State v. Rose

[Cite as State v. Rose, 2022-Ohio-2454.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-06-062

: OPINION
- vs - 7/18/2022
:

EILEEN A. ROSE, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2021-02-0164

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.

Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.

HENDRICKSON, J.

{¶1} Appellant, Eileen A. Rose, appeals from her conviction and sentence in the

Butler County Court of Common Pleas following her guilty plea to aggravated arson. For

the reasons set forth below, we affirm her conviction and sentence.

{¶2} On January 30, 2021, approximately three days after being released from

prison on a prior conviction, appellant set fire to a hotel room in Hamilton, Butler County,

Ohio. After setting the fire, appellant left the hotel and walked to a nearby business. She
 Butler CA2021-06-062

then called 9-1-1 to report her actions. Appellant claimed hallucinating voices told her to

start the fire. Appellant was subsequently arrested and indicted on one count of aggravated

arson in violation of R.C. 2909.02(A)(1), a felony of the first degree, and one count of

aggravated arson in violation of R.C. 2909.02(A)(2), a felony of the second degree. Both

offenses were accompanied by a repeat violent offender specification under R.C. 2941.149.

{¶3} At arraignment, appellant entered pleas of not guilty and not guilty by reason

of insanity ("NGRI"). On April 2, 2021, the trial court ordered the Forensic Evaluation

Service Center to conduct a competency evaluation and a NGRI evaluation. On April 8,

2021, Carla S. Dreyer, Psy.D., met with appellant for an hour to evaluate her. Dr. Dreyer

also reviewed court documents relating to appellant's pending aggravated arson charges,

photographs, reports, and recordings relating to the arson investigation and arrest of

appellant, an undated "Offender Details" report from the Ohio Department of Rehabilitation

and Correction ("ODRC"), an October 23, 2000 psychiatric evaluation completed by Dr.

Stephen Beck, a psychiatrist at the center for Forensic Psychiatry (the "2000 Beck

Evaluation"), and a November 8, 2000 letter from Dr. Beck to Butler County Children's

Services (the "2000 BCCS Letter"). On April 14, 2021, Dr. Dreyer issued two reports, one

addressing appellant's mental condition at the time of the charged offenses in accordance

with R.C. 2945.371(G)(4) ("the NGRI report") and the other report addressing appellant's

competency to stand trial in accordance with R.C. 2945.371(G)(3) ("the competency

report"). In the competency report, Dr. Dreyer opined that appellant was competent, stating

that "to a reasonable degree of psychological certainty, * * * the defendant is currently

capable of understanding the nature and objective of the proceedings against her and is

currently capable of assisting counsel in preparing for her defense." Dr. Dreyer

recommended that appellant "abstain from substances of abuse and maintain compliance

with her psychotropic medication regimen in order to maintain her competency." As for the

-2-
 Butler CA2021-06-062

NGRI report, Dr. Dreyer opined that "the defendant did not suffer from a severe mental

defect or severe mental disease that prevented her from knowing the wrongfulness of her

behavior at the time of the offenses charged. As such, it is my opinion that the defendant

does not meet the criteria for the Not Guilty By Reason of Insanity plea for the offenses

charged."

{¶4} A competency hearing was held on April 29, 2021. At this time the state and

appellant's counsel jointly stipulated to the admission of Dr. Dreyer's April 14, 2021 reports

and further stipulated that there was no need for testimony from either side. When

specifically questioned by the court if there was "any further evidence that either the State

or Defense [C]ounsel wishe[d] to present" or if there were "[a]ny arguments that either the

State or Defense [Counsel] wishe[d] to present," defense counsel declined to introduce any

additional evidence or argument. The court then inquired if "[a]ny further reports [are]

requested from either party with respect to the issue of sanity," and defense counsel stated,

"No, Your Honor. Not based on the report we have." The court reviewed Dr. Dreyer's

reports and concluded that appellant was competent to stand trial. An entry to this effect

was filed by the court on April 30, 2021.

{¶5} On May 27, 2021, following plea negotiations, appellant pled guilty to

aggravated arson in violation of R.C. 2909.02(A)(1), a felony of the first degree, in exchange

for the accompanying repeat violent offender specification and the other arson count being

dismissed. The trial court engaged appellant in a Crim.R. 11(C)(2) colloquy, advising her

of the rights she would be waiving and of the maximum sentence she faced by pleading

guilty. The court also explained to appellant that she faced a lifetime reporting requirement

on the arson offender registry. Appellant indicated she understood the rights she was

waiving and the potential penalties she faced, and she pled guilty after the state's recitation

of the following facts:

-3-
 Butler CA2021-06-062

[PROSECUTOR]: On or about January 30, 2021, in Butler
County, Ohio, the Defendant, Eileen Rose, did, by means of fire,
knowingly create a substantial risk of serious harm to any
person other than the offender, which constitutes the offense of
aggravated arson, a first-degree felony, in violation of R.C.
2909.02(A)(1), against the peace and dignity of the State of
Ohio, to wit, she set fire to her hotel room.

