State v. Lemaster , 2023 Ohio 3427 ( 2023 )

[Cite as State v. Lemaster, 2023-Ohio-3427.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-23-10
v.
TYLOR ANTHONY LEMASTER,
OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 22-CR-0021
Judgment Affirmed
Date of Decision: September 25, 2023
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-23-10
ZIMMERMAN, J.
{¶1} Defendant-appellant, Tylor Anthony Lemaster (“Lemaster”), appeals
the February 21, 2023 judgment entry of sentence of the Union County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶2} On January 28, 2022, the Union County Grand Jury indicted Lemaster
on Count One of pandering obscenity involving a minor or impaired person in
violation of R.C. 2907.321(A)(1), (C), a second-degree felony, and Count Two of
illegal use of a minor or impaired person in nudity-oriented material or performance
in violation of R.C. 2907.323(A)(1), (B), a second-degree felony. On June 14, 2022,
Lemaster appeared and entered pleas of not guilty to the indictment.
{¶3} On January 20, 2023, Lemaster withdrew his pleas of not guilty and
entered a guilty plea, under a negotiated-plea agreement, to Count One of the
indictment. In exchange for Lemaster’s change of plea, the State agreed to dismiss
Count Two. The trial court accepted Lemaster’s guilty plea, found him guilty,
dismissed Count Two, and ordered a pre-sentence investigation.
{¶4} On February 21, 2023, the trial court sentenced Lemaster to a minimum
term of six years to a maximum term of nine years in prison. (Doc. No. 37). The
trial court also classified Lemaster as a Tier II sex offender.
{¶5} Lemaster filed his notice of appeal on March 22, 2022. He raises one
assignment of error for our review.
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Case No. 14-23-10
Assignment of Error
The Trial Court’s Imposition Of An Indefinite Sentence Pursuant
To The Statutory Scheme Known As “The Reagan Tokes Law” Is
Unconstitutional And Must Be Reversed.
{¶6} In his assignment of error, Lemaster argues that his sentence, imposed
under Ohio’s current sentencing scheme (commonly known as the “Reagan Tokes
Law”), is unconstitutional. Specifically, Lemaster challenges the constitutionality
of the Reagan Tokes Law for violating his right to a trial by jury, and for violating
the separation-of-powers doctrine and due-process clause of the Ohio and United
States Constitutions.
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
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Case No. 14-23-10
Analysis
{¶8} In this case, Lemaster challenges the constitutionality of the Reagan
Tokes Law—namely, Lemaster alleges that the Reagan Tokes Law violates his
constitutional right to a trial by jury in addition to violating the separation-of-powers
doctrine and due-process clause of the Ohio and United States Constitutions.
{¶9} Generally, “‘“[a]n enactment of the General Assembly is presumed to
be constitutional, and before a court may declare it unconstitutional it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.”’” State v. Mitchell, 3d Dist. Allen No. 1-21-02, 2021-Ohio-
2802, ¶ 12, quoting State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-4546,
¶ 9, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955),
paragraph one of the syllabus. “‘“That presumption of validity of such legislative
enactment cannot be overcome unless it appear[s] that there is a clear conflict
between the legislation in question and some particular provision or provisions of
the Constitution.”’” Id., quoting Brown at ¶ 9, quoting Xenia v. Schmidt, 101 Ohio
St. 437 (1920), paragraph two of the syllabus.
{¶10} “‘A statute may be challenged on constitutional grounds in two ways:
(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as
applied to the facts of the case.’” Id. at ¶ 13, quoting Brown at ¶ 10, citing Harrold
v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 37. “‘To mount a successful facial
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Case No. 14-23-10
challenge, the party challenging the statute must demonstrate that there is no set of
facts or circumstances under which the statute can be upheld.’” Id., quoting Brown
at ¶ 10. “‘Where it is claimed that a statute is unconstitutional as applied, the
challenger must present clear and convincing evidence of a presently existing set of
facts that make the statute unconstitutional and void when applied to those facts.’”
Id., quoting Brown at ¶ 10.
{¶11} Nevertheless, Lemaster concedes that he is raising his constitutional
arguments for the first time on appeal. Importantly, “‘“‘[t]he question of
constitutionality of a statute must generally be raised at the first opportunity and, in
a criminal prosecution this means in the trial court.’”’” Id. at ¶ 14, quoting State v.
Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70, quoting State v.
Rowland, 3d Dist. Hancock No. 5-01-28, 2002 WL 479163, *1 (Mar. 29, 2002),
quoting State v. Awan, 22 Ohio St.3d 120, 122 (1986). “This applies to challenges
to the facial constitutionality of a statute and to the constitutionality of a statute’s
application.’” Id., quoting Bagley at ¶ 70.
{¶12} “‘The Supreme Court of Ohio has held that, “‘[f]ailure to raise at the
trial court level the issue of the constitutionality of a statute or its application, which
issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state’s orderly procedure, and therefore need not be heard for
the first time on appeal.’”’” Id. at ¶ 15, quoting State v. Heft, 3d Dist. Logan No. 8-
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09-08, 2009-Ohio-5908, ¶ 29, quoting State v. Rice, 3d Dist. Allen Nos. 1-02-15, 1-
02-29, and 1-02-30, 2002-Ohio-3951, ¶ 7, quoting Awan at syllabus. “‘However,
the waiver doctrine * * * is discretionary; thus, “even where waiver is clear, a
reviewing court may consider constitutional challenges to the application of statutes
in specific cases of plain error or where the rights and interests involved may warrant
it.”’” Id., quoting Heft at ¶ 29, quoting Rice at ¶ 7. “Nevertheless, ‘“‘discretion will
not ordinarily be exercised to review such claims, where the right sought to be
vindicated was in existence prior to or at the time of trial.’”’” Id., quoting Heft at ¶
29, quoting Rice at ¶ 7, quoting State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168,
170-171 (1988), quoting State v. Woodards, 6 Ohio St.2d 14, 21 (1966).
{¶13} Because Lemaster did not object to the constitutionality of the Reagan
Tokes Law while his case was pending before the trial court or challenge the trial
court’s application of the Reagan Tokes Law at his sentencing hearing, he waived
his arguments on appeal. Accord id. at ¶ 16.
{¶14} Notwithstanding Lemaster’s failure to raise his arguments in the trial
court, we will address the merits of his arguments in the interest of justice.
Imperatively, not only has this court rejected similar facial- and as-applied-
constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio
recently endorsed the constitutionality of the Reagan Tokes Law. Accord State v.
Rentschler, 3d Dist. Marion No. 9-22-50, 2023-Ohio-3009, ¶ 98; State v. Hacker,
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Case No. 14-23-10
___ Ohio St.3d ___, 2023-Ohio-2535, ¶ 41. We decline to diverge from such
formidable precedent. Accordingly, Lemaster’s sentence is not contrary to law.
{¶15} Lemaster’s assignment of error is overruled.
{¶16} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and WALDICK, J., concur.
/jlr
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