[Cite as State v. Barnhart,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-20-08

v.

JOHN W. BARNHART, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court Trial Court No. 2020 CR 00047

Judgment Affirmed

Date of Decision: August 23, 2021

APPEARANCES:

Timothy J. Hoover for Appellant

Gary L. Lammers for Appellee Case No. 12-20-08

SHAW, J.

{¶1} Defendant-appellant, John W. Barnhart, Jr. (“Barnhart”), appeals the

November 3, 2020 judgment of the Putnam County Court of Common Pleas,

journalizing his conviction after pleading guilty to one count of second-degree

felony aggravated vehicular homicide and sentencing him to an indefinite prison

term of eight to 12 years. On appeal, Barnhart challenges the constitutionality of

the indefinite sentencing provisions contained in the Reagan Tokes Law and alleges

that he received ineffective assistance from his trial counsel at sentencing.

Procedural History

{¶2} On June 30, 2020, the Putnam County Grand Jury returned a three-

count indictment against Barnhart alleging that he committed Count One,

aggravated vehicular homicide, in violation of R.C. 2903.06 (A)(1)(a),(B)(2)(a), a

felony of the second degree; Count Two, OVI involving alcohol, a drug of abuse or

a combination of them, in violation of R.C. 4511.19(A)(1)(a),(G)(1)(a), a

misdemeanor of the first degree; and Count Three, OVI involving a listed controlled

substance or a listed metabolite of a controlled substance, in violation of R.C.

4511.19(A)(1)(j)(ix),(G)(1)(a), a misdemeanor of the first degree. The charges

arose from allegations that Barnhart caused an auto accident by running a stop sign

and striking another vehicle at the intersection of State Route 114 and County Road

19 in Putnam County, Ohio. The driver of the other vehicle died from the injuries

-2- Case No. 12-20-08

sustained in the accident. Barnhart was transported to a hospital where a blood draw

pursuant to a search warrant was performed, the results of which indicated that

Barnhart had methamphetamines in his system. Upon arraignment, Barnhart

entered pleas of not guilty to the charges.

{¶3} On November 3, 2020, Barnhart withdrew his previously tendered not

guilty pleas and entered a plea of guilty to Count One, aggravated vehicular

homicide in violation of R.C. 2903.06 (A)(1)(a),(B)(2)(a), a felony of the second

degree. In exchange for Barnhart’s guilty plea, the State elected to dismiss the

remaining counts listed in the indictment and to remain silent at sentencing.

{¶4} The trial court immediately proceeded to sentencing upon its

acceptance of Barnhart’s guilty plea. The trial court imposed upon Barnhart an

indefinite prison term of eight to 12 years. The trial court journalized its sentence

in its November 3, 2020 Judgment Entry of Sentencing.1

{¶5} It is from this judgment entry of conviction and sentence that Barnhart

now appeals, asserting the following assignments of error.2

1 On November 4, 2021, the trial court issued a Nunc Pro Tunc Judgment Entry of Sentencing to include language imposing Barnhart’s mandatory lifetime suspension of his driver’s license. 2 The record reflects that on appeal this case was initially briefed under Anders v. California,

(1997). However, this Court subsequently found the appeal was not “wholly frivolous,” as the arguable issue regarding the constitutionality of the Reagan Tokes Law was accepted for review by the Supreme Court of Ohio and remains pending. This Court granted appellate counsel’s motion to withdraw from representation, appointed new appellate counsel, and ordered full briefing of the issues.

-3- Case No. 12-20-08

ASSIGNMENT OF ERROR NO. 1

THE “REAGAN TOKES ACT” CONTAINED IN SECTION 2967.271 OF THE OHIO REVISED CODE IS FACIALLY UNCONSTITUTIONAL.

ASSIGNMENT OF ERROR NO. 2

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

First Assignment of Error

{¶6} In his first assignment of error, Barnhart argues that the Reagan Tokes

Law is unconstitutional. Specifically, he argues that the indefinite sentencing

provisions in the Reagan Tokes Law violate the separation of powers doctrine and

deprive him of his right to a trial by jury and other procedural due process

safeguards.