Upon questioning by the trial court, appellant stated she set fire to her "mattress and

everything in the [hotel] room." She further admitted that there were other people staying

at the hotel at the time she set her room on fire. The trial court accepted appellant's guilty

plea and found her guilty of the offense of aggravated arson. Appellant was subsequently

sentenced to an indefinite mandatory prison term of a minimum of 10 years and a maximum

of 15 years under the Reagan Tokes Law. Appellant was also ordered to register on the

arson offender registry for life.

{¶6} Appellant appealed from her conviction and sentence, raising two

assignments of error for review.

{¶7} Assignment of Error No. 1:

{¶8} THE EVALUATOR VIOLATED FORMER R.C. 2945.371(F) BY

DISREGARDING RELEVANT EVIDENCE OF ROSE'S MENTAL CONDITION.

{¶9} In her first assignment of error, appellant challenges the thoroughness of Dr.

Dreyer's competency and NGRI evaluations, contending Dr. Dreyer failed to "consider all

relevant evidence" in issuing opinions about appellant's competency to stand trial and

appellant's mental state at the time the arson offenses were committed.

{¶10} "NGRI is an affirmative defense that a defendant must prove by a

preponderance of the evidence." State v. Magee, 12th Dist. Clermont No. CA2019-11-083,

2020-Ohio-4351, ¶ 14, citing State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶ 70

(10th Dist.). "A person is 'not guilty by reason of insanity' relative to a charge of an offense

only if the person proves, in the manner specified in section 2901.05 of the Revised Code,

-4-
 Butler CA2021-06-062

that at the time of the commission of the offense, the person did not know, as a result of a

severe mental disease or defect, the wrongfulness of the person's acts." R.C.

2901.01(A)(14).

{¶11} "[T]he standard for competency is different, in that it relates to the defendant's

present mental condition and [her] ability to understand the nature of the proceedings

against [her] and to assist [her] counsel in [her] defense." Monford at ¶ 69. A defendant is

presumed to be competent unless it is demonstrated by a preponderance of the evidence

that she is incapable of understanding the nature and objective of the proceedings against

her or of presently assisting in her defense. R.C. 2945.37(G); State v. Murphy, 173 Ohio

App.3d 221, 2007-Ohio-4535, ¶ 28 (12th Dist.).

{¶12} Pursuant to R.C. 2945.371(A),

If the issue of a defendant's competence to stand trial is raised
or if a defendant enters a plea of not guilty by reason of insanity,
the court may order one or more evaluations of the defendant's
present mental condition or, in the case of a plea of not guilty by
reason of insanity, of the defendant's mental condition at the
time of the offense charged. An examiner shall conduct the
evaluation.1

The same examiner who evaluates a defendant's competence to stand trial may also

evaluate a defendant who has entered a plea of not guilty by reason of insanity. R.C.

2945.371(I). "In conducting an evaluation of a defendant's mental condition at the time of

the offense charged, the examiner shall consider all relevant evidence." R.C. 2945.371(F).

The examiner is required to prepare and file separate reports on the issue of competence

to stand trial and the defense of not guilty by reason of insanity. R.C. 2945.371(I). The

reports must include all of the following:

(1) The examiner's findings;

1. R.C. 2945.37, 2945.371, and 2945.378 were amended by 2021 Am.Sub.S.B. No. 2, which became effective
on August 3, 2021. The proceedings at issue in the present case are governed by the prior versions of the
competency statutes.

-5-
 Butler CA2021-06-062

(2) The facts in reasonable detail on which the findings are
based;

(3) If the evaluation was ordered to determine the defendant's
competence to stand trial, all of the following findings or
recommendations that are applicable:

(a) Whether the defendant is capable of understanding the
nature and objective of the proceedings against the defendant
or of assisting in the defendant's defense;

(b) If the examiner's opinion is that the defendant is incapable
of understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's defense,
whether the defendant presently is mentally ill or has an
intellectual disability and, if the examiner's opinion is that the
defendant presently has an intellectual disability, whether the
defendant appears to be a person with an intellectual disability
subject to institutionalization by court order;

(c) If the examiner's opinion is that the defendant is incapable of
understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's defense,
the examiner's opinion as to the likelihood of the defendant
becoming capable of understanding the nature and objective of
the proceedings against the defendant and of assisting in the
defendant's defense within one year if the defendant is provided
with a course of treatment;

(d) If the examiner's opinion is that the defendant is incapable
of understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's defense
and that the defendant presently is mentally ill or has an
intellectual disability, the examiner's recommendation as to the
least restrictive placement or commitment alternative,
consistent with the defendant's treatment needs for restoration
to competency and with the safety of the community.

