[Cite as State v. Collins,
2022-Ohio-3971.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-109
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MARVEL COLLINS, III,
Trial Court No. 2021 CR 000705
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Rick L. Ferrara, 2077 East Fourth Street, Second Floor, Cleveland, OH 44114 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Marvel Collins, III, appeals following his guilty plea to one count
of felonious assault in the Lake County Court of Common Pleas.
{¶2} Appellant raises six assignments of error arguing that the trial court abused
its discretion in denying a continuance of his change of plea hearing, that the trial court
erred in accepting his guilty plea when it was not knowing, intelligent, and voluntary, that
the State failed to disclose an exculpatory victim impact statement, that Loc.R. 8.06 of the
Court of Common Pleas of Lake County, General Division, is unconstitutional, that trial
counsel rendered ineffective assistance of counsel, and that the Reagan Tokes indefinite
sentencing law is unconstitutional.
{¶3} After review of the record and the applicable caselaw, we find appellant’s
assignments of error to be without merit. The trial court did not abuse its discretion by
proceeding with a plea hearing when appellant’s trial counsel raised concerns about his
mental status on the day of the hearing; the record demonstrates that appellant’s plea
was knowing, intelligent, and voluntary; the State did not commit prosecutorial misconduct
by failing to provide a victim impact statement that the State did not possess; Loc.R. 8.06
is not unconstitutional or in conflict with Ohio law; appellant’s trial counsel did not render
ineffective assistance of counsel; and we have previously upheld the constitutionality of
the Reagan Tokes Law in State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-
Ohio-3371, and State v. Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-
3370The judgment of the Lake County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶4} On May 14, 2021, appellant was admitted to the ICU. During his treatment,
a pair of nurses came to attend to him. Appellant attempted to stand up but was told not
to do so because of medication in his system. Appellant did stand up and then lunged at
one of the nurses, knocking her to the ground and punching her repeatedly in the face
and body. The victim suffered severe injuries including a concussion, a broken orbital
bone, and had two teeth knocked out. In addition, the victim now struggles with post-
traumatic stress from the event and has been unable to return to nursing because of the
mental trauma of the event.
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{¶5} On June 29, 2021, appellant was indicted on one count of felonious assault
in violation of R.C. 2903.11. After initially pleading not guilty, appellant’s trial counsel filed
a motion for leave to plead not guilty by reason of insanity, a plea of not guilty by reason
of insanity, and a motion for a competency evaluation. Appellant received an evaluation
through the Lake County Probation Department. The competency report found that
appellant was competent to stand trial and that he was sane at the time of his act. The
parties stipulated to these reports and the trial court found that appellant was competent
to stand trial.
{¶6} A change of plea hearing was scheduled for August 17, 2021. On that date,
appellant’s trial counsel suggested to the court that appellant appeared to be talking to
someone who was not present. Counsel said at the time that:
Prior to proceeding with the plea here today I would just like to
express a couple of concerns that I have in speaking with Mr. Collins
on several prior occasions obviously throughout the course of this
proceeding and Mr. Collins does seem to be exhibiting some
behavior today that is unlike previous behavior that I have seen. So
I know that we have previously stipulated to Mr. Collins’ competency
and Mr. Collins himself does feel like he is competent today and
would like to proceed with the hearing. However, Mr. Collins does
seem to be speaking with someone who is not present in the room
when him and I are having a conversation and so I would have some
concerns with proceeding today. Mr. Collins had some medication
changes recently while he’s been incarcerated in the jail and I think
it may be helpful to have Dr. Rindsberg to speak with him. … So I
think it may be helpful to delay the plea hearing for a week or two to
just be sure that Mr. Collins is capable of moving forward today.
{¶7} After this statement, appellant spoke and said that “I am competent, I know
what I did was wrong. Some things my lawyer just said, my public defender is lying, I don’t
understand.” The court asked appellant a series of questions about why appellant was in
court that day, the purpose of the plea hearing, how old appellant was, what medications
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he was currently taking, and other questions to gauge his ability to assist in his defense.
The court also engaged in a plea colloquy, asking appellant if he understood the rights
he was giving up. Appellant’s responses to each of these questions was appropriate,
reflected understanding of the proceedings, and in some cases, he asked appropriate
follow up questions.
