[Cite as State v. Dawson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-08-099

: OPINION - vs - 8/29/2022 :

BRADY DAWSON, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2021-03-0268, CR2021-03-0269, and CR2021-03-0270

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.

Christopher P. Frederick, for appellant.

BYRNE, J.

{¶1} The Butler County Court of Common Pleas convicted Brady Dawson of two

counts of aggravated robbery. The trial court sentenced Dawson to an indefinite prison

term pursuant to the Reagan Tokes Law. Dawson appeals his sentence, arguing that the

Reagan Tokes Law is unconstitutional. For the reasons described below, we overrule

Dawson's challenge to his prison term and to the Reagan Tokes Law and we affirm his Butler CA2021-08-099

sentence.

I. Procedural Background

{¶2} A Butler County grand jury indicted Dawson on six counts of aggravated

robbery with a deadly weapon in violation of R.C. 2911.01(A)(1), all felonies of the first

degree. All six counts included firearm specifications under R.C. 2941.145.

{¶3} Dawson initially pleaded not guilty to all six counts. However, Dawson later

entered into a plea agreement with the state. Pursuant to the agreement, Dawson entered

guilty pleas to two of the six counts of aggravated robbery with a deadly weapon and to two

of the six firearm specifications (Counts Two and Six). In exchange, the state agreed to

dismiss the remaining counts and specifications.

{¶4} The trial court soon thereafter sentenced Dawson. As to Count Two, the court

sentenced Dawson, pursuant to the Reagan Tokes Law, R.C. 2967.271, to an indefinite

prison term consisting of a minimum of 11 years to a maximum of 16.5 years. As to Count

Six, the court imposed an 11-year prison term to be served concurrently with Count Two,

again pursuant to the Reagan Tokes Law. Additionally, the court imposed consecutive

three-year prison terms on each of the two gun specifications associated with Counts Two

and Six. Thus, Dawson was effectively ordered to serve an indefinite prison term of 11 to

16.5 years in prison, plus an additional six years on the gun specifications.1

II. Law and Analysis

{¶5} Dawson appeals, raising the following sole assignment of error:

{¶6} THE REAGAN TOKES LAW IS UNCONSTITUTIONAL.

{¶7} Dawson argues that the Reagan Tokes Law is unconstitutional because it

violates his procedural due process rights under the Fourteenth Amendment, violates his

1. The trial court had previously informed Dawson that if the court imposed the maximum sentences, run consecutively, Dawson could serve 33.5 years in prison.

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Sixth Amendment right to a trial by jury, and violates the Fourteenth Amendment prohibition

against vague criminal laws. We will review these arguments separately after summarizing

the Reagan Tokes Law and addressing the applicable standard of review.

A. The Reagan Tokes Law

{¶8} Under the Reagan Tokes Law, qualifying first- and second-degree felonies

committed on or after March 22, 2019, are subject to the imposition of indefinite sentences.

State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,

. The

indefinite terms consist of a minimum term selected by the sentencing judge from a range

of terms set forth in R.C. 2929.14(A) and a maximum term determined by a statutory formula

set forth in R.C. 2929.144. State v. Tutt, 12th Dist. Preble No. CA2020-02-002, 2021-Ohio-

96, ¶ 10. The maximum term equals the minimum term imposed on the offender plus 50

percent of that term. Hodgkin at ¶ 9.

{¶9} An offender sentenced under the Reagan Tokes Law to a non-life felony

indefinite prison term has a rebuttable presumption of release at the conclusion of the

offender's minimum term. R.C. 2967.271(B) and (C). "However, the Ohio Department of

Rehabilitation and Correction ('ODRC') may rebut that presumption of release if it finds, at

a hearing, that any of the factors set forth in R.C. 2967.271(C)(1), (2), and (3) apply." State

v. Rogers, 12th Dist. Butler No. CA2021-02-010,

. If the ODRC rebuts

the presumption it may keep the offender in prison for an additional "reasonable period,"

but the additional time "shall not exceed the offender's maximum prison term." R.C.

2967.271(D)(1).

B. Standard of Review

{¶10} We have repeatedly held that "arguments challenging the constitutionality of

the Reagan Tokes Law are forfeited and will not be heard for the first time on appeal in

cases where the appellant did not first raise the issue with the trial court." State v. Blaylock,

-3- Butler CA2021-08-099

12th Dist. Butler No. CA2020-11-113,

, citing Hodgkin, 2021-Ohio-

1353 at ¶ 11; State v. Lee, 12th Dist. Warren No. CA2021-05-047,

, ¶ 34-

35; State v. Roberson, 12th Dist. Warren No. CA2021-01-003,

;

State v. Teasley, 12th Dist. Butler No. CA2020-01-001,

; State v.

