State v. Cochran , 2020 Ohio 5329 ( 2020 )


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  • [Cite as State v. Cochran, 
    2020-Ohio-5329
    .]
    COURT OF APPEALS
    LICKING COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO,                                :     JUDGES:
    :     Hon. William B. Hoffman, P.J.
    Plaintiff - Appellee                  :     Hon. W. Scott Gwin, J.
    :     Hon. Craig R. Baldwin, J.
    -vs-                                          :
    :
    JEREMY COCHRAN                                :     Case No. 2019 CA 00122
    :
    Defendant - Appellant                 :     OPINION
    CHARACTER OF PROCEEDING:                            Appeal from the Licking County
    Court of Common Pleas, Case No.
    19-00454
    JUDGMENT:                                           Dismissed in part; Affirmed in part
    DATE OF JUDGMENT:                                   November 18, 2020
    APPEARANCES:
    For Plaintiff-Appellee                              For Defendant-Appellant
    WILLIAM C. HAYES                                    JAMES A. ANZELMO
    Licking County Prosecutor                           Anzelmo Law
    446 Howland Drive
    By: PAULA M. SAWYERS                                Gahanna, Ohio 43230
    Assistant Prosecuting Attorney
    20 S. Second Street, Fourth Floor
    Newark, Ohio 43055
    Licking County, Case No. 2019 CA 00122                                                  2
    Baldwin, J.
    {¶1}      Appellant, Jeremy Cochran, appeals the trial court’s sentence for a violation
    of R.C. 2925.03, aggravated trafficking in drugs, a second degree felony, and a violation
    of R.C. 2925.11, aggravated possession of drugs, a second-degree felony. Appellee is the
    State of Ohio.
    STATEMENT OF FACTS AND THE CASE
    {¶2}      Cochran was indicted for a violation of R.C. 2925.03 and R.C. 2925.11,
    felonies of the second degree, and the case was scheduled for a jury trial on October 22,
    2019. The facts surrounding the offenses that led to his arrest and indictment are not
    needed for the disposition of this appeal and are omitted. When Cochran appeared for his
    trial, he notified the court, prior to the commencement of any proceedings, that he decided
    to change his plea to guilty. At the opening of the hearing the court explained, “[w]e were
    informed that it would be a Change of Plea and Sentencing.” The parties agreed that was
    correct and the court proceeded to conduct a colloquy with Cochran.
    {¶3}      We know that the trial court recognized that Cochran’s sentence would be
    affected by the Reagan-Tokes Act (R.C. 2967.271) because the prosecutor described the
    jointly recommended sentence as three years and the judge corrected him by stating, “It
    can't be three years because it's a Reagan Tokes Act case.” Later during the plea hearing
    the trial court explains to Cochran that the recommended sentence is three to four and
    one half years and that “I’ll explain more of that to you in a little bit greater detail here in
    just a minute.”
    {¶4}      The trial court proceeded with the colloquy and provided Cochran
    information required by R.C. 2929.19(B)(2)(c) as part of the explanation of Cochran’s
    Licking County, Case No. 2019 CA 00122                                                3
    rights and the consequence of entering a guilty plea. The court asked the prosecutor to
    describe the facts of the case and, after Cochran agreed with the facts, the trial court found
    Cochran guilty on both counts. The trial court asked defense counsel if there was “any
    reason why sentencing should not proceed at this point” and the following exchange
    occurred:
    MR. DALSANTO: Your Honor, I do understand there's a joint
    recommendation in this case, but for the reasons that I stated in chambers
    -- uh -- I would ask that the Court consider ordering a Pre-Sentence
    Investigation in this case. Thank you.
    THE COURT: Mr. -- um --
    MR. CASE: We have no objection --
    THE COURT: -- Case.
    MR. CASE: -- Your Honor.
    THE COURT: Okay. Alright. Then I'll order a PSI. I will revoke bond, defer
    sentencing, order a PSI, and Mr. DalSanto if you'll stop back in the Court uh
    -- Chambers, get a date --
    MR. DALSANTO: Yes, Your Honor.
    THE COURT: -- right now, we'll get you back on the calendar.
    {¶5}   Cochran returned to the trial court on November 15, 2019 and the trial court
    opened the hearing by stating, “The case is scheduled for a sentencing hearing.” The court
    reviewed the prior proceedings, commented that Cochran had appeared before the court
    on October 22, 2019 and entered guilty pleas and that sentencing was deferred for a PSI.
    The trial court asked defense counsel if there was any reason that sentencing should not
    Licking County, Case No. 2019 CA 00122                                                   4
    proceed and, upon receiving counsel’s response, he inquired as to the parties’ position on
    sentencing, considered their responses, and engaged in a conversation with Cochran. The
    trial court rejected the joint recommendation and imposed a term of four to six years.
    {¶6}   Cochran filed a notice of appeal and submitted three assignments of error:
    {¶7}   “I. 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.”
    {¶8}   “II. JEREMY COCHRAN RECEIVED INEFFECTIVE ASSISTANCE OF
    COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
    CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
    {¶9}   “III. THE TRIAL COURT SENTENCED COCHRAN TO AN INDEFINITE
    PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN
    VIOLATION OF COCHRAN'S RIGHTS TO DUE PROCESS.”
    ANALYSIS
    {¶10} In his first Assignment of Error, Cochran challenges the presumptive
    release feature of R.C. 2967.271, arguing it violates his constitutional right to due process
    of law. In his second Assignment of Error, Cochran argues his trial counsel was ineffective
    by failing to raise the constitutionality of R.C. 2967.271 in the trial court. We will address
    these assignments of error together.
