State v. Wells , 2022 Ohio 3793 ( 2022 )

[Cite as State v. Wells, 2022-Ohio-3793.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA16
v. :
ROBERT J. WELLS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
___________________________________________________________________
APPEARANCES:
Joel M. Spitzer, Marion, Ohio, for appellant1.
Nicole Coil, Washington County Prosecuting Attorney, and Alison L.
Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-19-22
ABELE, J.
{¶1} This is an appeal from a Washington County Common Pleas
Court judgment of conviction and sentence. Robert J. Wells,
defendant below and appellant herein, assigns three errors for
review:
FIRST ASSIGNMENT OF ERROR:
“THE JURY VERDICT OF GUILTY ON THE
FELONIOUS ASSAULT CHARGE WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT
TRIAL.”
1
Different counsel represented appellant during the trial
court proceedings.
2
WASHINGTON, 21CA16
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY FAILING TO GRANT A
JUDGMENT OF ACQUITTAL, PURSUANT TO CRIM.R.
29(A), ON THE CHARGES OF BREAKING AND ENTERING,
GRAND THEFT AUTO, AND FELONIOUS ASSAULT, AND
THEREAFTER ENTERING A JUDGMENT OF CONVICTION OF
THOSE OFFENSES AS THE CHARGES WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE INDEFINITE SENTENCE ORDERED BY THE TRIAL
COURT UNDER S.B. 201, THE ‘REAGAN TOKES LAW’ IS
UNCONSTITUTIONAL BECAUSE IT IS A VIOLATION OF
THE SEPARATION OF POWERS DOCTRINE AND DEPRIVES
HIM OF HIS RIGHT TO A TRIAL BY JURY AND OTHER
PROCEDURAL DUE PROCESS SAFEGUARDS.”
{¶2} In March 2021, a Washington County Grand Jury returned an
indictment that charged appellant with (1) Count 1-failure to
comply with an order or signal of a police officer in violation of
R.C. 2921.331(B), a third-degree felony, (2) Count 2-breaking and
entering in violation of R.C. 2911.13(B), a fifth-degree felony,
(3) Count 3-grand theft in violation of R.C. 2913.02(A)(1), a
fourth-degree felony, (4) Count 4-felonious assault in violation of
R.C. 2903.11(A)(2), a first-degree felony, and (5) Count 5-breaking
and entering in violation of R.C. 2911.13(A), a fifth-degree
felony. Appellant pleaded not guilty to all charges.
{¶3} The evidence adduced at the July 20, 2021 jury trial
reveals that, on December 20, 2020, Decker Drilling owner Dean
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WASHINGTON, 21CA16
Patrick Decker, III received a call from his office that someone
had removed locks at his oil and gas drilling business. Staff
informed Decker that “quite a bit of stuff” appeared to be missing,
including a 2010 F-350 super duty diesel pickup truck with oilfield
racks and bumpers. Decker’s vehicles also are equipped with GPS
and they located the truck in a Beverly trailer park. Because, the
Washington County Sheriff’s Department instructed Decker to allow
law enforcement to retrieve his truck, Decker waited with the truck
until Lieutenant Bryan Lockhart arrived, then gave Lockhart his
spare keys and left.
{¶4} Later in the afternoon, an employee called Decker to tell
him his truck had moved at a high rate of speed, then parked in a
field. When Decker retrieved the truck, the body was “tore up,”
with a bent front and rear axle housing, missing rear tire, and the
bed torn off on one side. Also, the truck’s interior was “full of
tools, garbage, I assume people’s personal possessions that were
probably stolen.” The $27,000 estimate for damage did not include
labor; thus, the truck had been totaled.
{¶5} In addition to the truck, Decker testified that many
tools, including grinders, chop saws, cutawl saws, and various
other hand tools, were missing from an outbuilding. Officers also
found a few tools in the truck, such as “a grinder or two,” as well
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as Decker’s gasoline-powered chop saw. Decker also found (1)
damage to a building door where someone tried to pry it open, and
(2) broken locks and valves on a diesel fuel tank and vented steel
gas cans.
