The opinion
[Cite as State v. McIntosh, 2023-Ohio-4022.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-04-040
: OPINION
- vs - 11/6/2023
:
JAMES E. McINTOSH, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-09-1281
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
BYRNE, J.
{¶ 1} James McIntosh admitted to two violations of community control. As a result,
the Butler County Court of Common Pleas revoked community control and sentenced
McIntosh to an indefinite prison term. McIntosh appeals that decision. We affirm the trial
court's decision.
Butler CA2022-04-040
I. Factual and Procedural Background
{¶ 2} In October 2020, a Butler County grand jury indicted McIntosh on one count
of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. The
indictment stemmed from allegations that McIntosh approached the victim in the victim's
driveway, struck the victim in the head, and knocked him to the ground, causing the victim
to lose consciousness. McIntosh then continued to assault the victim. The victim suffered
serious injuries.
{¶ 3} In November 2020, McIntosh entered a plea of not guilty by reason of insanity
("NGRI"). McIntosh simultaneously moved for an evaluation to determine his mental status
at the time of the alleged offense. The court ordered that McIntosh be evaluated for
competency to stand trial and evaluated with respect to his plea of NGRI.
{¶ 4} Following an evaluation by a psychologist, the court found McIntosh
competent to stand trial. Subsequently, three separate mental health evaluators issued
reports opining on whether McIntosh met the qualifications for a plea of NGRI. The first
opined that McIntosh did meet the criteria for a plea of NGRI. The second opined that
McIntosh did not meet the criteria. The third, privately retained by McIntosh, opined that
McIntosh did meet the criteria.
{¶ 5} In October 2021, the matter proceeded to a bench trial on the NGRI issue and
on the felonious assault charge. The victim testified, as did the three mental health
evaluators. The court subsequently issued a written decision finding that McIntosh had not
met his burden of proof by a preponderance of the evidence to demonstrate that he was
insane at the time of the offense. The court then found McIntosh guilty of felonious assault
as charged.
{¶ 6} In November 2021, the court sentenced McIntosh to community control,
consisting of one year of the SAMI (Substance Abuse Mental Illness) Court Program and
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four additional years of basic supervision. The court advised McIntosh that a violation of
community control could lead to a prison term consisting of an indefinite prison sentence of
two to eight years, plus one half of the minimum prison sentence.
{¶ 7} As part of his sentencing, McIntosh signed a document titled "General
Conditions of Supervision," which set forth the conditions, or rules, of his community control.
McIntosh also signed a document that contained the conditions of his participation in the
SAMI Court Program. One of the conditions in the SAMI Court Program document noted
that McIntosh could be recommended for residential treatment at Sojourner.
{¶ 8} A few months later, in March 2022, the Butler County Adult Probation
Department filed a Report and Notice of Violation, which alleged that McIntosh had violated
two rules of the General Conditions of Supervision. The report contained the following
allegations:
Rule 7: On 03/08/2022 the offender admitted to getting
prescriptions for Lyrica and Ambien and then misusing those
prescriptions. An admission form was signed.
Rule 14: The offender was unsuccessfully discharged from
Sojourner programming on 03/08/2022.
The court, through its magistrate, held a probable cause hearing at which McIntosh was
present. A probation officer repeated the allegations. Based on the testimony, the court
found probable cause that McIntosh had violated the conditions of his supervision.
Accordingly, the court scheduled McIntosh for a revocation hearing.
{¶ 9} At the revocation hearing, the court recited the alleged rule violations and
asked how McIntosh wished to proceed. McIntosh's counsel indicated that McIntosh would
admit to both rule violations. The court then asked McIntosh if that was what he wanted to
do. McIntosh replied, "Yes, sir" and confirmed that he had talked to his attorney about his
decision to admit to the community control rule violations.
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{¶ 10} The court accepted McIntosh's admissions and heard arguments for leniency
in sentencing from McIntosh's counsel, as well as a statement in mitigation from McIntosh.
Afterwards, the court revoked community control and imposed an indefinite prison term
consisting of a minimum stated prison term of six years and a maximum term of nine years.
{¶ 11} McIntosh raises three assignments of error in this appeal. We will address
these assignments of error out of the order in which they were presented by McIntosh.
II. Law and Analysis
A. State v. Qualls and Plain Error
{¶ 12} McIntosh's second assignment of error states:
{¶ 13} THE TRIAL COURT COMMITTED PLAIN ERROR AT THE
REVOCATION HEARING.
{¶ 14} McIntosh argues that the trial court in the case before us committed plain error
by "failing to apply the mandated 1988 Qualls rule to decide the revocation and sentence."
McIntosh's reference is to State v. Qualls, 50 Ohio App.3d (10th Dist.1988). McIntosh
contends that the court erred by failing to consider whether insanity was a mitigating factor
before revoking his community control and sentencing him. McIntosh concedes that a plain
error standard of review is to be applied to this argument because his trial counsel failed to
raise Qualls or a Qualls-type argument before the trial court.
