State v. Burris , 2022 Ohio 1481 ( 2022 )

[Cite as State v. Burris, 2022-Ohio-1481.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
RALPH E. BURRIS, JR., : Case No. 21CA000021
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Case No.
20CR000225
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 3, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
Guernsey County Prosecutor's Office Office of the Ohio Public Defender
JASON R. FARLEY VICTORIA BADER
Assistant Prosecuting Attorney Assistant State Public Defender
627 Wheeling Avenue 250 East Broad St., Suite 1400
Cambridge, Ohio 43725 Columbus, Ohio 43215
Guernsey County, Case No. 21CA000021 2
Baldwin, J.
{¶1} Defendant-appellant Ralph Burris, Jr. appeals his conviction and sentence
from the Guernsey County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 22, 2020, the Guernsey County Grand Jury indicted appellant
on one count of aggravated possession of drugs in violation of R.C. 2925.11(A) and
(C)(1)(c), a felony of the second degree. At his arraignment, appellant entered a plea of
not guilty to the charge.
{¶3} Subsequently, a jury trial commenced on July 13, 2021. The following
testimony was adduced at trial.
{¶4} On September 7, 2020, appellant was arrested on an outstanding warrant
unrelated to this case after a traffic stop. Nothing was found during a post-arrest search
of appellant’s vehicle and appellant’s mother, Dreama Burris, took possession of the
vehicle.
{¶5} Corporal Lawrence Jeffrey, who was employed by the Guernsey County
Sheriff’s Office inside the jail, testified that he monitored appellant’s phone calls from the
jail, which were recorded, and that he contacted Sergeant Rogers after reviewing the calls
because ”[s]ome of the stuff that I heard on the phone calls I thought maybe they might
need to know about.” Trial Transcript at 225. Detective Brian Carpenter of the Guernsey
County Sheriff’s Office listened to the calls between appellant and his mother. After
reviewing the phone calls, Detective Carpenter applied for a search warrant for Dreama
Burris’s residence. Appellant also resided at the same address according to appellant’s
driving record.
Guernsey County, Case No. 21CA000021 3
{¶6} Detective Carpenter testified that he and Sergeant Rogers made contact
with Dreama Burris on September 21, 2020 and advised her that they believed that she
had information or knowledge concerning some illegal substances at her residence. While
she initially denied the accusations, she then became cooperative. She led the two
officers to her bedroom and retrieved a brown cardboard box from her closet. The box
contained a black lockbox wrapped with plastic bags. The lockbox contained multiple
bags of a substance later determined to be methamphetamines. The lockbox also
contained a “small piece of paper with nine names written to the left in a vertical fashion
with numbers to the right of each name going down in a vertical fashion.” Trial Transcript
at 252. A pack of rolling papers and syringes also were located. Detective Carpenter
testified that appellant, during a phone call from the jail, had indicated that the lockbox
was his.
{¶7} Detective Carpenter testified that he listened to all of appellant’s calls from
the jail. He testified that during a call on September 8, 2020, appellant asked his mother
“if she got everything out of his car making sure that it was put up and nothing thrown
away.” Trial Transcript at 263. Appellant explained to his mother that there was a lot of
money in there and told her not to sell his clothes. Detective Carpenter testified that
appellant, during the phone call, indicated that they needed to be careful about what they
said over the phone stating “I know that’s why I’m using the key words.” Trial Transcript
at 266. Appellant told his mother during a September 9, 2020 call that when she got his
lockbox out of his bedroom, there was “stuff” in there. Trial Transcript at 268. Appellant
referred to “ice cream” during a September 10, 2020 call, which, the Detective testified,
meant crystal methamphetamine in drug lingo. Trial Transcript at 268-269. Appellant told
Guernsey County, Case No. 21CA000021 4
his mother that there was $4,000.00 worth and that he was glad that they did not tow his
car. Appellant further advised his mother that ice cream melts and that she should not
keep it anywhere hot.
{¶8} Detective Carpenter testified that during a September 11, 2020 call,
appellant asked his mother if “that shit locked up?” and told her to keep it locked up. Trial
Transcript at 273. During a September 15, 2020 call, appellant stated “everything, my
stuff all locked up, my clothes …. before you get my clothes out of my car, wasn’t there
already clothes in my box”. Trial Transcript at 273. Appellant also told his mother that he
was not actually talking about clothes and made a statement about getting rid of his jeans.
During a conversation with his mother on September 16, 2020, appellant talked about a
man named Mervin and indicated that he believed that Mervin owed him $90.00. This,
Detective Carpenter testified, indicated to him that the list that was found in appellant’s
wallet which was inside of appellant’s mother’s purse was of people that owed appellant
money. He testified that there were other conversations during which appellant said that
the people on the list owed him money that he had loaned them from his unemployment
check.