{¶6} Washington County Sheriff’s Department Lieutenant Eric
Hunter and Deputy Trent Gainer were dispatched to Decker Drilling
and met co-owner Loretta Decker, who told them about the break-in
and missing vehicle. When Hunter learned that GPS located the
vehicle and Mr. Decker had driven to the stolen truck’s location,
Hunter asked Decker to let law enforcement officers recover the
vehicle. Hunter also learned that, after an unidentified male
walked to the truck and flashed the lights, the truck began to move
and officers tried to stop the vehicle. It became clear, however,
that the vehicle did not “intend to stop,” and, instead continued
“going in between the houses, down around Webster’s trailer court.”
Hunter observed officers in pursuit and also heard on the radio
that the suspect struck a vehicle. Hunter then joined the pursuit
as the suspect turned north from 6th Street onto State Route 60.
{¶7} During the pursuit, Lieutenant Hunter observed “lots of
smoke coming off of the suspect vehicle, and then I started seeing
parts of the tires, or part of a tire.” The pursuit continued
until the truck entered a muddy field, continued through the field,
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over an oil well access road, then to an agricultural road, Hunter
related that four cars drove into the field and “got stuck on the
muddy hillside. Suspect vehicle continued on out the agricultural
road.” After officers pursued the suspect on foot, they found the
abandoned truck. At this point, some officers secured the stolen
vehicle while others pursued the suspect with a K9. The Ohio State
Highway Patrol also assisted with a helicopter. Eventually, the
sheriff’s department formed two teams to apprehended the suspect.
{¶8} Sheriff Department Lieutenant Bryan Lockhart, in charge
of the Detective Bureau, drove to the trailer park around 10:00
a.m. to watch the stolen truck. Around 3:00 p.m., appellant
unlocked the truck and “[a]ppeared to be rummaging around through
the cab,” returned to the trailer, then reappeared in different
clothing and started the truck. Lockhart radioed dispatch to
inform everyone about the truck on the move.
{¶9} Lieutenant Lockhart stated that, after Detectives Roe and
McKee arrived, Roe drove behind the suspect and activated his
pursuit lights. When the suspect “pause[d] at the end of the
horseshoe [drive] for a short period of time,” Lockhart pulled in
behind Roe. At that point, the suspect took off “between the
trailers,” and drove through yards. Because Lockhart knew one
entrance exists in the park, he drove to the entrance while other
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units pursued the vehicle.
{¶10} Shortly thereafter, the suspect drove close to Lockhart’s
position, turned around, drove down a hill, struck the front of
Detective Zide’s marked vehicle, then fled over a curb and onto
State Route 339. Lockhart followed the suspect on State Route 339,
then onto State Route 60 and observed the suspect drive 60 to 70
mph [in a 55 mph zone]. During the chase, the truck’s tire came
off the rim and caused the stolen vehicle to lose control, then
slide sideways and nearly strike a vehicle head-on. After the
suspect regained control, he continued on State Route 60, turned
into a large cornfield then exited the vehicle. At that point,
officers conducted an extensive search with the assistance of a
helicopter and drones.
{¶11} Detective Roe had also observed the stationary stolen
truck while officers sought a search warrant and he observed the
suspect take “off down between the trailers” towards 2nd Street and
leave the roadway. Later, Roe helped officers form a line to
attempt to apprehend the suspect.
{¶12} Washington County Sheriff’s Detective Ryan Zide worked
with his partner, Detective Roe, when they received a call to
assist with a search warrant for a stolen vehicle. When Zide
learned that officers located the truck, he drove to the scene in
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WASHINGTON, 21CA16
his marked Ford Explorer and observed the pursuit wrap around the
back of a house. Zide first tried to drive through a yard to cut
off the pursuit, but as the pursuit headed toward the river, Zide
tried to position his cruiser perpendicular to State Route 339 to
block the vehicle’s exit. At that point, Zide and his cruiser sat
stationary and, although the suspect could have stopped or gone
around him, he instead struck Zide’s vehicle and caused Zide’s K9,
Rita, to be thrown around the vehicle’s interior. After Zide’s
vehicle sustained heavy damage, Zide continued pursuit but later
became stuck in mud on a hillside along with several other
cruisers. Eventually, officers ended up in a foot pursuit along
with a Marietta Police Department bloodhound.
