State v. Kelly

[Cite as State v. Kelly, 2022-Ohio-3628.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200013
TRIAL NO. B-1904056
Plaintiff-Appellee, :
vs. :
O P I N I O N.
JAMES KELLY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Case Remanded
Date of Judgment Entry on Appeal: October 12, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Stagnaro Hannigan Koop, Co., LPA, and Michaela Stagnaro, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant James Kelly appeals his convictions for conspiracy
to commit murder and having a weapon while under a disability. We affirm the trial
court’s judgment in part, reverse it in part, and remand the case for further
proceedings consistent with this opinion.
I. Facts and Procedure
{¶2} Kelly was indicted on one count of conspiracy to commit murder in
violation of R.C. 2923.01(A)(1) and one count of having a weapon while under a
disability in violation of R.C. 2923.13(A)(2). Kelly entered a guilty plea to the
conspiracy count in exchange for the state’s dismissal of the having-a-weapon-while-
under-a-disability charge. The court continued the matter for a presentence
investigation. Before his sentencing hearing, Kelly moved to strike the indefinite-
sentencing provision of R.C. 2967.271 (“Regan Tokes Law”).
{¶3} The trial court overruled Kelly’s motion. The trial court accepted Kelly’s
plea, found him guilty, and, after a presentence investigation, sentenced him.
II. Law and Analysis
A. The Reagan Tokes Law is Facially Constitutional
{¶4} Kelly’s first assignment of error argues that the trial court erred by
overruling his motion to strike the indefinite-sentencing provision in the Reagan
Tokes Law because it violates the separation-of-powers doctrine and the Due Process
Clause of the Fourteenth Amendment and, therefore, it is unconstitutional.
{¶5} “The interpretation of the constitutionality of a statute presents a
question of law.” In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777 and
87816, 2008-Ohio-4444, ¶ 11. “Questions of law are reviewed de novo, independently
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OHIO FIRST DISTRICT COURT OF APPEALS
and without deference to the trial court’s decision.” Id., quoting Andreyko v.
Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 112 (1st Dist.).
{¶6} Kelly did not specify whether he was raising a facial or an as-applied
constitutional challenge. But at this stage, only a facial challenge would be ripe for
review because Kelly 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.
{¶7} This court determined that the Reagan Tokes Law was facially
constitutional in Guyton. Accordingly, we overrule Kelly’s first assignment of error.
B. Trial Court failed to Provide R.C. 2967.217(B) Notifications
{¶8} Kelly’s second assignment of error argues that the trial court erred as a
matter of law by failing to properly inform him of the R.C. 2967.271(B)(2)(c)
notifications at the sentencing hearing. These notifications involve details about the
indefinite-sentencing scheme contained in the Reagan Tokes Law. R.C.
2929.19(B)(2)(c).
{¶9} A trial court must advise a defendant of all five notifications set forth in
R.C. 2929.19(B)(2)(c) at the sentencing hearing. State v. Jackson, 1st Dist. Hamilton
No. C-200332, 2022-Ohio-3449, ¶ 20. The failure to advise the defendant of any of
the five notifications constitutes error and a remand is necessary for the limited
purpose of permitting the sentencing court to provide the mandatory notifications. Id.{¶10} The trial court failed to notify Kelly that at a hearing to determine
whether an incarcerated person’s sentence could be extended beyond the presumptive
minimum, the Ohio Department of Rehabilitation and Correction (“DRC”) must make
specific determinations involving the incarcerated person’s conduct while confined,
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OHIO FIRST DISTRICT COURT OF APPEALS
rehabilitation, threat to society, restrictive housing, and security classification. R.C.
2929.19(B)(2)(c)(ii). Instead, the trial court summed up these items as “bad conduct.”
The state concedes that this constitutes error.
{¶11} We sustain Kelly’s second assignment of error and remand this case for
the trial court to provide the R.C. 2929.19(B)(2)(c) notifications.
C. Ineffective Assistance of Counsel
{¶12} Kelly’s third assignment of error argues that he was denied the effective
assistance of counsel. He asserts that his trial counsel was ineffective for failing to file
a motion to rebut the presumption that Kelly would be required to register in the
violent-offender database because he was not the principal offender. Kelly contends
that, because there was an uncharged coconspirator, this uncharged coconspirator
could have been the principal. Moreover, that the trial court stated that Kelly had
“got[ten] beyond” his prior record suggests that the issue should have been raised.
{¶13} In an ineffective-assistance-of-counsel claim, an appellant must show
(1) that counsel’s performance was deficient, and (2) that the deficient performance
prejudiced the defense, thereby depriving appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A defendant’s
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, 721 N.E.2d 52 (2000).
{¶14} It is not enough for counsel to have erred or been incompetent; instead,
the defendant must show that, but for that incompetence, “there is a reasonable
probability that * * * the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
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OHIO FIRST DISTRICT COURT OF APPEALS
outcome.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting
Strickland at 694.
{¶15} R.C. 2903.41 (“Sierah’s Law”) requires offenders who are convicted of
specified offenses to enroll in the violent-offender database. State v. Tupuola, 5th Dist.
Muskingum No. CT2020-0056, 2021-Ohio-2577, ¶ 36. Sierah’s Law creates a
presumption that violent offenders enroll in the database. Id. Violent offenders enroll
for a minimum of ten years and must re-enroll on an annual basis. Id.{¶16} Under R.C. 2903.42(A)(2)(a), a motion to rebut the presumption that a
defendant would be required to enroll in the violent-offender database must be filed
before, or at the time of, sentencing. Kelly was required to assert that he was not the
principal offender in the commission of the conspiracy to commit murder and request
that the court refrain from requiring him to enroll in the violent-offender database.
State v. Hall, 2d Dist. Montgomery No. 28882, 2021-Ohio-1894, ¶ 28; State v.
Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340. ¶ 12, 129. Kelly would
have had to prove that he was not the principal offender by a preponderance of the
evidence. Id. No such motion was filed or orally raised.
{¶17} A defendant who pleads guilty waives all appealable issues, including
the right to assert an ineffective-assistance-of-counsel claim, except that the defendant
may claim ineffective assistance of counsel on the basis that the counsel’s deficient
performance caused the plea to be less than knowing, intelligent, and voluntary. State
v. Miller, 5th Dist. Stark No. 2019CA00046, 2019-Ohio-4275, ¶ 13. In such cases, a
defendant can prevail only by demonstrating that there is a reasonable probability
that, but for counsel’s deficient performance, he would not have pleaded guilty and
would have insisted on going to trial. (Citations omitted.) Id.5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Kelly pled guilty. Therefore, Kelly waived this issue because he does not
argue on appeal that counsel’s performance caused his plea to be less than knowing,
voluntary, or intelligent.
{¶19} Moreover, we have insufficient facts in the record to evaluate whether
there was a coconspirator who could be the principal offender. See Tupuola, 5th Dist.
Muskingum No. 2020-0056, 2021-Ohio-2577, at ¶ 52. As Kelly was the sole person
charged in the indictment, and the sole person convicted of conspiracy to commit
murder, we cannot conclude that a challenge to the violent-offender database
registration requirement would have been successful.
{¶20} This argument would be more appropriate for a postconviction petition.
We overrule Kelly’s third assignment of error.
III. Conclusion
{¶21} We remand this matter for the limited purpose of permitting the
sentencing court to provide the mandatory notifications as required by R.C.
2929.19(B)(2)(c). In all other respects, we affirm the trial court’s judgment.
Judgment affirmed in part, reversed in part, and case remanded.
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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