[Cite as State v. Davis,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-21-10

v.

QUINN DAVID DAVIS, OPINION DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2019 CR 0139

Judgment Affirmed

Date of Decision: June 6, 2022

APPEARANCES:

Peter Galyardt for Appellant

Edwin A. Pierce for Appellee Case No. 2-21-10

SHAW, J.

{¶1} Defendant-Appellant, Quinn D. Davis (“Appellant”), brings this appeal

from the June 7, 2021 judgment of the Auglaize County Common Pleas Court

sentencing him upon his plea of guilty and conviction for two counts of sexual

battery and one count of gross sexual imposition. On appeal, Appellant argues that

the Reagan Tokes Law (R.C. 2967.271) is unconstitutional, that his trial counsel

rendered ineffective assistance of counsel, and that the trial court erred when it

sentenced him to consecutive sentences.

Background

{¶2} On June 27, 2019, Appellant was indicted on multiple sex offenses

against his young daughter, when she was four years old. He appeared before the

trial court for arraignment the next day, at which time a not guilty plea was entered

on his behalf. The case proceeded with pretrial discovery and various pretrial

motions.

{¶3} A change of plea hearing was held on March 31, 2021. Pursuant to plea

negotiations with the State, Appellant entered a guilty plea by way of bill of

information to three reduced offenses: two counts of sexual battery, in violation of

R.C. 2907.03(A)(5), second-degree felonies (Counts One and Two), and one count

of gross sexual imposition, in violation of R.C. 2907.05(A)(4), a third-degree felony

(Count Three). In exchange, the State had agreed to dismiss the indictment. The

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parties had also agreed that Appellant be designated a Tier III sex offender. The

trial court accepted Appellant’s plea, found him guilty of the charges, and continued

the case for sentencing. The trial court ordered a presentence investigation (PSI)

report and a victim impact statement. Upon defense counsel’s motion, the trial court

also ordered a psychosexual evaluation be completed by Dr. Delong.

{¶4} The sentencing hearing was held on June 4, 2021. The prosecution

argued for maximum consecutive sentences to be imposed upon Appellant, noting

the age of the victim and that he used his relationship as her father to facilitate the

offenses, which occurred on three separate dates. The prosecution also argued that

the psychosexual evaluation reflected no showing of remorse or taking full

responsibility for the offenses. Appellant’s defense counsel countered based upon

the evaluation, noting that Appellant was not a high risk to reoffend. Defense

counsel also noted Appellant had no criminal history and argued for the imposition

of a lesser concurrent sentence of seven or eight years in prison. After reviewing

the PSI report, hearing arguments from counsel, Appellant’s statements to the court,

the victim impact statement, and the psychosexual evaluation report of Dr. Delong,

the trial court sentenced Appellant, on Count One, to a mandatory indefinite term

of a minimum of eight years imprisonment to a maximum of twelve years; on Count

Two to a mandatory eight years to run consecutively; and on Count Three to sixty

months to run consecutively with Count One and concurrently with Count Two.

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The total stated prison term imposed by the trial court was an aggregate indefinite

term of sixteen to twenty years. The trial court also imposed five years of mandatory

post-release control and classified Appellant as a Tier III sex offender.

{¶5} It is from this judgment that Appellant appeals, asserting the following

assignments of error for our review.

Assignment of Error No. 1 Ohio’s sentencing scheme of potentially enhanced penalties for qualifying first- and second-degree felonies as administratively determined by the Department of Rehabilitation and Correction, which was applied to Quinn Davis, is unconstitutional. Sixth and Fourteenth Amendments, United States Constitution; Article I, Sections 5 and 14, Ohio Constitution; State v. Bodyke,

,

,

. June 7, 2021 Journal Entry, Orders on Sentence, at 2; June 4, 2021 Sentence Tr. 32-43. Assignment of Error No. 2 Quinn Davis’s trial counsel rendered ineffective assistance of counsel, in violation of his constitutional rights, Sixth and Fourteen Amendments, United States Constitution; Article I, Sections 10 and 16, Ohio Constitution; Strickland v. Washington,

,

,

(1984). June 4, 2021 Sentence Tr. 3-43. Assignment of Error No. 3 The trial court erred when it sentenced Quinn Davis to consecutive sentences that are not clearly and convincingly supported by the record. R.C. 2929.14(C)(4); R.C. 2953.08. June 7, 2021 Journal Entry, Orders on Sentence, at 2; June 4, 2021 Sentence Tr. 32-43; June 3, 2021 Psychosexual Evaluation, attached to presentence investigation report, at 8, 10.