    {¶11} Revised Code 2967.271 provides in pertinent part:
    (B) When an offender is sentenced to a non-life felony indefinite prison term,
    there shall be a presumption that the person shall be released from service
    Licking County, Case No. 2019 CA 00122                                               5
    of the sentence on the expiration of the offender's minimum prison term or
    on the offender's presumptive earned early release date, whichever is
    earlier.
    (C) The presumption established under division (B) of this section is a
    rebuttable presumption that the department of rehabilitation and correction
    may rebut as provided in this division. Unless the department rebuts the
    presumption, the offender shall be released from service of the sentence on
    the expiration of the offender's minimum prison term or on the offender's
    presumptive earned early release date, whichever is earlier. The
    department may rebut the presumption only if the department determines,
    at a hearing, that one or more of the following applies:
    (1)    Regardless of the security level in which the offender is
    classified at the time of the hearing, both of the following apply:
    (a)    During the offender's incarceration, the offender committed
    institutional rule infractions that involved compromising the security
    of a state correctional institution, compromising the safety of the staff
    of a state correctional institution or its inmates, or physical harm or
    the threat of physical harm to the staff of a state correctional
    institution or its inmates, or committed a violation of law that was not
    prosecuted, and the infractions or violations demonstrate that the
    offender has not been rehabilitated.
    (b)    The offender's behavior while incarcerated, including, but not
    limited to the infractions and violations specified in division (C)(1)(a)
    Licking County, Case No. 2019 CA 00122                                           6
    of this section, demonstrate that the offender continues to pose a
    threat to society.
    (2)    Regardless of the security level in which the offender is
    classified at the time of the hearing, the offender has been placed by
    the department in extended restrictive housing at any time within the
    year preceding the date of the hearing.
    (3)    At the time of the hearing, the offender is classified by the
    department as a security level three, four, or five, or at a higher
    security level.
    (D)(1) If the department of rehabilitation and correction, pursuant to
    division (C) of this section, rebuts the presumption established under
    division (B) of this section, the department may maintain the
    offender's incarceration in a state correctional institution under the
    sentence after the expiration of the offender's minimum prison term
    or, for offenders who have a presumptive earned early release date,
    after the offender's presumptive earned early release date. The
    department may maintain the offender's incarceration under this
    division for an additional period of incarceration determined by the
    department. The additional period of incarceration shall be a
    reasonable period determined by the department, shall be specified
    by the department, and shall not exceed the offender's maximum
    prison term.
    Licking County, Case No. 2019 CA 00122                                                7
    (2) If the department maintains an offender's incarceration for an
    additional period under division (D)(1) of this section, there shall be
    a presumption that the offender shall be released on the expiration
    of the offender's minimum prison term plus the additional period of
    incarceration specified by the department as provided under that
    division or, for offenders who have a presumptive earned early
    release date, on the expiration of the additional period of
    incarceration to be served after the offender's presumptive earned
    early release date that is specified by the department as provided
    under that division. The presumption is a rebuttable presumption that
    the department may rebut, but only if it conducts a hearing and
    makes the determinations specified in division (C) of this section, and
    if the department rebuts the presumption, it may maintain the
    offender's incarceration in a state correctional institution for an
    additional period determined as specified in division (D)(1) of this
    section.
    Unless the department rebuts the presumption at the hearing, the
    offender shall be released from service of the sentence on the
    expiration of the offender's minimum prison term plus the additional
    period of incarceration specified by the department or, for offenders
    who have a presumptive earned early release date, on the expiration
    of the additional period of incarceration to be served after the
    Licking County, Case No. 2019 CA 00122                                              8
    offender's presumptive earned early release date as specified by the
    department.
    The provisions of this division regarding the establishment of a
    rebuttable    presumption,   the     department's   rebuttal   of   the
    presumption, and the department's maintenance of an offender's
    incarceration for an additional period of incarceration apply, and may
    be utilized more than one time, during the remainder of the offender's
    incarceration.
    If the offender has not been released under division (C) of this
    section or this division prior to the expiration of the offender's
    maximum prison term imposed as part of the offender's non-life
    felony indefinite prison term, the offender shall be released upon the
    expiration of that maximum term.
    {¶12} Cochran argues the portions of the statute which allow the Department of
    Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond
    his presumptive minimum prison term violate the United States and Ohio Constitutions.
    Cochran, however, has not yet been subject to the application of these provisions, as he
    has not yet served his minimum term, and therefore has not been denied release at the
    expiration of his minimum term of incarceration.
    {¶13} This Court recently analyzed an appeal of a sentence imposed pursuant to
    the Reagan Tokes Act. See State v. Downard, 5th Dist. Muskingum No. CT2019-0079,
    
    2020-Ohio-4227
     and State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-
    4631.The appellants in Downard and Kibler entered guilty pleas and were sentenced, with
    Licking County, Case No. 2019 CA 00122                                                    9
    the sentences in both cases affected by the Reagan Tokes Act. Both appellants appealed,
    arguing the Reagan Tokes Act violated their constitutional rights to due process and trial
    by jury.
