State v. Dixon ( 2022 )

[Cite as State v. Dixon, 2022-Ohio-4158.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0114
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
DANTE D. DIXON,
a.k.a. DEANTE D. DIXON, Trial Court No. 2021 CR 00040
Defendant-Appellant.
OPINION
Decided: November 21, 2022
Judgment: Affirmed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Joseph C. Patituce and Madison E. Karn, Patituce & Associates, LLC, 16855 Foltz
Industrial Parkway, Strongsville, OH 44149 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Dante Dixon, appeals his sentence from the Portage County
Court of Common Pleas. Appellant raises three assignments of error, arguing that the
trial court erred in sentencing him to 38 to 42 years imprisonment, that the trial court erred
in imposing consecutive sentences, and that trial counsel was ineffective by failing to
object to the constitutionality of his indefinite sentence.
{¶2} After review of the record and the applicable caselaw, we find appellant’s
assignments of error to be without merit. Appellant cannot affirmatively demonstrate that
the trial court did not comply with the seriousness and recidivism factors in R.C. 2929.12;
the trial court properly imposed consecutive sentences on appellant; and, because we
have previously held that the Reagan Tokes Law is constitutional in State v. Reffitt, 11th
Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and State v. Joyce, 11th Dist. Lake
Case No. 2021-L-006, 2022-Ohio-3370, appellant was not prejudiced when trial counsel
failed to object to the imposition of an indefinite sentence.
{¶3} Although not raised by appellant, the trial court’s sentencing entry contains
a clerical error, which states that appellant pled guilty to one count of “‘Carrying a
Concealed Weapon’ a felony of the third degree, in violation of R.C. 2923.13.” At the plea
hearing, appellant entered a plea of guilty to having weapons while under disability. R.C.
2923.13 is the code section for having weapons while under disability. Therefore, the
sentencing entry incorrectly identifies Count Four as “Carrying a Concealed Weapon.”
{¶4} Thus, we affirm the judgment of the Portage County Court of Common pleas
and remand for the trial court to issue a nunc pro tunc entry.
Substantive and Procedural History
{¶5} In January 2021, Kent police officers responded to a residential address in
reference to a burglary in progress. A 14-year-old female called 911 stating that she was
babysitting a two-year-old in the residence when a man forced entry into the home. The
young woman hid herself and the two-year-old in a bathroom while the intruder forced
entry. When officers arrived, Officers Kyle Auckland and Nicole Watkins approached the
front door while Officer Leonard Kunka approached the back door. Officers observed
signs of forced entry to both the front and back doors. Kunka entered the home and saw
appellant in the residence. He identified himself and appellant tried to flee.
2
Case No. 2021-P-0114
{¶6} When Kunka gave chase, appellant drew a handgun and fired three times.
One bullet struck Kunka in the left thumb and another struck Auckland in his ballistic vest.
The officers struggled with appellant, subdued him, and placed him under arrest without
firing their weapons. Appellant was injured by his own gun fire and was struck in the
abdomen.
{¶7} Kunka’s injuries required surgery, the placement of pins in his hand, and
extensive physical therapy and rehabilitation. Auckland was treated for chest injuries,
fortunately, his ballistic vest minimized his injuries. The children were rescued uninjured.
{¶8} The Portage County Grand Jury indicted appellant on two counts of
felonious assault, first-degree felonies in violation of R.C. 2903.11. Each count contained
a three-year firearm specification in violation of R.C. 2941.145, a seven-year firearm
specification in violation of R.C. 2941.1412, and a repeat violent offender specification in
violation of R.C. 2941.149. Appellant was also indicted on one count of aggravated
burglary, a first-degree felony in violation of R.C. 2911.01 with a three-year firearm
specification and a repeat violent offender specification. Finally, appellant was indicted
on two counts of having weapons wile under disability, third-degree felonies in violation
of R.C. 2923.13.