(4) If the evaluation was ordered to determine the defendant's
mental condition at the time of the offense charged, the
examiner's findings as to whether the defendant, at the time of
the offense charged, did not know, as a result of a severe mental
disease or defect, the wrongfulness of the defendant's acts
charged.

R.C. 2945.371(G).

{¶13} If the issue of a defendant's competency is raised prior to trial, the trial court

-6-
 Butler CA2021-06-062

is required to conduct a competency hearing. R.C. 2947.37(B). At the hearing, "[t]he

prosecutor and defense counsel may submit evidence on the issue of defendant's

competenc[y]" and a "written report of the evaluation of the defendant may be admitted into

evidence * * * by stipulation." R.C. 2945.37(E). "[I]f the court, upon conducting the hearing

provided for in section 2945.37 of the Revised Code, finds that the defendant is competent

to stand trial, the defendant shall be proceeded against as provided by law." R.C.

2945.38(A).

{¶14} The record demonstrates the trial court complied with the requirements of

R.C. 2945.37, 2945.371, and 2945.38. As soon as appellant's counsel raised the issue of

appellant's competency and entered an NGRI plea on behalf of appellant, the court ordered

a competency evaluation and NGRI evaluation. Dr. Dreyer conducted the NGRI evaluation

and competency evaluation of appellant on April 8, 2021 and issued separate NGRI and

competency reports on April 14, 2021, the contents of which complied with the requirements

of R.C. 2945.371(G). At a competency hearing, the prosecutor and defense counsel

stipulated to the admission of Dr. Dreyer's competency and NGRI reports. Defense counsel

declined to introduce any additional evidence or argument surrounding appellant's

competency to stand trial or her sanity at the time the offenses were committed. Defense

counsel also declined to request any further reports or evaluations of appellant's sanity or

competence. Despite these facts, appellant now maintains that "Dr. Dreyer failed to review

all relevant evidence of [her] mental condition." Appellant maintains that before issuing

findings about appellant's competency and mental condition at the time of the arson

offenses, Dr. Dreyer should have obtained and considered (1) a 1998 Clermont Mercy

hospitalization record where appellant was allegedly diagnosed with paranoid

schizophrenia, (2) appellant's ODRC residential treatment records, and (3) appellant's

school records.

-7-
 Butler CA2021-06-062

{¶15} As an initial matter, we note that the documents mentioned by appellant are

not in the record before this court. Appellant's appellate counsel has represented that he

undertook steps after the appeal was filed to obtain copies of the documents Dr. Dreyer

relied on in forming her opinions as to appellant's competency and sanity. Appellate

counsel maintains that the 2000 Beck Evaluation referenced a 1998 Clermont Mercy

hospitalization record. The 2000 Beck Evaluation, however, was not included in the record

on appeal. As this court has previously recognized, on a direct appeal, we are limited to

considering only the record on appeal from the trial court. State v. Bush, 12th Dist. Clermont

No. CA2015-06-046, 2016-Ohio-551, ¶ 19. The record on appeal consists of "[t]he original

papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any,

including exhibits, and a certified copy of the docket and journal entries prepared by the

clerk of the trial court[.]" App.R. 9(A)(1). This court cannot consider arguments based on

exhibits or evidence that were not presented to the trial court or that otherwise do not appear

in the record on appeal. Miller v. Ohio State Hwy. Patrol, 12th Dist. Fayette No. CA2019-

08-017, 2020-Ohio-3231, ¶ 45. Accordingly, as the 2000 Beck Evaluation was not in the

record on appeal, this court has no knowledge of whether the 2000 Beck Evaluation

referenced a 1998 Clermont Mercy hospitalization record or whether there was any

reference to a paranoid schizophrenia diagnosis in said record.2

{¶16} Appellant asks this court to speculate that additional data, be it the 1998

2. In her reply brief, appellant raises a new argument challenging the admissibility of Dr. Dreyer's NGRI and
competency reports, contending that under State v. Chapin, 67 Ohio St.2d 437, 442 (1981) and State v. Jones,
9 Ohio St.3d 123 (1984), syllabus, the reports should not have been admitted as they failed to comply with
the requirements of Evid.R. 703. Appellant contends that for the NGRI report and the competency report to
have been admissible under Evid.R. 703, the underlying documents and reports that Dr. Dreyer reviewed to
inform her opinion as to appellant's competency and sanity also had to be admitted into evidence. We find
that appellant's Evid.R. 703 admissibility arguments are not properly before this court. As we have previously
recognized, "[a]n appellant may not use a reply brief to raise new issues or assignments of error." State v.
Renfro, 12th Dist. Butler No. CA2011-07-142, 2012-Ohio-2848, ¶ 28. See also State v. West, 12th Dist. Butler
No. CA2017-07-091, 2018-Ohio-640, ¶ 23, fn. 4.

