2022 Ohio 821
Ohio Ct. App.2022Background
- Defendant Michael S. Gilmer pled guilty to burglary (2nd°), robbery (2nd°), abduction (2nd°), and theft (5th°), with two one-year firearms specifications.
- Trial court imposed an aggregate prison term of six years plus an indefinite additional term of up to 30 months under the Reagan Tokes Act.
- Gilmer’s trial counsel did not object to imposition of the Reagan Tokes sentence at sentencing.
- Gilmer appealed, asserting (1) Reagan Tokes is unconstitutional (jury-trial, separation-of-powers, and due-process/notice challenges) and (2) ineffective assistance of counsel for failing to object.
- He did not raise constitutional objections in the trial court; the appellate court reviewed for plain error and relied on precedent holding Reagan Tokes constitutional.
- The Eighth District affirmed the sentence and rejected the ineffective-assistance claim; two judges signaled disagreement with the constitutionality analysis in separate opinions in related cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of Reagan Tokes indefinite-sentencing scheme | Reagan Tokes is constitutional; executive release decisions are consistent with existing law and do not violate due process or separation of powers | Reagan Tokes violates right to jury trial, separation of powers, and due process/notice | Constitutional; defendant forfeited by not raising at trial; no plain-error relief — assignment overruled |
| Ineffective assistance for failure to object to Reagan Tokes | Counsel not ineffective because objection would have been futile given statute is constitutional; no prejudice shown | Counsel ineffective for failing to object at sentencing | No ineffective assistance; counsel’s failure was not prejudicial — assignment overruled |
Key Cases Cited
- State v. Buttery, 164 N.E.3d 294 (Ohio 2020) (constitutional challenge to statute must be raised at first opportunity)
- State v. Quarterman, 19 N.E.3d 900 (Ohio 2014) (failure to challenge statute forfeits all but plain error on appeal; burden on appellant)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Bradley v. Ohio, 538 N.E.2d 373 (Ohio 1989) (adopts Strickland standard for Ohio courts)
- Awan v. State, 489 N.E.2d 277 (Ohio 1986) (constitutional challenge to statute generally must be raised in trial court)