    {¶14} In both Downard and Kibler we considered the legal concept of “ripeness
    for review:”
    The Ohio Supreme Court discussed the concept of ripeness for
    review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 
    82 Ohio St.3d 88
    , 
    1998-Ohio-366
    , 
    694 N.E.2d 459
    :
    Ripeness “is peculiarly a question of timing.” Regional Rail
    Reorganization Act Cases (1974), 
    419 U.S. 102
    , 140, 
    95 S.Ct. 335
    , 357, 
    42 L.Ed.2d 320
    , 351. The ripeness doctrine is motivated in part by the desire
    “to prevent the courts, through avoidance of premature adjudication, from
    entangling themselves in abstract disagreements over administrative
    policies * * *.” Abbott Laboratories v. Gardner (1967), 
    387 U.S. 136
    , 148, 
    87 S.Ct. 1507
    , 1515, 
    18 L.Ed.2d 681
    , 691. As one writer has observed:
    “The basic principle of ripeness may be derived from the conclusion that
    ‘judicial machinery should be conserved for problems which are real or
    present and imminent, not squandered on problems which are abstract or
    hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on
    jurisdiction that is nevertheless basically optimistic as regards the prospects
    of a day in court: the time for judicial relief is simply not yet arrived, even
    though the alleged action of the defendant foretells legal injury to the
    Licking County, Case No. 2019 CA 00122                                              10
    plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings
    Twice (1965), 65 Colum. L.Rev. 867, 876. *4 Id. at 89, 694 N.E.2d at 460.
    Downard, at ¶¶ 8-9.
    {¶15} We found the appellants’ appeals of the constitutionality of the Reagan
    Tokes Act were not ripe for review. “* * * [W]hile R.C. 2967.271 allows the DRC to rebut
    the presumption Appellant will be released after serving his **** minimum sentence and
    potentially continue his incarceration to a term not [exceeding the maximum time],
    Appellant has not yet been subject to such action by the DRC, and thus the constitutional
    issue is not yet ripe for our review.” Downard, at ¶ 11. We determined the appropriate
    action for the appellant was “to challenge the constitutionality of the presumptive release
    portions of R.C. 2967.271 is by filing a writ of habeas corpus if he is not released at the
    conclusion of his eight year minimum term of incarceration.” Downard, at ¶ 12.
    {¶16} We find that the issues presented in the current case are identical to those
    in Downard and Kibler. On November 15, 2019, Cochran was sentenced to a minimum
    prison term of four years and an indefinite prison term of six years. There is no dispute
    that Cochran has not yet been subject to R.C. 2967.271, which allows the DRC to rebut
    the presumption that he will be released after serving his four year minimum sentence and
    potentially continuing his incarceration to a term not exceeding six years. The
    constitutional issues argued by Cochran, pursuant to Downard and Kibler are not yet ripe
    for review. (See also State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 
    2020-Ohio-4702
    ).
    {¶17} The first two Assignments of Error are overruled.
    Licking County, Case No. 2019 CA 00122                                              11
    III.
    {¶18} In his third assignment of error, Cochran complains that the trial court failed
    to comply with R.C. 2929.19(B)(2)(c) because the court did not provide the requisite
    notices at his sentencing hearing and that the sentence is contrary to law. Cochran
    emphasizes that the notices were not provided "[a]t the sentencing hearing" focusing on
    the timing of the notices rather than the content. Appellee responds to the argument,
    contending that the notices were provided and that the sentencing hearing would have
    been held but for Cochran's request for a continuance.
    {¶19} Cochran appeared before the court on October 22, 2019 to enter a change
    of plea after he and the appellee reached an agreement on a joint recommendation of
    three years with a maximum of four and one half years. The court engaged in a standard
    colloquy and referenced the notices required by R.C. 2929.19(B)(2)(c) and accepted
    Cochran’s guilty plea, but deferred sentencing for the completion of a pre-sentence
    investigation at the request of Cochran.
    {¶20} On November 15, 2019, Cochran was back before the court. The trial court
    noted that Cochran entered guilty pleas on October 22, 2019 and that sentencing was
    deferred to complete a pre-sentence investigation. Cochran moved for merger of the
    counts and appellee agreed, and the court merged the counts. The trial court engaged in
    a lengthy discussion with Cochran about his criminal history, rejected the joint
    recommendation, and imposed an indefinite sentence of four years minimum to a
    maximum of six years. The trial court notified Cochran of the mandatory period of post
    release control and concluded the hearing but did not reference the notices required by
    R.C. 2929.19(B)(2)(c) at the November 15, 2019 hearing.
    Licking County, Case No. 2019 CA 00122                                              12
    {¶21} Appellee characterizes the October 22, 2019 hearing as a "plea and
    sentencing hearing" and the trial court does begin the hearing by noting that the matter
    was scheduled for trial but that he had been informed that "it would be a change of plea
    and sentencing," corroborating the appellee's description of the hearing. Appellee
    contends that because the notices were provided at the October “plea and sentencing”
    hearing, the statutory notices provided in October satisfy the requirement that the notices
    be provided at sentencing. We have reviewed the record and we agree with appellee’s
    analysis.
    {¶22} The hearing on November 15, 2019, was not the initial sentencing hearing,
    but a continuation of the October 22, 2019 plea and sentencing hearing. As such, the trial
    court was not obligated to repeat the R.C. 2929.19(B)(2)(c) notices. For an analogous
    result see State v. Baumgardner, 5th Dist. Morgan County App. No. 15AP0014, 2017-
    Ohio-50.
    {¶23} The appellant's third assignment of error is overruled.
    Licking County, Case No. 2019 CA 00122                                              13
    {¶24} We hold the first two assignments of error not ripe for consideration and
    dismiss that portion of the appeal. The third assignment of error is denied. The decision of
    the Licking County Court of Common Pleas is affirmed.