{¶ 15} Crim.R. 52(B) provides that "Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court." That
rule "places three limitations on a reviewing court's decision to correct an error not raised
before the trial court." State v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-
1627, ¶ 70, citing State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). "First, an error, 'i.e., a
deviation from a legal rule,' must have occurred." Fuell at id., quoting Barnes at 27.
"Second, the error complained of must be plain, i.e., it must be 'an "obvious" defect in the *
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* * proceedings.'" Id. Stated otherwise, 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, 2013-Ohio-990, ¶ 30.
"Third, the error must have affected 'substantial rights.'" Fuell at ¶ 70, quoting State v.
Martin, 154 Ohio St.3d 513, 2018-Ohio-3226, ¶ 28. This means the error must have
affected the outcome of the proceedings. Barnes at 27. 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,
2005-Ohio-2369, ¶ 12.
{¶ 16} In Qualls, the Tenth District Court of Appeals rejected the argument that
insanity at the time of an act that results in the revocation of parole is a complete defense
to parole revocation. Id. at 59-60. But the Tenth District stated that while "insanity is not a
complete defense in a probation revocation hearing[,]" insanity was instead "a mitigating
factor which a court should consider when the issue is timely raised." Id. at 60. The trial
court in our case did not refer to Qualls in its analysis and did not refer to insanity as a
mitigating factor.
{¶ 17} We find no error here, much less, plain error. First, Qualls was decided by
the Tenth District Court of Appeals, so it is not controlling precedent in this district. Second,
McIntosh cites no case from our court where we adopted Qualls' rule that insanity is "a
mitigating factor which a court should consider when the issue is timely raised" in the context
of a revocation hearing. Qualls at 60. Third, even if the Qualls rule had been adopted by
this court, it would not apply in this case because McIntosh did not claim or even suggest
at the revocation hearing that he was insane when he committed his community control rule
violations. Nor is there any evidence in the record suggesting that McIntosh was insane at
the time of those rule violations. McIntosh's appellate counsel merely speculates that
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McIntosh may have been able to argue for insanity in mitigation based on earlier mental
health issues.
{¶ 18} Qualls stated that a trial court "should consider" insanity "when the issue is
timely raised" at a revocation hearing, but McIntosh never raised the possibility that he was
insane at the time of his community control violations, either at the hearing or at any other
time. Qualls is therefore irrelevant in this case.
{¶ 19} For these reasons, the court did not commit plain error by failing to follow the
"Qualls rule" prior to revoking community control and proceeding to impose sentence. We
overrule McIntosh's second assignment of error.
B. Ineffective Assistance of Counsel
{¶ 20} McIntosh's first assignment of error states:
{¶ 21} TRIAL COUNSEL WAS INEFFECTIVE AT THE REVOCATION
HEARING.
{¶ 22} McIntosh argues that his counsel provided ineffective assistance at the
revocation hearing in three ways, which we will address in turn.
{¶ 23} The test for ineffective assistance of counsel requires a defendant to prove
(1) "that counsel's performance was deficient[,]" and (2) "that the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052
(1984). In reviewing a claim of ineffective assistance of counsel, we examine whether
counsel's acts or omissions "were outside the wide range of professionally competent
assistance" while "recogniz[ing] that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment." Id. at 690. To establish the second element of prejudice, the
defendant must demonstrate that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at 694.
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{¶ 24} Regarding the prejudice element, we have stated that "[i]n cases in which an
appellant alleges ineffective assistance with regard to a guilty plea, 'to show prejudice, the
defendant must demonstrate there is a reasonable probability that, but for his counsel's
errors, he would not have pled guilty and would have insisted on going to trial.'" State v.
Hawks, 12th Dist. Warren Nos. CA2021-11-103 and CA2021-11-104, 2022-Ohio-4137, ¶
21, quoting State v. Byrd, 12th Dist. Madison No. CA2021-07-011, 2022-Ohio-1364, ¶ 11.
Accord State v. Longworth, 12th Dist. Butler No. CA2021-02-015, 2021-Ohio-4538, ¶ 35.
1. Rule 7 Violation
{¶ 25} Rule 7 of the General Conditions of Supervision applicable to McIntosh's
community control, which McIntosh agreed to follow, provided that,
I will not possess, use, purchase, or have under my control any
narcotic drug or other controlled substance or illegal drugs,
including any instrument, device or other object used to
administer drugs or to prepare them for administration, unless
it is lawfully prescribed for me by a licensed physician. I
agree to inform my supervising officer promptly of any such
prescription and I agree to submit to drug testing if required by
the Butler County Court of Common Pleas. I will also be
subjected to mandatory DNA testing which will be conducted at
the departments [sic] order.