{¶9} The Detective further testified that, on September 19, 2020, appellant spoke
with his father and told him that he had called his mother to come and get the car “so it
wouldn’t be towed because he had a QP in there, …” Trial Transcript at 278. Detective
Carpenter testified that “QP” was common nomenclature in narcotics fields for a quarter
pound. He testified that they did not find a quarter pound in Dreama Burris’s house. The
following is an excerpt from Detective Carpenter’s testimony:
{¶10} Q. Okay. Did he indicate anything else?
Guernsey County, Case No. 21CA000021 5
{¶11} A. He did. He went on to explain that his mother got the car before they
searched it and she took it back to the house, … so I got a QP of jeans sitting at Mom’s
now.”
{¶12} He continued to state that when he gets out of jail, he’ll get rid of the jeans
he has left, take the money to put a down payment on a place and continued to say,
quote, if they would have found them jeans, he would have been hit too, and he lastly
added, they were size fours, they were large.
{¶13} Q. Size four jeans were large?
{¶14} A. According to Mr. Burris, Jr., yes.
{¶15} Q. And, again, he’s not actually talking about clothes?
{¶16} A. No, ma’am.
{¶17} Q. What do you think he was talking about?
{¶18} A. Methamphetamines.
{¶19} Q. Is that why you applied for the search warrant?
{¶20} A. It was.
{¶21} Q. Is that why you went to Dreama Burris’s house?
{¶22} A. It was.
{¶23} Q. And that’s where you found the meth?
{¶24} A. It was.
{¶25} Q. in the lockbox he’s talking about?
{¶26} A. Yes, ma’am.
{¶27} Trial Transcript at 279-280.
Guernsey County, Case No. 21CA000021 6
{¶28} Approximately 50 grams of methamphetamines was seized. Both appellant
and his mother were charged with aggravated possession of the drugs recovered from
Dreama Burris’s bedroom closet. Dreama Burris pleaded guilty to possession between
September 8, 2020 and September 21, 2021. Following his jury trial, appellant was found
guilty of one count of aggravated possession of drugs. Pursuant to a Judgment Entry filed
on July 28, 2021, appellant was sentenced to a minimum term of six (6) years and a
maximum term of nine (9) years in prison. Because appellant was found to be an indigent
person, no discretionary fine was imposed and the mandatory fine was waived. The trial
court ordered appellant to pay court costs.
{¶29} Appellant now appeals, raising the following assignments of error on
appeal:
{¶30} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED MR. BURRIS TO
AN INDEFINITE SENTENCE UNDER THE UNCONSTITUTIONAL REAGAN TOKES
LAW.”
{¶31} “II. MR. BURRIS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION WHEN TRIAL COUNSEL FAILED TO MOVE FOR WAIVER OF
COURT COSTS AT SENTENCING.”
{¶32} “III. MR. BURRIS’ CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
I
{¶33} Appellant, in his first assignment of error, argues that his sentence is
contrary to law because the Reagan Tokes Act violates the Ohio and United States
Guernsey County, Case No. 21CA000021 7
Constitutions by violating a person’s constitutional right to trial by jury, separation of
powers and due process. We disagree.
{¶34} As an initial matter, we note that the Ohio Supreme Court recently held that
the constitutionality of the Reagan Tokes Act was ripe for review on the defendant's direct
appeal of his or her conviction and prison sentence. See State v. Maddox, --N.E.3d--,
2022-Ohio-764.
The Reagan Tokes Law
{¶35} R.C. 2967.271, which is a part of the “Reagan Tokes Law” allows the Ohio
Department of Rehabilitation and Correction (“DRC”) to administratively extend an
incarcerated person's prison term beyond his or her minimum prison term or presumptive
earned early-release date, but not beyond his or her maximum prison term. The Reagan
Tokes Law (S.B. 201) was enacted in 2018 and became effective on March 22, 2019.
The Reagan Tokes Law, “significantly altered the sentencing structure for many of Ohio's
most serious felonies’ by implementing an indefinite sentencing system for those non-life
felonies of the first and second degree, committed on or after the effective date.” State v.
Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1.
{¶36} As with any statute enacted by the General Assembly, the Reagan Tokes
Law is entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio
St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possible, statutes must be
construed in conformity with the Ohio and the United States Constitutions.” State v.
Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). A party challenging the
constitutionality of a statute bears the burden of proving that it is unconstitutional beyond
a reasonable doubt. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
Guernsey County, Case No. 21CA000021 8
1254, ¶ 41, citing State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110,
¶ 12.
{¶37} The power to define criminal offenses and prescribe punishment is vested
in the legislative branch of government and courts may only impose sentences as
provided by statute. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63
L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187(1977).
{¶38} In the case at bar, the legislature has authorized as a sentence for a felony
of the second degree:
{¶39} (2)(a) For a felony of the second degree committed on or after the effective
date of this amendment, the prison term shall be an indefinite prison term with a stated
minimum term selected by the court of two, three, four, five, six, seven, or eight years and
a maximum term that is determined pursuant to section 2929.144 of the Revised Code,
except that if the section that criminalizes the conduct constituting the felony specifies a
different minimum term or penalty for the offense, the specific language of that section
shall control in determining the minimum term or otherwise sentencing the offender but
the minimum term or sentence imposed under that specific language shall be considered
for purposes of the Revised Code as if it had been imposed under this division.