{¶9} Ultimately, appellant entered a plea of guilty to two counts of felonious
assault, each with a seven-year firearm specification and a repeat violent offender
specification; one count of aggravated burglary with a three-year firearm specification and
a repeat violent offender specification, and one count of having weapons while under
disability. The trial court accepted appellant’s change of plea and immediately proceeded
to sentencing. At the sentencing hearing, the trial court reviewed a presentence
3
Case No. 2021-P-0114
investigation report and heard statements from Kunka, Auckland, the Kent Police Chief,
appellant’s father, and appellant.
{¶10} During sentencing, the court stated that it had read the victim impact
statements, the sentencing briefs of both parties, and the pre-sentencing memorandum.
The court heard arguments from defense counsel who argued that the events happened
quickly, and that appellant did not intend the harm that he caused. Counsel expressed
that appellant was remorseful for his actions and grateful that his actions did not cause
greater harm. Counsel indicated that appellant has a history of mental health issues and
that his formal education ended in the eighth grade, although he did later obtain his GED.
Counsel requested that the sentences run concurrently and for the court to impose the
minimum sentence allowed by law.
{¶11} Kunka related the events of appellant’s arrest and explained that the
physical and emotional toll they had on him and his family. He said his injuries caused
him to miss three months of work and that his thumb now has arthritic pain that will
become progressively worse. After his return to work, his wife and family have become
more fearful. He requested that the court impose the maximum sentence.
{¶12} Auckland similarly requested the maximum sentence and said that the
emotional toll on him and his family has been heavy. The Kent Police Chief also
addressed the court and spoke to the emotional toll that appellant’s actions had on the
entire police department and their families.
{¶13} The prosecutor told the court that the minor victims had chosen not to
appear for the sentencing, but he said that the children had exhibited post-traumatic
behaviors such as immense fear, extreme vigilance, as well as dread and nightmares. He
4
Case No. 2021-P-0114
said that the residents of the home had been evicted as a direct result of the burglary and
were homeless for several months. The prosecutor also highlighted the emotional and
psychological impact that appellant’s actions had on the families and co-workers of the
victims.
{¶14} Appellant addressed the trial court, apologized for his conduct, and said that
he wished the day had never occurred for the sake of the victims. He said that at the time
of the offense he was under the influence of drugs and regretted his actions.
{¶15} The court said “I don’t know what can – what can society – what can I do to
change your direction in life except place you in prison for a long, long, long time? I give
you some credit for taking responsibility finally after – I think it’s 200 and some days in
jail, manning up and taking responsibility, not putting that child through this jury trial, not
putting these officers and their family through the jury trial. So I’ll give you some credit
there.”
{¶16} The court imposed mandatory consecutive seven-year terms for the two
firearm specifications; eight years for each of the felonious assault counts to run
consecutive with a four-year indefinite sentence on count one pursuant to the Reagan
Tokes Law; eight years for the aggravated burglary count to run consecutive; and 30
months for the weapons under disability count to run concurrent with counts one, two,
and three. In total, the court sentenced appellant to 38 to 42 years imprisonment with 287
days credit for time served. In imposing sentence, the court recited the R.C. 2929.11
sentencing factors. However, the court did not expressly recite the seriousness and
recidivism factors in R.C. 2929.12. The court did state that it was giving appellant
“consideration because you spared that child from coming in and testifying.”
5
Case No. 2021-P-0114
{¶17} The court next said that consecutive sentences were necessary in this case
because appellant satisfied the R.C. 2929.14(C)(4) factors. The court found that appellant
committed the offense while under community control sanctions, that at least two or more
of the offenses were committed as part of one or more courses of conduct, the harm
caused was so great or unusual that no single prison term adequately reflected the
seriousness of the conduct, and that appellant’s “enormous” criminal history
demonstrated that consecutive sentences were necessary to protect the public from
future crimes.
{¶18} The court’s sentencing entry recited the R.C. 2929.11 purposes of felony
sentencing and R.C. 2929.14 consecutive sentencing findings. However, the entry does
not explicitly address the seriousness and recidivism factors contained in R.C. 2929.12.
