State v. Dixon , 2022 Ohio 3654 ( 2022 )

[Cite as State v. Dixon, 2022-Ohio-3654.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210502
TRIAL NO. B-2101203
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DERAUN DIXON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 14, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Derek W. Gustafuson, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Deraun Dixon appeals his sentences, arguing that
the indefinite-sentencing scheme under R.C. 2967.271 (“Reagan Tokes Law”) is
unconstitutional and he received ineffective assistance of counsel where counsel failed
to challenge the constitutionality of the Reagan Tokes Law. Because the Reagan Tokes
Law is facially constitutional, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} Dixon pled guilty to one count of felonious assault in violation of R.C.
2903.11(A)(2), with a firearm specification. The parties agreed to a recommended
indefinite sentence under the Reagan Tokes Law. The trial court imposed the agreed
sentence. Dixon now appeals.
II. Law and Analysis
This Court Has Determined that the Reagan Tokes Law is Facially Constitutional
{¶3} The failure to raise a constitutional issue at the trial level acts as a waiver
of such issue and a deviation from Ohio’s orderly procedure, and therefore it need not
be heard for the first time on appeal. In re D.L., 1st Dist. Hamilton Nos. C-170152, C-
170153 and C-170154, 2018-Ohio-2161. But an appellate court may, in its discretion,
review a statute’s constitutionality for plain error. Id.; see State v. Pleatman, 1st Dist.
Hamilton No. C-160234, 2016-Ohio-7659, ¶ 19.
{¶4} A “plain error” is both obvious and prejudicial, and, if permitted, would
have a materially adverse effect on the character and public confidence in judicial
proceedings. Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001(1982).
{¶5} Dixon did not specify whether he was raising a facial or an as-applied
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OHIO FIRST DISTRICT COURT OF APPEALS
constitutional challenge to the Reagan Tokes Law. But at this stage, only a facial
challenge would be ripe for review because Dixon had not been subject to the
provisions of the Reagan Tokes Law when he filed his notice of appeal. See State v.
Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, ¶ 10.
{¶6} This court determined that the Reagan Tokes Law was facially
constitutional and not violative of the separation-of-powers doctrine or an inmate’s
procedural-due-process rights in Guyton. This court has further held that the law does
not violate an inmate’s right to a jury trial. See State v. Smith, 1st Dist. Hamilton No.
C-210449, 2022-Ohio-3629, ¶ 10-13. Accordingly, we overrule Dixon’s first
assignment of error.
Ineffective Assistance of Counsel
{¶7} Dixon’s second assignment of error asserts that his trial counsel was
ineffective for failing to raise the constitutionality of the Reagan Tokes Law. Based on
our holding that the Reagan Tokes Law is facially constitutional, any alleged error by
counsel was not prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Dixon’s second assignment of error is overruled.
III. Conclusion
{¶8} The Reagan Tokes Law is facially constitutional and Dixon received the
effective assistance of counsel. Therefore, we affirm the trial court’s judgment.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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