{¶7} Initially, we note that Barnhart failed to object to the constitutionality

of the Reagan Tokes Law in the trial court. The “[f]ailure to raise at the trial court

level the issue of the constitutionality of a statute or its application, which 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.” State v. Awan,

(1986), syllabus.

{¶8} However, we retain the discretion to consider a waived constitutional

argument under a plain-error analysis. In re M.D.,

(1988).

An error qualifies as “plain error” only if it is obvious and but for the error, the

-4- Case No. 12-20-08

outcome of the proceeding clearly would have been otherwise. State v. Yarbrough,

,

. Accordingly, we will review

Barnhart’s argument on appeal for plain error.

Legal Authority

{¶9} The Reagan Tokes Law went into effect in Ohio on March 22, 2019.

R.C. 2901.011. It requires a sentencing court imposing a prison term under R.C.

2929.14(A)(1)(a) or (2)(a), on or after the effective date, to order a minimum prison

term under that provision and a maximum prison term as determined by R.C.

2929.144(B). It also sets forth a presumption that an offender “shall be released

from service of the sentence on the expiration of the offender’s minimum prison

term or on the offender’s presumptive earned early release date, whichever is

earlier.” R.C. 2967.271(B). The offender’s presumptive earned early release date

is determined under R.C. 2967.271(F), which permits the sentencing court to reduce

the minimum term under certain circumstances. R.C. 2967.271(A)(2). The

Department of Rehabilitation and Corrections (“DRC”) may rebut the R.C.

2967.271(B) presumption if it determines at a hearing that certain statutorily

enumerated factors apply. R.C. 2967.271(C). If the DRC rebuts the presumption,

it may maintain the offender’s incarceration after the expiration of the minimum

prison term or presumptive earned early release date for a reasonable period of time,

-5- Case No. 12-20-08

which “shall not exceed the offender’s maximum prison term.” R.C.

2967.271(D)(1).

{¶10} Barnhart’s prison term falls within the sentencing category of R.C.

2929.144(B)(1). That provision specifies that, where an offender is being sentenced

for a qualifying felony of the second degree the maximum prison term shall be equal

to the minimum term imposed on the offender under R.C. 2929.14(A)(2)(a), plus 50

percent of that term. Here, the trial court sentenced Barnhart to an eight-year

minimum prison term for his qualifying second-degree felony. Therefore, Barnhart

faces a minimum term of eight years to a maximum term of 12 years in prison.

Discussion

{¶11} We recently addressed the separation of powers issue where the

appellant raised a similar facial challenge to the indefinite sentencing provisions in

the Reagan Tokes Law. See State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-

Ohio-5048, ¶ 22. Following the Second and Twelfth Appellate Districts, we

determined that the indefinite sentencing provisions do not run afoul of the doctrine

of separation of powers. Id.; see State v. Ferguson, 2d Dist. Montgomery No. 28644,

, citing Hernandez v. Kelly,

, 2006-

Ohio-126, ¶ 18-20 (concluding that the Reagan Tokes Law does not violate the

separation-of-powers doctrine because the statutory scheme is consistent with

established Supreme Court of Ohio authority, which has held that “when the power

-6- Case No. 12-20-08

to sanction is delegated to the executive branch, a separation-of-powers problem is

avoided if the sanction is originally imposed by a court and included in its

sentence”); State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-

3837, ¶ 17 (analogizing that “because due process does not require the sentencing

court to conduct parole revocation proceedings, probation revocation proceedings,

or postrelease control violation hearings, we likewise conclude that due process

does not require the sentencing court to conduct a hearing under R.C. 2967.271(C)

to determine whether the ODRC has rebutted the presumption set forth in R.C.

2967.271(B)”).

{¶12} At this juncture, we decline to revisit our precedent and conclude that

Barnhart’s facial challenge to the Reagan Tokes Law on the basis that it violates

the separation of powers doctrine is without merit. See State v. Floyd, 3d Dist.

Marion No. 9-20-44,

; State v. Crawford, 3d Dist. Henry No.