{¶8} For instance, when the court said that appellant would not be sentenced on
the same day as his plea, appellant said “I understand it’s going to be a later date and
we’ll get to it.” When the court explained that the maximum fine was $15,000, appellant
asked how he would pay such a fine and if his prison term would be prolonged by an
inability to pay. The court reassured appellant that it does not customarily impose fines
on criminal cases. Appellant said he understood, and the court moved to the next subject.
The court explained that the State and his trial counsel would make a sentencing
recommendation but that the ultimate sentencing decision was left to the court alone.
Appellant responded “Yes, sir, I understand you can do whatever you want to, whatever
is right.”
{¶9} The court found that appellant had entered his plea knowingly, intelligently,
and voluntarily. Although trial counsel requested a continuance at the outset of the plea
hearing, counsel did not object to the court’s colloquy or finding that appellant had
knowingly, intelligently, and voluntarily entered his plea. Counsel did not seek to withdraw
the plea prior to sentencing and did not reference her concerns again at the sentencing
hearing.
{¶10} At the sentencing hearing, the trial court considered the pre-sentence
investigation, the competency report, the victim impact statement, letters in support of the
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victim, and one letter in support of appellant. The court imposed a prison term of 8-12
years with 768 days of appellant’s remaining post-release control time to be served
consecutive to his sentence. Trial counsel objected to the imposition of an indefinite
prison sentence. Appellant timely filed this appeal raising six assignments of error.
Assignments of Error and Analysis
{¶11} Appellant’s first assignment of error states:
{¶12} “[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A
CONTINUANCE ON THE DAY OF THE PLEA HEARING AFTER BEING INFORMED
THAT APPELLANT WAS EXPERIENCE HALLUCINATIONS ON THE DAY OF THE
PLEA HEARING.”
{¶13} In this assignment of error, appellant argues that it was an abuse of the trial
court’s discretion to not reschedule his plea hearing when trial counsel said, “it may be
helpful to delay the plea hearing for a week or two to just be sure that Mr. Collins is
capable of moving forward today.” To the extent that this statement constitutes a request
for continuance rather than a suggestion that delay may be helpful is debatable. However,
even construing this statement as a request for continuance, appellant’s first assignment
of error is without merit.
{¶14} An appellate court will not reverse a trial court’s decision to deny a motion
to continue unless the trial court has abused its discretion. In re Kangas, 11th Dist.
Ashtabula No. 2006–A–0010, 2006–Ohio–3433, ¶ 24. “The term ‘abuse of discretion’ is
one of art, connoting judgment exercised by a court which neither comports with reason,
nor the record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208
[
2009 WL 1177050], ¶ 30, citing State v. Ferranto,
112 Ohio St. 667, 676-678 [
148 N.E.
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362] (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020,
2014-Ohio-2707,
2014
WL 2881994, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure to
exercise sound, reasonable, and legal decision-making.’”
Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900,
2010 WL 1731784, ¶ 62, quoting Black’s
Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue
of law, ‘the mere fact that the reviewing court would decide the issue differently is enough
to find error[.] … By contrast, where the issue on review has been confined to the
discretion of the trial court, the mere fact that the reviewing court would have reached a
different result is not enough, without more, to find error.’”
Id., quoting Beechler at ¶ 67.
{¶15} “To determine whether a trial court abused its discretion by denying a
motion for continuance, a reviewing court must consider (1) the length of the requested
delay, (2) prior continuances requests/received, (3) the presence or absence of legitimate
reasons for the requested delay, (4) the appellant’s contribution to the circumstances
giving rise to the request for delay, and (5) any other relevant factors. State v. Unger, 67
Ohio St.2d 65, 67–68,
423 N.E.2d 1078 (1981). While these factors provide basic
guidance, a reviewing court must be mindful that “‘[t]here are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied.’”