-8-
 Butler CA2021-06-062

Clermont Mercy hospitalization record, appellant's school records, her ODRC residential

treatment records, or a combination of the records, would have had an impact on Dr.

Dreyer's NGRI and competency evaluations and subsequent findings. Even if we assume

such documents exist, appellant has failed to demonstrate any prejudice from Dr. Dreyer's

failure to review said documents. It is purely speculative to assume that consideration of

such documents would have made any difference in the outcome of Dr. Dreyer's

competency and NGRI evaluations or findings. See State v. Ferguson, 108 Ohio St.3d 451,

2006-Ohio-1502, ¶ 55 (finding there was not prejudicial error where it was "purely

speculative" that additional neurological testing would have made a difference in the

outcome of a defendant's competency evaluation); State v. Mink, 101 Ohio St.3d 350,

2004-Ohio-1580, ¶ 94 (finding there was not prejudicial error where it was "purely

speculative" whether the psychologist's review of defendant's medical or mental health

records would have made any difference in the outcome of his competency evaluations).

{¶17} Furthermore, though appellant now contends that Dr. Dreyer should have

relied on additional evidence in forming her opinions as to appellant's sanity and

competency, a stance not taken by appellant or her defense counsel during the competency

hearing, this court has previously recognized that "[t]he adequacy of the 'data relied upon

by the expert who examined the [defendant's competency] is a question for the trier of fact.'"

State v. Neely, 12th Dist. Madison No. CA2002-02-002, 2002-Ohio-7146, ¶ 10, quoting

State v. Williams, 23 Ohio St.3d 16, 19 (1986). See also State v. Bullocks, 12th Dist. Warren

No. CA2010-01-008, 2010-Ohio-2705, ¶ 7. "An appellate court will not disturb a

competency determination if there was 'some reliable, credible evidence supporting the trial

court's conclusion that [the defendant] understood the nature and objective of the

proceedings against [her].'" Neely at ¶ 10, quoting Williams at 19.

{¶18} In the present case, there was reliable, credible evidence supporting the trial

-9-
 Butler CA2021-06-062

court's finding that appellant was capable of understanding the nature and objective of the

proceedings against her and of assisting in her defense. There was also reliable, credible

evidence presented which demonstrated that at the time appellant committed the underlying

arson offenses, she was not suffering from a severe mental defect or disease and knew the

wrongfulness of her conduct. From her in-person mental status examination of appellant

and her review of court documents, the ODRC "Offender Details" report, the 2000 Beck

Evaluation, the 2000 BCCS Letter, and photographs, reports, and recordings related to the

arson investigation, Dr. Dreyer learned that appellant has had mental health issues since

she was a child. Appellant self-reported that she had been diagnosed with bipolar disorder,

antisocial personality disorder, borderline personality disorder, posttraumatic stress

disorder, obsessive compulsive disorder, and anxiety. Appellant has received mental

health treatment for such issues since childhood. Most recently, while incarcerated,

appellant was placed on psychotropic medications and placed in a residential treatment

unit.

{¶19} Appellant reported a history of hearing auditory hallucinations which told her

to "do bad things," but indicated the hallucinations were associated with stress and her use

of crack cocaine. The hallucinations were managed with the use of psychotropic

medications. Appellant reported to Dr. Dreyer that prior to setting fire to the hotel on

January 30, 2021, appellant had not heard the voices for years – not since initially going to

prison for a prior offense. On the day she set the hotel room on fire, appellant had used

crack cocaine before the voices started telling her to "do bad things." Appellant told Dr.

Dreyer that though she "tried not to," she eventually did as the voices said and set her hotel

mattress on fire with a lighter. Appellant then left the hotel after the fire alarm in her room

went off. Appellant did not tell anyone about the fire or try to put out the fire before leaving

the hotel. Once she left the hotel, appellant purchased more crack cocaine. After using the

- 10 -
 Butler CA2021-06-062

drug, appellant called 9-1-1 to report the fire. Appellant informed Dr. Dreyer she called 9-

1-1 because she was concerned that someone might get hurt by the fire.

{¶20} After conducting her evaluation of appellant, Dr. Dreyer opined that appellant

had not suffered from a severe mental defect or disease at the time the arson offenses were

committed. In reaching this conclusion, Dr. Dreyer noted

Ms. Rose reported a lengthy history of mental health issues,
noting that these have been adequately managed with
psychotropic medication and sobriety from substances of
abuse. While she reported that she was experiencing auditory
hallucinations at the time of the offenses charged, she also
noted the voluntary use of crack cocaine, explaining that this
drug has historically led her to experience psychotic symptoms.
The defendant's presentation and the available collateral
information suggest that her symptoms at the time of the
offenses charged were substance-induced. Further, this
substance-induced psychosis is not considered a severe mental
disease.