    By: Baldwin, J.
    Hoffman, P.J. concur
    Gwin, J. dissents.
    Licking County, Case No. 2019 CA 00122                                                14
    Gwin, J., dissents
    {¶25} I respectfully dissent from the majority’s opinion.
    I.
    Ripeness.
    {¶26} Ripeness reflects constitutional considerations that implicate “Article III
    limitations on judicial power,” as well as “prudential reasons for refusing to exercise
    jurisdiction.” Reno v. Catholic Social Services, Inc., 
    509 U.S. 43
    , 57, n. 18, 
    113 S.Ct. 2485
    , 
    125 L.Ed.2d 38
     (1993). In evaluating a claim to determine whether it is ripe for
    judicial review, courts should consider both “the fitness of the issues for judicial decision”
    and “the hardship of withholding court consideration.” National Park Hospitality Assn. v.
    Department of Interior, 
    538 U.S. 803
    , 808, 
    123 S.Ct. 2026
    , 
    155 L.Ed.2d 1017
     (2003). The
    Supreme Court has stated that the “basic rationale” of the ripeness doctrine “is to prevent
    the courts, through premature adjudication, from entangling themselves in abstract
    disagreements.” Abbott Laboratories v. Gardner, 
    387 U.S. 136
    , 148, 
    87 S.Ct. 1507
    , 
    18 L.Ed.2d 681
     (1967).
    {¶27} In determining the “likelihood” that an injury will come to pass, the Supreme
    Court has made clear that “[o]ne does not have to await consummation of threatened
    injury to obtain preventive relief.” Blum v. Yaretsky, 
    457 U.S. 991
    , 1000, 
    102 S.Ct. 2777
    ,
    
    73 L.Ed.2d 534
     (1982). For example, in the Regional Rail Reorganization Act Cases, 
    419 U.S. 102
    , 
    95 S.Ct. 335
    , 
    42 L.Ed.2d 320
     (1974), the Court deemed ripe an action brought
    by eight major railroads challenging the conveyance of their property to Conrail. Although
    a reorganization plan had not yet been formulated and a special court had not yet ordered
    the conveyances, the Court reasoned that “where the inevitability of the operation of a
    Licking County, Case No. 2019 CA 00122                                                   15
    statute against certain individuals is patent, it is irrelevant to the existence of a justiciable
    controversy that there will be a time delay before the disputed provisions will come into
    effect.” 
    Id. at 143
    , 
    95 S.Ct. 335
    . Although not requiring “inevitability,” the Court has held
    that a claim is ripe when it is “highly probable” that the alleged harm or injury will occur.
    {¶28} “Three factors guide the ripeness inquiry: ‘(1) the likelihood that the
    harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record
    is sufficiently developed to produce a fair adjudication of the merits of the parties’
    respective claims; and (3) the hardship to the parties if judicial relief is denied at
    this stage in the proceedings.’ ” Berry v. Schmitt, 
    688 F.3d 290
    , 298 (6th Cir. 2012)
    (quoting Grace Cmty. Church v. Lenox Twp., 
    544 F.3d 609
    , 615 (6th Cir. 2008)).
    See also, Reno v. Catholic Social Services, Inc., 509 U.S.43, 71, 
    113 S.Ct. 2485
    ,
    
    125 L.Ed.2d 38
    (1993)(O’Conner, J. concurring)(“These are just the kinds of factors
    identified in the two-part, prudential test for ripeness that Abbott Laboratories [v.
    Gardner, 
    387 U.S. 136
    , 
    87 S.Ct. 1507
    , 
    18 L.Ed.2d 681
    (1967)] articulated. “The
    problem is best seen in a twofold aspect, requiring us to evaluate both the fitness
    of the issues for judicial decision and the hardship to the parties of withholding
    court consideration.” 
    387 U.S., at 149
    , 
    87 S.Ct. at 1515
    . See Thomas v. Union
    Carbide Agricultural Products Co., 
    473 U.S. 568
    , 581–582, 
    105 S.Ct. 3325
    , 3333,
    
    87 L.Ed.2d 409
     (1985) (relying upon Abbott Laboratories test); Pacific Gas, supra,
    461 U.S., at 200–203, 103 S.Ct., at 1720–1721 (same); National Crushed Stone,
    supra, 449 U.S., at 72–73, n. 12, 101 S.Ct., at 301–302, n. 12 (same).”). As the
    court in Riva v. Commonwealth of Massachusetts noted,
    Licking County, Case No. 2019 CA 00122                                                   16
    Although it is a familiar bromide that courts should not labor to protect
    a party against harm that is merely remote or contingent, see, e.g., Ernst &
    Young, 45 F.3d at 536; Massachusetts Ass’n of Afro–Am. Police, 973 F.2d
    at 20; Lincoln House v. Dupre, 
    903 F.2d 845
    , 847 (1st Cir. 1990), there is
    some play in the joints. For example, even when the direct application of a
    statute is open to a charge of remoteness by reason of a lengthy, built-in
    time delay before the statute takes effect, ripeness may be found as long
    as the statute’s operation is inevitable (or nearly so). See, e.g., Regional
    Rail Reorg. Act Cases, 
    419 U.S. 102
    , 142–43, 
    95 S.Ct. 335
    , 357–58, 
    42 L.Ed.2d 320
     (1974). And, even when the direct application of such a statute
    is subject to some degree of contingency, the statute may impose
    sufficiently serious collateral injuries that an inquiring court will deem the
    hardship component satisfied. See Erwin Chemerinsky, Federal Jurisdiction
    § 2.4.2, at 121–22 (2d ed. 1994). In general, collateral effects can rise to
    this level when a statute indirectly permits private action that causes present
    harm, or when a party must decide currently whether to expend substantial
    resources that would be largely or entirely wasted if the issue were later
    resolved in an unfavorable way. See, e.g., Pacific Gas, 461 U.S. at 201,
    103 S.Ct. at 1720–21; Duke Power Co. v. Carolina Envtl. Study Group, Inc.,
    
    438 U.S. 59
    , 81–82, 
    98 S.Ct. 2620
    , 2634–35, 
    57 L.Ed.2d 595
     (1978)
    
    61 F.3d 1003
    , 1010(1st Cir. 1995).
