Opinion
22AP0007
07-31-2023
STATE OF OHIO Plaintiff-Appellee v. ANTHONY CHARLES SENYAK Defendant-Appellant
For Plaintiff-Appellee MARK HOWDYSHELL For Defendant-Appellant BRIAN W. BENBOW
Appeal from the Court of Common Pleas, Case No. 22CR0043
JUDGMENT: Affirmed
For Plaintiff-Appellee MARK HOWDYSHELL
For Defendant-Appellant BRIAN W. BENBOW
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J.
OPINION
KING, J.
{¶ 1} Defendant-Appellant Anthony Charles Senyak appeals the September 13, 2022 judgment of sentence and conviction of the Morgan County Court of Common Pleas. Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} This matter arose on May 15, 2022 when a Morgan County Sheriff's deputy was dispatched to Jesse Owens Park in reference to an assault with a hatchet. Senyak had asked the victim, a stranger to him, for a ride into town. When the victim refused, Senyak attacked him with a hatchet, striking the victim in the hand and head. The victim was armed and shot at Senyak, ending the attack. The victim's hand injury required 14 stitches and his head injury required 3 stitches.
{¶ 3} On May 18, 2022, the Morgan County Grand Jury returned an indictment charging Senyak with one count of felonious assault pursuant to R.C. 2903.11(A)(2), a felony of the second degree.
{¶ 4} On June 21, 2022, Senyak entered a plea of guilty to the charge and the trial court ordered a presentence investigation. On September 12, 2022, after reviewing the presentence investigation, hearing from the victim and considering all applicable statutory factors, the trial court sentenced Senyak to an indefinite term of incarceration of 7 to 10 and a half years.
{¶ 5} By judgment entry filed March 13, 2023, this Court noted that counsel had filed an Anders brief and indicated to the court that he had served Senyak with the brief. Accordingly, this court notified Senyak via certified U.S. Mail that he "may file a pro se brief in support of the appeal within 60 days from the date of this entry." Senyak did not do so. The state of Ohio did not file a response brief.
{¶ 6} The matter is now before this court for consideration of counsel's Anders brief.
{¶ 7} In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) the Supreme Court of the United States held if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then counsel should so advise the court and request permission to withdraw. Anders at 744. Counsel must accompany his/her request with a brief identifying anything in the record that could arguably support the defendant's appeal. Id. Counsel also must: (1) furnish the defendant with a copy of the brief and request to withdraw; and, (2) allow the defendant sufficient time to raise any matters that the defendant chooses. Id. Once the defendant's counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant the counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id.
{¶ 8} Appellate counsel suggests there are no issues that could be considered meritorious in the following proposed assignments of error:
I
{¶ 9} "THE COURT ERRED IN IMPOSING A SENTENCE THAT WAS GROSSLY DISPROPORTIONATE TO APPELLANT'S CONDUCT AND NOT IN ACCORDANCE WITH STATUTES GOVERNING FELONY SENTENCING AND WHICH DEMONSTRATED A UNNECESSARY BURDEN ON STATE RESOURCES."
II
{¶ 10} "APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V WASHINGTON (1984) 466 U.S. 668, 80 L.ED.2D 674, 104 S.CT. 2052."
III
{¶ 11} "AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. APPELLANT'S SENTENCE IS CONTRARY TO LAW BECAUSE HE WAS SENTENCE PURSUANT TO THE UNCONSTITUTIONAL REAGAN TOKES ACT. THIS ACT VIOLATES THE SEPARATION OF POWERS DOCTRINE, AS IT PLACES THE DECISION TO EXTEND A PRISON TERM UPON THE STATE --- NOT THE TRIAL COURT. IT FURTHER VIOLATED DUE PROCESS IN THAT THE DECISION TO RESTRICT AN INDIVIDUAL'S FREEDOM IS MADE BY A JUDGE IN VIOLATION OF HIS RIGHT TO A JURY TRIAL TO DECIDE WHETHER HIS MINIMUM SENTENCE SHOULD BE INCREASED.
I
{¶ 12} In the first proposed assignment of error, counsel proposes appellant's sentence was grossly disproportionate to his conduct and not in accordance with felony sentencing guidelines which results in an unnecessary burden on state resources. We disagree.
{¶ 13} This court reviews felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. 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.
{¶ 14} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 15} "A sentence is not clearly and convincingly contrary to law where the 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 post release control, and sentences the defendant within the permissible statutory range.'" State v. Morris, 5th Dist. Ashland No. 20-COA-015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 16} During sentencing, neither party argued that Senyak's sentence was outside the permissible statutory range for a felony in the second degree. The maximum sentence for a second-degree felony is 8 years. R.C. 2929.14(2)(a). The trial court sentenced Senyak to 7 years and imposed the appropriate tail pursuant to R.C. 2967.271. The trial court further indicated it had considered the purposes and principals of sentencing, the factors listed in R.C. 2929.12, the victim impact statement, the presentence investigation, and properly imposed post-release control. Transcript of sentencing (T) 18-21. Senyak's sentence is therefore not contrary to law.
{¶ 17} Nor is Senyak's sentence disproportionate to his conduct or an unnecessary burden on state resources. He attacked the victim, a complete stranger to Senyak, with a hatchet when the victim refused to give him a ride. Moreover, the trial court noted a prison term was mandatory as Senyak had previously been convicted of a first-degree felony. T. 25-26. Senyak's extensive prior record additionally supports an argument in favor of a prison term.
{¶ 18} Upon review, we find nothing in the record to support an argument that Senyak's sentence is disproportionate to his conduct, not in accordance with relevant sentencing statutes, or an unnecessary burden on state resources.
II
{¶ 19} Counsel's next proposed assignment of error suggests ineffective assistance of counsel based on counsel's failure to challenge the imposition of an indefinite sentence pursuant to the Reagan Tokes Act.
{¶ 20} The standard this issue must be measured against is set out in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.
{¶ 21} Upon review of the record, and for the reasons stated in the final proposed assignment of error, we find no acts by trial counsel nor any failure to act upon which a successful claim of ineffective assistance could be based.
III
{¶ 22} In the final proposed assignment of error, counsel suggests the imposition of an indefinite sentence violates the constitutions of the United States and the state of Ohio because the Reagan Tokes Act, codified in R.C. 2967.271, violates Senyak's right to a jury trial, the doctrine of separation of powers, and due process principals under the federal and state constitutions. We disagree.
{¶ 23} We rejected the same challenges in State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-Ohio-1542, ¶ 6:
For the reasons stated in the dissenting opinion of The Honorable W. Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, we find the Reagan Tokes Law does not violate Appellant's constitutional rights to trial by jury and due process of law, and does not violate the constitutional requirement of separation of powers. We hereby adopt the dissenting opinion in Wolfe as the opinion of this Court. In so holding, we also note the sentencing law has been found constitutional by the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-Ohio-1350;
State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470. Further, we reject Appellant's claim the Reagan Tokes Act violates equal protection for the reasons stated in State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶ 24} After independently reviewing the record, we agree with appellate counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. We therefore find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the trial court.
{¶ 25} The judgment of the Court of Common Pleas of Morgan County, Ohio, is hereby affirmed.
King, J., Delaney, P.J. and Baldwin, J. concur.