(Bold emphasis added.) The Butler County probation department asserted that McIntosh
violated Rule 7 by "misusing" his prescriptions for Lyrica and Ambien.
{¶ 26} McIntosh argues that his trial counsel provided deficient attorney performance
by permitting him to admit to a Rule 7 violation when, in fact, he did not violate Rule 7.
Specifically, McIntosh argues that he did not violate Rule 7 because he "possessed valid
prescriptions" for both Lyrica and Ambien. McIntosh concedes that the probation
department alleged that he was misusing those prescriptions, but argues that the Report
and Notice contained no detail as to how he was misusing his prescriptions. McIntosh
contends that these prescriptions could have been used for treatment of his mental health
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issues, which would make their use permissible under Rule 7. He also contends that even
if he abused his prescriptions, such abuse was not a violation of Rule 7 because the rule
did not specifically forbid "abuse" of prescribed medication.
{¶ 27} We first note that while McIntosh now contends that he did not violate Rule 7,
it remains the case that both McIntosh's counsel and McIntosh himself admitted to the Rule
7 violation at the April 14, 2022, hearing. McIntosh and his counsel did so after they had
heard a probation officer generally describe the alleged violations at an earlier probable
cause hearing. As a result, there was no need for the state to provide further evidence
regarding the details of the Rule 7 violation, and no details other than what was alleged in
the probation department's "Report and Notice of Violation" are in the record on appeal.
{¶ 28} Upon review, we find that McIntosh has cited nothing in the record that would
support the contention that his trial counsel's representation was "outside the wide range of
professionally competent assistance." Strickland 466 U.S. at 690. Even if we assume that
McIntosh is correct in asserting that his Lyrica and Ambien prescriptions were meant to treat
his mental health issues, this does not change the fact that by admitting to "misusing" his
prescriptions as stated in the probation department's "Report and Notice of Violation,"
McIntosh admitted to violating Rule 7.1 While Rule 7 did not prohibit McIntosh from using
controlled substances that were lawfully prescribed by a physician, the rule stated that
McIntosh was not permitted to "use * * * [a] controlled substance * * * unless it is lawfully
prescribed for me by a licensed physician." Using a prescribed controlled substance in a
manner other than that "lawfully prescribed" is necessarily not "use" of that drug as "lawfully
1. In support of his contention that his Lyrica and Ambien prescriptions were meant to address his mental
health issues, McIntosh cites an exchange that occurred at trial between the prosecutor and one of the doctors
who evaluated McIntosh. Our review of this testimony does not clearly indicate to us that the doctor testified
that these medications were for mental health treatment. That is, there is some ambiguity in the testimony.
Regardless, for purposes of our analysis we assume that the Lyrica and Ambien prescriptions were prescribed
to address McIntosh's mental health issues.
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prescribed," and in fact is abuse of that prescription. While Rule 7 may have been clearer
if it had explicitly listed "abuse" of a prescribed controlled substance as prohibited under the
terms of community control, the rule's text did in effect prohibit abuse of a prescribed
controlled substance. Accordingly, there is a basis in the record for McIntosh's counsel's
decision to not contest the violation of Rule 7 and instead rely on arguments in favor of
leniency at sentencing.
{¶ 29} Moreover, McIntosh confirmed on the record that he wanted to admit to the
violation and that he had the opportunity to speak with his attorney about admitting. We do
not know the content of that attorney-client conversation, but the law does not require us to
presume that counsel provided constitutionally deficient advice to his client. To the contrary,
we presume that counsel rendered "adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Strickland at 690. Given that there
was a basis for the Rule 7 violation, we find no evidence that would challenge that
presumption.
{¶ 30} Finally, as other courts have held, oral notice coupled with a defendant's
complete admission to a community control violation at a preliminary hearing typically
satisfies any due process or effective assistance of counsel concerns. State v. Jimenez,
8th Dist. Cuyahoga No. 104735, 2017-Ohio-1553, ¶ 6, citing State v. Frazier, 8th Dist.
Cuyahoga No. 104596, 2017-Ohio-470, ¶ 10-11 and other cases. Accord State v. Clark, 3d
Dist. Union No. 14-22-01, 2022-Ohio-2539, ¶ 15-16; State v. Dye, 4th Dist. Athens No.
16CA17, 2017-Ohio-9389, ¶ 18. As in Jimenez, McIntosh had a preliminary hearing at
which he received oral notice of the alleged community control violations. He subsequently
made a complete admission to the violations at the revocation hearing. McIntosh's
complete admission satisfied any concerns of effective assistance of counsel. Jimenez at
¶ 6.
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{¶ 31} Accordingly, we find no merit to McIntosh's ineffective assistance argument
regarding his admission to a Rule 7 violation.