    In United Public Workers v. Mitchell, 
    330 U.S. 75
    , 
    67 S.Ct. 556
    , 
    91 L.Ed. 754
     (1947), the Supreme Court held that review of the Hatch Act,
    Licking County, Case No. 2019 CA 00122                                               17
    which prohibits federal employees from engaging in certain political
    activities, was non-justiciable with respect to those plaintiff-employees who
    had not yet    engaged in any of the prohibited activity. Subsequently,
    however, the Court relaxed Mitchell’s strict approach to justiciability. If the
    injury is clearly impending, the Court has held that the plaintiffs need not
    await consummation of the injury to bring their suit. Babbitt v. United Farm
    Workers National Union, 
    442 U.S. 289
    , 298, 
    99 S.Ct. 2301
    , 2308, 
    60 L.Ed.2d 895
     (1979); Regional Rail Reorganization Act Cases, 
    419 U.S. 102
    ,
    143, 
    95 S.Ct. 335
    , 358, 
    42 L.Ed.2d 320
     (1974); Steffel v. Thompson, 
    415 U.S. 452
    , 459, 
    94 S.Ct. 1209
    , 1215, 
    39 L.Ed.2d 505
     (1974); Pennsylvania
    v. West Virginia, 
    262 U.S. 553
    , 593, 
    43 S.Ct. 658
    , 663, 
    67 L.Ed. 1117
    (1923).
    Signorelli v. Evans, 
    637 F.2d 853
    , 856-857(2nd Cir. 1980).
    {¶29} The Ohio Supreme Court has interpreted a “justiciable matter” to
    mean the existence of an actual controversy, a genuine dispute between adverse
    parties. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas,
    
    74 Ohio St.3d 535
    , 542, 
    660 N.E.2d 458
     (1996). In order for a justiciable question
    to exist, the “threat” to a party’s position “must be actual and genuine and not
    merely possible or remote.” M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C., 2014-
    Ohio-2537, 
    14 N.E.3d 1054
    , ¶ 17, citing Mid–Am. Fire & Cas. Co. v. Heasley, 
    113 Ohio St.3d 133
    , 
    2007-Ohio-1248
    , 
    863 N.E.2d 142
    , ¶ 9.
    {¶30} In the present case, every individual throughout the State of Ohio
    who is convicted of a first or second degree felony must be sentenced under the
    Licking County, Case No. 2019 CA 00122                                                     18
    Regan Tokes Law. It is a virtual certainty that a number of those individuals,
    perhaps a significantly large number, will have the DRC extend his or her
    incarceration beyond the presumed release date.           This is not an abstract or
    hypothetical case; rather, it is a virtual certainty to occur. Under Regan Tokes, the
    question is not if a defendant will be denied his or her presumptive release date;
    but rather when a defendant’s sentence will be extended.
    {¶31} The record before this Court is sufficiently developed to allow us to
    produce a fair adjudication of the merits of the parties’ respective claims. It is not
    unusual for courts to be asked to pass upon the constitutionality of statute. The
    constitutional arguments are capable of being addressed in the present appeal
    {¶32} I would call attention to the fact that other jurisdictions have implicitly
    determined the issue to be ripe for review by addressing the constitutional
    challenge to the Regan Tokes provisions regarding future, possible extensions of
    a prison term beyond the presumed minimum term. The Second District Court of
    Appeals found the law constitutional in State v. Barnes, 2nd Dist. Montgomery No.
    28613, 
    2020-Ohio-4150
    , State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-
    Ohio-4592, and State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-
    4153. The Third District Court of Appeals found the law constitutional in State v.
    Hacker, 3rd Dist. Logan No. 8-20-01, 
    2020-Ohio-5048
    . The Twelfth District Court
    of Appeals also determined the law was constitutional in State v. Guyton, 12th Dist.
    Butler No. CA2019-12-203, 
    2020-Ohio-3837
    , State v. Rodgers, 12th Dist. No.
    Butler CA2019-11-194, 
    2020-Ohio-4102
    , and State v. Morris, 12th Dist. Butler No.
    CA2019-12-205, 
    2020-Ohio-4103
    . I would further note that the Sixth District has
    Licking County, Case No. 2019 CA 00122                                                  19
    certified the ripeness issue to the Ohio Supreme Court as being in conflict with the
    decisions from the Second and Twelfth Districts that have found the law
    constitutional. State v. Velliquette, 6th Dist. Logan No. L-19-1232, 
    2020-Ohio-4855
    .