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First Assignment of Error {¶6} Appellant asserts that the sentencing scheme created by the Reagan

Tokes Law under which he received an indefinite sentence is unconstitutional.

Legal Standard {¶7} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

Crim.R. 52(B). An error qualifies as “plain error” only if it is obvious and but for

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

v. Barnhart, 3d Dist. Putnam No. 12-20-08,

, citing State v.

Yarbrough,

,

.

Analysis {¶8} Appellant did not challenge the constitutionality of the Reagan Tokes

Law before the trial court. For this reason, we apply the plain error standard in this

case. Accord Barnhart at ¶ 8.

{¶9} Appellant’s challenges do not present a matter of first impression in this

Court. Since the indefinite sentencing provisions of the Reagan Tokes Law went

into effect in March 2019, we have repeatedly been asked to address the

constitutionality of these provisions. We have invariably concluded that the

indefinite sentencing provisions of the Reagan Tokes Law do not facially violate

the separation-of-powers doctrine or infringe on defendants’ due process rights.

E.g., State v. Crawford, 3d Dist. Henry No. 7-20-05,

; State

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v. Hacker, 3d Dist. Logan No. 8-20-01,

; State v. Wolfe, 3d

Dist. Union No. 14-21-16,

, ¶ 21.

{¶10} In this case, Appellant asks us to reconsider our earlier decisions. In

recent months, a number of defendants have requested the same of us—requests that

we have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04,

; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist.

Allen No. 1-21-02,

; State v. Rodriguez, 3d Dist. Seneca No.

13-20-07,

. As Appellant has not presented us with any

compelling reason to depart from our earlier precedent on facial challenges to

Reagan Tokes, we once again decline to do so.

{¶11} Appellant also challenges Reagan Tokes as applied to him, contending

that Reagan Tokes violates his constitutional right to a trial by jury. In the past, we

have held that certain as applied challenges to Reagan Tokes were not ripe for

review. See, e.g., State v. Kepling, 3d Dist. Hancock No. 5-20-23,

. However, the Supreme Court of Ohio recently released State v. Maddox, ---

Ohio St.3d ---,

, and determined that constitutional challenges to

Reagan Tokes are ripe for review. Based on the holding in Maddox, we will address

the constitutional issues under Reagan Tokes related to a jury trial.

{¶12} In reviewing the matter, we emphasize that statutes are presumed

constitutional, and it is Appellant’s burden to demonstrate that the statute at issue is

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unconstitutional. State v. Thompkins,

,

.

Appellant has presented no compelling authority undermining the constitutionality

of Reagan Tokes.

{¶13} Notwithstanding this point, numerous Ohio Appellate Courts have

already rejected challenges similar to Appellant’s. State v. Rogers, 12th Dist. Butler

No. CA2021-02-010,

; State v. Thompson, 2d Dist. Clark No.

2020-CA-60,

; State v. Delvallie, 8th Dist. Cuyahoga No.

109315,

(en banc). We agree with the reasoning expressed by

the other Ohio Appellate Courts cited herein and determine that Appellant’s “as

applied” challenge in this case is unavailing.

{¶14} Accordingly, for all of these reasons, Appellant has not established

plain error. Thus, his first assignment of error is overruled.

Second Assignment of Error {¶15} In his second assignment of error, Appellant argues that his trial

counsel rendered ineffective assistance by failing to challenge the constitutionality

of the Reagan Tokes Law.

Legal Standard {¶16} “In order to prove an ineffective assistance of counsel claim, the

appellant must carry the burden of establishing (1) that his or her counsel’s

performance was deficient and (2) that this deficient performance prejudiced the

defendant.” State v. McWay, 3d Dist. Allen No. 1-17-42,

,

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citing Strickland v. Washington,

,

,

(1984).

Analysis {¶17} Having examined the constitutional arguments that trial counsel was

arguably ineffective for failing to raise, we concluded that Appellant did not identify

any defects in the proceedings before the trial court. Therefore, Appellant “cannot

demonstrate how the outcome of the proceedings below would have been different

‘if his defense counsel had raised * * * challenge[s] before the trial court that ha[ve]

since failed on appeal.’ ˮ Crawford, 3d Dist. Henry No. 7-20-05,

, quoting State v. Lewis, 3d Dist. Van Wert No. 15-20-04,

. For this reason, he cannot carry the burden under Strickland of demonstrating

prejudice. See Barnhart, 3d Dist. Putnam No. 12-20-08,

.

