[Cite as State v. Wheeler, 2021-Ohio-3062.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-019
Appellee Trial Court No. 2020CR0517
v.
Harley Michael Wheeler DECISION AND JUDGMENT
Appellant Decided: September 3, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence G. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Appellant, Harley Wheeler, appeals the judgment of the Wood County Court
of Common Pleas, convicting him, following a guilty plea, of one count of felonious
assault with an attendant firearm specification, one count of abduction, and one count of obstructing official business, and sentencing him to an indefinite sentence of six to seven
years in prison. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On November 13, 2020, a bill of information was filed charging appellant
with one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a
felony of the second degree, with an attendant three-year firearm specification pursuant
to R.C. 2941.145(A), one count of abduction in violation of R.C. 2905.02(A)(2) and (C),
a felony of the third degree, and one count of obstructing official business in violation of
R.C. 2921.31(A) and (B), a felony of the fifth degree. The charges stemmed from an
incident on June 9, 2020, wherein appellant shot his friend in the buttocks and then
attempted to lie to the police by claiming that his friend was shot in a drive-by shooting.
{¶ 3} On December 18, 2020, appellant withdrew his initial plea of not guilty, and
entered a plea of guilty to the offenses as charged. Sentencing was held on February 12,
2021, during which the trial court sentenced appellant in accordance with the Reagan
Tokes Act to a minimum of two years in prison and a maximum of three years in prison
on the count of felonious assault. The court further ordered that sentence to be served
concurrently with a 12-month prison sentence on the count of abduction, but consecutive
to a 12-month prison term on the count of obstructing official business and to a
mandatory three-year prison term for the firearm specification. In total, appellant was
2. ordered to serve an indefinite sentence of six to seven years in prison, with the first three
years being mandatory.
II. Assignments of Error
{¶ 4} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
1. Indefinite sentencing under the Reagan Tokes Act is
unconstitutional under the Fourteenth Amendment of the United States
Constitution and the applicable sections of the Ohio Constitution.
2. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, § 10 of the Ohio Constitution.
III. Analysis
1. Ripeness of Challenge to Constitutionality of Reagan Tokes Act
{¶ 5} In his first assignment of error, appellant argues that the indefinite sentence
that he received pursuant to the Reagan Tokes Act is unconstitutional because the Reagan
Tokes Act violates the doctrine of separation of powers, and because the law violates his
right to due process by not affording him an attorney during the parole proceedings.
{¶ 6} The issue of the constitutionality of the Reagan Tokes Act, as codified in
R.C. 2967.271, has recently been raised before this court multiple times. Beginning with
State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702, ¶ 7, 14, we have
3. consistently held that a challenge to the Reagan Tokes Act becomes ripe only after a
defendant has completed the minimum term of the indefinite sentence and has been
denied release. Thus, we have dismissed any such assignments of error as not ripe for
review. See State v. Cook, 6th Dist. Lucas No. L-20-1205, 2021-Ohio-2619; State v.
Figley, 6th Dist. Lucas No. L-20-1167, 2021-Ohio-2622; State v. Stenson, 6th Dist. Lucas
No. L-20-1074, 2021-Ohio-2256; State v. Zambrano, 6th Dist. Lucas No. L-19-1224,
2021-Ohio-1906; State v. Shepard, 6th Dist. Lucas No. L-20-1070, 2021-Ohio-1844;
State v. Perry, 6th Dist. Wood No. WD-20-025, 2021-Ohio-1748; State v. Savage, 6th
Dist. Lucas No. L-20-1073, 2021-Ohio-1549; State v. Acosta, 6th Dist. Lucas Nos. L-20-
1068, L-20-1069, 2021-Ohio-757; State v. Sawyer, 2020-Ohio-6980, 165 N.E.3d 844 (6th
Dist.); State v. Montgomery, 6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552; State v.
Velliquette, 2020-Ohio-4855, 160 N.E.3d 414 (6th Dist.).
{¶ 7} Accordingly, appellant’s first assignment of error is dismissed as not ripe for
review.
{¶ 8} On December 28, 2020, the Ohio Supreme Court determined that a conflict
exists between Maddox and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-
4592; State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th
Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. Based on this conflict, the Ohio
Supreme Court has accepted review of the following certified question:
4. Is the constitutionality of the provisions of the Reagan Tokes Act,
which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the
presumptive minimum term, ripe for review on direct appeal from
sentencing, or only after the defendant has served the minimum term and
been subject to extension by application of the Act?