{¶19} In addition, the sentencing entry contains a clerical error, which states that
appellant pled guilty to one count of “‘Carrying a Concealed Weapon’ a felony of the third
degree, in violation of R.C. 2923.13.” At the plea hearing, appellant entered a plea of
guilty to having weapons while under disability. Further, R.C. 2923.13 is the code section
for having weapons while under disability. Therefore, the sentencing entry incorrectly
identifies Count Four as “Carrying a Concealed Weapon.”
{¶20} Appellant timely appealed asserting three assignments of error.
Assignments of Error and Analysis
R.C. 2929.12 Challenge:
{¶21} Appellant’s first assignment of error states:
{¶22} “[1.] The trial court erred in sentencing Mr. Dixon to an aggregate term of
thirty-eight (38) to forty-two (42) years imprisonment.”
6
Case No. 2021-P-0114
{¶23} Appellant argues that his sentence of 38 to 42 years is inconsistent with the
purposes of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C.
2929.12. Appellant cites R.C. 2953.08(G) as our standard of review for felony sentencing
matters.
{¶24} However, that statute only applies to challenges to sentences issued under
R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), and R.C. 2929.20(I). In this
assignment, appellant does not challenge his sentence in reference to any of these
statutes. See State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-Ohio-789, ¶
7. Therefore, R.C. 2953.08(G) is unavailing to appellant’s first assignment of error.
{¶25} This conclusion is consistent with the conclusions of the Ohio Supreme
Court. In reviewing sentencing challenges relating to R.C. 2929.11 and R.C. 2929.12, this
court previously followed the Supreme Court of Ohio’s language in State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002 which stated:
[I]t is fully consistent for appellate courts to review those
sentences that are imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12 under a standard that is
equally deferential to the sentencing court. That is, an
appellate court may vacate or modify any sentence that is not
clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record
does not support the sentence.
Marcum, at ¶ 23.
{¶26} However, the Ohio Supreme Court concluded that the above language was
dicta. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.2d 649, ¶ 27. In
Jones, the court held that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported
7
Case No. 2021-P-0114
by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. “[A]n appellate court’s
determination that the record does not support a sentence does not equate to a
determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Id. at ¶ 32. “Therefore, under Jones, an appellate court errs if it relies
on the dicta in Marcum and modifies or vacates a sentence ‘based on the lack of support
in the record for the trial court's findings under R.C. 2929.11 and R.C. 2929.12.’”
Shannon, supra, at ¶ 10, quoting Jones at ¶ 29.
{¶27} Thus, under Jones, an appellate court reviewing alleged error under R.C.
2929.11 and R.C. 2929.12 no longer evaluates whether those sentences are unsupported
by the record. Instead, the court “must simply analyze whether those sentences are
contrary to law.” Id. at ¶ 11. Jones offered that “legal dictionaries define ‘contrary to law’
as ‘in violation of statute or legal regulations at a given time,’ e.g., Black’s Law Dictionary
328 (6th Ed. 1990).” Id. at ¶ 34. However, Jones held that the phrase “contrary to law” is
not “equivalent” to an “appellate court’s conclusions that the record does not support a
sentence under R.C. 2929.11 or 2929.12.” Id.
{¶28} Although R.C. 2953.08(G) does not avail appellant, R.C. 2929.12 requires
the trial court to consider the seriousness and recidivism factors set forth in that statute.
Appellant argues that the trial court failed to consider these factors. R.C. 2929.12(A)
grants the sentencing judge discretion “‘to determine the most effective way to comply
with the purposes and principles of sentencing.’” State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470, ¶ 37, quoting R.C. 2929.12(A). “‘In exercising that discretion,
the court shall consider’, along with any other ‘relevant’ factors, the seriousness factors
set forth in divisions (B) and (C) and the recidivism factors in divisions (D) and (E) of R.C.
