State v. Etgen , 2023 Ohio 564 ( 2023 )

[Cite as State v. Etgen, 2023-Ohio-564.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-21-41
v.
DON ETGEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 20-CR-116
Judgment Affirmed
Date of Decision: February 27, 2023
APPEARANCES:
W. Joseph Edwards for Appellant
Raymond A. Grogan, Jr. for Appellee
Case No. 9-21-41
MILLER, P.J.
{¶1} Defendant-appellant, Don Etgen, appeals the October 29, 2021
judgment of sentence of the Marion County Court of Common Pleas. For the
reasons that follow, we affirm.
Facts & Procedural History
{¶2} On May 6, 2020, the Marion County Grand Jury issued a 28-count
indictment charging Etgen with various sexually-oriented offenses. On September
13, 2021, Etgen pleaded guilty to one count of attempted rape, two counts of
pandering obscenity involving a minor or impaired person, and one count of gross
sexual imposition. The trial court dismissed the remaining counts of the indictment.
{¶3} On October 29, 2021, the trial court sentenced Etgen as follows: 7-10.5
years in prison for attempted rape, 7-10.5 years in prison for each count of pandering
obscenity involving a minor or impaired person, and 12 months in prison for gross
sexual imposition. The trial court ordered that Etgen’s prison terms be served
consecutively, resulting in an aggregate sentence of 22-25.5 years’ imprisonment.
The trial court filed its judgment entry of sentence on October 29, 2021.
{¶4} On November 29, 2021, Etgen filed a notice of appeal. He raises the
following two assignments of error for our review:
Assignment of Error No. I
The Revised Code’s indefinite sentence for the first- and second-
degree qualifying felonies violates the Doctrine of Separation of
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Case No. 9-21-41
Powers inherent in the Constitutions of the United States and the
State of Ohio.
Assignment of Error No. II
The Revised Code’s indefinite sentence for the first- and second-
degree qualifying felonies violates the Due Course of Law Clause
of the Ohio Constitution and the Due Process Clause of the United
States Constitution.
{¶5} In his two assignments of error, which we will address together, Etgen
contends that his indefinite sentences for attempted rape and pandering obscenity
involving a minor or impaired person are contrary to law because the indefinite-
sentencing provisions of the Reagan Tokes Law are unconstitutional. Specifically,
Etgen claims that these provisions violate the separation-of-powers doctrine and
infringe on his right to due process.
{¶6} As this Court has noted in State v. Ball, 3d Dist. Allen No. 1-21-16,
2022-Ohio-1549, challenges to the Reagan Tokes Law do not present a matter of
first impression to this Court. Ball at ¶ 59. “Since the indefinite sentencing
provisions of the Reagan Tokes Law went into effect in March 2019, we have
repeatedly been asked to address the constitutionality of these provisions. We have
invariably concluded that the indefinite sentencing provisions of the Reagan Tokes
Law do not facially violate the separation-of-powers doctrine or infringe on
defendants’ due process rights.” Id., citing e.g., State v. Crawford, 3d Dist. Henry
No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State v. Hacker, 3d Dist. Logan No. 8-20-01,
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Case No. 9-21-41
2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d Dist. Union No. 14-21-16, 2022-Ohio-96,
¶ 21. Thus, on the basis of Ball and our prior precedent, we find no merit to Etgen’s
arguments. Etgen’s assignments of error are overruled.
{¶7} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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