{¶40} Ohio Rev. Code Ann. 2929.14 (A)(2)(a).
{¶41} Indefinite sentences are not new to Ohio. What is different from prior law
regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive
release date.
Guernsey County, Case No. 21CA000021 9
{¶42} The Reagan Tokes Law requires that a court imposing a prison term under
R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second degree felony committed on or after
March 22, 2019, impose a minimum prison term under that provision and a maximum
prison term determined under R.C. 2929.144(B); R.C. 2929.144(C). Further, under the
Reagan Tokes Law, there is a presumption that the offender “shall be released from
service of the sentence on the expiration of the offender's minimum prison term or on the
offender's presumptive earned early release date, whichever is earlier.” R.C. 2967.271(B)
(emphasis added). A presumptive earned early release date is a date determined under
procedures described in R.C. 2967.271(F), which allow the sentencing court to reduce
the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The DRC
may rebut the presumption if it determines at a hearing that one or more statutorily
numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may
maintain the offender's incarceration after the expiration of the minimum prison term or
presumptive earned early release date for a reasonable period of time, determined and
specified by DRC that “shall not exceed the offender's maximum prison term.” R.C.
2967.271(D)(1).
{¶43} Under the Reagan Tokes Law, the judge imposes both a minimum and a
maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction
Guernsey County, Case No. 21CA000021 10
(“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the
maximum sentence imposed by the trial court.
An incarcerated individual does not have a constitutional right to parole or
release before serving his entire sentence.
{¶44} An inmate has no constitutional right to parole release before the expiration
of his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex, 442 U.S.
1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Ohio Adult Parole Authority has “wide-
ranging discretion in parole matters.” Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d
456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 28.
{¶45} The Supreme Court has made it clear that a mere unilateral hope or
expectation of release on parole is not enough to constitute a protected liberty interest;
the prisoner “must, instead, have a legitimate claim of entitlement to it.” Greenholtz, 422
U.S. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). Moreover, only state law can
create this “legitimate claim of entitlement”; the federal constitution protects such claims,
but does not create them. “[T]here is no constitutional or inherent right of a convicted
person to be conditionally released [i.e., released on parole] before the expiration of a
valid sentence.” Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Accord, Inmates of Orient
Correctional Institute v. Ohio State Parole Board, 929 F.2d 233, 235 (6th Cir. 1991).
{¶46} However, if state law entitles an inmate to be released on parole that
entitlement is a liberty interest that is not to be taken away without due process. See
Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99
S.Ct. 2100, 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the context of a
Guernsey County, Case No. 21CA000021 11
statute providing that the Nebraska parole board “shall” release parole-eligible inmates
unless one of several factors specified in the statute should be found to exist.
{¶47} As relevant here, R.C. 2967.271(B) states:
{¶48} (B) When an offender is sentenced to a non-life felony indefinite prison term,
there shall be a presumption that the person shall be released from service of the
sentence on the expiration of the offender's minimum prison term or on the offender's
presumptive earned early release date, whichever is earlier. (Emphasis added).
{¶49} Also relevant is R.C. 2967.271(C), which states:
{¶50} (C) The presumption established under division (B) of this section is a
rebuttable presumption that the department of rehabilitation and correction may rebut as
provided in this division. Unless the department rebuts the presumption, the offender shall
be released from service of the sentence on the expiration of the offender's minimum
prison term or on the offender's presumptive earned early release date, whichever is
earlier. The department may rebut the presumption only if the department determines, at
a hearing, that one or more of the following applies:
{¶51} (1) Regardless of the security level in which the offender is classified at the
time of the hearing, both of the following apply:
{¶52} (a) During the offender's incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state correctional institution,
compromising the safety of the staff of a state correctional institution or its inmates, or
physical harm or the threat of physical harm to the staff of a state correctional institution
or its inmates, or committed a violation of law that was not prosecuted, and the infractions
or violations demonstrate that the offender has not been rehabilitated.
Guernsey County, Case No. 21CA000021 12
{¶53} (b) The offender's behavior while incarcerated, including, but not limited to
the infractions and violations specified in division (C)(1)(a) of this section, demonstrate
that the offender continues to pose a threat to society.
{¶54} (2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in extended
restrictive housing at any time within the year preceding the date of the hearing.
{¶55} (3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
{¶56} The legislature by choosing the language “there shall be a presumption that
the person shall be released” and “Unless the department rebuts the presumption, the
offender shall be released,” within the Reagan Tokes Law has arguably created
enforceable liberty interests in parole. Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct.
