[Cite as State v. Brazo, 2022-Ohio-2066.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2021 CA 0016
STEPHEN BRAZO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: On Remand from Supreme Court of Ohio,
Case No. 2021-1590
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 16, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES KIMBERLY SECCURO
PROSECUTING ATTORNEY 720 S. High Street
PAULA M. SAWYERS Columbus, Ohio 43206
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2021 CA 0016 2
Wise, J.
{¶1} This matter is before us on remand from the Ohio Supreme Court. In
Defendant-Appellant Stephen Brazo’s direct appeal, State v. Brazos, 5th Dist. Licking
2021-CA-16, 2021-Ohio-4006, Judge W. Scott Gwin concurring in part and dissenting in
part, we declined to address his sole assignment of error which challenged the
constitutionality of the Reagan Tokes Act, as we found the challenge was not ripe for
review. In State v. Maddox, ---N.E.3d---, 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 Appellant’s sole assignment of error.
STATEMENT OF THE FACTS AND CASE
{¶2} A recitation of the underlying facts in this matter is unnecessary for our
resolution of this appeal on remand.
{¶3} On November 21, 2019, Appellant Stephen Brazo was indicted on one
count of Aggravated Possession of Drugs (Methamphetamine), a violation of R.C.
§2925.11(A)(C)(1)(c), a felony of the 2nd degree. The case was scheduled for jury trial on
October 8, 2020.
{¶4} On October 8, 2020, the date scheduled for trial, Appellant arrived
approximately an hour and a half late. At that time, Appellant indicated that he wished to
plead guilty to the charge.
{¶5} Appellant completed a plea form which his attorney reviewed with him and
which he stated that he understood. The trial court reviewed with Appellant the rights that
he was giving up by pleading to the Indictment, including the right to a trial, the right to
have the State prove the case beyond a reasonable doubt, the right to confront his
Licking County, Case No. 2021 CA 0016 3
accuser, the right to call and question and cross-examine witnesses, and the right to
testify himself if he chose to. (T. at 8-11). When Appellant hesitated during his plea of
guilty, the trial court made it clear that he was entitled to a jury trial if he so desired. (T. at
12-13). After advising Appellant of that fact, the trial court asked Appellant if he wanted
to plead guilty to the charge, and Appellant stated in the affirmative. (T. at 13).
{¶6} After Appellant was advised of the facts of the case as set forth above
Appellant was advised as to the nature of the charge against him and the maximum
penalty he could face if he pled to the charge. (T. at 6-10, 14-16).
{¶7} Appellant agreed with the facts as presented by Appellee. (T. at 16).
{¶8} The trial court ultimately found Appellant guilty based on his plea, and
sentenced Appellant to three (3) to four and a half (4 ½) years in prison, pursuant to the
Reagan Tokes Law. (T. at 25). (See Oct. 8, 2020 Judgment Entry).
{¶9} Appellant then moved to withdraw his guilty plea. The trial court denied
Appellant’s motion to withdraw.
{¶10} The assignments of error left unaddressed by this Court on direct appeal
are as follow:
ASSIGNMENTS OF ERROR
{¶11} “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.
Licking County, Case No. 2021 CA 0016 4
{¶12} “II. STEPHEN BRAZO 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.
{¶13} Appellant challenges the constitutionality of the Reagan Tokes Act,
specifically R.C. §2967.271, which codified hybrid indefinite prison terms for first- and
second-degree felonies. Appellant argues that the Act violates the separation of powers
doctrine, the constitutional right to trial by jury, and due process.
{¶14} For the reasons set forth in this Court’s recent Opinions in State v. Burris,
Guernsey App. No. 21CA000021, 2022-Ohio-1481 and State v. Ratliff, Guernsey App.
No. 21CA00016, 2022-Ohio-1372, we find the Reagan Tokes Act constitutional and
overrule Appellant’s assignment of error.
II.
{¶15} Appellant next argues his trial counsel rendered ineffective assistance by
failing to challenge the constitutionality of R.C. §2967.271. We disagree.
{¶16} 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
Licking County, Case No. 2021 CA 0016 5
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694, 104 S.Ct. 2052.
{¶17} 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.
{¶18} Appellant’s second assignment of error is overruled.
{¶19} Accordingly, the judgment of the Court of Common Pleas of Licking County,
Ohio, is affirmed.
By: Wise, J.
Baldwin, P. J., and
Gwin, J., concur.
Licking County, Case No. 2021 CA 0016 6