{¶13} Washington County Sheriff’s Detective Eric Augenstein
testified about his location at the Beverly-Waterford bridge when
he observed the stolen truck. Augenstein, the first vehicle in
pursuit behind the suspect, observed the truck run through a stop
sign and travel north on State Route 60. The pursuit continued
from Beverly and reached “speeds of about 70, 75.” The suspect
eventually lost control, slid sideways in the roadway and his tire
began to shred. Also, a southbound truck had to brake to exit to
the side of the road to avoid a collision. The suspect regained
control, left the road, then continued through a muddy field.
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WASHINGTON, 21CA16
Augenstein and Sergeant McKee drove to State Route 83 to patrol
that area, then returned to assist with the foot search.
{¶14} Washington County Sheriff’s Deputy Mark Gainer testified
he drove the second to last car in the pursuit on State Route 60
and he observed a rifle in the back of the truck. Sheriff’s Deputy
Troy Hawkins also participated in the pursuit and photographed the
firearm. Later, Hawkins and Gainer secured the vehicle, took
possession of the firearm and helped to remove the four cruisers
stuck in the muddy field.
{¶15} Marietta Police Department K9 Officer Glen McClelland
testified that when the Washington County Sheriff’s Office
contacted him to assist in the search, he brought Lulu, his
bloodhound certified in tracking and trailing, to track the
suspect. McClelland could also see the suspect’s footprints in the
snow. However, once McClelland learned that a drone followed
appellant, he discontinued the search.
{¶16} Washington County Sheriff’s Detective Robert McKee
testified that he drove his marked cruiser to the trailer park to
pursue the stolen truck. When officers attempted to box-in the
suspect, he rammed Lieutenant Zide’s cruiser and got away. McKee,
who drove the third car in the pursuit, also joined the foot chase
to track the suspect after he left the road and abandoned the
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WASHINGTON, 21CA16
truck. A few days later, McKee also examined the truck and found a
piece of mail addressed to appellant.
{¶17} Janetta Long testified that she once dated appellant,
and, in December 2020, lived with Joe Heiss on 3rd Street in
Beverly. When Long awoke on December 2, 2020, she found appellant,
who did not live at her residence, asleep in her home. When
appellant awoke later in the day, he walked to a truck to retrieve
tennis shoes. Appellant, however, could not find shoes in the
truck, so Jake Cousins gave him a pair of tennis shoes. When
appellant returned, he told Long she should be careful because an
undercover officer appeared to be present in the neighborhood.
Long also testified that officers searched Heiss’ home and took
appellant’s boots, but found no stolen items.
{¶18} At the close of the case, defense counsel made a Crim.R.
29 motion for judgment of acquittal and argued that no evidence
exists regarding the breaking and entering or the felonious assault
charges. The trial court, however, denied the motion.
{¶19} After hearing the evidence, the jury found appellant
guilty of all counts. At sentencing, the trial court, pursuant to
R.C. 2941.25, merged the breaking and entering counts, and the
state elected to proceed on Count 2 (R.C. 211.13(B)/(C)). The
court ordered appellant to serve: (1) a 36 month definite sentence
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WASHINGTON, 21CA16
on Count 1, to be served consecutively to all other terms, (2) a 10
month definite sentence on Count 2, (3) a 12 month definite
sentence on Count 3, (4) an eight year minimum sentence on Count 4,
and (5) a five-year driver’s license suspension, for an aggregate
minimum/maximum term of 11 to 15 years. This appeal followed.
I.
{¶20} In his first assignment of error, appellant asserts that
the felonious assault verdict is against the manifest weight of the
evidence.
{¶21} In determining whether a criminal conviction is against
the manifest weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of
justice that reversal of the conviction is necessary. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119;
State v. Smith, 4th Dist. Lawrence No. 19CA23, 2020-Ohio-5316, ¶
31. To satisfy this test, the state must introduce substantial
evidence on all the elements of an offense so that the jury can
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WASHINGTON, 21CA16
find guilt beyond a reasonable doubt. See State v. Eskridge, 38
Ohio St.3d 56, 526 N.E.2d 304, syllabus (1988).
{¶22} R.C. 2903.11 defines felonious assault as: “No person
shall knowingly * * * Cause or attempt to cause physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.”
