State v. Waggle

2022 Ohio 2351

• Court: Ohio Court of Appeals
• Decided: July 5, 2022
• Docket: CT2020-55
• Status: Published

Opinion

[Cite as State v. Waggle, 2022-Ohio-2351.]

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. Patricia A. Delaney, J. : -vs- : PAUL WAGGLE : Case No. CT2020-55 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: On remand from the Supreme Court of Ohio, Case No. 2021-1398

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 43701 Muskingum County, Case No. CT2020-55 2

Wise, Earle, J.

{¶ 1} This matter is before us on remand from the Ohio Supreme Court. In

Defendant-Appellant Paul Waggle's direct appeal, State v. Waggle, 2021-Ohio-1180, 178

N.E.3d 562,1 we declined to address his first assignment of error which challenged the

constitutionality of the Reagan Tokes Act, and a portion of his fourth 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 Waggle's' first assignment of

error and the remaining portion of his fourth assignment of error.2

FACTS AND PROCEDURAL HISTORY

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

resolution of this appeal.

{¶ 3} On July 28, 2020, the Muskingum County Grand Jury returned a seven-

count indictment charging Waggle with three counts of felonious assault, one count of

tampering with evidence, two counts of kidnapping and one count of attempted murder.

{¶ 4} On September 28, 2020, following negotiations with the state, Waggle

entered pleas of guilty to two counts of felonious assault, violations of R.C. 2903.11(A)(2),

felonies of the second degree, one count of tampering with evidence, a violation of R.C.

2921.12(A)(1), a felony of the third degree, and one count of kidnapping, a violation of

1 Judge W. Scott Gwin concurring in part and dissenting in part. 2 We have previously addressed Waggle's remaining assignments of error in our original opinion and will not revisit those matters. Muskingum County, Case No. CT2020-55 3

R.C. 2905.01(A)(3), a felony of the first degree. The state agreed to nolle the balance of

the indictment.

{¶ 5} Waggle appeared for sentencing on November 2, 2020. The trial court

determined one count of felonious assault and kidnapping were allied offenses and the

state elected to proceed to sentencing on the kidnapping. Appellant was thereafter

sentenced to an aggregate prison term of 16 to 21 years with 10 years being mandatory.

{¶ 6} The assignments of error left unaddressed by this court on direct appeal are

as follows:

I

{¶ 7} "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."

IV

{¶ 8} "PAUL WAGGLE 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."

{¶ 9} In his first assignment of error, Waggle challenges the constitutionality of

the Reagan Tokes Act. Specifically, Waggle argues it violates his constitutional rights to

trial 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 Muskingum County, Case No. CT2020-55 4

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

behavior in the institution. We disagree.

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

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

violates equal protection for the reasons stated in State v. Hodgkin,

12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353. Muskingum County, Case No. CT2020-55 5

{¶ 11} Based on the forgoing authority, Waggle's first assignment of error is

overruled.

{¶ 12} The portion of Waggle's fourth assignment of error previously left

unaddressed by this court argues Waggle's trial counsel rendered ineffective assistance

by failing to challenge the constitutionality of the Reagan Tokes Act. We disagree.

{¶ 13} 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.

{¶ 14} Because we have found the Reagan Tokes Act is constitutional, Waggle

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

{¶ 15} The fourth assignment of error is overruled. Muskingum County, Case No. CT2020-55 6

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

affirmed.

By Wise, Earle, P.J.

Gwin, J. and

Delaney, J. concur.

EEW/rw