Appellant has not established ineffective assistance of trial counsel and his second

assignment of error is overruled.

Third Assignment of Error {¶18} In his third assignment of error, Appellant asserts that his consecutive

sentences are not clearly and convincingly supported by the record.1

1 It is the burden of Appellant to show by clear and convincing evidence that his consecutive sentences are not supported by the record.

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Legal Standard {¶19} Under R.C. 2953.08(G)(2), an appellate court will vacate and remand

a trial court’s imposition of consecutive sentences only if it clearly and convincingly

finds that “the record does not support the sentencing court’s findings under division

* * * (C)(4) of section 2929.14, or * * * “[t]hat the sentence is otherwise contrary

to law.” Accord State v. Coykendall, 3d Dist. Marion No. 9-20-24,

. 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.’

” State v. Marcum,

,

, quoting Cross v.

Ledford,

(1954), paragraph three of the syllabus.

{¶20} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, a trial court must find on the record that consecutive sentences are

“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.” Coykendall at ¶ 10,

citing accord State v. Grate,

,

. A trial court

must then also find any of the factors in R.C. 2929.14(C)(4)(a) - (c) are present and,

in this case, the trial court found (b) factor present, “[a]t 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

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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.”

{¶21} In State v. Bonnell,

,

, the

Supreme Court of Ohio held that a trial court is required to make the requisite

statutory findings before imposing consecutive sentences “at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” See Coykendall at ¶ 18.

Analysis {¶22} In this case, the trial court found that consecutive sentences were

necessary to protect the public from future crime and to punish the offender, and

that consecutive sentences were not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender posed to the public. (Sentencing

Tr. at 34; June 7, 2021 Journal Entry-Orders on Sentence at 2).

{¶23} Here, Appellant argues that because the tests administered during the

psychosexual evaluation showed that he is “within acceptable limits” in terms of his

sexual characteristics and, at worst, a low-moderate risk to offend, the trial court’s

findings that consecutive sentences were “necessary to protect the public” and “not

disproportionate to the danger [Appellant] poses to the public” are not clearly and

convincingly supported by the record. (Appellant’s Brief at 12-13). See fn. 1.

{¶24} The record shows, however, the trial court recited at the sentencing

that the psychosexual evaluation also reported Appellant’s “ ‘level and degree of -10- Case No. 2-21-10

emotional immaturity and neediness along with a general sense of poor judgment

would seem to affect his interests and choices of sexual partners. His victimstance

would tend to keep him from accepting responsibility as well as growing up

emotionally.’ ” (Sentencing Tr. at 29-30). The evaluation further recited “ ‘[h]is

lack of insight or inability to acknowledge all the behaviors which precede his acting

out of defiant sexual behavior * * * would further denote his level, degree, and use

of cognitive distortions.’ ” Id. at 30.

{¶25} In State v. Kiefer, 6th Dist. Ottawa No. OT-21-005,

, the Sixth District Court of Appeals described the analysis for a determination

of whether consecutive sentences are not disproportionate to the danger the offender

poses to the public:

There are no specific factors the trial court must consider to determine whether consecutive sentences are disproportionate to [the danger the offender poses to the public]. Mitchell [8th District Cuyahoga No. 105053,

] at ¶ 13. Therefore, while the trial court’s consideration of whether the offender is likely to recidivate may show the danger the offender poses to the public, R.C. 2929.14(C) requires the trial court to find that consecutive sentences are not disproportionate to that danger, whatever it may be. State v. Castle, 2d Dist. Champaign No. 02CA09,

, ¶ 38, reversed on other grounds in State v. Foster,

,

,

. [Appellant], then, must show through clear and convincing evidence that the trial court erred in finding that the consecutive [sentences] were not disproportionate to the danger he posed to the public, not that he had a low risk of committing future offenses.

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{¶26} Further, the record shows that Appellant entered a guilty plea to three

sex offenses against his young daughter. The trial court specifically noted this

victim’s young age at the time of Appellant’s offenses warranted consideration for

consecutive sentences. The trial court also found that he showed no genuine

remorse.

{¶27} Based on this record, we find that Appellant does not identify clear

and convincing evidence in the record to establish that the trial court’s findings that

consecutive sentences were necessary to protect the public and not disproportionate

to the danger posed to the public, were unsupported by the record.

{¶28} Appellant’s third assignment of error is overruled.

{¶29} Based on the foregoing, the judgment of the Auglaize County

Common Pleas Court is affirmed.

Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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