State v. Householder

[Cite as State v. Householder, 2022-Ohio-1542.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case No. CT2021-0026
MICHAEL HOUSEHOLDER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-0057

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 6, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH JAMES A. ANZELMO
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230

JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2021-0026 2

Hoffman, J.
{¶1} Defendant-appellant Michael A. Householder appeals the judgment entered

by the Muskingum County Common Pleas Court convicting him following his pleas of

guilty to trafficking in drugs with a juvenile specification (R.C. 2925.03(A)(2)), possession

of drugs (R.C. 2925.11(A)), endangering children (R.C. 2919.22(A)), possession of drug

abuse instruments (R.C. 2925.12(A)) and possession of criminal tools (R.C. 2923.24(A))

and sentencing him to an aggregate term of incarceration of three to four and one-half

years. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} Appellant was indicted by the Muskingum County Grand Jury for trafficking

in drugs with a specification the offense occurred in the vicinity of a juvenile, possession

of drugs, endangering children, possession of drug abuse instruments, and possession

of criminal tools. The drug involved in the offenses was methamphetamine. Appellant

pled guilty in the Muskingum County Common Pleas Court to all charges, and the case

proceeded to sentencing.

{¶3} Appellant was sentenced pursuant to the Reagan Tokes Act for trafficking

in drugs, a second degree felony, to three to four and one-half years incarceration. The

trial court sentenced him to twenty-four months incarceration for possession of drugs, six

months incarceration for endangering children, 90 days incarceration for possession of

drug abuse instruments, and twelve months incarceration for possession of criminal tools,

with all sentences to run concurrently. The trial court found Appellant’s motion to waive

the mandatory fines in this case to be not well taken, and overruled the motion.

1 A rendition of the facts is not necessary to our resolution of the issues raised on appeal.
Muskingum County, Case No. CT2021-0026 3

{¶4} It is from the April 28, 2021 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:

I. 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. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING

HOUSEHOLDER TO PAY A FINE, IN VIOLATION OF HIS DUE PROCESS

RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF

THE OHIO CONSTITUTION.

III. HOUSEHOLDER 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.

I.

{¶5} In his first assignment of error, Appellant challenges the presumptive

release feature of R.C. 2967.271, arguing 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.
Muskingum County, Case No. CT2021-0026 4

{¶6} 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 violates equal protection for

the reasons stated in State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-

Ohio-1353.

{¶7} The first assignment of error is overruled.

II.

{¶8} In his second assignment of error, Appellant argues the trial court erred in

overruling his motion to waive the mandatory fine in the instant case.

{¶9} We review a decision to impose a financial sanction for an abuse of

discretion. State v. Ludwig, 5th Dist. Muskingum No. CT2020-0008, 2021-Ohio-383, ¶ 22

citing State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). To find an abuse

of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or
Muskingum County, Case No. CT2021-0026 5

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶10} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposition of

mandatory fines applicable to certain felony drug offenses:

If an offender alleges in an affidavit filed with the court prior to

sentencing that the offender is indigent and unable to pay the mandatory

fine and if the court determines the offender is an indigent person and is

unable to pay the mandatory fine described in this division, the court shall

not impose the mandatory fine upon the offender.

{¶11} This Court addressed a trial court's duties when imposing a financial

sanction in State v. Perry, 5th Dist. Stark No. 2004-CA-00066, 2005-Ohio-85:

“[T]here are no express factors that must be taken into consideration

or findings regarding the offender's ability to pay that must be made on the

record.” State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-

Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) “to

determine whether the offender is able to pay the [financial] sanction or is

likely in the future to be able to pay it” a court is not required to do so. State

v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported

(“although the trial court must consider the offender's ability to pay, it need

not hold a separate hearing on that issue”. “All that R.C. 2929.19(B)(6)
Muskingum County, Case No. CT2021-0026 6

requires is that the trial court consider the offender's present and future

ability to pay.” State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-

Ohio-1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642

(Emphasis added).

{¶12} Perry at ¶ 27.

{¶13} The statute places the burden “upon the offender to affirmatively

demonstrate that he or she is indigent and is unable to pay the mandatory fine.” State v.

Gipson, 80 Ohio St.3d 626, 635, 687 N.E.2d 750 (1998). Additionally, a trial court need

not affirmatively find that an offender is able to pay. Id. Instead, the fine is mandatory

unless the offender establishes current indigence and an inability to pay. Id.

{¶14} The trial court denied the motion to waive the mandatory fine, finding this

was a drug trafficking offense, Appellant was selling methamphetamine, and the trial court

recognized drug traffickers have money. Sent. Tr. 11. In State v. Bice, 5th Dist.

Muskingum No. CT2021-0022, 2022-Ohio-122, this Court affirmed a trial court’s decision

overruling a motion to waive the mandatory fine where the trial court similarly noted the

defendant was making money through the trafficking of drugs, and had presented no

evidence of indigence other than a financial disclosure form. In the instant case, Appellant

similarly made no demonstration of inability to pay other than his financial disclosure form,

and the indictment included forfeiture specifications of cash seized at the time of the

crime. Further, Appellant conceded he was trafficking in drugs to make money. Sent. Tr.

6. We find the trial court did not abuse its discretion in overruling Appellant’s motion to

waive the mandatory fine.
Muskingum County, Case No. CT2021-0026 7

{¶15} The second assignment of error is overruled.

III.

{¶16} In his third assignment of error, Appellant argues his trial counsel was

ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court.

{¶17} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as having

produced a just result. Id.

{¶18} Because we have found R.C. 2967.271 to be constitutional, Appellant has

not demonstrated prejudice from counsel's failure to raise the claim in the trial court.
Muskingum County, Case No. CT2021-0026 8

{¶19} The third assignment of error is overruled.

{¶20} The judgment of the Muskingum County Common Pleas Court is affirmed.

By: Hoffman, J.
Wise, Earle, P.J. and
Gwin, J. concur