Unger at 67,
quoting Ungar v. Sarafite,
376 U.S. 575, 589,
84 S.Ct. 841,
11 L.Ed.2d 921 (1964).
{¶16} In this case, the court did not grant a continuance of the change of plea
hearing, but the court found no reason to do so based upon trial counsel’s request. The
record reflects that the trial court asked questions of appellant, that appellant answered
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those questions appropriately and asked follow-up questions which indicated his
understanding of the proceedings. Appellant himself stated multiple times that he was
competent and expressed his desire to proceed with the plea hearing at that time.
{¶17} After trial counsel raised concerns about appellant’s mental state, the trial
court engaged in an appropriate colloquy with the defendant and determined that he was
fit to enter his plea. The trial court did not abuse its discretion in refusing to grant a
continuance because the trial court’s colloquy established that no continuance was
necessary.
{¶18} Accordingly, appellant’s first assignment of error is without merit.
{¶19} Appellant’s second assignment of error states:
{¶20} “[2.] THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S GUILTY
PLEA WITHOUT FIRST FINDING THAT IT COMPLIED WITH CRIM.R 11 TO
ESTABLISH THAT THE PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY.”
{¶21} Crim. R. 11(C)(2) requires that a court shall not accept a guilty plea before
doing the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s favor,
and to require the state to prove the defendant’s guilt beyond a
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reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
{¶22} Typically, a defendant’s plea will not be vacated unless “he demonstrates
he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R.
11(C).” State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d 286, ¶ 16. “The
test for prejudice is “whether the plea would have otherwise been made.’”
Id., quoting
State v. Nero,
56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990).
{¶23} In this case, the trial court complied with the requirements of Crim.R. 11(C).
The court engaged in a colloquy with appellant and found no reason to believe that his
plea was not knowing, intelligent, and voluntary. As the prior assignment addressed, the
record supports the trial court’s conclusions that appellant entered his plea knowingly,
intelligently, and voluntarily.
{¶24} Accordingly, appellant’s second assignment of error is without merit.
{¶25} Appellant’s third assignment of error states:
{¶26} “[3.] THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN
FAILING TO DISCLOSE TO APPELLANT EXCUPLATORY EVIDENCE, VIOLATING
APPELLANT’S RIGHT TO DUE PROCESS AND CRIM.R. 16.”
{¶27} Appellant next argues that the State committed prosecutorial misconduct by
failing to disclose an exculpatory victim impact statement. Appellant claims Crim.R. 16(B)
and Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194 (1963), which require the disclosure
of exculpatory evidence, required the State to provide the victim impact statements to
appellant. He argues that one of the victim impact letters contained materials that
demonstrate that: (1) appellant was in the hospital of his own free will; (2) was placed
under restraints because he was not mentally stable; (3) witnesses at the hospital had
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knowledge that he was not mentally stable; (4) a witness noticed psychotic behavior less
than an hour before the attack; (5) appellant may have not received a dose of medication
prior to the incident; and (6) witnesses knew appellant had not been properly taking his
medications for months.
{¶28} Appellant claims that this letter would have impacted the competency or
sanity findings made by the court, called for a withdrawal of his guilty plea, or influenced
sentencing. Appellant does not make explicit which of the victim impact statements he
believes constituted exculpatory evidence; however, our review of the sealed file indicates
one possible letter submitted to the court. This letter, along with the other victim impact
statements submitted on behalf of the victim, were prepared and submitted after
appellant’s plea of guilty to the offense and were generated for use in sentencing
appellant.
{¶29} “The suppression by the prosecution of evidence favorable to an accused
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” State v. Johnston, 39 Ohio
St.3d 48,
529 N.E.2d 898 (1988), paragraph four of the syllabus. Evidence is material
when there is a reasonable probability that the proceedings would have resulted in a
different outcome, had the evidence been disclosed.
Id. at paragraph five of the syllabus.
Crim.R. 16, likewise, creates a duty for the prosecution to provide “any evidence favorable
to the defendant and material to guilty or punishment.” Crim.R. 16.
{¶30} In this case, neither the State nor appellant had access to this information.
The victim impact statements were prepared after appellant’s plea as part of the pre-
sentencing investigation that the trial court relied upon for sentencing purposes. The
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victim impact statements are not evidence within the possession of the State. Crim.R.