Alexander, 12th Dist. Butler No. CA2019-12-204,

. "However, an

appellate court 'has discretion to consider a forfeited constitutional challenge to a statute.

We may review the trial court decision for plain error.'" State v. Rose, 12th Dist. Butler No.

CA2021-06-062,

, quoting State v. Quarterman,

,

. Dawson concedes that he did not object to his sentence under the

Reagan Tokes Law, on constitutional grounds or otherwise, and that he is therefore limited

to a review for plain error.

{¶11} To constitute plain error there must be a deviation from a legal rule. State v.

Barnes,

(2002). Second, the error must be fundamental, palpable,

and obvious on the record such that it should have been apparent to the court without an

objection. State v. Barnette, 12th Dist. Butler No. CA2012-05-099,

.

Third, the error must have affected the defendant's substantial rights, that is, the error must

have affected the outcome of the trial.

. An appellate court will take notice of

plain error with "utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice." State v. Baldev, 12th Dist. Butler No. CA2004-05-106,

.

C. Due Process Rights

{¶12} Dawson states that "Reagan Tokes violates procedural due process" under

the Fourteenth Amendment, but he does not develop a legal argument in support of this

contention. Instead, Dawson concedes that this court has repeatedly determined that the

Reagan Tokes Law does not infringe upon an offender's procedural due process rights

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under the federal or Ohio constitutions. He is correct that we have so held. State v.

Roberson, 12th Dist. Warren No. CA2021-01-003,

; State v.

Jackson, 12th Dist. Butler No. CA2020-07-077,

; and State v. Guyton,

12th Dist. Butler No. CA2019-12-203,

.

{¶13} After acknowledging our consistent precedents, Dawson focuses on a recent

opinion of the Eighth District Court of Appeals, State v. Sealey, 8th Dist. Cuyahoga No.

109670,

. In that opinion, a panel of the Eighth District held that the Reagan

Tokes Law was unconstitutional because it failed to provide certain minimum due process

requirements. Id. at ¶ 30, 39. The Sealy opinion reversed a previous opinion in which a

different Eighth District panel had held that the Reagan Tokes Law did not violate due

process.2 Id. Dawson argues that (1) Sealy conflicts with our opinions holding that the

Reagan Tokes Law does not violate due process, so we should certify a conflict to the Ohio

Supreme Court, and (2) the existence of Sealy, which "foreshadowed a constitutional

violation" and was issued before Dawson's sentencing hearing, means that his trial counsel

provided ineffective assistance.

{¶14} Dawson's request that we certify a conflict fails for two reasons. First, an

appellant's brief is not the correct procedural vehicle for asking this court to certify a conflict

to the Ohio Supreme Court. See App.R. 25 (setting forth the procedure for seeking

certification of a conflict to the Ohio Supreme Court). Second, Sealey is no longer good

law because the full Eighth District, sitting en banc, found that the Reagan Tokes Law does

not violate due process and vacated Sealey in State v. Delvallie, 8th Dist. Cuyahoga No.

109315,

. Sealey having been vacated, Dawson has not

identified a conflict that could be certified.

2. Months earlier, in State v. Wilburn, 8th Dist. Cuyahoga No. 109507,

, a different Eighth District panel found the Reagan Tokes Law provided adequate due process safeguards.

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{¶15} Dawson's ineffective assistance argument also fails for two reasons. First,

Dawson did not present us with an assignment of error alleging ineffective assistance of

counsel. We will only determine an appeal on its merits based on the assignments of error

set forth in the briefs. App.R. 12(A)(1)(b), (A)(2), and App.R. 16. See State v. Roper, 12th

Dist. Clermont No. CA2021-05-019,

. Second, even if an

ineffective assistance assignment of error were properly before us, and even if we only

consider the case law that existed at the time of the sentencing hearing (that is, even if we

ignore that Delvallie vacated Sealey), we would not find that Dawson's counsel provided

ineffective assistance when he failed to argue a constitutional issue based on the non-

binding holding of Sealey. This is the case because we have held that the failure to raise

a constitutional challenge to the Reagan Tokes Law does not constitute ineffective

assistance of counsel. State v. Bond, 12th Dist. Butler No. CA2021-08-103, 2022-Ohio-

1628, ¶ 30; State v. Abner, 12th Dist. Warren No. CA2021-05-048,

;

Hodgkin,

. Dawson presents no argument here that would cause

us to reevaluate our previous decisions on this issue.