State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.
{¶ 9} Section 3(B)(4), Article IV of the Ohio Constitution provides that
“[w]henever the judges of a court of appeals find that a judgment upon which they have
agreed is in conflict with a judgment pronounced upon the same question by any other
court of appeals of the state, the judges shall certify the record of the case to the supreme
court for review and final determination.” The Ohio Supreme Court set forth three
requirements which must be met in order to certify a case:
First, the certifying court must find that its judgment is in conflict
with the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged conflict
must be on a rule of law—not facts. Third, the journal entry or opinion of
the certifying court must clearly set forth that rule of law which the
certifying court contends is in conflict with the judgment on the same
question by other district courts of appeals.
5. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 10} As we did in prior cases, we find that our judgment in this appeal is in
conflict with decisions of the Second, Third, and Twelfth District Courts of Appeals. See
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery No.
28644, 2020-Ohio-4153; State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.);
State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Rogers,
12th Dist. Butler No.
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[Cite as State v. Wheeler, 2021-Ohio-3062.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-019
Appellee Trial Court No. 2020CR0517
v.
Harley Michael Wheeler DECISION AND JUDGMENT
Appellant Decided: September 3, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence G. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Appellant, Harley Wheeler, appeals the judgment of the Wood County Court
of Common Pleas, convicting him, following a guilty plea, of one count of felonious
assault with an attendant firearm specification, one count of abduction, and one count of obstructing official business, and sentencing him to an indefinite sentence of six to seven
years in prison. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On November 13, 2020, a bill of information was filed charging appellant
with one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a
felony of the second degree, with an attendant three-year firearm specification pursuant
to R.C. 2941.145(A), one count of abduction in violation of R.C. 2905.02(A)(2) and (C),
a felony of the third degree, and one count of obstructing official business in violation of
R.C. 2921.31(A) and (B), a felony of the fifth degree. The charges stemmed from an
incident on June 9, 2020, wherein appellant shot his friend in the buttocks and then
attempted to lie to the police by claiming that his friend was shot in a drive-by shooting.
{¶ 3} On December 18, 2020, appellant withdrew his initial plea of not guilty, and
entered a plea of guilty to the offenses as charged. Sentencing was held on February 12,
2021, during which the trial court sentenced appellant in accordance with the Reagan
Tokes Act to a minimum of two years in prison and a maximum of three years in prison
on the count of felonious assault. The court further ordered that sentence to be served
concurrently with a 12-month prison sentence on the count of abduction, but consecutive
to a 12-month prison term on the count of obstructing official business and to a
mandatory three-year prison term for the firearm specification. In total, appellant was
2. ordered to serve an indefinite sentence of six to seven years in prison, with the first three
years being mandatory.
II. Assignments of Error
{¶ 4} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
1. Indefinite sentencing under the Reagan Tokes Act is
unconstitutional under the Fourteenth Amendment of the United States
Constitution and the applicable sections of the Ohio Constitution.
2. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, § 10 of the Ohio Constitution.
III. Analysis
1. Ripeness of Challenge to Constitutionality of Reagan Tokes Act
{¶ 5} In his first assignment of error, appellant argues that the indefinite sentence
that he received pursuant to the Reagan Tokes Act is unconstitutional because the Reagan
Tokes Act violates the doctrine of separation of powers, and because the law violates his
right to due process by not affording him an attorney during the parole proceedings.
{¶ 6} The issue of the constitutionality of the Reagan Tokes Act, as codified in
R.C. 2967.271, has recently been raised before this court multiple times. Beginning with
State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702, ¶ 7, 14, we have
3. consistently held that a challenge to the Reagan Tokes Act becomes ripe only after a
defendant has completed the minimum term of the indefinite sentence and has been
denied release. Thus, we have dismissed any such assignments of error as not ripe for
review. See State v. Cook, 6th Dist. Lucas No. L-20-1205, 2021-Ohio-2619; State v.