2415, 96 L.Ed.2d 303 (1987). See, also, Inmates of Orient Correctional Institute v. Ohio
State Adult Parole Authority, 929 F.2d 233, 236-237 (6th Cir. 1991) (“Although the power
to deny parole is purely discretionary as far as Ohio's statutes are concerned, the state's
administrative regulations must also be considered. If Ohio's regulations created an
explicit presumption of entitlement to release on parole—as Tennessee's regulations
formerly did, see Mayes v. Trammell, 751 F.2d 175, 178 (6th Cir. 1984)—or if the Ohio
regulations otherwise used “‘mandatory language’ in connection with ‘specific substantive
predicates’ ” for release on parole, see Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.
1986) (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675(1983)), the regulations alone could create a protected liberty interest.”). Cf. State, ex rel.
Bailey v. Ohio Parole Board, 152 Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶ 10
Guernsey County, Case No. 21CA000021 13
(“The Revised Code creates an inherent expectation ‘that a criminal offender will receive
meaningful consideration for parole.’ ” (Citing Layne v. Ohio Adult Parole Auth., 97 Ohio
St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 27).
{¶57} “As for the Due Process Clause, standard analysis under that provision
proceeds in two steps: We first ask whether there exists a liberty or property interest of
which a person has been deprived, and if so we ask whether the procedures followed by
the State were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490
U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).” Swarthout v. Cooke, 562 U.S.
216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Having created an enforceable liberty
interest in parole by the express terms of the Reagan Tokes Act, the question now
becomes what process is due in the prison setting.
Due Process in the Prison Setting
{¶58} When a State creates a liberty interest, the Due Process Clause requires
fair procedures for its vindication—and courts will review the application of those
constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct.
859, 178 L.Ed.2d 732 (2011).
{¶59} In the context of parole, the United States Supreme Court has held that the
procedures required are minimal. In Greenholtz, the Court found that a prisoner subject
to a parole statute received adequate process when he was allowed an opportunity to be
heard and was provided a statement of the reasons why parole was denied. Id. at 16, 99
S.Ct. 2100. “The Constitution,” we held, “does not require more.” Swarthout v. Cooke,
562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011).
Guernsey County, Case No. 21CA000021 14
{¶60} {¶50} In Woods v. Telb, the Ohio Supreme Court made the following
observation concerning Ohio law:
Under the [pre-SB2] system of parole, a sentencing judge, imposing
an indefinite sentence with the possibility of parole, had limited power or
authority to control the minimum time to be served before the offender's
release on parole; the judge could control the maximum length of the prison
sentence, but the judge had no power over when parole might be granted
in between those parameters. The judge had no power to control the
conditions of parole or the length of the parole supervision.
***
But, we observe that for as long as parole has existed in Ohio, the
executive branch (the APA and its predecessors) has had absolute
discretion over that portion of an offender's sentence. See State ex rel. Atty.
Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81.
*
Woods v. Telb, 89 Ohio St.3d at 511-512, 2000-Ohio-171, 733 N.E.2d 1103.
{¶61} Although entitled to the protection under the Due Process Clause, “prison
disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). In Wolff, the United
States Supreme Court observed.
In striking the balance that the Due Process Clause demands,
however, we think the major consideration militating against adopting the
Guernsey County, Case No. 21CA000021 15
full range of procedures suggested by Morrissey [v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)] for alleged parole violators is the very
different stake the State has in the structure and content of the prison
disciplinary hearing. That the revocation of parole be justified and based on
an accurate assessment of the facts is a critical matter to the State as well
as the parolee; but the procedures by which it is determined whether the
conditions of parole have been breached do not themselves threaten other
important state interests, parole officers, the police, or witnesses—at least
no more so than in the case of the ordinary criminal trial. Prison disciplinary
proceedings, on the other hand, take place in a closed, tightly controlled
environment peopled by those who have chosen to violate the criminal law
and who have been lawfully incarcerated for doing so. Some are first
offenders, but many are recidivists who have repeatedly employed illegal
and often very violent means to attain their ends. They may have little
regard for the safety of others or their property or for the rules designed to
provide an orderly and reasonably safe prison life. Although there are very
many varieties of prisons with different degrees of security, we must realize
that in many of them the inmates are closely supervised and their activities
controlled around the clock. Guards and inmates co-exist in direct and
intimate contact. Tension between them is unremitting. Frustration,
resentment, and despair are commonplace. Relationships among the
inmates are varied and complex and perhaps subject to the unwritten code
that exhorts inmates not to inform on a fellow prisoner.
Guernsey County, Case No. 21CA000021 16
418 U.S. 539, 561-562, 94 S.Ct. 2963, 41 L.Ed.2d 935.
{¶62} Indeed, it has been noted, “[C]ourts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform.” Procunier v. Martinez,
416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)]. As
the Martinez Court acknowledged, “the problems of prisons in America are complex and
intractable, and, more to the point, they are not readily susceptible of resolution by
decree.” Id., at 404–405, 94 S.Ct. at 1807. “Running a prison is an inordinately difficult
undertaking that requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and executive branches of
government.” Id at 405. Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and separation of powers concerns
counsel a policy of judicial restraint. Where a state penal system is involved, federal courts
have, as we indicated in Martinez, additional reason to accord deference to the
appropriate prison authorities. See Id., at 405, 94 S.Ct. at 1807.”
