STATE OF OHIO, Appellee, - vs - KYLE LAMONT MCCLENDON, Appellant.
CASE NO. CA2021-08-075
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/15/2022
[Cite as State v. McClendon, 2022-Ohio-2830.]
S. POWELL, J.
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR37284
Bryan S. Hicks, for appellant.
S. POWELL, J.
{1} Appellant, Kyle Lamont McClendon, appeals from his cоnviction in the Warren County Court of Common Pleas after a jury found him guilty of one count of first-degree felony involuntary manslaughter and one count of fourth-degree felony extortion. For the reasons outlined belоw, we affirm McClendon‘s conviction.
{2} On September 28, 2020, a Warren County Grand Jury returned an indictment
{3} On July 19, 2021, the trial court held а sentencing hearing where it merged the two offenses as allied offenses of similar import. Upon the state‘s election, the trial court then sentenced McClendon on the first-degree felony involuntary manslaughter charge to an indefinite term of a minimum 11 years to a maximum 16-and-one-half years in prison to be served consecutively to the prison sentences McClendon was currently serving. The trial court imposed this sеntence pursuant to the recently enacted Reagan Tokes Law, Ohio‘s indefinite sentencing structure set forth in
{4} On August 16, 2021, McClendon filed a timely notice of appeal. Oral argument on the matter was held before this court on July 11, 2022. McClendon‘s appeal now properly before this court for decision, McClendon raises three assignments оf error for review.
{5} Assignment of Error No. 1:
{6} THE [POSTRELEASE CONTROL] NOTIFICATIONS WERE INACCURATE.
{7} In his first assignment of error, McClendon argues the trial court erred in its postrelease control notifications when it “misinformed” him at sentencing that, if he violated the terms of his postrelease control, he could be returned to prison in nine-month
{8} This court is required to apply the law as written. State v. Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, ¶ 12 (“[i]f the statutory language is clear and unambiguous, we apply it as written, giving effect to its plain meaning“). We must therefore decline McClendon‘s invitation to extend the postrelease control notifications set forth under
{9} Rather than the notification requirements set forth in
(B)(2) Subject to division (B)(3) of this section, if the sеntencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
* * *
(f) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(2)(d) or (e) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of seсtion 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the definite prison term originally
imposed upon the offender аs the offender‘s stated prison term or up to one-half of the minimum prison term originally imposed upon the offender as part of the offender‘s stated non-life felony indefinite prison term.
{10} In this case, a simplе review of the record firmly establishes that the trial court accurately notified McClendon of postrelease control as required by
You‘re аlso subject to an – a mandatory period of post-release control, which means upon your release from prison on this case, the Adult Parole Authority will supervise you for a period of - a maximum term of five years.
If you violate the terms of that supervision, you can be returned to prison for up to one-half of the Court‘s original sentence -- original minimum term sentence.
If your violation is that you commit another felony, you can be returned to prison for one year, or the period that you have left on PRC, whichever of those is longer. That time would automatically run consecutive to any additional prison time that you‘re sentenced to.
Therefore, because the trial court accurately notified McClendon of postrelease control as required by
{11} Assignment of Error No. 2:
{12} THE IMPOSITION OF AN INDEFINITE SENTENCE UNDER REAGAN TOKES IS UNCONSTITUTIONAL.
{13} In his second assignment of error, McClendon argues the trial court‘s decision sentencing him to an indefinite term of a minimum 11 years to a maximum 16-and-one-half years in prison pursuant to the Reagan Tokes Law, Ohio‘s indefinite sentencing structure set forth in
{14} Assignment of Error No. 3:
{15} TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHICH HARMED MR. MCCLENDON.
{16} In his third assignment of error, McClendon argues he received ineffective assistanсe of counsel when his trial counsel did not raise a constitutional challenge to the Reagan Tokes Law at sentencing. This court, however, has considered this exact same argument several times bеfore and held each time 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. Abner, 12th Dist. Warren No. CA2021-05-048, 2021-Ohio-4549, ¶ 25; see also State v. Luttrell, 12th Dist. Warren No. CA2021-07-062, 2022-Ohio-1148, ¶ 30 (“This court, however, has already determined that trial 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. Roberson, 12th Dist. Warren No. CA2021-01-003, 2021-Ohio-3705, ¶ 43 (“We find that trial counsel was not ineffective for failing to challenge the constitutionality of the Reagan Tokes Law“); and State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 18 (“Trial 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“).
{17} Several other appellate courts have held the same. See State v. McNear, 8th Dist. Cuyahoga No. 111007, 2022-Ohio-2365, ¶ 17 (“Moreover, this court has held that a defense counsel‘s failure to object does not prejudice the defendant so as to deprive the defendant of a fair trial because the Reagan Tokes Law is constitutional. * * * Therefore, an appellant cannot show prejudice even if we were to assume deficient performance“); State v. Wallace, 5th Dist. Muskingum No. CT2021-0043, 2022-Ohio-2352, ¶ 24 (“Because we have found [the Reagan Tokes Law] is constitutional, Appellant cannot demonstrate prejudice from counsel‘s failure to raise the claim in the trial court“); and State v. Davis, 3d Dist. Auglaize No. 2-21-10, 2022-Ohio-1900, ¶ 17 (“Having examined the constitutional arguments [challenging the constitutionality of the Reagan Tokes Law] that trial counsel was arguably ineffective for failing to raise, we concluded that Appellant did not identify any defects in the proceedings before the trial court. * * * For this reason, he cannot carry the burden under Strickland of demonstrating prejudice“).
{18} Therefore, because this and several other appellate courts have already determined that a defendant‘s trial counsel is not ineffective for failing to raise a
{19} Judgment affirmed.
PIPER, P.J., and BYRNE, J., concur.