16(B) merely requires that the State turn over evidence “within the possession of, or
reasonably available to the state[.]” Crim.R. 16(B). In this case, neither the State nor
appellant had any access to this material. Therefore, the State did not violate Crim.R. 16
or appellant’s due process by not turning over documents which the State itself did not
possess.
{¶31} Next, appellee’s brief notes that the State turned over all witness statements
that were available to it in this case, including witness statements from nurses present at
the time of the offense. Appellee notes that these witness statements included contact
information for each of the witnesses. Therefore, appellant was able to contact the
witnesses to seek additional information if the witnesses were willing to provide it.
Appellee also notes that appellant himself had access to his own medical records.
Therefore, the hospital notes indicating whether he had received medication or was
suffering from psychotic behavior would have been readily available to him but not
available to the State.
{¶32} Further, the victim impact letter that appellant claims is exculpatory was
written by a nurse who had not evaluated appellant for purposes of legal competency or
sanity. Unlike appellant’s formal evaluations performed during the course of his case, the
victim impact statement was an informal account of appellant’s behavior and conduct.
The letter did not express or intend to express a medical opinion about appellant’s mental
state at the time of his attack. The formal competency and sanity evaluations that
appellant submitted to indicated that although he suffered from mental health issues, he
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was able to understand the legal process, assist in his own defense, and understood the
wrongfulness of his actions at the time he committed the offense.
{¶33} Finally, R.C. 2947.051 governs victim impact statements for use in
sentencing. Division (A) provides that a court “shall consider the victim impact statement
in determining the sentence to be imposed upon the offender.” Division (C) provides that
victim impact statements “shall be kept confidential” and that a court “may furnish copies
of the statement to both the defendant or the defendant’s counsel and the prosecuting
attorney.” (Emphasis added). This statute makes clear that the State does not control
these documents and that they are not documents “within the possession of, or
reasonably available to the state[.]” See Crim.R. 16.
{¶34} Next, R.C. 2930.14(A) states that the court “may give copies of any written
statement made by a victim to the defendant …. The court may redact any information
contained in a written statement that the court determines is not relevant to and will not
be relied upon in the sentencing or disposition decision.” Division (B) provides that if the
written statement made by a victim “includes new material facts, the court shall not rely
on the new material facts unless it continues the sentencing or dispositional proceeding
or takes other appropriate action to allow the defendant … an adequate opportunity to
respond to the new material facts.”
{¶35} Appellant’s assignment of error does not suggest that the trial court itself
committed some error or misconduct by not disclosing the victim impact statements.
However, courts may refuse to allow access to victim impact statements. In State v.
Stewart, 149 Ohio App.3d 1, 775 n.E.2d 563,
2002-Ohio-4124 (12th Dist.), the court held
that under R.C. 2947.051(C), a court may refuse to allow access to victim impact
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statements with no violation of due process. Id. at ¶ 8. “[T]here is no clearly established
federal constitutional right to full disclosure of all information used by a trial judge in
determining a defendant’s sentence.” State v. Piesciuk, 12th Dist. Butler No. CA2007-04-
086, 2008-Ohio-4054, ¶ 33, quoting Stewart v. Erwin,
503 F.3d 488 (6th Cir.2007).
However, a due process violation may arise when a trial court relies on materially false
information at sentencing.
Id. After appellant had the opportunity to review the sealed
victim impact statements, he did not assert that the trial court relied on materially false
information or that the trial court relied upon new material facts requiring the court to allow
appellant “an adequate opportunity to respond to the new material facts.” R.C.
2930.14(B).
{¶36} The State was not in the possession of the victim impact statement and the
State did not commit prosecutorial misconduct in violation of appellant’s due process
rights and Crim.R. 16. It is within the trial court’s discretion to provide victim impact
statements to the prosecution and the defense. Appellant has reviewed the victim impact
statements in furtherance of this appeal and has not asserted that the trial court relied on
materially false information or failed to provide an adequate opportunity to respond to new
material facts. Accordingly, appellant’s third assignment of error is without merit.
{¶37} Appellant’s fourth assignment of error states:
{¶38} “[4.] LOCAL RULE 8.06 IS UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED, DEPRIVING DEFENDANTS OF THE CHANCE TO OBTAIN AND REVIEW
EXCULPATORY EVIDENCE AND DENYING APPELLANT EXCULPATORY EVIDENCE
IN THIS MATTER THAT WOULD HAVE CHANGED THE OUTCOME OF THE
PROCEEDINGS.”
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{¶39} In this assignment, appellant argues that a victim impact statement should
have been disclosed to him prior to his sentencing hearing. Here, appellant contends that
that Loc.R. 8.06 of the Court of Common Pleas of Lake County, General Division, is
unconstitutional. Loc.R. 8.06 provides that:
Presentence reports, … psychological or psychiatric examinations
and evaluations, and any other report or report of examinations for
purposes of sentencing, … competency, sanity, or civil
commitment, may be viewed and read by a defendant and his or her
counsel of record, or an attorney-designee of counsel of record, in
preparation for a hearing involving that defendant. These documents
are not public records. No copies, photocopies, images, or other
reproduction may be made of any portion of the documents. A Victim
Impact Statement and Adult Probation Department
recommendation shall not be exhibited to, or viewed or read by,
the defendant or counsel. For any violation of this rule, the court
will be notified and the court will take appropriate disciplinary action.
(Bold added).
{¶40} Initially, we note that appellant did not object to the application of Loc.R.
8.06 and did not challenge the prohibition on disclosing the victim impact statements at
the time of sentencing. Appellant has not asserted that the trial court relied on materially
false information or that the court failed to provide an adequate opportunity to respond to
new material facts contained in the victim impact statements.
{¶41} Since appellant did not raise this issue below, “under the circumstances of
this case, appellant has forfeited all but plain error on review.” State v. Carnes, 11th Dist.
Trumbull No. 2014-T-0120, 2015-Ohio-4429, ¶ 8. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
court.” State v. Rogers,
143 Ohio St.3d 385,
2015-Ohio-2459,
38 N.E.3d 860, ¶ 22. The
appellant bears the burden of demonstrating plain error by proving that the outcome
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would have been different absent the plain error. State v. Payne, 114 Ohio St.3d 502,
2007–Ohio–4642, ¶ 17. The plain error must be a deviation from a legal rule and an
obvious defect in the proceedings. Rogers, at ¶ 22.
{¶42} Further, even when the error is obvious, “it must have affected substantial
rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”
Id., quoting State v. Barnes,
94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002). This is the
same deferential standard applied for “reviewing ineffective assistance of counsel claims.”
Id. Indeed, “even if an accused shows that the trial court committed plain error affecting
the outcome of the proceeding, an appellate court is not required to correct it ….” Id. at
¶ 23. Courts are cautioned “to notice plain error ‘with utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Barnes, at 27,
quoting State v. Long,
53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶43} Art. IV, Sec 5(B) of the Ohio Constitution provides that “Courts may adopt
additional rules concerning local practice in their respective courts which are not
inconsistent with the rules promulgated by the supreme court.” As noted in the discussion
of the previous assignment of error, R.C. 2930.14 and R.C. 2947.051(C) governs the use
of victim impact statements in sentencing and provides that victim impact statements
“shall be kept confidential” and that a court “may furnish copies of the statement to both
the defendant or the defendant’s counsel and the prosecuting attorney.” (Emphasis
added).
{¶44} In this case, the local rules of court cannot supersede the statutory
requirements of R.C. 2947.051 and R.C. 2930.14. However, neither of those provisions
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requires a court to furnish to a defendant copies of a victim impact statement. A court has
the discretion to furnish copies of a victim impact statement to the parties under
R.C.2947.051. However, if a victim impact statement contains new material facts that the
court relies on, the court is not permitted to rely upon those facts without first continuing
the sentencing or taking other appropriate action to allow the defendant an adequate
opportunity to respond. Appellant has reviewed the victim impact statements and claims
that they contain exculpatory material. However, he has not claimed that the court relied
on new material contained in those statements which, regardless of the application of the
local rule, would have required the court to take appropriate action to allow appellant an
adequate opportunity to respond.