{¶63} Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
{¶64} “Viewed in this light it is immediately apparent that one cannot automatically
apply procedural rules designed for free citizens in an open society, or for parolees or
probationers under only limited restraints, to the very different situation presented by a
disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct.
2963, 41 L.Ed.2d 935.
{¶65} The Courts have found therefore, that the following procedures should be
accorded to prisoners facing prison disciplinary proceedings: 1). a prisoner is entitled to
Guernsey County, Case No. 21CA000021 17
a review unaffected by “arbitrary” decision-making. Wolff, 418 U.S. at 557-558, 94 S.Ct.
2963; (See, Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claimed
violation. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3).
A written statement of the fact finders as to the evidence relied upon and the reasons for
the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code
5120-9-08(M); Ohio Adm. Code 5120:1-11(G)(1)). 4). Prison officials must have the
necessary discretion to keep the hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or undermine authority, as well as to limit
access to other inmates to collect statements or to compile other documentary evidence.
Wolff, 418 U.S. at 566, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120-9-08(E) (3); Ohio
Adm. Code 5120-9-08(F)). 5). “Where an illiterate inmate is involved, however, or whether
the complexity of the issue makes it unlikely that the inmate will be able to collect and
present the evidence necessary for an adequate comprehension of the case, he should
be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate
substitute aid in the form of help from the staff or from a sufficiently competent inmate
designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio Adm. Code
5120-9-07(H)(1)).
{¶66} In the case at bar, in order to rebut the presumptive release date, the DRC
must conduct a hearing and determine whether any of the following factors are applicable:
{¶67} (1) Regardless of the security level in which the offender is classified at the
time of the hearing, both of the following apply:
{¶68} (a) During the offender's incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state correctional institution,
Guernsey County, Case No. 21CA000021 18
compromising the safety of the staff of a state correctional institution or its inmates, or
physical harm or the threat of physical harm to the staff of a state correctional institution
or its inmates, or committed a violation of law that was not prosecuted, and the infractions
or violations demonstrate that the offender has not been rehabilitated.
{¶69} (b) The offender's behavior while incarcerated, including, but not limited to
the infractions and violations specified in division (C)(1)(a) of this section, demonstrate
that the offender continues to pose a threat to society.
{¶70} (2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in extended
restrictive housing at any time within the year preceding the date of the hearing.
{¶71} (3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
{¶72} R.C. 2967.271 (C)(1), (2) and (3).
{¶73} “Although the power to deny parole is purely discretionary as far as Ohio's
statutes are concerned, the state's administrative regulations must also be considered.”
Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d
233, 236 (6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C.
2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate rules of conduct. Ohio
Adm. Code 5120-9-08 sets forth the disciplinary procedures for violations of inmate rules
of conduct before the rules infraction board. Ohio Adm. Code 5120-9-10 sets forth the
procedures for when and under what circumstances an inmate may be placed in and/or
transferred to a restrictive housing assignment. Ohio Adm. Code 5120: 1-1-11 sets forth
the procedure of release consideration hearings. Thus, an inmate is given notice in
Guernsey County, Case No. 21CA000021 19
advance of the behavior that can contribute or result in an extended sentence and under
what circumstance the inmate can be placed or transferred to a restrictive housing
assignment.
{¶74} Each procedure employed provides at the least for notice and the
opportunity to be heard. Under the Reagan Tokes Law, an inmate is afforded notice and
a hearing by R.C. 2967.271(E), which states:
{¶75} The [DRC] shall provide notices of hearings to be conducted under division
(C) or (D) of this section in the same manner, and to the same persons, as specified in
section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be
conducted regarding the possible release on parole of an inmate.
{¶76} See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-
3837, ¶ 11; State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶19
(“Reagan Tokes does not facially violate a defendant's right to procedural due process.”)
{¶77} We find, therefore, that Reagan Tokes does not violate appellant’s right to
due process.
Separation of Powers is not Violated
{¶78} Nor can it be argued that because the DRC can increase a sentence beyond
the minimum given by the trial judge, the Reagan Tokes Law usurps judicial authority. As
already noted, the DRC may not increase the sentence beyond the maximum sentence
imposed by the trial court. The Ohio Supreme Court has made it clear that, when the
power to sanction is delegated to the executive branch, a separation-of-powers problem
is avoided if the sanction is originally imposed by a court and included in its sentence.
See Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20,
Guernsey County, Case No. 21CA000021 20
citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19. Such
is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson,
2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit the
DRC to act “ ‘as judge, prosecutor and jury,’ for an action that could be prosecuted as a
felony in a court of law.” Woods v. Telb, 89 Ohio St.3d at 512, 733 N.E.2d 1103, quoting
State, ex rel. Bray v. Russell, 89 Ohio St.3d 132, 135, 729 N.E.2d 359 (2000). It should
be noted that Bray was charged with and convicted of drug possession and sentenced to
an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in
violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed
a ninety-day bad-time penalty to be added to Bray's original term. Bray's original sentence
of eight months for drug possession expired on June 5, 1998, at which time his additional
ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus in the
Court of Appeals for Warren County, claiming that Warden Harry Russell was unlawfully
restraining him. 89 Ohio St.3d 132, 133, 729 N.E.2d 359. Thus, the Parole Board
extended Brey's sentence beyond the maximum sentence the trial court had impose.