8
Case No. 2021-P-0114
2929.12.” Id., quoting R.C. 2929.12(A). “These statutory sections provide a nonexclusive
list for the court to consider.” State v. Houk, 11th Dist. Lake No. 2021-L-077, 2021-Ohio-
4618, ¶ 28, citing Foster at ¶ 37.
{¶29} “The trial court possesses broad discretion to determine the most effective
way to comply with the purposes and principles of sentencing within the statutory
guidelines.” Id. at ¶ 29, citing State v. Phifer, 11th Dist. Trumbull No. 2020-T-0010, 2020-
Ohio-4694, ¶ 52; R.C. 2929.12(A). “The statutes do not mandate judicial fact-finding, and
when a sentencing court states that it has considered these factors, it fulfills its duty.” Id.,
citing State v. DeLuca, 11th Dist. Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18.
{¶30} Appellant rightly argues that the trial court did not mention R.C. 2929.12 or
the seriousness and recidivism factors at the sentencing hearing or in its judgment entry.
He therefore believes that this omission signifies that the trial court did not consider the
factors as required by statute. However, “[e]ven a ‘silent record raises the presumption’
that the sentencing court considered all relevant factors.” Id. quoting State v. Adams, 37
Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. This court has
held “that even though a trial court is required to consider the R.C. 2929.11 and R.C.
2929.12 factors, it is not required to make specific findings on the record to comport with
its statutory obligations.” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-
Ohio-789, at ¶ 17, citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-
Ohio-2003, ¶ 24. Consideration of the factors “can be presumed unless the defendant
affirmatively shows to the contrary.” Foster, supra, at ¶ 8. “A trial court’s silence regarding
the purposes of felony sentencing and/or the seriousness and recidivism factors is not
9
Case No. 2021-P-0114
sufficient to affirmatively demonstrate that the court did not comply with the statutes.”
State v. Claar, 11th Dist. Portage No. 2020-P-0058, 2021-Ohio-2180, ¶ 11.
{¶31} Although the trial court did not expressly address the seriousness and
recidivism factors set forth in R.C. 2929.12, appellant has not affirmatively demonstrated
that the trial court failed to comply with that statute. Appellant argues that “a majority of
the R.C. 2929.12(B) factors indicate that his conduct was not more serious than conduct
normally constituting the offense.” However, the factors listed in R.C. 2929.12 are
nonexclusive and are not intended to suggest that a crime will only be “more serious”
when a majority of the factors are present. Nor does it suggest a crime is not “more
serious” when any one or all factors are present. The statute requires the court to consider
the applicable factors based on the facts of the case before it.
{¶32} Appellant also argues that the trial court only considered his taking
responsibility for his actions while not considering other mitigating factors such as his
remorse, suffering from mental health issues, a difficult childhood, substance abuse
history, and lack of formal education.
{¶33} Here, appellant has not affirmatively shown that the trial court sentenced
him without due consideration of the R.C. 2929.12 factors. Appellant pled guilty to
aggravated burglary involving two minor children and pled guilty to two counts of felonious
assault where appellant shot and injured two police officers. The victim statements spoke
to both the physical and mental injury each of the victims suffered and continue to suffer.
See R.C. 2929.12(B)(1) and (2). R.C. 2929.12(B)(1) also considers whether the minor
victims’ mental suffering “was exacerbated because of the physical or mental condition
or age of the victim[s].” R.C. 2929.12(B)(1). The court said to appellant: “Do you know
10
Case No. 2021-P-0114
that they are going to have to live with that incident the rest of their lives? These officers
are trained to risk their lives. Unfortunately, that child was not trained to risk her life and
you put her in that position.” The court also said that “you might’ve murdered one of these
officers.” The court specifically addressed that the burglary resulted in the eviction of the
occupants, which caused them to become homeless for a period of time, thus causing
“serious * * * economic harm as a result of the offense.” R.C. 2929.12(B)(2).
