Background
Norman Johnson was convicted by a jury of carrying a concealed weapon, having a weapon while under disability, and six drug offenses after police found a 9 mm handgun, drugs, and identification belonging to him in a backpack he dropped before running from a Holiday Inn in Harrison, Ohio.
At sentencing, the trial court merged the gun counts and imposed 36 months, merged the drug counts and imposed another 36 months, and ordered the terms served consecutively. Johnson appealed, raising as-applied Second Amendment challenges under New York State Rifle & Pistol Assn. v. Bruen, challenging the consecutive sentences, and alleging ineffective assistance because trial counsel did not raise a Bruen challenge.
The Court’s Holding
The court affirmed. Johnson forfeited his constitutional challenges by not raising them in the trial court. Although an appellate court may consider a forfeited constitutional issue for plain error, Johnson did not make a plain-error argument in his opening brief, and the court declined to construct one for him. His reply-brief plain-error argument came too late.
The court also held that the trial judge made the findings required for consecutive sentences and that the record supported them, including Johnson’s criminal history and high risk of recidivism. Finally, Johnson could not show prejudice from counsel’s failure to raise a Bruen challenge because his record—including a felonious-assault adjudication involving a gun and an Indiana domestic-battery conviction—meant there was no reasonable probability that he could overcome a dangerousness analysis.
Key Takeaways
- An as-applied Bruen challenge not raised below is forfeited unless properly presented as plain error on appeal.
- A plain-error argument first raised in a reply brief will not be considered.
- Consecutive sentences were supported where the trial court made the statutory findings and relied on the defendant’s criminal history.
Why It Matters
The decision underscores that defendants seeking to challenge Ohio firearms statutes under the Second Amendment must preserve those arguments in the trial court or squarely argue plain error in their opening appellate briefs.
It also illustrates that a defendant’s prior violent and weapons-related history may defeat an ineffective-assistance claim based on counsel’s failure to pursue a post-Bruen Second Amendment challenge.