Appellant points to nothing within the Reagan Tokes Law that would permit the DRC to
extend his sentence beyond the maximum time set by the trial judge.
{¶79} Furthermore, as we have noted, under the Reagan Tokes Law an inmate is
afforded the due process rights accorded to one who is incarcerated before any increase
can occur. Prison disciplinary proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings does not apply. For as long as
parole has existed in Ohio, the executive branch (the APA and its predecessors) has had
Guernsey County, Case No. 21CA000021 21
absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at
511-512, 733 N.E.2d 1103.
{¶80} The Reagan Tokes Law does not allow the DRC to lengthen a defendant's
sentence beyond the maximum sentence imposed by the trial court. The Law does not
give the DRC unfettered discretion to require an offender to serve more than the minimum
term. The statutes afford an offender notice and an opportunity to be heard before a more
than the minimum may be required. The Reagan Tokes Law provides a prisoner with the
appropriate due process rights accorded to prisoners.
{¶81} Although entitled to the protection under the Due Process Clause, prison
disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply. For as long as parole has
existed in Ohio, the executive branch (the APA and its predecessors) has had absolute
discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512,
733 N.E.2d 1103.
{¶82} Based on the forgoing, we find that the Reagan Tokes Law does not violate
the separation of powers doctrine.
Right to Jury Trial not Violated
{¶83} Appellant also argues that Reagan Tokes violates his right to have a jury
determine any increase in punishment beyond the minimum sentence, citing Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant notes that
the DRC can unilaterally find facts concerning sufficiently bad behavior to rebut the
presumption of release and extend his sentence.
Guernsey County, Case No. 21CA000021 22
{¶84} In Apprendi, a jury convicted the defendant of a gun crime that carried a
maximum prison sentence of 10 years. But then a judge sought to impose a longer
sentence pursuant to a statute that authorized him to do so if he found, by a
preponderance of the evidence, that the defendant had committed the crime with racial
bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum,” the Court explained, “must be
submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.
530 U. S. at 490, 120 S.Ct. 2348. Nor may a State evade this traditional restraint on the
judicial power by simply calling the process of finding new facts and imposing a new
punishment a judicial “sentencing enhancement.” Id., at 495, 120 S.Ct. 2348. “[T]he
relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose
the defendant to a greater punishment than that authorized by the jury's guilty verdict?”
Id., at 494, 120 S.Ct. 2348.
{¶85} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), the United States Supreme Court addressed a case concerning mandatory
minimum sentences and the Sixth Amendment. In Alleyne, the jury relied on the testimony
of the victim of an armed robbery that one of the perpetrators possessed a gun. The trial
court relied on the same testimony to determine that Alleyne or his accomplice brandished
a gun. The testimony was the same, but the findings were different. The jury found that
Alleyne possessed a gun, but made no finding with regard to whether the weapon was
brandished. The court, however determined that the gun was brandished. The Supreme
Court reviewed the statutory punishment structure, which included a mandatory minimum
sentence of five years if a crime of violence was committed while the offender carried a
Guernsey County, Case No. 21CA000021 23
firearm, seven years if the firearm was brandished, and ten years if the firearm was
discharged during the crime. 18 U.S.C. 924(c)(1)(A). The crime was otherwise punishable
by a term of imprisonment not exceeding 20 years. 18 U.S.C.1951 (a). The court held
that where facts were not found by a jury that enhanced the mandatory minimum penalty
for a crime, principles of the Sixth Amendment were violated. Specifically, “[b]ecause
mandatory minimum sentences increase the penalty for a crime, any fact that increases
the mandatory minimum is an ‘element’ that must be submitted to the jury.” 570 U.S. at
103. See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-
3412, ¶29. However, the majority in Alleyne was careful to declare that:
In holding that facts that increase mandatory minimum sentences
must be submitted to the jury, we take care to note what our holding does
not entail. Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial fact-finding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.
817, ––––, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“[W]ithin
established limits [,] ... the exercise of [sentencing] discretion does not
contravene the Sixth Amendment even if it is informed by judge-found facts”
(emphasis deleted and internal quotation marks omitted)); Apprendi, 530
U.S. at 481, 120 S.Ct. 2348 (“[N]othing in this history suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute”).
Guernsey County, Case No. 21CA000021 24
Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA 28,
2014-Ohio-357, ¶19.
{¶86} Under the Reagan Tokes Law, the judge imposes both a minimum and a
maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction
(“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the
maximum sentence imposed by the trial court. Further, the facts which postpone an
inmate's release date are facts found as a result of prison disciplinary proceedings, not
the underlying crime. To extend Wolff's argument to its logical end it would be necessary
for the courts to invalidate punishment as a result of internal prison disciplinary
proceedings entirely, or require all rule infractions to be tried before a jury.