Figley, 6th Dist. Lucas No. L-20-1167, 2021-Ohio-2622; State v. Stenson, 6th Dist. Lucas
No. L-20-1074, 2021-Ohio-2256; State v. Zambrano, 6th Dist. Lucas No. L-19-1224,
2021-Ohio-1906; State v. Shepard, 6th Dist. Lucas No. L-20-1070, 2021-Ohio-1844;
State v. Perry, 6th Dist. Wood No. WD-20-025, 2021-Ohio-1748; State v. Savage, 6th
Dist. Lucas No. L-20-1073, 2021-Ohio-1549; State v. Acosta, 6th Dist. Lucas Nos. L-20-
1068, L-20-1069, 2021-Ohio-757; State v. Sawyer, 2020-Ohio-6980, 165 N.E.3d 844 (6th
Dist.); State v. Montgomery, 6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552; State v.
Velliquette, 2020-Ohio-4855, 160 N.E.3d 414 (6th Dist.).
{¶ 7} Accordingly, appellant’s first assignment of error is dismissed as not ripe for
review.
{¶ 8} On December 28, 2020, the Ohio Supreme Court determined that a conflict
exists between Maddox and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-
4592; State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th
Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. Based on this conflict, the Ohio
Supreme Court has accepted review of the following certified question:
4. Is the constitutionality of the provisions of the Reagan Tokes Act,
which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the
presumptive minimum term, ripe for review on direct appeal from
sentencing, or only after the defendant has served the minimum term and
been subject to extension by application of the Act?
State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.
{¶ 9} Section 3(B)(4), Article IV of the Ohio Constitution provides that
“[w]henever the judges of a court of appeals find that a judgment upon which they have
agreed is in conflict with a judgment pronounced upon the same question by any other
court of appeals of the state, the judges shall certify the record of the case to the supreme
court for review and final determination.” The Ohio Supreme Court set forth three
requirements which must be met in order to certify a case:
First, the certifying court must find that its judgment is in conflict
with the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged conflict
must be on a rule of law—not facts. Third, the journal entry or opinion of
the certifying court must clearly set forth that rule of law which the
certifying court contends is in conflict with the judgment on the same
question by other district courts of appeals.
5. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 10} As we did in prior cases, we find that our judgment in this appeal is in
conflict with decisions of the Second, Third, and Twelfth District Courts of Appeals. See
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery No.
28644, 2020-Ohio-4153; State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.);
State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Rogers,
12th Dist. Butler No. CA2019-11-194, 2020-Ohio-4102; and State v. Morris, 12th Dist.
Butler No. CA2019-12-205, 2020-Ohio-4103. We, therefore, sua sponte certify a conflict
to the Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4), of the Ohio
Constitution, on the same issue certified in Maddox, 160 Ohio St.3d 1505, 2020-Ohio-
6913, 159 N.E.3d 1150:
Is the constitutionality of the provisions of the Reagan Tokes Act,
which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the
presumptive minimum term, ripe for review on direct appeal from
sentencing, or only after the defendant has served the minimum term and
6. 2. Ineffective Assistance of Counsel
{¶ 11} In his second assignment of error, appellant argues that trial counsel was
ineffective for failing to preserve the issue of the constitutionality of the Reagan Tokes
Act by objecting to its application in the trial court. To prove a claim of ineffective
assistance, appellant must demonstrate that counsel’s performance fell below an objective
standard of reasonableness, and a reasonable probability exists that, but for counsel’s
error, the result of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 12} Here, we find that the result of the proceedings would not have been
different had trial counsel argued that the Reagan Tokes Act was unconstitutional. As
noted above, this court has determined that such a challenge is not ripe for review.
Furthermore, to the extent that the Reagan Tokes Act may be found unconstitutional in
the future, this court in Maddox noted that an action in habeas corpus would be an
appropriate vehicle to challenge his sentence. Maddox, 6th Dist. Lucas No. L-19-1253,
2020-Ohio-4702, at ¶ 12. Thus, we cannot say that appellant has demonstrated any
prejudice from trial counsel’s failure to object to the application of the Reagan Tokes Act
at sentencing. Therefore, we hold that appellant’s trial counsel did not render ineffective
assistance.
{¶ 13} Accordingly, appellant’s second assignment of error is not well-taken.
7. IV. Conclusion
{¶ 14} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Wood County Court of Common Pleas is
affirmed. We hereby certify a conflict to the Ohio Supreme Court on the issue of
whether a challenge to the constitutionality of the Reagan Tokes Act is ripe for review,
and the parties are directed to S.Ct.Prac.R. 8.01 for instructions on how to proceed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
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 Thomas J. Osowik, J. ____________________________ Christine E. Mayle, 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/.
8.