R.C. 2903.11(A)(2). A person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will
probably cause a certain result or will probably be of a certain
nature.” R.C. 2901.22(B).
{¶23} Appellant recognizes that the evidence presented at trial
concerning the felonious assault charge included Detective Zide’s
testimony and photos of damage to his cruiser, but appears to
challenge the credibility of this evidence and argues that, because
the collision occurred while appellant fled the police, he did not
actually intend to strike Zide’s cruiser. Rather, appellant
asserts he did not act knowingly, but instead caused accidental
contact with the vehicles.
{¶24} When a defendant evades police and crashes a vehicle into
a police cruiser, the defendant is usually deemed to have acted
knowingly because it is likely that the officer would suffer
physical harm from the collision. State v. Taylor, 8th Dist.
Cuyahoga No. 90001, 2008-Ohio-3455, ¶ 68. Moreover, in the case at
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WASHINGTON, 21CA16
bar, appellant’s state of mind may be inferred from all of the
surrounding circumstances, including the fact that appellant did
have choices other than to ram Zide’s cruiser. See State v.
Duffield, 9th Dist. Summit No. 28615, 2018-Ohio-1220, ¶ 12 (state
of mind inferred from circumstances when defendant aware officer
close to cruiser and defendant drove in reverse to strike the
cruiser).
{¶25} Many other Ohio courts have examined felonious assault
convictions when defendants claimed they did not intend to strike a
cruiser during a pursuit. For example, in State v. Allsup, 3d
Dist. Hardin Nos. 6-10-06, 6-10-07, 2011-Ohio-405, the defendant,
while he attempted to flee police, stopped his truck in the middle
of the road. When an officer stopped behind the truck, Allsup put
his truck in reverse and rammed the cruiser. After the court
viewed this evidence, the court determined that a rational juror
could have found that Allsup used the pick-up truck as a weapon.
“A rational trier of fact could conclude that a pick-up truck-which
sits substantially higher off the ground than a cruiser-hitting a
parked cruiser from a distance of fifteen to twenty (15-20) feet
would likely produce great bodily harm to the occupant.” Id. at
25. Thus, as to the R.C. 2903.11(A)(2) “deadly weapon” requirement
the court concluded that the state produced both sufficient
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WASHINGTON, 21CA16
evidence and the conviction was not against the manifest weight of
the evidence. Id.
{¶26} In State v. Prince, 8th Dist. Cuyahoga No. 61342, 1992 WL
354839 (Nov. 19, 1992), the defendant claimed he did not use his
vehicle to produce death or great bodily injury because he did not
intend to ram police vehicles. The Eighth District, however, cited
previous cases that upheld felonious assault convictions when an
accused strikes a cruiser during a high-speed chase, but claimed
they merely attempted to flee. See also State v. Townsend, 8th
Dist. Cuyahoga No. 56571, 1990 WL 15324 (Feb. 22, 1990), (accused
accelerates toward officer but claimed did so without requisite
mental state) State v. Buford, 8th Dist. Cuyahoga No. 57213, 1990
WL 96052 (July 12, 1990) at *2, (weight and sufficiency supports
felonious assault when defendant accelerated directly at officer
and could have avoided collision, but chose not to). See also
State v. Gibson, 9th Dist. Summit No. 23881, 2008-Ohio-410, ¶ 15
(weight and sufficiency supports felonious assault when defendant
rammed cruiser during pursuit), State v. Beatty, 10th Dist.
Franklin No. 08AP-52, 2008-Ohio-5063, ¶ 13-15 (evidence sufficient
for felonious assault after defendant drove stolen vehicle into
cruisers), State v. Campbell, 8th Dist. Cuyahoga No. 93034, 2010-
Ohio-261, ¶ 20, 25 (evidence supports felonious assault when, after
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a chase, defendant suddenly stopped vehicle, shifted into reverse,
jumped from car and sent it directly into the path of pursuing
cruiser).
{¶27} As appellee notes, in the case at bar appellant does not
provide a precise explanation or reason why Detective Zide’s
testimony should not be viewed as credible. At trial, Zide
testified he sat stationary and “trying to block * * * this exit.”
