason P. Smith Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.