{¶34} In the absence of an affirmative showing to the contrary, we find no error in
the court’s sentence as it relates to the consideration of these factors.
{¶35} Accordingly, appellant’s first assignment of error is without merit.
Consecutive Sentences:
{¶36} Appellant’s second assignment of error states:
{¶37} “[2.] The trial court erred in sentencing Mr. Dixon to serve consecutive
sentences.”
{¶38} Appellant next challenges the trial court’s imposition of consecutive
sentences. There are two ways an appellant can challenge consecutive sentences on
appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-Ohio-3373, ¶ 6. First, the
appellant may argue that the sentencing court failed to state the findings for consecutive
sentences R.C. 2929.14(C)(4) requires. State v. Torres, 11th Dist. Lake No. 201-L-122,
2003-Ohio-1878, ¶18; R.C. 2953.08(G)(1). Second, an appellant may argue that the
record clearly and convincingly does not support the findings the sentencing court made
to justify consecutive sentences. State v. Lewis, at ¶ 7; R.C. 2953.08(G)(2)(a).
{¶39} When ordering consecutive sentences for multiple offenses, R.C.
2929.14(C)(4) requires a sentencing court to make three statutory findings:
11
Case No. 2021-P-0114
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or
sentencing, was under a sanction imposed pursuant
to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a
prior offense.
(b) At least two of the multiple offenses were committed
as part of one or more courses of conduct, and the
harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single
prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct.
(c) The offender's history of criminal conduct
demonstrates that consecutive sentences are
necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a-c).
{¶40} The sentencing court is required to make the required statutory findings
“both at the sentencing hearing and in the sentencing entry.” State v. Beasley, 153 Ohio
St. 3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 253. When there is a discrepancy
between the sentencing hearing and the sentencing entry, a nunc pro tunc order may be
necessary to reflect what the sentencing court actually decided. Id. at ¶ 255, ¶ 261, citing
State ex rel. Fogle v. Steiner, 74 Ohio St. 3d 158, 164, 656 N.E. 2d 1288 (1995); State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. But a nunc pro
12
Case No. 2021-P-0114
tunc order is only necessary when the sentencing entry omits a required finding that was
made at the sentencing hearing. Beasley, at ¶ 256.
{¶41} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” Bonnell at ¶ 37.
{¶42} “The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing * * * if it clearly and convincingly finds * * * that the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(b). A sentence is contrary to
law when the court fails to make the required findings for consecutive sentences. State
v. Barajas-Anguiano, No. 2017-G-0112 11th Dist. Geauga 2018-Ohio-3440, ¶ 19.
{¶43} Here, appellant concedes that the trial court recited the statutory language
of R.C. 2929.14(C)(4) at his sentencing hearing and in the sentencing entry, but he argues
that the record does not clearly and convincingly support the finding of consecutive terms
of imprisonment. We disagree. The record reflects that consecutive sentences were
necessary to protect the public from future crimes and to punish the defendant.
{¶44} At the sentencing hearing and in the court’s sentencing entry, the court
made a finding that the “consecutive sentence was necessary to protect the public from
future crime or to punish the defendant; that consecutive sentences are not
disproportionate to the seriousness of the defendant’s conduct and the danger the
defendant poses to the public.” The court also found that appellant was under community
control sanctions at the time of the offense. This plainly satisfied R.C. 2929.14(C)(4)(a).
13
Case No. 2021-P-0114
The court made additional findings as to section R.C. 2929.14(C)(4)(b) and (c). While the
court did not state the reasons for supporting these findings. The court “has no obligation
to state reasons to support its findings.” Bonnell at ¶ 37.
{¶45} Appellant seeks to compel the trial court to do something not required by
law when he states that consecutive sentences were improper because of the trial court
“failing to incorporate the evidence to support the court’s findings * * *.” This reverses the
standard of review and would require the record to clearly and convincingly support the
imposition of consecutive sentences.