{¶21} Furthermore, while appellant had suggested that she had not known that

setting the hotel room on fire was wrong at the time she committed the act, Dr. Dreyer found

that appellant's "behavior following the instant offenses suggest[ed] otherwise." As the

doctor noted,

the defendant immediately left her [h]otel room after setting the
fire, which would suggest that she knew what she did was wrong
and she was trying to avoid detection for such. After going to
use more crack cocaine, Ms. Rose contacted 911 to report the
fire, with this behavior, as well as the statements she made to
police, indicating that she knew what she did was wrong and
was concerned about potential ramifications of such. Finally,
the defendant clearly recalled her prior fire-setting behavior and
the consequences imposed for such, explaining that she has
previously been known to set fires when stressed or hearing
voices while using drugs. Her prior experiences with facing
consequences further support the hypothesis that she was
capable of knowing the wrongfulness of her behavior at the time
of the offenses charged.

{¶22} Dr. Dreyer noted that when appellant was discussing her actions and the

charges she faced, appellant presented her thoughts in a logical, coherent, and goal-

- 11 -
 Butler CA2021-06-062

directed manner. Dr. Dreyer indicated appellant was alert, oriented, capable of abstract

thinking, and her memory and attention abilities were intact. Although appellant had been

on an individual education program in school, had only completed ninth grade, and her

intellectual functioning was estimated to be in the low average range, appellant was able to

discuss the charges she faced appropriately. Dr. Dreyer's report indicated appellant could

not only distinguish between misdemeanor and felony charges, but she understood the

possible penalties she faced if she were convicted of the felony arson offenses. Appellant

understood the difference between a bench trial and a jury trial, knew what the prosecutor's

and defense counsel's roles were in trial proceedings, and she was also able to name all

available pleas to the charges and demonstrate an adequate understanding of said pleas.

Based on appellant's capability of understanding the nature and objective of the

proceedings against her and her ability to assist counsel in the preparation of her defense,

Dr. Dreyer opined that appellant was competent to stand trial. In so opining, the doctor

specifically stated the following:

[T]he defendant demonstrated an adequate understanding of
the charges against her, as well as the seriousness of such.
She also demonstrated an adequate understanding of the roles
of the courtroom participants, possible outcomes, legal
strategies, and legal options available to her. Ms. Rose's
presentation suggests that she is currently capable of relating
adequately to an attorney, disclosing available facts to an
attorney, challenging prosecuting witnesses, testifying
relevantly, comprehending instructions, and evaluating legal
advice. She is clearly motivated for a favorable outcome. She
further is currently capable of managing her behavior
appropriately in a courtroom setting and tolerating the stress of
a trial.

{¶23} Reliable, credible evidence was therefore presented demonstrating that

appellant was competent to stand trial and that she was not suffering from a severe mental

disease or defect at the time the arson offenses were committed. The record further

demonstrates that Dr. Dreyer complied with R.C. 2945.371 in conducting the competency

- 12 -
 Butler CA2021-06-062

and NGRI evaluations and in filing her reports. Appellant's claim that Dr. Dreyer failed to

consider all relevant evidence in issuing her opinions about appellant's competency and

mental state at the time the arson offenses were committed is without merit, and appellant's

first assignment of error is overruled.

{¶24} Assignment of Error No. 2:

{¶25} THE REAGAN TOKES LAW IS UNCONSTITUTIONAL.

{¶26} In her second assignment of error, appellant challenges the imposition of the

indefinite prison term imposed by the trial court, arguing that the Reagan Tokes Law is

unconstitutional as it violates her procedural due process rights and right to a jury trial and

is otherwise void for vagueness. She further contends that her trial counsel provided

ineffective assistance for failing to challenge the constitutionality of the indefinite sentence.

{¶27} Under the Reagan Tokes Law, qualifying first- and second-degree felonies

committed on or after March 22, 2019, are now subject to the imposition of indefinite

sentences. State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 9.

The indefinite terms consist of a minimum term selected by the sentencing judge from a

range of terms set forth in R.C. 2929.14(A) and a maximum term determined by a statutory

formula set forth in R.C. 2929.144. State v. Tutt, 12th Dist. Preble No. CA2020-02-002,

2021-Ohio-96, ¶ 10. The maximum term equals the minimum term imposed on the offender

plus 50 percent of that term. Hodgkin at ¶ 9.

{¶28} An offender sentenced under the Reagan Tokes Law has a rebuttable

presumption of release at the conclusion of the offender's minimum term. R.C. 2967.271(B).

"However, the Ohio Department of Rehabilitation and Correction ("ODRC") may rebut that

presumption of release if it finds, at a hearing, that any of the factors set forth in R.C.