{¶45} We have reviewed the victim impact statements along with the other
material contained in appellant’s presentence report including a narrative from the police
report and appellant’s sanity and competency evaluations. We do not find that the trial
court improperly relied upon any new information from the victim impact statements in
sentencing, nor do we find that the victim impact statement was an exculpatory document
that appellant was legally entitled to receive, notwithstanding Loc.R. 8.06.
{¶46} When a court refuses to permit viewing of victim impact statements used to
determine a defendant’s sentence, there is no violation of due process rights of the
defendant. See Stewart, 149 Ohio App.3d 8; Piesciuk,
2008-Ohio-4054, at ¶ 33, quoting
Erwin,
503 F.3d 488.
{¶47} Accordingly, appellant’s fourth assignment of error is without merit.
{¶48} Appellant’s fifth assignment of error states:
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{¶49} “[5.] APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
BY FAILURE OF COUNSEL TO MOVE TO WITHDRAW HIS PLEA AND FURTHER
REQUEST INDEPENDENT PSYCHIATRIC EVALUATION, WERE COUNSEL TO HAVE
RECEIVED THE EXCULPATORY DOCUMENT.”
{¶50} In this assignment of error, appellant raises a hypothetical ineffective
assistance of counsel claim. Appellant argues that if trial counsel had received the victim
impact statement, then counsel should have moved to withdraw his guilty plea.
{¶51} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting
Strickland v. Washington,
466 U.S. 668, 686,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). An
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability, were it not for counsel's errors,
the result of the proceedings would have been different. Strickland, at 669. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. A failure
to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”
State v. Madrigal,
87 Ohio St.3d 378, 389,
2000-Ohio-448,
721 N.E.2d 52, citing
Strickland, at 697.
{¶52} An appellant “must be able to demonstrate that the attorney made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,
quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.
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Ohio courts presume that every properly licensed attorney is competent, and therefore a
defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100,
477 N.E.2d
1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley,
42 Ohio St.3d 136, 142,
538 N.E.2d 373 (1989). “Debatable trial tactics generally
do not constitute a deprivation of effective counsel.” State v. Phillips,
74 Ohio St.3d 72,
85,
656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶53} In this case, appellant cannot demonstrate that his trial counsel’s
performance fell below an objective standard of reasonable representation. Appellant’s
argument is built entirely on speculation, arguing that if trial counsel would have received
the victim impact statements that effective counsel would then have moved the withdraw
his guiltily plea. Such speculation also presupposes that the outcome of his prior
assignments of error resolves in his favor. As we have not found that the court erred in
appellant’s arguments about the victim impact statements, we cannot now find that trial
counsel was ineffective for not moving to withdraw his plea based upon documents he
did not receive and which he was not entitled to receive.
{¶54} Accordingly, appellant’s fifth assignment of error is without merit.
{¶55} Appellant’s sixth assignment of error states:
{¶56} “[6.] THE SENTENCING UNDER OHIO LAW VIOLATED THE
SEPARATION OF POWERS DOCTRINE OF THE CONSTITUTION OF THE STATE OF
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OHIO AND UNITED STATES, DUE PROCESS OF LAW, ARE VOID FOR VAGUENESS,
AND CONFLICT INTERNALLY WITH OTHER OHIO LAW.”
{¶57} In this assignment of error, appellant challenges the constitutionality of R.C.
2967.271, the Reagan Tokes Act. Specifically, appellant argues that the Reagan Tokes
Act is ripe for review, violates the separation of powers, violates due process, and is void
for vagueness.
{¶58} In this assignment of error, appellant challenges the constitutionality of R.C.
2967.271, the Reagan Tokes Law. Based on this District’s recent holdings in State v.
Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and State v. Joyce, 11th
Dist. Lake Case No. 2021-
L-006, 2022-Ohio-3370, the challenges that appellant
advances against the constitutionality of the Reagan Tokes Law have previously been
overruled. Appellant does not advance any novel argument left unaddressed by our prior
decisions.
{¶59} Pursuant to the above authorities, appellant’s challenges to the
constitutionality of the Reagan Tokes Law are overruled.
{¶60} We conclude that appellant’s sixth assignment of error is without merit.
{¶61} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
18
Case No. 2021-L-109