Zide further testified that appellant “could have stopped * * *
ended the whole thing. * * * If you could have, you know, gone up
and around, or you can’t see it here, gone around kind of the
back.” Zide also testified that his vehicle is well-marked and
contained a K-9 deputy. Detective Lockhart also testified that
appellant “rammed into the front of Detective Zide’s car * * * and
flees out.” Detective McKee testified, “[t]he truck rammed
Detective Zide’s cruiser and made it away from * * * this area.”
{¶28} After our review of the evidence adduced at trial, we
conclude that the evidence, if believed, fully supports the
conclusion that a reasonable jury could find that appellant
“knowingly” attempted to cause harm to Detective Zide by ramming
his cruiser with the stolen truck. Eyewitness testimony, coupled
with physical evidence, established appellant’s intent to ram
Zide’s vehicle during appellant’s attempt to escape apprehension.
[Cite as State v. Wells, 2022-Ohio-3793.]
Here, the appellee adduced ample evidence at trial on each element
of the offense. It is the jury’s task, sitting as the trier of
fact, to determine and assess the credibility of any witness who
appears before it and the jury may believe all, part or none of the
testimony of any witness. Consequently, this verdict is not
against the manifest weight of the evidence.
{¶29} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶30} In his second assignment of error2, appellant asserts the
trial court erred by failing to grant appellant’s Crim.R.29(A)
motion for judgment of acquittal with respect to the felonious
assault charge. Appellant maintains that the evidence adduced at
trial does not support the trial court’s determination that
sufficient evidence supports his felonious assault conviction.
{¶31} Under Crim.R. 29(A), a court “shall order the entry of a
2
In appellant’s brief’s Table of Contents, his second
assignment of error, in addition to felonious assault, also
challenges the denial of his Rule 29 motion concerning breaking and
entering. However, the argument section of his brief only
addresses the felonious assault conviction.
[Cite as State v. Wells, 2022-Ohio-3793.]
judgment of acquittal of one or more offenses * * * if the evidence
is insufficient to sustain a conviction of such offense or
offenses.” A Crim.R. 29 motion tests the sufficiency of the
evidence. State v. McMurray, 12th Dist. Preble No. CA2014–08–008,
2015-Ohio-2827, ¶ 37; State v. Robinson, 2015-Ohio-4533, 48 N.E.3d
109, ¶ 37 (12 Dist.). Thus, the standard of review used to assess
a Crim.R. 29 motion is the same standard for a sufficiency of the
evidence claim. State v. Johnson, 4th Dist. Ross No.14CA3459,
2016-Ohio-867, ¶ 9, State v. Conley, 12th Dist. Warren No. CA2013–
06–055, 2014-Ohio-1699, ¶ 14, citing State v. Carter, 72 Ohio St.3d
545, 553, 651 N.E.2d 965 (1995); State v. Hernandez, 10th Dist. No.
09AP-125, 2009-Ohio-5128, ¶ 6; State v. Tenace, 109 Ohio St.3d 255,
2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶32} “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus, superseded by state constitutional amendment on other
grounds, State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
Thus, “[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational
[Cite as State v. Wells, 2022-Ohio-3793.]
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts
nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” State v. Jones, 1st Dist.
Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing
State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d
27, ¶ 25 (1st Dist.); State v. Bennett, 2019-Ohio-4937, 149 N.E.3d
1045, ¶ 46 (3d Dist.). Initially, we observe that our conclusion
under appellant’s first assignment of error, that appellant’s
felonious assault conviction is not against the manifest weight of
the evidence, necessarily includes a finding that sufficient
evidence supports appellant’s conviction. State v. Pollitt, 4th
Dist. Scioto No. 08CA3263, 2010-Ohio-2556, ¶ 15. “‘Thus, a
determination that [a] conviction is supported by the weight of the
evidence will also be dispositive of the issue of sufficiency.’”
State v. Lombardi, 9th Dist. Summit No. 22435, 2005-Ohio-4942, ¶ 9,
quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462, 1997 WL
600669 (Sept. 17, 1997); Gibson, supra, 2008-Ohio-410, at ¶ 15;
State v. Smith, 2020-Ohio-5316, 162 N.E.3d 898, ¶ 30-32 (4th
Dist.); State v. Cutright, 4th Dist. Ross No. 21CA3749, 2021-Ohio-
4039, ¶ 33.