2967.271(C)(1), (2), and (3) apply." State v. Rogers, 12th Dist. Butler No. CA2021-02-010,

2021-Ohio-3282, ¶ 9. If the ODRC rebuts the presumption, it may keep the offender in

- 13 -
 Butler CA2021-06-062

prison for an additional "reasonable period," but the additional time "shall not exceed the

offender's maximum prison term." R.C. 2967.271(C).

{¶29} When the trial court imposed an indefinite mandatory prison term of a

minimum of 10 years and a maximum of 15 years on appellant, defense counsel failed to

object to the sentence on the ground that the Reagan Tokes Law was unconstitutional. This

court has repeatedly held, "arguments challenging the constitutionality of the Reagan Tokes

Law are forfeited and will not be heard for the first time on appeal in cases where the

appellant did not first raise the issue with the trial court." State v. Blaylock, 12th Dist. Butler

No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, citing Hodgkin, 2021-Ohio-1353, ¶ 11; State v.

Teasley, 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; State v. Alexander,

12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8-9; State v. Roberson, 12th Dist.

Warren No. CA2021-01-003, 2021-Ohio-3705, ¶ 39-40; State v. Lee, 12th Dist. Warren No.

CA2021-05-047, 2022-Ohio-248, ¶ 34-35.

{¶30} However, an appellate court "has discretion to consider a forfeited

constitutional challenge to a statute. We may review the trial court decision for plain error[.]"

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 16, citing State v. Davis, 116

Ohio St.3d 404, 2008-Ohio-2, ¶ 377-378. The appellate court "require[s] a showing that but

for a plain or obvious error, the outcome of the proceeding would have been otherwise, and

reversal must be necessary to correct a manifest miscarriage of justice." Id., citing State v.

Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, ¶ 29. "The burden of demonstrating plain

error is on the party asserting it." Id. As appellant set forth a plain-error argument in her

appellate brief, we find it appropriate to review her constitutional challenge to the Reagan

Tokes Law under a plain-error standard of review.

Due Process Rights

{¶31} Appellant maintains that the imposition of an indefinite sentence violates her

- 14 -
 Butler CA2021-06-062

due process rights by "exposing her to an indeterminate 5 years beyond the mandatory 10-

year minimum." This argument has been considered and rejected by this court on

numerous occasions. See State v. Henderson, 12th Dist. Warren No. CA2020-11-072,

2021-Ohio-3564, ¶ 13-16; State v. Jackson, 12th Dist. Butler No. CA2020-07-077, 2021-

Ohio-778, ¶ 12-15; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837,

¶ 7-17. As appellant's due-process challenge only presents arguments that have previously

been considered and rejected by this court, we find that appellant has failed to demonstrate

plain error with respect to her due-process arguments.3

Jury Trial Right

{¶32} Appellant also argues that the Reagan Tokes Law violates her Sixth

Amendment rights to a trial by jury as R.C.2967.271 permits the ODRC to extend her prison

term for up to five years for administrative violations which "are non-jury facts, not proved

beyond a reasonable doubt." Appellant acknowledges that this court previously determined

that the Reagan Tokes Law does not violate an offender's constitutional right to trial by jury

in State v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-3282, ¶ 13-20.

However, she argues our analysis in Rogers was flawed as we failed to consider the effect

of the Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 113 S.Ct. 2151

(2013).

{¶33} In Rogers, we analyzed an offender's argument that Reagan Tokes Law was

3. In support of her argument that the Reagan Tokes Law violates procedural due process rights, appellant
relied on the Eighth District's decision in State v. Sealey, 8th Dist. Cuyahoga No. 109670, 2021-Ohio-1949.
In Sealy, the court determined that the Reagan Tokes Law was unconstitutional as "R.C. 2967.271 'does not
contain adequate procedural protections to prevent the deprivation of that interest without due process of
law.'" Id. at ¶ 45, quoting CT Ohio Portsmouth, LLC v. Ohio Dept. of Medicaid, 10th Dist. Franklin No. 19AP-
588, 2020-Ohio-5091, ¶ 55. However, Sealy was in conflict with other decisions released by the Eighth
District, wherein the court had concluded the Reagan Tokes Law did not violate procedural due process rights.
The Eighth District considered the constitutionality of the Reagan Tokes Law en banc and released State v.
Delvallie, 8th District Cuyahoga No. 109315, 2022-Ohio-470, which expressly overruled Sealy after
concluding that the Reagan Tokes Law was constitutional. Sealy, therefore, does not provide support for
appellant's due process arguments.

- 15 -
 Butler CA2021-06-062

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) and

related cases. In Apprendi, a jury convicted the defendant of a firearm crime that carried a

maximum prison sentence of ten years. However, a judge sought to impose a longer

sentence pursuant to a statute that authorized him to do so if he found, by a preponderance

of the evidence, that the defendant had committed the crime with racial bias. The Supreme

Court held this sentencing scheme unconstitutional because "any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt" or admitted by the defendant. Apprendi at 490.