7-20-05,

; State v. Kepling, 3d Dist. Hancock No. 5-20-23,

.3

{¶13} Barnhart also generally asserts that the Reagan Tokes Law is

constitutionally deficient on procedural due process grounds, and he contends that

3 We are aware that other appellate districts have found that separation of powers and due process arguments similar to those raised by Barnhart in this appeal were not yet ripe for review. See State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2,

; State v. Downard, 5th Dist. Muskingum No. CT2019-0079,

; State v. Velliquette, 6th Dist. Lucas No. L-19-1232, 2020-Ohio- 4855, ¶ 30; State v. Lavean, 11 Dist. Lake No. 2020-L-045,

. We also note that, on December 28, 2020, the Supreme Court of Ohio accepted a case to determine whether the constitutionality of the Reagan Tokes Law is ripe for review. See State v. Maddox,

,

.

-7- Case No. 12-20-08

it also violates his right to a trial by jury. Insofar as this appeal presents a facial

challenge to the Reagan Tokes Law on the basis that the text does not set forth

sufficient procedural due process protections, we rely upon our prior holding in

Hacker, and find these arguments to be without merit. Hacker at ¶ 23; see also State

v. Floyd,

; State v. Crawford,

; State v.

Kepling,

.

{¶14} We have also previously addressed similar due process arguments and

have declined to resolve those claims as not being ripe for review. See also State v.

Crawford,

(stating “[a]t this time, we do not know if

Crawford will ever face such action from the ODRC” and “[w]e also do not know

what administrative guidelines will be in place to protect the procedural due process

rights of offenders in the future if ODRC ever acts to hold Crawford beyond his

presumptive release date”); State v. Kepling,

(stating “at

this point, we cannot even determine whether the ODRC will ever have occasion to

hold a hearing to determine whether Kepling should be held beyond his presumptive

release date. Similarly, we cannot now determine whether the ODRC will provide

Kepling with adequate notice and an opportunity to be heard if a hearing to hold

Kepling beyond his presumptive release date is ever held.”).

{¶15} In sum, we rely upon our prior precedent upholding the indefinite

sentencing provisions in the Reagan Tokes Law as constitutionally valid and not

-8- Case No. 12-20-08

violative of the separation of powers doctrine. Therefore, we find no plain error in

the trial court’s determination in this regard. Moreover, we conclude that the

procedural due process and right to a jury trial considerations raised by Barnhart are

not yet ripe for review. As such, we decline to address these issues at this time.

{¶16} For all these reasons the first assignment of error is overruled.

Second Assignment of Error

{¶17} In his second assignment of error, Barnhart claims that his trial counsel

was ineffective for his failure to raise the unconstitutionality of the Reagan Tokes

Law to the trial court.

{¶18} A properly licensed attorney is presumed competent. State v.

Hamblin,

(1988). Therefore, to prevail on a claim of ineffective

assistance of counsel, Barnhart 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,

,

(1984); State v. Bradley,

(1989). In other

words, Barnhart 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.

{¶19} In our discussion of Barnhart’s first assignment of error, we reaffirmed

our precedent that the indefinite sentencing provisions in the Reagan Tokes Law do

-9- Case No. 12-20-08

not violate of the separation of powers doctrine and are constitutionally valid on this

basis. We also determined that the due process and right to a jury trial constitutional

considerations raised by Barnhart regarding the Reagan Tokes Law are not yet ripe

for review. Therefore, Barnhart is unable to establish that he was prejudiced by his

counsel’s failure to challenge the constitutionality of the statute, as he has not shown

a reasonable probability of a change in the outcome had counsel raised the issue in

the trial court. See State v. Beatty, 5th Dist. Muskingum No. CT2020-0015, 2021-

Ohio-355, ¶¶ 53-54; State v. Hall, 2d Dist. Montgomery No. 28882, 2021-Ohio-

1894, ¶ 56.

{¶20} Accordingly, Barnhart’s second assignment of error is overruled.

{¶21} Based on the foregoing, the assignments of error are overruled and the

judgment and sentence of the Putnam County Court of Common Pleas is affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/jlr

-10-