State v. Downard ( 2022 )

[Cite as State v. Downard, 2022-Ohio-2393.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2019-0079
DAMON K. DOWNARD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2019-0370
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 11, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Road
Muskingum County, Ohio Thornville, Ohio 43076
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43701-0189
Muskingum County, Case No. CT2019-0079 2
Hoffman, P.J.
{¶1} This case comes before this Court from the judgment entered by the Ohio
Supreme Court on April 27, 2022, remanding this case for this Court to consider whether
the challenged provisions of the Reagan Tokes Law are constitutional. Defendant-
appellant is Damon K. Downard. Appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On July 10, 2019, Appellant was indicted by the Muskingum County Grand
Jury on one count of aggravated robbery, a first degree felony, and one count of assault
on a peace officer, a fourth degree felony. On September 18, 2019, Appellant entered
guilty pleas to an amended charge of robbery, a second degree felony, and assault on a
peace officer, a fourth degree felony, and was convicted of both charges.
{¶3} The case proceeded to sentencing on September 23, 2019. Appellant was
sentenced pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act.
On the robbery conviction, the trial court sentenced Appellant to a stated minimum prison
term of eight years. The trial court sentenced Appellant to a stated prison term of twelve
months for assault on a peace officer. The trial court ordered the sentences to be served
consecutively, for an aggregate minimum prison term of nine years and an aggregate
indefinite maximum prison term of thirteen years. Appellant appealed the judgment of
conviction and sentence, assigning as error:
1 A rendition of the facts is unnecessary to our resolution of the issue raised on appeal
Muskingum County, Case No. CT2019-0079 3
I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED
CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING
FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES
AND THE STATE OF OHIO.
II. DAMON DOWNARD RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION.
{¶4} This Court found the issue of the constitutionality of the Reagan Tokes Law
to be not yet ripe for review. State v. Downard, 5th Dist. Muskingum No. CT2019-0079,
2020-Ohio-4227. This case came before the Ohio Supreme Court. The Ohio Supreme
Court reversed this Court's decision finding the issue of constitutionality not ripe for
review, and remanded to this Court with instructions to issue a ruling on the
constitutionality of the Reagan Tokes Law. In re Cases Held for the Decision in State v.
Maddox, 2022-Ohio-1352.
I.
{¶5} In his first assignment of error, Appellant challenges the presumptive
release feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury
and due process of law, and further violates the constitutional requirement of separation
of powers.
{¶6} For the reasons stated in the dissenting opinion of The Honorable W. Scott
Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, 2020 WL
Muskingum County, Case No. CT2019-0079 4
7054428, we find the Reagan Tokes Law does not violate Appellant's constitutional rights
to trial by jury and due process of law, and does not violate the constitutional requirement
of separation of powers. We hereby adopt the dissenting opinion in Wolfe as the opinion
of this Court. In so holding, we also note the sentencing law has been found constitutional
by the Second, Third, and Twelfth Districts, and also by the Eighth District sitting en banc.
See, e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, 2020
WL 4919694; State v. Hacker, 3rd Dist., 2020-Ohio-5048, 161 N.E.3d 112; State v.
Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, 2020 WL 4279793; State
v. Delvallie, 8th Dist., 2022-Ohio-470, 185 N.E.3d 536.
{¶7} The first assignment of error is overruled.
II.
{¶8} In his second assignment of error, Appellant argues his trial counsel was
ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court.
{¶9} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel's error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, Appellant must show counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result. Id.Muskingum County, Case No. CT2019-0079 5
{¶10} Because we have found R.C. 2967.271 to be constitutional, Appellant has
not demonstrated prejudice from counsel's failure to raise the claim in the trial court.
{¶11} The second assignment of error is overruled.
{¶12} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur