State v. Gillis , 2022 Ohio 1729 ( 2022 )

[Cite as State v. Gillis, 2022-Ohio-1729.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DERNEE T.D. GILLIS : Case No. CT2021-30
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2020-0618
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 23, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON CHRIS BRIGDON
27 North Fifth Street 8138 Somerset Road
P.O. Box 189 Thornville, OH 43076
Zanesville, OH 43701
Muskingum County, Case No. CT2021-30 2
Wise, Earle, P.J.
{¶ 1} Defendant-appellant Dernee T.D. Gillis appeals the April 22, 2021 judgment
of the Muskingum County Court of Common Pleas sentencing him to an aggregate total
of 11 to 15 years incarceration following his pleas to drug-related offenses. Plaintiff-
appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} According to the plea transcript in this matter, in November 2020, the
Central Ohio Drug Enforcement Task Force (CODE Task Force) began an investigation
involving Appellant Gillis. Three separate controlled buys were conducted wherein
Appellant sold a confidential informant varying amounts of Fentanyl. A small child was
present during the buys.
{¶ 3} On November 19, 2020, CODE Task Force executed a search warrant at
Appellant's home. On the kitchen counter of the home, detectives found a safe standing
open with digital scales stained with white residue and a sandwich baggie of white powder
sitting in front of the safe. The powder was later tested and found to be Fentanyl. The
weight of the Fentanyl exceeded 10 grams but was less than 20 grams.
{¶ 4} In connection with these events, On March 29, 2021, Appellant pled guilty
to one count of trafficking in Fentanyl, with a juvenile specification, a felony of the third
degree, permitting drug abuse, a felony of the fifth degree, possession of Fentanyl, a
felony of the second degree, possession of criminal tools, a felony of the fifth degree,
engaging in a pattern of corrupt activity, a felony of the first degree, and trafficking in
Fentanyl, a felony of the fourth degree.
Muskingum County, Case No. CT2021-30 3
{¶ 5} On April 26, 2021, following completion of a presentence investigation,
appellant was sentenced to an aggregate prison term of 11 to 15 years.
{¶ 6} Appellant filed an appeal and the matter is now before this court for
consideration. He raises three assignments of error as follow:
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."
II
{¶ 8} "DERNEE T. GILLIS 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
{¶ 9} "THE TRIAL COURT UNLAWFULLY ORDERED GILLIS TO SERVE
CONSECUTIVE SENTENCES FOR HIS OFFENSES IN VIOLATION OF HIS RIGHTS
TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION."
I
{¶ 10} In his first assignment of error, appellant challenges the constitutionality of
the Reagan Tokes Act, codified as R.C. 2967.271. Specifically, appellant argues it
violates his constitutional rights to trial by jury, equal protection and due process of law,
Muskingum County, Case No. CT2021-30 4
and further violates the constitutional requirement of separation of powers by permitting
the Ohio Department of Rehabilitation and Corrections to potentially add additional time
to appellant's sentence based upon his behavior in the institution.1 We disagree.
{¶ 11} Recently, in State v. Householder, 5th Dist. Muskingum No. CT2021-0026,
2022-Ohio-1542, we set forth this Court's position on Appellant'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
1
Appellant also argues this matter is ripe for review. We agree. The Ohio Supreme Court recently found a
challenge to the constitutionality of the Reagan Tokes Act was ripe for review on the defendant's direct appeal of
his or her conviction and prison sentence. See State v. Maddox, ––– N.E.3d –––, 2022-Ohio-764.
Muskingum County, Case No. CT2021-30 5
violates equal protection for the reasons stated in State v. Hodgkin,
12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶ 12} Based on the forgoing authority, appellant's first assignment of error is
overruled.
II
{¶ 13} Appellant next argues his trial counsel rendered ineffective assistance by
failing to challenge the constitutionality of R.C. 2967.271. We disagree.
{¶ 14} 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.
{¶ 15} Because we have found R.C. 2967.271 is constitutional, Appellant cannot
demonstrate prejudice from counsel's failure to raise the claim in the trial court.
{¶ 16} The second assignment of error is overruled.
III
Muskingum County, Case No. CT2021-30 6
{¶ 17} In his final assignment of error, Appellant argues we must vacate his
consecutive sentences because the trial court sentenced him in contravention of
sentencing statutes. We disagree.
{¶ 18} R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
Muskingum County, Case No. CT2021-30 7
of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶ 19} When imposing consecutive sentences, a trial court must state the required
findings at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 29. Because a court speaks through its journal, the court should also
incorporate its statutory findings into the sentencing entry. Id. However, a word-for-word
recitation of the language of the statute is not required. Id. As long as the reviewing court
can discern the trial court engaged in the correct analysis and can determine the record
contains evidence to support the findings, consecutive sentences should be upheld. Id.{¶ 20} Appellant concedes the trial court make the proper findings. Appellant
argues, however, that his consecutive sentences are contrary to law because consecutive
sentences are reserved for the most serious offenses and offenders and this case
represents neither. We disagree.
{¶ 21} The trial court considered the presentence investigation report, Appellant's
prior record which includes seven prior felony offenses, most drug and theft related, 13
prior misdemeanor offenses, the fact that he had just been released from prison the year
before, and his deplorable behavior in the county jail while awaiting sentencing in this
matter. Transcript of sentencing 10-12. The trial court's sentencing on the charges
complies with all applicable rules and sentencing statutes. Therefore, the sentence is not
Muskingum County, Case No. CT2021-30 8
clearly and convincingly contrary to law. As such, we find the trial court did not err in
imposing consecutive sentences upon Appellant.
{¶ 22} The final assignment of error is overruled.
{¶ 23} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Wise, Earle, P.J.
Delaney, J. and
Baldwin, J. concur.
EEW/rw