    {¶33} The hardship to the parties if judicial relief is denied at this stage in
    the proceedings is real and immense. At the present time, the indigent appellant,
    who wishes to raise a constitutional challenge to the law in his or her direct appeal
    as of right, has the assistance of appointed counsel. If, for example, the appellant
    must wait for three years for the DRC to extend his sentence, both the inmate and
    the courts will face a myriad of legal hurdles. First, how will the inmate inform the
    court of his or her desire to appeal the constitutionally of the law? Next, is the
    inmate entitled to appointed counsel to pursue such an appeal? If the inmate is
    not, then an incarcerated inmate with limited legal resources and acumen will have
    to cobble together a highly involved constitutional argument without the assistance
    of counsel and with extremely limited access to legal resources. It will also become
    evident that the DRC decision extending the inmate’s sentence is not part of the
    trial court record. In order to establish that the inmate’s sentence was in fact
    extended, will the trial court be required to order the DRC to file its decision with
    the clerk of courts for inclusion in the trial and appellate court records? Further,
    the inmate will necessarily have to await the trial court decision on the
    constitutionality of the law, the court of appeals decision and eventually the
    decision of the Ohio Supreme Court, a process that can take years. In the event
    that the inmate gains his or her release before then, the issue will no doubt be
    declared moot. Additionally, if the law is declared unconstitutional years from now,
    Licking County, Case No. 2019 CA 00122                                               20
    courts will be inundated with writs of habeas corpus, motions and other request for
    release or resentencing from the hundreds of inmates who were sentenced under
    the law and not permitted to appeal the constitutionality of the law in the inmates
    direct appeal. Finally, the inmate will have been incarcerated perhaps years
    beyond his release date for the time it takes to decide the issue in the event the
    law is found to be unconstitutional.
    {¶34} It is clear on these facts that Appellant has demonstrated sufficient
    hardship, and that the question of the constitutionality of the Regan Tokes Law is fit for
    our review at this time. I find that nothing is to be gained by postponing for possibly years
    the unavoidable constitutional challenge to the Regan Tokes provisions regarding future,
    possible extensions of a prison term beyond the presumed minimum term.
    The Regan Tokes Law.
    {¶35} The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became
    effective on March 22, 2019.        The Reagan Tokes Law, “significantly altered the
    sentencing structure for many of Ohio’s most serious felonies’ by implementing an
    indefinite sentencing system for those non-life felonies of the first and second degree,
    committed on or after the effective date.” State v. Polley, 6th Dist. Ottawa No. OT-19-
    039, 
    2020-Ohio-3213
    , ¶ 5, fn. 1.
    {¶36} As with any statute enacted by the General Assembly, the Reagan Tokes
    Law is entitled to a “strong presumption of constitutionality.” State v. Romage, 
    138 Ohio St.3d 390
    , 
    2014-Ohio-783
    , 
    7 N.E.3d 1156
    , ¶ 7. Thus, “if at all possible, statutes must be
    construed in conformity with the Ohio and the United States Constitutions.” State v.
    Collier, 
    62 Ohio St.3d 267
    , 269, 
    581 N.E.2d 552
     (1991).           A party challenging the
    Licking County, Case No. 2019 CA 00122                                               21
    constitutionality of a statute bears the burden of proving that it is unconstitutional beyond
    a reasonable doubt. State v. Bloomer, 
    122 Ohio St.3d 200
    , 
    2009-Ohio-2462
    , 
    909 N.E.2d 1254
    , ¶ 41, citing State v. Ferguson, 
    120 Ohio St.3d 7
    , 
    2008-Ohio-4824
    , 
    896 N.E.2d 110
    ,
    ¶ 12.
    {¶37} The power to define criminal offenses and prescribe punishment is vested
    in the legislative branch of government and courts may only impose sentences as
    provided by statute. Whalen v. United States, 
    445 U.S. 684
    , 689, 
    100 S.Ct. 1432
    , 
    63 L.Ed.2d 715
     (1980); Brown v. Ohio, 
    432 U.S. 161
    , 165, 
    97 S.Ct. 2221
    , 
    53 L.Ed.2d 187
    (1977). In the case at bar, the legislature has authorized as a sentence for a felony of
    the first degree,
    (1)(a) For a felony of the first degree committed on or after the
    effective date of this amendment, the prison term shall be an indefinite
    prison term with a stated minimum term selected by the court of three, four,
    five, six, seven, eight, nine, ten, or eleven years and a maximum term that
    is determined pursuant to section 2929.144 of the Revised Code, except
    that if the section that criminalizes the conduct constituting the felony
    specifies a different minimum term or penalty for the offense, the specific
    language of that section shall control in determining the minimum term or
    otherwise sentencing the offender but the minimum term or sentence
    imposed under that specific language shall be considered for purposes of
    the Revised Code as if it had been imposed under this division.
    R.C. 2929.14(A)(1)(a).
    Licking County, Case No. 2019 CA 00122                                             22
    {¶38} The legislature has authorized as a sentence for a felony of the
    second degree,
    (2)(a) For a felony of the second degree committed on or after the
    effective date of this amendment, the prison term shall be an indefinite
    prison term with a stated minimum term selected by the court of two, three,
    four, five, six, seven, or eight years and a maximum term that is determined
    pursuant to section 2929.144 of the Revised Code, except that if the section
    that criminalizes the conduct constituting the felony specifies a different
    minimum term or penalty for the offense, the specific language of that
    section shall control in determining the minimum term or otherwise
    sentencing the offender but the minimum term or sentence imposed under
    that specific language shall be considered for purposes of the Revised Code
    as if it had been imposed under this division.
    R.C. 2929.14(A)(2)(a). Indefinite sentences are not new to Ohio. In fact, the preSB2
    sentence for a felony of the first degree as charged in this case the defendant could have
    received an indeterminate minimum sentence of five, six, seven, eight, nine or ten years
    up to a maximum of twenty-five years. See, State v. Davis, 9th Dist. Summit No. 13092,
    
    1987 WL 25743
    (Nov. 25, 1987), citing former R.C. 2929.11. The pre-SB2 sentence for a
    felony of the second degree was as follows,
    (A) Whoever is convicted of or pleads guilty to a felony other than
    aggravated murder or murder . . . shall be imprisoned for an indefinite term
    (B)(5) For a felony of the second degree, the minimum term shall be two,
    three, four or five years, and the maximum shall be fifteen years.
    Licking County, Case No. 2019 CA 00122                                             23
    State v. Jenks, 2nd Dist. Montgomery No. 10264, 
    1987 WL 20267
    (Nov. 16, 1987), citing
    former R.C. 2929.1. What is different from prior law regarding indefinite sentences is that
    the Regan Tokes Law has created a presumptive release date.
    {¶39} The Reagan Tokes Law requires that a court imposing a prison term under
    R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second degree felony committed on or after
    March 22, 2019, impose a minimum prison term under that provision and a maximum
    prison term determined under R.C. 2929.144(B); R.C. 2929.144(C). Further, under the
    Regan Tokes Law, there is a presumption that the offender “shall be released from service
    of the sentence on the expiration of the offender’s minimum prison term or on the
    offender’s presumptive earned early release date, whichever is earlier.”              R.C.
    2967.271(B) (emphasis added). A presumptive earned early release date is a date
    determined under procedures described in R.C. 2967.271(F), which allow the sentencing
    court to reduce the minimum prison term under certain circumstances.                  R.C.
    2967.271(A)(2). The DRC may rebut the presumption if it determines at a hearing that
    one or more statutorily numerated factors apply. R.C. 2967.271(C). If DRC rebuts the
    presumption, it may maintain the offender’s incarceration after the expiration of the
    minimum prison term or presumptive earned early release date for a reasonable period
    of time, determined and specified by DRC that “shall not exceed the offender’s maximum
    prison term.” R.C. 2967.271(D)(1).
    {¶40} Under the Regan Tokes Law, the judge imposes both a minimum and a
    maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full
    discretion to impose a prison sentence within the statutory range and are no longer
    required to make findings or give their reasons for imposing maximum, consecutive, or
    Licking County, Case No. 2019 CA 00122                                              24
    more than the minimum sentences.” State v. Kalish, 
    120 Ohio St.3d 23
    , 2008–Ohio–
    4912, 
    896 N.E.2d 124
     paragraphs 1 and 11. The Department of Rehabilitation and
    Correction (“DRC”) is not permitted to extend a sentence imposed by the trial court
    beyond the maximum sentence imposed by the trial court.
    An incarcerated individual does not have a constitutional right
    to parole or release before serving his entire sentence.
    {¶41} An inmate has no constitutional right to parole release before the expiration
    of his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex, 
    442 U.S. 1
    , 7, 
    99 S.Ct. 2100
    , 
    60 L.Ed.2d 668
     (1979). The Ohio Adult Parole Authority has “wide-
    ranging discretion in parole matters.” Layne v. Ohio Adult Parole Auth., 
    97 Ohio St.3d 456
    , 
    2002-Ohio-6719
    , 
    780 N.E.2d 548
    , ¶ 28. See also, State ex rel. Bailey v. Ohio Parole
    Board, 
    152 Ohio St.3d 426
    , 
    2017-Ohio-9202
    , 
    97 N.E.3d 433
    , ¶9.
    {¶42} The Supreme Court has made it clear that a mere unilateral hope or
    expectation of release on parole is not enough to constitute a protected liberty interest;
    the prisoner “must, instead, have a legitimate claim of entitlement to it.” Greenholtz, 422
    U.S. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 
    408 U.S. 564
    , 577, 
    92 S.Ct. 2701
    , 2709, 
    33 L.Ed.2d 548
     (1972)) (emphasis supplied). Moreover, only state law
    can create this “legitimate claim of entitlement”; the federal constitution protects such
    claims, but does not create them. “There is no constitutional or inherent right of a
    convicted person to be conditionally released [i.e., released on parole] before the
    expiration of a valid sentence.” Greenholtz, 
    442 U.S. at 7
    , 99 S.Ct. at 2104. Accord,
    Inmates of Orient Correctional Institute v. Ohio State Parole Board, 
    929 F.2d 233
    ,
    235(6th Cir 1991).
    Licking County, Case No. 2019 CA 00122                                               25
    {¶43} However, if state law entitles an inmate to release on parole that
    entitlement is a liberty interest that is not to be taken away without due process. See
    Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 
    442 U.S. 1
    , 
    99 S.Ct. 2100
    , 
    60 L.Ed.2d 668
     (1979), where the Supreme Court so held in the context of a
    statute providing that the Nebraska parole board “shall” release parole-eligible inmates
    unless one of several factors specified in the statute should be found to exist.
    {¶44} As relevant here, R.C. 2967.271(B) states:
    (B) When an offender is sentenced to a non-life felony indefinite
    prison term, there shall be a presumption that the person shall be released
    from service of the sentence on the expiration of the offender’s minimum
    prison term or on the offender’s presumptive earned early release date,
    whichever is earlier. (Emphasis added).