{¶16} Dawson has not established plain error with respect to his due process

argument.

D. Jury Trial Right

{¶17} Dawson next contends that the Reagan Tokes Law violates his Sixth

Amendment jury trial right. Dawson acknowledges that this court has previously held that

the Reagan Tokes Law does not violate an offender's constitutional right to trial by jury.

See State v. Rogers, 12th Dist. Butler No. CA2021-02-010,

.

Dawson argues that our previous decision on this issue incorrectly relied on the United

States Supreme Court's opinion in Apprendi v. New Jersey,

,

(2000), when in fact—he says—the correct case to analyze is Alleyne v. United States, 570

-6- Butler CA2021-08-

,

(2013). However, we rejected the same argument regarding

Alleyne in a recent case. State v. Rose, 12th Dist. Butler No. CA2021-06-062, 2022-Ohio-

2454, ¶ 32-37. We explained in Rose that Alleyne "is 'simply irrelevant to the Reagan Tokes

Law,'" and concluded that "the Reagan Tokes Law does not violate appellant's constitutional

rights to a trial by jury. Appellant's reliance on Alleyne is misplaced." Id. at ¶ 37. Dawson

offers no persuasive reason why we should disturb our holding in Rose. Dawson has not

established plain error with respect to his Sixth Amendment argument.

E. Void for Vagueness

{¶18} Finally, Dawson argues that the Reagan Tokes Law is void for vagueness

because it "fails to provide fair notice of the standards that elevate a sentence beyond the

presumptive minimum term." In support, Dawson argues that "[a] high prison-security level

is a factor that ODRC staff can use to elevate a minimum sentence" but neither the General

Assembly nor administrative rulemaking have established the standards establishing

prison-security levels. Instead, Dawson, referencing an ODRC administrative document

that is not part of the record on appeal, states that the prison-security level standards are

set and applied by the ODRC, and that those standards include "classification factors like

gender, age, medical status, and criminal notoriety that are themselves unlawful." Dawson

provides no further explanation or citation to authority. Dawson fails to articulate how the

Reagan Tokes Law, itself, is vague. He simply states that the law is vague and poses

hypothetical questions about how prison-security standards might be applied by the ODRC.

{¶19} We recently addressed the same argument in Rose,

:

We find that [Rose] has failed to articulate how the Reagan Tokes Law is vague. She simply states the law is vague and poses hypothetical questions about how prison-security standards might be determined by the ODRC. She also references an ODRC administrative document that is not part of the record on appeal. Based on the limited argument that was presented in her appellate brief, the record on appeal, and the

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standard for analyzing and recognizing plain error, we find that appellant has failed to demonstrate that the Reagan Tokes Law is void for vagueness or that the trial court committed plain error in imposing an indefinite sentence.

Id. at ¶ 39.

{¶20} Dawson's "void for vagueness" argument is indistinguishable from that made

in Rose. Like Rose, Dawson fails to explain specifically how the text of the Reagan Tokes

Law, itself, is vague. And Dawson, like Rose, offers only hypotheticals regarding the

potential application of ODRC prison-security level standards set forth in a document that

is not in the record in this case.

{¶21} Based on the argument presented, the record on appeal, and the plain error

standard, and based on the reasoning set forth in Rose, we do not find that Dawson has

demonstrated an obvious deviation from a legal rule. Id. Whatever merit may exist to

arguments about the potential for an offender serving more than the minimum sentence

because unlawful factors like gender and age may contribute to a particular prison-security

level, those arguments are not properly before us and await resolution in a proper case.

Dawson had not shown that the text of the Reagan Tokes Law itself is void for vagueness.

III. Conclusion

{¶22} We have previously rejected the arguments that the Reagan Tokes Law is

unconstitutional based on the argument that it violates an offender's constitutional due

process rights or that it violates the constitutional right to trial by jury. We find that Dawson

has failed to articulate how the Reagan Tokes Law is vague. Based on the foregoing,

Dawson has failed to establish that the trial court committed plain error by imposing an

indefinite sentence under the Reagan Tokes Law.

{¶23} Judgment affirmed.

PIPER, P.J., and HENDRICKSON, J., concur.

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