STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMES MARION LEE, DEFENDANT-APPELLANT.
CASE NO. 1-21-27
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 1, 2022
[Cite as State v. Lee, 2022-Ohio-2622.]
Trial Court No. CR2020 0199
Judgment Affirmed
Date of Decision: August 1, 2022
OPINION
APPEARANCES:
Linda Gabriele for Appellant
Jana E. Emerick for Appellee
{1} Defendant-appellant, James M. Lee, appeals the March 4, 2021 judgment of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
Background
{2} On September 17, 2020, Lee was indicted by the Allen County Grand Jury on three counts: Counts One and Two of burglary in violation of
{3} On January 19, 2021, pursuant to a negotiated-plea agreement, Lee entered a guilty plea to Count One. In exchange, the State agreed to recommend dismissal of Counts Two and Three. The trial court accepted Lee‘s guilty plea and found him guilty of Count One. The trial court also dismissed Counts Two and Three of the indictment. Later that day, the trial court filed its judgment entry of conviction.
{4} At a sentencing hearing held on March 4, 2021, the trial court sentenced Lee to an indefinite sentence of 7 to 10 1/2 years’ imprisonment. The trial court filed its judgment entry of sentence that same day.
{6} On November 15, 2021, while his appellant counsel‘s motion was pending, Lee filed a document tiled “Pro Se Merit Brief of Appellant James M. Lee.” In the filing, Lee outlined three assignments of error. In a January 26, 2022 judgment entry, this court denied Lee‘s appellate counsel‘s request to withdraw as counsel.1 Lee‘s appellate counsel subsequently filed an appellate brief raising two assignments of error, which we address together.
Assignment of Error No. I
It was plain error for the trial court to impose sentence under the Reagan Tokes Law because its provisions are unconstitutional nullities.
Assignment of Error No. II
The defendant-appellant was denied his Sixth Amendment right to the effective assistance of counsel.
Standard of Review for Felony Sentences
{8} Under
{9} Lee argues that his sentence is contrary to law because the indefinite-sentencing provisions of the Reagan Tokes Law,2 under which he was sentenced, run afoul of the separation of powers doctrine, his right to due process, and his right to a jury trial. At the onset, we note that Lee failed to object to the constitutionality of the Reagan Tokes Law in the trial court. “The ‘[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.‘” State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 7, quoting State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. “However, we retain the discretion to consider a waived constitutional argument under a plain-error analysis.” Id. at ¶ 8. “An error qualifies as ‘plain error’ only if it is obvious and but for the error, the outcome of the proceeding clearly would have been otherwise.” Id. In this case, we elect to exercise our discretion to review Lee‘s constitutional arguments for plain error. See id. at ¶ 8, 15 (reviewing “waived” challenge to the constitutionality of the Reagan Tokes Law for plain error).
{11} In this case, Lee asks us to reconsider our earlier decisions. In recent months, a number of defendants have requested the same of us—requests that we have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04, 2022-Ohio-884, ¶ 33; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist. Allen No. 1-21-02, 2021-Ohio-2802, ¶ 17; State v. Rodriguez, 3d Dist. Seneca No. 13-20-07, 2021-Ohio-2295, ¶ 15. As Lee has not presented us with any compelling reason to depart from our earlier precedent on facial challenges to the indefinite-sentencing provisions of the Reagan Tokes Law, we once again decline to do so.
{12} Lee also tacitly challenges the indefinite-sentencing provisions of the Reagan Tokes Law as applied to him, contending that they violate his constitutional right to due process and trial by jury. In the past, we have held that certain as-
{13} In reviewing the matter, we emphasize that statutes are presumed constitutional, and it is Lee‘s burden to demonstrate that the statute at issue is unconstitutional. State v. Thompkins, 75 Ohio St.3d 558, 1996-Ohio-264. Lee has presented no compelling authority undermining the constitutionality of the indefinite-sentencing provisions of the Reagan Tokes Law.
{14} Notwithstanding this point, numerous Ohio courts of appeals have already rejected challenges similar to Lee‘s. State v. Suder, 12th Dist. Clermont Nos. CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 25; State v. Rogers, 12th Dist. Butler No. CA2021-02-010, 2021-Ohio-3282, ¶ 18; State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 25; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, ¶ 46 (en banc). We agree with the reasoning expressed by these courts and determine that Lee‘s “as-applied” challenges regarding the jury trial and due process issues are unavailing.
Ineffective Assistance of Counsel
{16} In his second assignment of error, Lee argues that his trial counsel performed deficiently by failing to object to the constitutional validity of the Reagan Tokes Law. However, through our resolution of Lee‘s first assignment of error, we have effectively preempted this argument.
{17} To show plain error, “[t]he accused is * * * required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. Therefore, as the prejudice standards for plain-error and ineffective-assistance-of-counsel claims are the same, we have already determined that Lee was not prejudiced by his trial counsel‘s performance with respect to his failure to object to application of the Reagan Tokes Law, regardless of whether such performance was deficient. State v. Nurein, 3d Dist. Union No. 14-21-18, 2022-Ohio-1711, ¶ 60. For this reason, we need not further consider Lee‘s ineffective-assistance-of-counsel claim. Id., citing State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520, ¶ 51.
{18} Lee‘s second assignment of error is overruled.
{19} As detailed in our review of the procedural history of the case, on November 15, 2021, Lee filed a document styled “Pro Se Merit Brief of Appellant James M. Lee.” In this pro se brief, Lee raised three “assignments of error.” First, Lee argued that his trial counsel was ineffective for failing to seek dismissal of the case due to an alleged defect in the indictment, namely that the indictment was not properly signed. Second, Lee alleged that the trial court lacked subject-matter jurisdiction because the indictment allegedly did not specify venue. Third, Lee argued that his guilty plea was not made knowingly, intelligently, and voluntarily because his trial counsel failed to advise him that he would be entitled to acquittal or to a judgment on the lesser-included offense of burglary in violation of
{20} Lee‘s appellate counsel seeks to raise the assignments of error raised in Lee‘s pro se merit brief by reference. “It is well-established that ‘the Rules of Appellate Procedure do not permit parties to “incorporate by reference” arguments from other sources.‘” Ebbing v. Lawhorn, 12th Dist. Butler No. CA2011-07-125, 2012-Ohio-3200, ¶ 31, quoting Kulikowski v. State Farm Mut. Ins. Co., 8th Dist. Cuyahoga Nos. 80102 and 80103, 2002-Ohio-5460, ¶ 55. See also App.R.
Conclusion
{21} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Allen County Court of Common Pleas.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr