State v. GarzaState v. Garza
Karin L. Coble, for appellant.
*****
ZMUDA, J.
{¶ 1} This matter is before the court on appeal of the judgment of the Fulton County Court of Common Pleas, sentencing appellant Miguel Garza to a minimum, definite prison term of four years and a maximum, indefinite prison term of six years following his guilty plea to felonious assault in violation of
{¶ 2} On April 6, 2021, police arrested appellant following an incident at the home he shared with his grandmother, mother, and siblings. After an argument, appellant went to his bedroom and returned with a firearm and threatened to kill his family members and then himself, but the gun jammed when he pulled the trigger.
{¶ 3} On May 18, 2021, the grand jury returned a two-count indictment, charging appellant with two counts of attempted murder in violation of
{¶ 4} On March 9, 2022, appellant entered a plea of guilty to an amended Count One, charging felonious assault in violation of
{¶ 5} On April 18, 2022, the trial court held a sentencing hearing, and because the offense occurred after the effective date of
{¶ 6} Appellant filed a timely appeal, asserting the following assignments of error:
Assignment of Error One: The trial court committed plain error when it sentenced appellant pursuant to the Regan [sic.] Tokes Law, which is unconstitutional and void.
Assignment of Error Two: Trial counsel rendered ineffective assistance by failing to object to the application of the Regan [sic.] Tokes Law.
{¶ 7} As an initial matter, we note that appellant seeks to hold the decision in this case in abeyance, pending ruling on remand from the Ohio Supreme Court in State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 292, decided March 16, 2022. The trial court sentenced appellant on April 18, 2022. We issued our decision in Maddox, on remand, on April 22, 2022. See State v. Maddox, 188 N.E.3d 682, 2022-Ohio-1350 (6th Dist.). Appellant‘s counsel filed the notice of appeal in this case on May 3, 2022, followed by the appellant‘s brief on July 20, 2022, after we decided Maddox. Accordingly, we find no basis to delay our decision, and instead, note the settled precedent that appellant‘s brief neither recognizes nor addresses.
{¶ 8} Appellant challenges the constitutionality of the Reagan Tokes law, which provides for a definite minimum sentence and an additional, potential maximum sentence for qualifying offenses. He argues that
{¶ 9} We have addressed appellant‘s argument regarding the constitutionality of the Reagan Tokes law on several occasions, and rejected such challenges to the constitutionality of the law. State v. McGowan, 2022-Ohio-4124, -- N.E.3d -- (6th Dist.),
{¶ 10} In State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, we examined arguments identical to those raised by appellant in this case and rejected “Bothuel‘s challenges to the constitutionality of the Regan Tokes Law.” Bothuel at ¶ 45. As to separation of powers, we relied upon our prior decisions in State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, and State v. Eaton, 6th Dist. Lucas No. L-21-1121, in which we found that the Reagan Tokes Law does not violate the constitutional doctrine of separation of powers. Bothuel. at ¶ 9. Further, we found that Reagan Tokes Law does not violate due process on its face. Id. at ¶ 43. In so doing, the majority relied upon Stenson and the concurrence relied upon Eaton.
{¶ 11} In light of our decision in Bothuel and the prior cases issued by this court and cited therein, and given appellant‘s failure to raise any different or new challenges to the Reagan Tokes Law, we find no merit to appellant‘s arguments challenging the validity of his indefinite sentencing under the Reagan Tokes Law. Appellant‘s first assignment of error is, therefore, not well-taken.
{¶ 12} Appellant next challenges the effectiveness of trial counsel, based on the failure to challenge the constitutionality of the Reagan Tokes law. The failure to raise the
{¶ 13} Considering our established precedent, rejecting the same constitutional challenges to the Reagan Tokes law raised by appellant on appeal, trial counsel‘s challenge on these same grounds would have been a futile act. The failure to raise the challenge, therefore, does not necessarily constitute ineffective assistance of counsel, as the failure to perform a “futile act” does not satisfy the standard of deficiency and prejudice. Id., citing State v. Conkright, 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315, ¶ 50. Therefore, based on the record, we find no support for appellant‘s challenge
{¶ 14} Based on the foregoing, we affirm the judgment of the Fulton County Court of Common Pleas. Appellant is ordered to pay the costs of the appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Gene A. Zmuda, J.
Myron C. Duhart, P.J.
CONCUR.
JUDGE
JUDGE
Christine E. Mayle, J
CONCURS AND WRITES SEPARATELY.
JUDGE
MAYLE, J.
{¶ 15} I concur in the majority judgment, however, I write separately to clarify one point made by the majority in its disposition of Garza‘s first assignment of error. Specifically, with respect to the majority‘s citation to State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236 (6th Dist.), it should be noted that there was a lead decision (analogizing additional term hearings to parole/probation release decisions and finding
7.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.