State v. Waltz

2022 Ohio 2395

• Court: Ohio Court of Appeals
• Decided: July 11, 2022
• Docket: CT2021-0012
• Status: Published

Opinion

[Cite as State v. Waltz, 2022-Ohio-2395.]

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. Earle E. Wise, Jr., J. -vs- Case No. CT2021-0012 ELIJAH WALTZ

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2020-0575

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. CT2021-0012 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 Elijah Waltz. Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On October 28, 2020, the Muskingum County Grand Jury indicted Appellant

on six counts of felonious assault, felonies of the second degree, in violation of R.C.

2903.11(A)(1); three counts of felonious assault, felonies of second degree, in violation

of R.C. 2903.11(A)(2); six counts of kidnapping, felonies of the first degree, in violation of

R.C. 2905.01(A)(3); and seven counts of endangering children, felonies of the second

degree, in violation of R.C. 2919.22(B)(2). Appellant appeared before the trial court for

arraignment on November 4, 2020, and entered a plea of not guilty to the Indictment.

{¶3} Appellant appeared before the trial court for a change of plea on December

23, 2020. After the trial court conducted a Crim. R. 11 colloquy with Appellant, Appellant

withdrew his former pleas of not guilty and entered guilty pleas to four counts of felonious

assault, two counts of kidnapping, and two counts of child endangering. The trial court

accepted the pleas, found Appellant guilty, and ordered a pre-sentence investigation.

{¶4} On January 25, 2021, the trial court sentenced Appellant to eight years on

each of the four felonious assault counts, eleven years on each of the kidnapping counts,

and eight years on each of the endangering children counts. The trial court ordered the

sentences be served consecutively for an aggregate prison term of 70 years and an

1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal. Muskingum County, Case No. CT2021-0012 3

indefinite prison term of 75.5 years. The trial court memorialized Appellant's convictions

and sentence via Judgment Entry filed January 29, 2021.

{¶5} Appellant appealed the judgment of conviction and sentence, assigning as

error:

I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED

CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING

FELONIES VIOLATES [SIC] THE CONSTITUTIONS OF THE UNITED

STATES AND THE STATE OF OHIO.

II. ELIJAH WALTZ 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.

III. THE TRIAL COURT UNLAWFULLY ORDERED WALTZ TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE 1 OF

THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

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

to be not yet ripe for review, sustained Appellant’s third assignment of error regarding the

trial court’s failure to make the requisite findings to impose consecutive sentences, and

remanded for further determination of the appropriateness of consecutive sentences Muskingum County, Case No. CT2021-0012 4

State v. Waltz, 5th Dist. Muskingum No. CT2021-0012, 2021-Ohio-3895. 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.

{¶7} 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.

{¶8} 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

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.

{¶9} The first assignment of error is overruled. Muskingum County, Case No. CT2021-0012 5

II.

{¶10} 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.

{¶11} 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.

{¶12} 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. Muskingum County, Case No. CT2021-0012 6

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

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

By: Hoffman, P.J. Delaney, J. and Wise, Earle, J. concur