2. Rule 14 Violation
{¶ 32} Rule 14 of the General Conditions of Supervision, which McIntosh agreed to
follow, provided that he would,
[F]ollow all rules and regulations regarding of [sic] treatment
facilities or programs of any type in which I am placed or ordered
to attend while under the jurisdiction of the Butler County Court
of Common Pleas.
The probation department asserted that McIntosh violated Rule 14 by being "unsuccessfully
discharged from Sojourner programming * * *."
{¶ 33} McIntosh argues that his trial counsel provided deficient attorney performance
by permitting him to admit to the Rule 14 violation when, he says, he did not violate Rule
14. He argues that the putative violation "deviated" from the court's sentence, which he
argues was to "complete the Community Correction Center program–not Sojourner * * *."
{¶ 34} In support of this argument, McIntosh cites a transcript from a hearing held
November 18, 2021, at which McIntosh admitted to a community control violation and the
court ordered McIntosh to enter "CCC" (presumably the Community Correction Center
program) and said nothing about ordering him to Sojourner. But this November 18, 2021,
transcript concerned a hearing held not in the case before us (Butler County Case No.
CR2020-09-1281), but instead in an entirely different case (Butler County Case No.
CR2018-12-2243). Specifically, McIntosh admitted at the November 18, 2021, hearing that
his felonious assault conviction in this case (Butler County Case No. CR2020-09-1281)
violated the terms of the community control that had previously been imposed on him for
his offense in that second case (Butler County Case No. CR2018-12-2243). Given that the
transcript cited involves an entirely separate criminal case that is not before us on appeal,
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it is not certain how this transcript became part of our appellate record or whether we could
properly consider it.
{¶ 35} Regardless, assuming the transcript is properly part of the appellate record, it
does not support McIntosh's argument that he was not ordered to complete the Sojourner
program while under the jurisdiction of the Butler County Court of Common Pleas in the
case before us on appeal. The transcript merely establishes that, in an entirely different
case, McIntosh was ordered to participate in "CCC."
{¶ 36} Moreover, there is evidence in the appellate record to support the argument
that McIntosh could have been ordered to complete the Sojourner program as part of his
community control in the case before us. As discussed above, the court placed McIntosh
into the SAMI Court Program for one year. At sentencing, McIntosh signed an agreement
containing the conditions of his participation in the SAMI Court Program. That agreement—
titled "SAMI (Substance Abuse Mental Illness) COURT PROGRAM PARTICIPATION
AGREEMENT AND WAIVER OF RIGHTS"—states that McIntosh could be recommended
for "residential treatment" at any time during his participation in the SAMI Program. It also
states that "Sojourner Recovery Services for Men" was one of the residential treatment
programs used by SAMI to which McIntosh could be referred.
{¶ 37} We do not know the precise basis for why McIntosh was "unsuccessfully
discharged" from Sojourner. This is because McIntosh did not contest the violation and
thus no record was developed on this subject. However, there is nothing in the record cited
by McIntosh that supports the conclusory statement in his appellate brief that he did not
violate Rule 14. To the contrary, the evidence in the record suggests that McIntosh agreed
to follow the rules of treatment facilities or programs in which he was placed and that he
was subject to being placed in Sojourner as part of the SAMI Court Program. Because
there is nothing in the record to support the argument that McIntosh had a reason to contest
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the Rule 14 violation, there is no support for the argument that his trial counsel was deficient
for not contesting the violation.
{¶ 38} Moreover, as with the Rule 7 violation, McIntosh received oral notice of the
Rule 14 violation and completely admitted to the violation. His actions waived any effective
assistance of counsel concerns. Jimenez, 2017-Ohio-1553 at ¶ 6.
3. Failure to Cite Qualls or Investigate a Mental Illness Defense
{¶ 39} Next, McIntosh argues his counsel was ineffective because he failed to cite
or direct the court's attention to the Tenth District Court of Appeals' opinion in Qualls, and
its language directing trial courts to consider an offender's insanity at the time of a
community control rule violation, which we discussed above. Building on this argument,
McIntosh argues that trial counsel was ineffective for failing to investigate potential defenses
to the Rules 7 and 14 infractions based on a mental illness defense.
{¶ 40} McIntosh's argument fails for two reasons. First, as we stated in our
discussion of McIntosh's first assignment of error, Qualls is not controlling precedent in the
Twelfth District and its reasoning has not been adopted by this court. As such we cannot
see any basis for concluding that trial counsel's performance in not citing or directing the
trial court's attention to Qualls was deficient.
{¶ 41} Second, there is nothing in the record, other than appellate counsel's
suggestion, that McIntosh's community control violations were committed at a time when
he was legally insane. Thus, to hold that trial counsel was deficient for not investigating
potential defenses based on mental illness would require us to speculate and assume facts
not in the record. State v. Miller, 12th Dist. Brown No. CA2022-09-008, 2023-Ohio-1600, ¶
26 ("Speculation is not sufficient to establish ineffective assistance of counsel").