{¶87} It is evident that Apprendi and its progeny have no application in a prison
disciplinary setting where the DRC does not have the authority to extend the inmate's
sentence beyond the maximum sentence imposed by the trial judge. We find that
appellant’s right to a jury trial was thus not violated.
Conclusion
{¶88} Accordingly, we find that the Reagan Tokes Law is constitutional. The
Second District Court of Appeals found the law constitutional in State v. Barnes, 2nd Dist.
Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2nd Dist. Montgomery No.
28670, 2020-Ohio-4592, and State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-
Guernsey County, Case No. 21CA000021 25
Ohio-4153. The Third District found the law constitutional in State v. Hacker, 3rd Dist.
Logan No. 8-20-01, 2020-Ohio-5048. The Twelfth District Court of Appeals also
determined the law was constitutional in State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837, and State v. Morris, 12th Dist. Butler No. CA2019-12-205,
2020-Ohio-4103. Moreover, in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470, the court, sitting en banc, held that the Reagan Tokes Law is constitutional in
that it does not violate the separation-of-powers doctrine and does not violate either a
defendant's right to a jury trial or due process of law.
{¶89} Appellant’s first assignment of error is, therefore, overruled.
II
{¶90} Appellant, in his second assignment of error, argues that his trial counsel
was ineffective in failing to move for a waiver of court costs at the time of sentencing since
appellant was indigent. We disagree.
In order to prevail on an ineffective-assistance-of-counsel claim, a
defendant must prove that counsel's performance was deficient and that the
defendant was prejudiced by counsel's deficient performance. Bradley, 42
Ohio St.3d at 141-142, 538 N.E.2d 373; Strickland, 466 U.S. at 687, 104
S.Ct. 2052, 80 L.Ed.2d 674. Thus, the defendant must demonstrate that
counsel's performance fell below an objective standard of reasonableness
and that there exists a reasonable probability that, but for counsel's error,
the result of the proceeding would have been different. See Bradley1 at
paragraphs two and three of the syllabus. ‘A reasonable probability is a
1
State v. Bradley, 42 Ohio St.3d 136, 38 N.E.2d 378.
Guernsey County, Case No. 21CA000021 26
probability sufficient to undermine confidence in the outcome.’ Id. at 142,
538 N.E.2d 373, quoting Strickland2 at 694, 104 S.Ct. 2052.
State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560 at paragraph 10.
{¶91} The Supreme Court of Ohio held “* * *when trial counsel fails to request that
the trial court waive court costs on behalf of a defendant who has previously been found
to be indigent, a determination of prejudice for purposes of an ineffective-assistance-of-
counsel analysis depends upon whether the facts and circumstances presented by the
defendant establish that there is a reasonable probability that the trial court would have
granted the request to waive costs had one been made.” State v. Davis, 159 Ohio St.3d
31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 16.
{¶92} In the case sub judice, appellant argues that his trial counsel’s failure to file
a motion to waive court costs at the time of sentencing constituted ineffective assistance
of counsel when appellant had previously been found indigent.
{¶93} The trial court, in this matter, chose to waive the mandatory fine and not to
impose any discretionary fine and found appellant to be indigent. While it ordered
appellant to pay court costs, the trial court did not order him to pay any part of his court-
appointed attorney’s fees.
{¶94} Based on the foregoing, we find that there is not a reasonable probability
that the trial court would have granted the request to waive costs had one been made.
The trial court, in this matter, sua sponte waived the mandatory fine and counsel fees and
clearly chose not to waive the court costs.
{¶95} Appellant’s second assignment of error is, therefore, overruled.
2
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 22052, 80 L.Ed 2nd 674.
Guernsey County, Case No. 21CA000021 27
III
{¶96} Appellant, in his third assignment of error, argues that his conviction for
aggravated possession of drugs is against the manifest weight of the evidence. We
disagree.
{¶97} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶98} Appellant, in the case sub judice, was convicted of aggravated possession
of drugs in violation of R.C. 2925.11(A) and (C)(1)(c). R.C. 2925.11 states, in relevant
part, as follows:
{¶99} “(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog….
{¶100} (C) Whoever violates division (A) of this section is guilty of one of
the following:
{¶101} (1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the exception of marihuana,
cocaine, L.S.D., heroin, any fentanyl-related compound, hashish, and any controlled
substance analog, whoever violates division (A) of this section is guilty of aggravated
possession of drugs. The penalty for the offense shall be determined as follows: …
Guernsey County, Case No. 21CA000021 28
{¶102} (c) If the amount of the drug involved equals or exceeds five times
the bulk amount but is less than fifty times the bulk amount, aggravated possession of
drugs is a felony of the second degree, and the court shall impose as a mandatory prison
term a second degree felony mandatory prison term.