The state could not evade this traditional restraint on the judicial power by simply calling the

process of finding new facts and imposing a new punishment a judicial "sentencing

enhancement." Id. at 495. The Supreme Court recognized that "the relevant inquiry is one

not of form, but of effect – does the required [judicial] finding expose the defendant to a

greater punishment than that authorized by the jury's guilty verdict?" Id. at 494.

{¶34} In Rogers, we distinguished Apprendi. We found that under the Reagan

Tokes Law, the trial court imposes both a minimum and maximum term and that the only

sentencing discretion provided to the trial court lies in the court's selection of the minimum

term under R.C. 2929.14(A)(1)(a) and (A)(2)(a). Rogers at ¶ 17. The maximum term is

determined simply by mathematical formula, and "'nothing within any provision codified

under the Reagan Tokes Law permits any branch of government to impose a sentence

beyond the maximum term as defined under R.C. 2929.144.'" Id. at ¶ 20, quoting State v.

Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810, ¶ 44. Accordingly, we found

that under the Reagan Tokes Law, the maximum term imposed is authorized by the jury's

guilty verdict and is not based on any factors not submitted to the jury. Id. at ¶ 17. We

therefore concluded that "[t]he Reagan Tokes Law * * * does not violate an offender's

constitutional rights to a trial by jury." Id. at ¶ 20.

- 16 -
 Butler CA2021-06-062

{¶35} Appellant argues that "Alleyne, not Apprendi, is the proper case to analyze

Reagan Tokes". Appellant describes Alleyne, 570 U.S. 99, as having extended Apprendi

to "non-jury facts" that elevate punishment beyond a mandatory minimum sentence.

Appellant argues that the "non-jury facts" present in this case are the considerations the

ODRC could make to allow the ODRC to rebut the presumption of release and maintain the

offender's incarceration beyond the mandatory minimum.

{¶36} In Alleyne, a jury found that the defendant had "used or carried a firearm"

during and in relation to a crime of violence. The trial court, in sentencing the defendant,

found that a firearm had been brandished. With this finding, the trial court was permitted

by statute to impose a seven-year minimum sentence, whereas a finding that the firearm

was merely "use[d] or carrie[d]" resulted in a five-year minimum sentence. Alleyne at 103-

104, citing 18 U.S.C. 924(c)(1)(A). The Supreme Court vacated the seven-year minimum

sentence imposed on the defendant, holding that "[a]ny fact that, by law increases the

penalty for a crime is an 'element' that must be submitted to the jury and found beyond a

reasonable doubt. * * * Mandatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory minimum is an 'element' that

must be submitted to the jury." Id. at 103.

{¶37} As one of our sister courts recently recognized, the holding in Alleyne is

"simply irrelevant to the Reagan Tokes Law." State v. Delvallie, 8th District Cuyahoga No.

109315, 2022-Ohio-470, ¶ 41. As the Delvallie court noted,

No provision under the Reagan Tokes Law authorizes a
sentencing court, or ODRC for that matter, to impose a sentence
beyond the maximum set forth in the sentencing statutes or to
elevate the minimum term beyond the ranges set forth in R.C.
2929.14(A)(1)(a) and (A)(2)(a). R.C. 2929.144 and
2929.14(A)(1)(a)-(A)(2)(a) provide no discretion to the trial court
in imposing the maximum term based on the offender having
pleaded or been found guilty of the underlying qualifying felony
offense. The only discretion lies with the imposition of the

- 17 -
 Butler CA2021-06-062

minimum term, which is no different than the discretion to
sentence within the definite sentencing range for nonqualifying
felony offenses.

Id. Accord State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372, ¶ 59-61

(finding Apprendi and Alleyne have no application in a prison disciplinary setting where the

ODRC does not have authority to extend the inmate's sentence beyond the maximum

sentence imposed by the trial judge). Accordingly, as nothing within any provision codified

under the Reagan Tokes Law permits ODRC to impose a sentence beyond the maximum

term imposed by the trial court in accordance with R.C. 2929.144, the Reagan Tokes Law

does not violate appellant's constitutional rights to a trial by jury. Appellant's reliance on

Alleyne is misplaced.

Void for Vagueness Argument

{¶38} Appellant also challenges the Reagan Tokes Law on the ground that it is void

for vagueness as it "fails to provide fair notice of the standards that elevate a sentence

beyond the presumptive minimum term." Appellant argues that the General Assembly has

failed to establish the standards for prison-security levels despite the fact that a "high prison-

security level" is a factor that the ODRC can use to rebut the presumption of release.

Appellant notes that security-level standards have been set by the ODRC and include

considerations such as gender, age, medical status, and criminal notoriety, which she

claims are "unlawful" considerations without further explanation or citation to authority.