{¶ 42} Because we do not find that McIntosh has established any instances of
deficient performance regarding his trial counsel's actions at the revocation hearing, we
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need not consider the issue of prejudice. See State v. Kaufhold, 12th Dist. Butler No.
CA2019-09-148, 2020-Ohio-3835, ¶ 54.
{¶ 43} We overrule McIntosh's first assignment of error.
C. Sentencing Issues
{¶ 44} McIntosh's third assignment of error states:
{¶ 45} MCINTOSH'S SENTENCE WAS CONTRARY TO LAW.
{¶ 46} McIntosh makes three arguments regarding his sentence. We will examine
these arguments in turn.
1. Consideration of R.C. 2929.13(B) Factors
{¶ 47} McIntosh first argues that the trial court erred by considering the R.C.
2929.13(B) factors in revoking community control and imposing sentence.
a. Applicable Law and Standard of Review
{¶ 48} There are a number of statutes which discuss factors for trial courts to
consider when sentencing an offender. Three such statutes are relevant to our analysis in
this case. First, R.C. 2929.11 states that a sentencing court "that sentences an offender for
a felony shall be guided by the overriding purposes of felony sentencing * * *" and lists those
purposes and factors to be considered. R.C. 2929.11(A), (B). Second, R.C. 2929.12 lists
factors that a sentencing court "shall" consider in assessing the seriousness of the
offender's conduct and the offender's potential for recidivism. R.C. 2929.12(A), (B), (C),
(D), and (E). Third, R.C. 2929.13(B) provides that a sentencing court "shall" sentence an
offender to community control when the offender has been convicted of or pleads guilty to
a "felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying
assault offense * * *[,]" provided that three conditions listed in the statute are satisfied. R.C.
2929.13(B)(1)(a)(i), (ii), and (iii). But R.C. 2929.13(B) also provides that a sentencing court
"has discretion to impose a prison term upon an offender who is convicted of or pleads guilty
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to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying
assault offense if any of the following apply * * *[,]" and then lists ten scenarios. R.C.
2929.13(B)(1)(b)(i) thru (x).
{¶ 49} R.C. 2953.08(G)(2) defines the standard of review for felony sentencing
appeals. State v. Day, 12th Dist. Warren No. CA2020-07-042 and CA2020-07-043, 2021-
Ohio-164, ¶ 6. This remains true when the trial court does not impose the felony sentence
until a community control revocation hearing prompted by the offender's violation of the
terms of community control. See State v. Covington, 12th Dist. Butler No. CA2020-10-103,
2021-Ohio-2983, ¶ 5, 11, 14. As applicable here, R.C. 2953.08(G)(2) provides:
The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 50} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, the Ohio Supreme
Court clarified an appellate court's scope of review under R.C. 2953.08(G)(2)(a) and (b).
First, the supreme court noted that R.C. 2953.08(G)(2)(a) permits an appellate court to
modify or vacate a sentence if the appellate court clearly and convincingly finds that the
record does not support the sentencing court's finding under certain specified statutory
provisions listed in the statute (that is, R.C. 2929.13[B] or [D], R.C. 2929.14[B][2][e] or [C][4],
or R.C. 2929.20[I]). Id. at ¶ 28. However, the supreme court noted that R.C. 2929.11 and
2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a), and
therefore held that R.C. 2953.08(G)(2)(a) does not permit an appellate court to modify or
vacate a sentence based on a lack of support in the record for the trial court's findings under
R.C. 2929.11 and 2929.12 Id. at ¶ 28-29.
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{¶ 51} Second, in Jones, the Ohio Supreme Court held that R.C. 2953.08(G)(2)(b)
"does not provide a basis for an appellate court to modify or vacate a sentence based on
its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12."
Id. at ¶ 39. The supreme court reasoned that "an appellate court's determination that the
record does not support a sentence does not equate to a determination that the sentence
is 'otherwise contrary to law' as that term is used in R.C. 2953.08(G)(2)(b)." Id. at ¶ 32.
Instead, a sentence is not clearly and convincingly contrary to law where a trial court
"'considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly imposes postrelease control, and sentences the defendant within the
permissible statutory range.'" State v. Lopez-Cruz, 12th Dist. Butler No. CA2022-07-068,
2023-Ohio-257, ¶ 8, quoting State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-
Ohio-2890, ¶ 8.
b. Analysis
{¶ 52} In its sentencing entry, the trial court stated that it considered "the principles
and purposes of sentencing under [R.C] 2929.11, and has balanced the seriousness and
recidivism factors [under R.C.] 2929.12." Based on its review of those factors, the trial court
found "that the defendant is not amenable to an available community control sanction."
(Emphasis omitted.)
