State v. Mills , 2022 Ohio 2175 ( 2022 )

[Cite as State v. Mills, 2022-Ohio-2175.]
COURT OF APPEALS
COSHOCTON 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-
:
CODY MILLS : Case No. 2020 CA 10
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: On remand from the Supreme Court
of Ohio, Case No. 2021-0662
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 23, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN GEORGE URBAN
318 Chestnut Street 111 Second Street
Coshocton, OH 43812 Suite 320
Canton, OH 44702
Coshocton County, Case No. 2020-CA-10 2
Wise, Earle, P.J.
{¶ 1} This matter is before us on remand from the Ohio Supreme Court. In
Defendant-Appellant Cody Mills' direct appeal, State v. Mills, 5th Dist. Coshocton No.
2020-CA-10, 2021-Ohio-1180,1 we declined to address his first and second assignments
of error which challenged the constitutionality of the Reagan Tokes Act and 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 Mills' first and second assignments 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 26, 2019, the Coshocton County Grand Jury returned a four-count
indictment charging Mills with aggravated trafficking, a felony of the first degree, two
counts of trafficking in heroin, felonies of the first degree, and having weapons under
disability, a felony of the third degree.
{¶ 4} On February 19, 2020, following negotiations with the state, Mills elected to
enter pleas of guilty to aggravated trafficking and trafficking in heroin. The state dismissed
the charges of having weapons under disability and one count of trafficking in heroin. The
trial court sentenced Mills to a mandatory indefinite prison term of 10 to 15 years.
1
Judge W. Scott Gwin concurring in part and dissenting in part.
2
We have previously addressed Mills' remaining assignment of error in our original opinion and will not revisit that
matter.
Coshocton County, Case No. 2020-CA-10 3
{¶ 5} The assignments of error left unaddressed by this court on direct appeal are
as follow:
I
{¶ 6} "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
{¶ 7} "CODY MILLS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
I
{¶ 8} In his first assignment of error, Mills challenges the constitutionality of the
Reagan Tokes Act. Specifically, Mills 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
and Corrections to potentially add additional time to appellant's sentence based upon his
behavior in the institution. We disagree.
{¶ 9} Recently, in State v. Householder, 5th Dist. Muskingum No. CT2021-0026,
2022-Ohio-1542, we set forth this Court's position on Mills' arguments:
For the reasons stated in the dissenting opinion of The Honorable W.
Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021,
Coshocton County, Case No. 2020-CA-10 4
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.
{¶ 10} Based on the forgoing authority, Mills' first assignment of error is overruled.
II
{¶ 11} Mills next argues his trial counsel rendered ineffective assistance by failing
to challenge the constitutionality of R.C. 2967.271. We disagree.
{¶ 12} 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
Coshocton County, Case No. 2020-CA-10 5
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.
{¶ 13} Because we have found R.C. 2967.271 is constitutional, Mills cannot
demonstrate prejudice from counsel's failure to raise the claim in the trial court.
{¶ 14} The second assignment of error is overruled.
Coshocton County, Case No. 2020-CA-10 6
{¶ 15} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Delaney, J. concur.
EEW/rw