{¶103} Possession is defined as ‘having control over a thing or substance,
but may not be inferred solely from mere access to the thing or substance through
ownership or occupation of the premises upon which the thing or substance is found.’
R.C. 2925.01(K). Possession may be actual or constructive.’ State v. Mathias, 5th Dist.
Morrow No. 2020CA0001, 2021-Ohio-423, 2021 WL 597705, ¶ 75 citing State v. Taylor,
5th Dist. Richland No. 2019 CA 0117, 2020-Ohio-5097, 2020 WL 6342838, ¶ 22 citing
State v. Garza, 5th Dist. Stark No. 2020CA00018, 2020-Ohio-4001, 2020 WL 4568953,
¶ 16 citing State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989). Thus, the issue
of whether a person charged with drug possession knowingly possessed a controlled
substance “is to be determined from all the attendant facts and circumstances available.”
State v. Mathias, supra at ¶ 76 quoting State v. Teamer, 82 Ohio St.3d 490, 492, 1998-
Ohio-193, 696 N.E.2d 1049.
{¶104} To establish constructive possession, the evidence must prove the
defendant was able to exercise dominion and control over the contraband. State v.
Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). Dominion and control may be
proven by circumstantial evidence alone. Garza, supra, at ¶ 16, citing State v. Trembly,
137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.2000). Circumstantial evidence
establishing the defendant was located in very close proximity to the contraband may
show constructive possession. State v. Butler, supra; State v. Morales, 5th Dist. Licking
Guernsey County, Case No. 21CA000021 29
No. 2004 CA 68, 2005-Ohio-4714, ¶ 50. “Establishment of ownership is not required.”
State v. Rastbichler, 2nd Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 33.
{¶105} Appellant specifically argues that he was never found in possession
of an illegal substance, that no forensic testing linked him to the offense, and that no one
testified that he ever possessed drugs. He notes that his mother was in possession of the
drugs on September 21, 2020 when the warrant was executed on her home and led the
officers to the locked lockbox in her closet. He further points out that she entered a plea
of guilty to possession.
{¶106} However, we find that, using all the attendant facts and
circumstances available, the jury did not lose its way in convicting appellant because
there was testimony that appellant exercised dominion and control over the drugs. As
noted by appellee, the testimony of Detective Carpenter established appellant’s
connection to the drugs. The drugs were in appellant’s car which was picked up by
appellant’s mother at appellant’s direction after the traffic stop. Detective Carpenter
testified that, on September 8, 2020, appellant, during a phone call from the jail, asked
his mother if she got everything out of his car and made sure that nothing was thrown
away. He further told his mother that there was a lot of money. He indicated to his mother
that he was using “key words” during the recorded conversation and that she was not to
sell any of his clothes. Appellant told his mother to put everything in the lockbox, not to
mess with it, and that there was like $4,000.00.
{¶107} During a telephone conversation of September 10, 2020, appellant
asked his mother whether there was anything in the lockbox when she got it out of his
bedroom. Appellant referred to the stuff in his lockbox as “ice cream” and told his mother
Guernsey County, Case No. 21CA000021 30
that ice cream melts and that she should not keep it anywhere hot. He also told his mother
that he had spent “like $4,000” on the “ice cream”. Detective Carpenter testified that “ice
cream” was lingo for crystal methamphetamines. During the same conversation, appellant
said that he was glad that his car had not been towed.
{¶108} Detective Carpenter testified that appellant, during a call on
September 11, 2020, asked his mother if “that shit [was] locked up?” Trial Transcript at
273. Appellant, during a conversation with his mother on September 15, 2020, stated
“everything, my stuff all locked up, all my clothes, … before you got my clothes out of my
car, wasn’t there already clothes in my box.” Trial Transcript at 273. Appellant told his
mother that he was not actually talking about clothes. Finally, there was testimony that
during a September 19, 2020 conversation with his father, appellant told his father that
he had called his mother to come and get the car before it was towed “because he had
QP in there” and that he had a “QP of jeans sitting at Mom’s now.” Trial transcript at 279.
Detective Carpenter testified that appellant was referring to methamphetamines. He
further testified that the drugs were found in the lockbox that appellant was talking about.
{¶109} In short, there was testimony that appellant was in possession of the
drugs when he was in the car and that he directed his mother to come and get the car.
Appellant then directed his mother, as evidenced by the telephone calls, to get everything
out of the car and lock it up a lockbox. He told his mother that he had spent like $4,000.00
to get the “ice”. The drugs were found at appellant’s mother’s house in the lockbox where
he directed her to put them.
{¶110} Based on the foregoing, we find that the jury did not lose its way in
convicting appellant of aggravated possession of drugs. There was testimony that
Guernsey County, Case No. 21CA000021 31
appellant, via his mother, exercised dominion and control over the drugs. Appellant’s
conviction, therefore, is not against the manifest weight of the evidence.
{¶111} Appellant’s third assignment of error is, therefore, overruled.
{¶112} Accordingly, the judgment of the Guernsey County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Delaney, J. concur.