{¶ 53} The record therefore reflects that the court considered the R.C. 2929.11
principles and purposes of sentencing, as well as the R.C. 2929.12 factors. The record also
reflects that the court properly imposed postrelease control and properly sentenced
McIntosh within the permissible statutory range for a second-degree felony offense.
Accordingly, McIntosh's sentence is not contrary to law. Lopez-Cruz at ¶ 8.
{¶ 54} But the trial court also stated in the sentencing entry that "The Court has
considered the factors under [R.C.] 2929.13(B) and finds the following defendant violated
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prior community control." McIntosh is correct that the R.C. 2929.13(B) factors were not
applicable in his case because he was convicted of a second-degree felony and the R.C.
2929.13(B) factors only apply to fourth- and fifth-degree felonies. There was therefore no
need for the trial court to consider the R.C. 2929.13(B) factors.
{¶ 55} As stated above, R.C. 2953.08(G)(2)(a) authorizes us to take action with
respect to the sentence if we determine that the record does not clearly and convincingly
support the sentencing court's findings under R.C. 2929.13(B). But McIntosh did not argue
that the record failed to support any of the court's findings under R.C. 2929.13(B). Nor does
he argue that his sentence was clearly and convincingly contrary to law because the trial
court reviewed the R.C. 2929.13(B) factors when it was unnecessary to do so. He simply
argues that the trial court erred because it considered those factors when it was not required
to do so.
{¶ 56} Pursuant to R.C. 2953.08(G)(2), we are unable to modify or vacate McIntosh's
sentence based on any claimed error in the trial court's additional consideration of R.C.
2929.13(B) factors. But beyond our inability to modify or vacate the sentence, we note that
McIntosh fails to offer any explanation for how the court's additional consideration of the
R.C. 2929.13(B) factors prejudiced him. On this record, we can discern no prejudice. This
argument is meritless.
2. Reagan Tokes Law Notifications
{¶ 57} McIntosh next argues that the trial court erred by failing to properly provide
the mandatory Reagan Tokes Law notifications set forth in R.C. 2929.19(B)(2)(c). McIntosh
concedes that the trial court properly advised him—orally—of the Reagan Tokes
notifications during the sentencing hearing. But he argues that the court erred by not also
including those notifications in its written sentencing entry. This court has not previously
decided whether the mandatory Reagan Tokes notifications must be included in a written
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sentencing entry.
{¶ 58} We first turn to the text of the statute. See State v. Chappell, 127 Ohio St.3d
376, 2010-Ohio-5991, ¶ 16. R.C. 2929.19(B)(2) states in relevant part that "if the
sentencing court determines at the sentencing hearing that a prison term is necessary or
required, the court shall do all of the following * * *." (Emphasis added.) The phrase "all of
the following" refers to multiple provisions concerning sentencing notifications, including but
not limited to R.C. 2929.19(B)(2)(c). That subsection states that the sentencing court must
"notify" the offender of five advisements, set forth in R.C. 2929.19(B)(2)(c)(i)-(v), when
imposing an indefinite prison term under the Reagan Tokes Law. The statute contains no
language whatsoever referencing any obligation for the sentencing court to include the
Reagan Tokes notifications in a written sentencing entry. On the contrary, the plain
language of the statute indicates that the Reagan Tokes notifications are to be provided to
the offender "at the sentencing hearing," meaning the notifications must be orally delivered
at the hearing. Consistent with the statutory text, we conclude that R.C. 2929.19(B)(2)(c)
only requires that a sentencing court "notify" the offender of the Reagan Tokes advisements
orally "at the sentencing hearing," and does not require that the court repeat those
advisements in the written sentencing entry.
{¶ 59} McIntosh offers no contrary textual analysis. Instead, he argues a corollary,
i.e., that because mandatory postrelease control notifications must be orally given at the
sentencing hearing and must also be included in the written sentencing entry, then
mandatory Reagan Tokes notifications must be as well. In making this argument, McIntosh
relies on the fact that the provisions regarding postrelease control notifications and Reagan
Tokes notifications are set forth in the same statute, R.C. 2929.19(B)(2). Indeed, mandatory
postrelease control notifications are described in R.C. 2929.19(B)(2)(d) and (e). The same
"at the sentencing hearing" language in R.C. 2929.19(B)(2) that modifies the (c) subsection
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concerning Reagan Tokes notifications also modifies the (d) and (e) subsections concerning
postrelease control notifications. Likewise, the (d) and (e) postrelease control subsections
state that the sentencing court shall "notify" the offender of certain information, as does the
(c) subsection.
{¶ 60} McIntosh also relies on Ohio Supreme Court case law holding that the R.C.