{¶33} In the case sub judice, in addition to photographs
[Cite as State v. Wells, 2022-Ohio-3793.]
appellee presented testimony from multiple witnesses that Detective
Zide’s marked vehicle sat stationary when appellant chose to ram
the vehicle when as officers testified, appellant could have
stopped or traversed around Zide. Appellant, however, argues that,
because Zide was “disoriented for a moment” before he continued in
the pursuit, it somehow negates the felonious assault conviction.
We disagree. Events that occurred after the felonious assault are
irrelevant to our analysis.
{¶34} Therefore, we believe that our review of the record
reveals that the evidence adduced at trial is sufficient to support
the claim that appellant acted knowingly in fleeing law enforcement
and in “ramming” Detective Zide’s vehicle.
{¶35} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III.
{¶36} In his third assignment of error, appellant asserts that
his indefinite sentence under the “Reagan Tokes Law” is
unconstitutional. In particular, appellant argues that his
sentence violates the Separation of Powers Doctrine and deprives
him of his right to a trial by jury and other procedural due
[Cite as State v. Wells, 2022-Ohio-3793.]
process safeguards.
{¶37} In particular, appellant contends that the Reagan Tokes
Law violates the separation of powers doctrine because it permits
ODRC, an executive agency, to “unilaterally deny the [appellant]
release at the expiration of [his] minimum sentence” if ODRC
determines that he committed a qualifying offense while
incarcerated. Appellant argues that this permits ODRC to act as
“prosecutor, judge, jury, and jailer.”
{¶38} Recently, we addressed the constitutionality of the
Reagan Tokes Law in State v. Alexander, (4th Dist.) Adams No.
21CA1144, 2022-Ohio-1812. As we noted in Alexander, the
constitutionality of a statute presents a question of law we review
de novo. Alexander at ¶ 48, citing Hayslip v. Hanshaw, 2016-Ohio-
3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.). “Statutes are presumed to
be constitutional.” State v. Noling, 136 Ohio St.3d 163, 2013-
Ohio-1764, 992 N.E.2d 1095, ¶ 25. “A statute will be upheld unless
the challenger meets the burden of establishing beyond a reasonable
doubt that the statute is unconstitutional.” Id.{¶39} In Alexander, supra, we held that the Reagan Tokes Law
does not allow the ODRC to lengthen a defendant's sentence beyond
the maximum sentence imposed by the trial court, citing State v.
[Cite as State v. Wells, 2022-Ohio-3793.]
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36.
Accord State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112, ¶ 22 (3d
Dist.), appeal allowed in part by 161 Ohio St.3d 1449, 2021-Ohio-
534, 163 N.E.3d 585. See also State v. Delvallie, 2022-Ohio-470,
185 N.E.3d 536, ¶ 34-38 (8th Dist.), appeal allowed by 2022-Ohio-
1485, 166 Ohio St.3d 1496, 186 N.E.3d 830; State v. Floyd, 3d Dist.
Marion No. 9-20-44, 2021-Ohio-1935, ¶ 19 (facial challenge to the
Reagan Tokes Law on basis it violates the separation of powers
doctrine without merit); State v. Suder, 12th Dist. Clermont No.
CA2020-06-034, CA2020-06-035, 2021-Ohio-465, ¶ 25 (Reagan Tokes Law
does not violate offender's right to due process or separation-of-
powers doctrine). In Alexander, we also rejected the argument that
the Reagan Tokes Law violates the separation of powers doctrine,
Alexander at ¶ 57, and we reject it here.
{¶40} Additionally, appellant argues that the Reagan Tokes Act
violates his right to trial by jury and due process, but does not
elaborate and does not cite authority. We also point out that in
Alexander we held that the Regan Tokes Law does not violate due
process. See Alexander, supra, at ¶ 57. Beyond that, we will not
address arguments that appellant did not specifically develop.
{¶41} Accordingly, based upon the foregoing reasons, we
overrule appellant’s final assignment of error and affirm the trial
[Cite as State v. Wells, 2022-Ohio-3793.]
court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Washington County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
WASHINGTON, 21CA16
22
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.