{¶46} It is appellant who must clearly and convincingly demonstrate that the
record does not support consecutive sentences. However, appellant’s arguments against
the imposition of consecutive sentences are conclusory and do not offer or point to
evidence in the record to show that the court was wrong to impose consecutive
sentences. Therefore, appellant has failed to clearly and convincingly demonstrate that
the record does not support imposing consecutive sentences.
{¶47} Accordingly, appellant’ second assignment of error is without merit.
The Reagan Tokes Law and Ineffective Assistance of Counsel:
{¶48} Appellant’s third assignment of error states:
{¶49} “[3.] Trial counsel was ineffective for failing to preserve the issue of
unconstitutional sentencing under the Regan Tokes Law precluding Mr. Dixon from
raising the issue on appeal.”
{¶50} Appellant’s third assignment of error asserts that his trial counsel rendered
ineffective assistance of counsel by failing to object to the constitutionality of R.C.
2967.271, the Reagan Tokes Law. Appellant believes he suffered prejudice by this failure
14
Case No. 2021-P-0114
because he argues that the Reagan Tokes Law is ripe for review and is unconstitutional.
He asserts that the law violates the separation of powers and his due process rights.
{¶51} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability, were it not for counsel's errors,
the result of the proceedings would have been different. Strickland, at 669. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure
to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”
State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing
Strickland, at 697.
{¶52} An appellant “must be able to demonstrate that the attorney made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,
quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.
Ohio courts presume that every properly licensed attorney is competent, and therefore a
defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d
1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
15
Case No. 2021-P-0114
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally
do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,
85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶53} This Court has recently held that the Reagan Tokes Law is constitutional.
See State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and State v.
Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-3370. “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.” State v. Maddox, 6th Dist. Lucas, No.
L-19-1253, 2022-Ohio-1350 at ¶ 11; accord State v. Williams, 5th Dist. Coshocton No.
2021CA0003, 2022-Ohio-2002, ¶ 15; State v. Leamman, 2nd Dist. Champaign No. 2021-
CA-30, 2022-Ohio-2057, ¶ 14; State v. Philpot, 8th Dist. Cuyahoga No. 110828, 2022-
Ohio-1499, ¶ 33; (all holding R.C. 2967.271 constitutional and therefore finding no
demonstration of prejudice).
{¶54} We find that appellant has not presented a meritorious ineffective
assistance of counsel claim.
{¶55} Accordingly, appellant’s third assignment of error is without merit.
Nunc Pro Tunc Sentencing Entry:
{¶56} Finally, although not raised by appellant, the trial court’s sentencing entry
contains a clerical error, which states that appellant pled guilty to one count of “‘Carrying
a Concealed Weapon’ a felony of the third degree, in violation of R.C. 2923.13.” At the
plea hearing, appellant entered a plea of guilty to having weapons while under disability.
16
Case No. 2021-P-0114
R.C. 2923.13 is the code section for having weapons while under disability. Therefore,
the sentencing entry incorrectly identifies Count Four as “Carrying a Concealed Weapon.”
{¶57} Crim.R. 36 authorizes the trial court to correct “[c]lerical mistakes in
judgments, orders, or other parts of the record, and errors in the record arising from
oversight or omission * * * at any time.” Courts have held that a nunc pro nunc entry may
be used to correct a sentencing entry to reflect the sentence the trial court imposed at the
sentencing hearing. See, e.g., State v. Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-
Ohio-3320, ¶ 21; State v. Fugate, 12th Dist. Butler No. CA2000-02-031, 2000 WL
1708508, *2 (Nov. 13, 2000).
{¶58} Accordingly, the trial court is ordered to issue a nunc pro tunc entry to
correctly identify that appellant pled guilty to one count of having weapons while under
disability, a third-degree felony in violation of R.C. 2923.13.
{¶59} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed, and this matter is remanded for the issuance of a nunc pro
tunc entry.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
17
Case No. 2021-P-0114