2929.19(B)(2)(d) and (e) postrelease control notifications must be delivered orally by the
court at a sentencing hearing and must also be stated, in writing, in the court's written
sentencing entry.2 E.g., State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 1, 8; State
v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph one of the syllabus, overruled on
other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913; State v. Qualls,
131 Ohio St.3d 499, 2012-Ohio-1111, syllabus.3 McIntosh posits that "It would * * * be
nonsensical and inconsistent to require [postrelease control] notifications in the entry but
exempt the Reagan Tokes notifications from the entry."
{¶ 61} As an intermediate appellate court, we are bound to follow the Ohio Supreme
Court's precedents on postrelease control notifications, and we have repeatedly done so.
See State v. Demangone, 12th Dist. Clermont No. CA2022-11-081, 2023-Ohio-2522, ¶ 22;
State v. Williams, 12th Dist. Butler No. CA2018-03-055, 2018-Ohio-3990, ¶ 17 ("A trial court
must properly impose postrelease control at the sentencing hearing and in the sentencing
entry"). (Emphasis added). But must we follow the Ohio Supreme Court's precedents
regarding postrelease control notifications in the context of Reagan Tokes notifications?
No, for the reasons we explain below.
2. Some of the Ohio Supreme Court cases discussing the R.C. 2929.19(B)(2)(d) and (e) postrelease control
notifications refer to different subsection numbers. These provisions were moved within R.C. 2929.19 after
the statute was amended to add the Reagan-Tokes notifications (now found at R.C. 2929.19[B][2][c]) to the
statute).
3. This is a different State v. Qualls, with a different appellant, than the Tenth District State v. Qualls case
discussed earlier in this opinion.
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{¶ 62} In many cases, McIntosh's argument that our analysis of R.C.
2929.19(B)(2)(c) must be consistent with the Ohio Supreme Court's interpretation of R.C.
2929.19(B)(2)(d) and (e) would be correct. It is a well-known principle of statutory
interpretation that "If a statute uses words or phrases that have already received
authoritative construction by the jurisdiction's court of last resort * * * they are to be
understood according to that construction." Scalia & Garner, Reading Law: The
Interpretation of Legal Texts, 322 (2012). However, this canon of construction may be
"overcome[]" by "other sound rules of interpretation." Id. at 324. Such is the case here,
where the Ohio Supreme Court has not justified its requirement that postrelease control
notifications be included in sentencing entries by providing any authoritative interpretation
of any specific words in R.C. 2929.19. That is, the supreme court's reasoning in Grimes,
Jordan, and similar cases does not rest on an interpretation of the phrase "at the sentencing
hearing" in R.C. 2929.19(B)(2), on the word "[n]otify" as used in R.C. 2929.19(B)(2)(d) and
(e), or on any other word or phrase in the statute.
{¶ 63} Instead, the Ohio Supreme Court's requirement that postrelease control
notifications must be included in a sentencing entry is "completely judge-made law"
divorced from the interpretation of any word or phrase in the statute. State v. Bates, 167
Ohio St.3d 197, 2022-Ohio-475, ¶ 56 (DeWine, J., dissenting). We agree with those justices
who have pointed out that the Ohio Supreme Court's requirement that postrelease
notifications be provided not only at the sentencing hearing but also in the sentencing entry
is not supported by the text of the postrelease control notification statutes. Bates at ¶ 33
(Kennedy, J., dissenting) (R.C. 2929.19 "does not require courts to incorporate that
[postrelease control] notice into the sentencing entry, but our caselaw does") and ¶ 45, 55-
59 (DeWine, J., dissenting) ("The only notifications concerning postrelease control are to
be provided 'at the sentencing hearing.' R.C. 2929.19[B][2]"); Grimes, 2017-Ohio-2927 at
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¶ 42-45 (DeWine, J., concurring in judgment only) ("There is no statutory requirement that
anything regarding postrelease control be stated in [an offender's] sentencing entry"), and
¶ 26 (Kennedy, J., concurring in judgment only) ("I agree with the portion of Justice
DeWine's opinion concurring in judgment only that concludes that R.C. 2929.19[B[[2]
requires only that the two specified [postrelease control] notifications be provided 'at the
sentencing hearing'").
{¶ 64} Instead of basing its rule regarding postrelease control notifications on the
statutory text, the Ohio Supreme Court has provided a non-textual justification for this judge-
made law. First, the supreme court has explained that "because a court is generally said
to speak only through its journal," the postrelease control notifications must be included in
a sentencing entry. Grimes at ¶ 8 (O'Connor, C.J.), citing Jordan, 2004-Ohio-6085 at ¶ 6.
We agree that a court generally speaks only through its journal. State v. Myers, 119 Ohio
App.3d 642, 645 (12th Dist.1997). But this general principle does not mean that all of a trial
court's oral decisions or statements must be recorded in a written entry. If that were the
case, many decisions or statements made by judges at trial—such as oral decisions
denying a Crim.R. 29 motion for acquittal, or overruling objections to testimony—would be
legal nullities unless recorded in a written entry. We see no reason, then, why the general
principle that a court speaks through its journal would necessarily require that Reagan
Tokes notifications be included in a sentencing entry.