{¶39} We find that appellant has failed to articulate how the Reagan Tokes Law is

vague. She simply states the law is vague and poses hypothetical questions about how

prison-security standards might be determined by the ODRC. She also references an

ODRC administrative document that is not part of the record on appeal. Based on the

limited argument that was presented in her appellate brief, the record on appeal, and the

standard for analyzing and recognizing plain error, we find that appellant has failed to

- 18 -
 Butler CA2021-06-062

demonstrate that the Reagan Tokes Law is void for vagueness or that the trial court

committed plain error in imposing an indefinite sentence.4

Ineffective Assistance of Counsel

4. To the extent appellant's arguments can be construed as a challenge to the prison rule infraction system
as a basis for invalidating the Reagan Tokes Law, we overrule her arguments for the reasons expressed in
Delvallie:

The challenge to the prison rule infraction system as a reason to invalidate
the Reagan Tokes Law cannot be viewed in isolation. No provision of the
Reagan Tokes Law creates a new prison rule infraction system permitting
ODRC to unilaterally act without recourse or procedural guidance. Ohio
Adm.Code 5120-9-08 sets forth an inmate's rights and the procedures the
Rules Infraction Board are to follow in imposing any and all institutional
infractions upon the inmates. See, e.g., Oko v. Lake Erie Corr. Inst., 11th
Dist. Ashtabula No. 2010-A0002, 2010-Ohio-2821, ¶ 3 (overruling a
constitutional challenge to the decision by the Rules Infraction Board).

R.C. 2967.271(C) and (D) simply rely on the results of those proceedings,
which are conducted under an Ohio Administrative Code section that has not
been challenged and, importantly, is not part of the Reagan Tokes Law itself.
The maximum-term hearing simply borrows from the results of that rules
infraction proceeding, and Delvallie's claim that the infraction system is
constitutionally infirm impacts the current provisions of the Ohio Revised
Code well beyond our current review. R.C. 2967.271(C) (relying on the
results of the rules infraction board); ODRC Policy 105-PBD-15, Section VI.
B. 1-3. Any challenges to the infraction system must be advanced through a
separate writ action when the infraction has been declared and impacts the
duration of confinement. State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d
477, 479, 1997-Ohio-139, 683 N.E.2d 1139 (1997) (writ of mandamus will not
lie "absent evidence that the challenged institutional action would affect the
inmate's duration of confinement"), citing Samuels v. Mockry, 77 F.3d 34, 37
(2d Cir.1996); Lane v. Russell, 109 Ohio App.3d 470, 473, 672 N.E.2d 684
(12th Dist.1996). Delvallie's claims with respect to the prison infraction
system have no bearing on the Reagan Tokes Law. More to the point, if we
were to accept Delvallie's conclusion, Ohio Adm.Code 5120-9-08 is likewise
to be declared unconstitutional since that creates the framework Delvallie
questions.

Any conclusion that R.C. 2967.271(C) and (D) deprive offenders of their due
process rights is solely based on reviewing R.C. 2967.271 to the exclusion of
ODRC rules, policies, or procedures established under R.C. 5120.01. ODRC
Policy 105-PBD-15. Through R.C. 2967.271(C) and (D), the legislature
tasked ODRC with conducting hearings to determine enforcement of the
maximum term imposed under R.C. 2929.144, the notice for which occurs
under R.C. 2967.12, the notice statute for parole hearings. The legislature
further authorized the director of ODRC to establish policies, rules, and
procedures in compliance with its statutory duties based on the legislature's
delegation of authority to the executive agency. R.C. 5120.01; ODRC Policy
105-PBD-15, Section I. R.C. 2967.271 is not unconstitutional based on a
Morrissey violation. [Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593
(1972)].

Delvallie, 2022-Ohio-470 at ¶ 86-88.

- 19 -
 Butler CA2021-06-062

{¶40} As a final argument within her second assignment of error, appellant contends

her trial counsel provided ineffective representation by failing to challenge the

constitutionality of the indefinite sentence imposed under the Reagan Tokes Law. This

court, however, has already determined that "[t]rial counsel's failure to raise the

constitutionality of the Reagan Tokes Law, an argument which has proven unsuccessful in

this and other districts, does not constitute ineffective assistance." State v. Hodgkin, 12th

Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 18. See also State v. Bond, 12th

Dist. Butler No. CA2021-08-103, 2022-Ohio-1628, ¶ 30; State v. Abner, 12th Dist. Warren

No. CA2021-05-048, 2021-Ohio-4549, ¶ 25; State v. Roberson, 12th Dist. Warren No.

CA2021-01-003, 2021-Ohio-3705, ¶ 41-44.

{¶41} Accordingly, as appellant's trial counsel did not provide ineffective assistance

and the Reagan Tokes Law is not unconstitutionally void for vagueness and does not run

afoul of appellant's due process rights or rights to a jury trial, we overrule appellant's second

assignment of error.

{¶42} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

- 20 -