{¶ 65} The supreme court has also cited the constitutional principle of the separation
of powers as a second basis for its holding that postrelease control notifications must be
included in a sentencing entry. Jordan at ¶ 19-22, citing Woods v. Telb, 89 Ohio St.3d 504,
512-513 (2000). The supreme court reasoned that the Adult Parole Authority cannot itself
impose postrelease control, and instead can only impose postrelease control when
postrelease control is part of a judge's sentence. Id. at ¶ 19. We do not see how the
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supreme court's separation of powers concerns in the postrelease control notification
context would also apply with respect to Reagan Tokes notifications. In State v. Hacker,
Slip Opinion No. 2023-Ohio-2535, the Ohio Supreme Court held that because a judge sets
the minimum and maximum prison terms under Reagan Tokes, the Department of
Rehabilitation and Correction does not exercise judicial power in violation of the separation
of powers when it prolongs an offender's time in prison within that range. Id. at ¶ 13-25.
Nothing about the supreme court's analysis in Hacker suggests that the separation of
powers would be violated if the Reagan Tokes notifications were not included in a
sentencing entry.
{¶ 66} Because the Ohio Supreme Court's reasoning in Grimes, Jordan, and Qualls
does not apply in the Reagan Tokes notification context, and because those opinions do
not apply to Reagan Tokes notifications under R.C. 2929.19(B)(2)(c), we are free to interpret
that statute independently of Grimes, Jordan, and Qualls.
{¶ 67} Therefore, consistent with the text of the statute, we hold the Reagan Tokes
notifications required by R.C. 2929.19(B)(2)(c) must be given at a sentencing hearing, but
do not need to be restated in a sentencing entry. No statute requires that the notifications
be restated in a sentencing entry, and it is not our role to create a new law where there is
none.4 The trial court did not err by not including the Reagan Tokes notifications in the
sentencing entry.
3. Failure to Challenge Reagan Tokes Law
{¶ 68} Finally, McIntosh argues that his attorney was ineffective for failing to raise a
4. We further note that even if McIntosh were correct that Reagan Tokes notifications were required to be
stated in a sentencing entry, as is the case with postrelease control notifications, then the trial court’s failure
to do so in this case would not constitute reversible error entitling McIntosh to a new sentencing hearing.
Instead, such an error would be a clerical error that could be corrected with a nunc pro tunc entry. See Qualls,
2012-Ohio-1111 at the syllabus ("When a defendant is notified about postrelease control at the sentencing
hearing, but notification is inadvertently omitted from the sentencing entry, the omission can be corrected with
a nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing").
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constitutional challenge to the Reagan Tokes Law and that the trial court plainly erred by
"failing to acknowledge" that the Ohio Supreme Court had accepted jurisdiction over the
issue of the constitutionality of the Reagan Tokes Law. McIntosh does not specify what
constitutional argument his attorney should have raised.
{¶ 69} We have repeatedly found that the failure to raise a challenge to the
constitutionality of the Reagan Tokes Law does not constitute ineffective assistance of
counsel. State v. McClendon, 12th Dist. Warren No. CA2021-08-075, 2022-Ohio-2830, ¶
16; State v. Abner, 12th Dist. Warren No. CA2021-05-048, 2021-Ohio-4549, ¶ 25; State v.
Luttrell, 12th Dist. Warren No. CA2021-07-062, 2022-Ohio-1148, ¶ 30; State v. Roberson,
12th Dist. Warren No. CA2021-01-003, 2021-Ohio-3705, ¶ 43; and State v. Hodgkin, 12th
Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 18. Moreover, the Ohio Supreme
Court recently held that the Reagan Tokes Law is facially constitutional under the federal
Due Process Clause and does not violate the right to a jury trial or the separation-of-powers
doctrine. Hacker, Slip Opinion No. 2023-Ohio-2535 at ¶ 25, 28.
{¶ 70} Finally, McIntosh's argument that the trial court erred by "failing to
acknowledge the pending Supreme Court cases" is inexplicable. McIntosh does not explain
this argument in his appellate brief, nor can we discern any reason as to why it was error
for the trial court not to have "acknowledged" pending Supreme Court cases. This argument
is meritless.
{¶ 71} For the foregoing reasons, McIntosh's sentence is not contrary to law. We
overrule McIntosh's third assignment of error.
III. Conclusion
{¶ 72} The trial court did not plainly err at the revocation hearing by failing to consider
insanity in mitigation. McIntosh has failed to establish that his attorney provided ineffective
assistance at the revocation hearing. McIntosh failed to establish any error in his sentence.
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We therefore overrule all of McIntosh's assignments of error.
{¶ 73} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
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