    {¶45} Also relevant is R.C. 2967.271(C), which states:
    (C) The presumption established under division (B) of this section is
    a rebuttable presumption that the department of rehabilitation and
    correction may rebut as provided in this division. Unless the department
    rebuts the presumption, the offender shall be released from service of the
    sentence on the expiration of the offender’s minimum prison term or on the
    offender’s presumptive earned early release date, whichever is earlier. The
    department may rebut the presumption only if the department determines,
    at a hearing, that one or more of the following applies:
    (1) Regardless of the security level in which the offender is classified
    at the time of the hearing, both of the following apply:
    Licking County, Case No. 2019 CA 00122                                                26
    (a) During the offender’s incarceration, the offender committed
    institutional rule infractions that involved compromising the security of a
    state correctional institution, compromising the safety of the staff of a state
    correctional institution or its inmates, or physical harm or the threat of
    physical harm to the staff of a state correctional institution or its inmates, or
    committed a violation of law that was not prosecuted, and the infractions or
    violations demonstrate that the offender has not been rehabilitated.
    (b) The offender’s behavior while incarcerated, including, but not
    limited to the infractions and violations specified in division (C)(1)(a) of this
    section, demonstrate that the offender continues to pose a threat to society.
    (2) Regardless of the security level in which the offender is classified
    at the time of the hearing, the offender has been placed by the department
    in extended restrictive housing at any time within the year preceding the
    date of the hearing.
    (3) At the time of the hearing, the offender is classified by the
    department as a security level three, four, or five, or at a higher security
    level.
    {¶46} The legislature by choosing the language “there shall be a presumption that
    the person shall be released” and “Unless the department rebuts the presumption, the
    offender shall be released,” within the Regan Tokes Law has arguably created
    enforceable liberty interests in parole. Board of Pardons v. Allen, 
    482 U.S. 369
    , 
    107 S.Ct. 2415
    , 
    96 L.Ed.2d 303
     (1987). See, also, Inmates of Orient Correctional Institute v. Ohio
    State Adult Parole Authority, 
    929 F.2d 233
    , 236-237(6th Cir. 1991(“Although the power
    Licking County, Case No. 2019 CA 00122                                              27
    to deny parole is purely discretionary as far as Ohio’s statutes are concerned, the state’s
    administrative regulations must also be considered. If Ohio’s regulations created an
    explicit presumption of entitlement to release on parole—as Tennessee’s regulations
    formerly did, see Mayes v. Trammell, 
    751 F.2d 175
    , 178 (6th Cir. 1984)—or if the Ohio
    regulations otherwise used “ ‘mandatory language’ in connection with ‘specific
    substantive predicates’ ” for release on parole, see Beard v. Livesay, 
    798 F.2d 874
    , 877
    (6th Cir.1986) (quoting Hewitt v. Helms, 
    459 U.S. 460
    , 472, 
    103 S.Ct. 864
    , 871, 
    74 L.Ed.2d 675
     (1983)), the regulations alone could create a protected liberty interest.”). Cf.
    State, ex rel. Bailey v. Ohio Parole Board, 
    152 Ohio St.3d 426
    , 
    2017-Ohio-9202
    , 
    97 N.E.3d 433
    , ¶ 10 (“The Revised Code creates an inherent expectation ‘that a criminal
    offender will receive meaningful consideration for parole.’” (Citing Layne v. Ohio Adult
    Parole Auth., 
    97 Ohio St.3d 456
    , 
    2002-Ohio-6719
    , 
    780 N.E.2d 548
    , ¶ 27).
    {¶47} “As for the Due Process Clause, standard analysis under that provision
    proceeds in two steps: We first ask whether there exists a liberty or property interest of
    which a person has been deprived, and if so we ask whether the procedures followed by
    the State were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson,
    
    490 U.S. 454
    , 460, 
    109 S.Ct. 1904
    , 
    104 L.Ed.2d 506
     (1989).” Swarthout v. Cooke, 
    562 U.S. 216
    , 219-220, 
    131 S.Ct. 859
    , 
    178 L.Ed.2d 732
    (2011).               Having created an
    enforceable liberty interest in parole by the express terms of the Regan Tokes Act, the
    question now becomes what process is due in the prison setting.
    Due Process in the prison setting.
    {¶48} When a State creates a liberty interest, the Due Process Clause requires
    fair procedures for its vindication—and courts will review the application of those
    Licking County, Case No. 2019 CA 00122                                              28
    constitutionally required procedures. Swarthout v. Cooke, 
    562 U.S. 216
    , 220, 
    131 S.Ct. 859
    , 
    178 L.Ed.2d 732
    (2011).
    {¶49} In the context of parole, the United States Supreme Court has held that the
    procedures required are minimal. In Greenholtz, the Court found that a prisoner subject
    to a parole statute received adequate process when he was allowed an opportunity to be
    heard and was provided a statement of the reasons why parole was denied. Id. at 16, 
    99 S.Ct. 2100
    . “The Constitution,” we held, “does not require more.” Swarthout v. Cooke,
    
    562 U.S. 216
    , 220, 
    131 S.Ct. 859
    , 
    178 L.Ed.2d 732
    (2011).
    {¶50} In Woods v. Telb, the Ohio Supreme Court made the following
    observation concerning Ohio law,
    Under the [pre-SB2] system of parole, a sentencing judge, imposing
    an indefinite sentence with the possibility of parole, had limited power or
    authority to control the minimum time to be served before the offender’s
    release on parole; the judge could control the maximum length of the prison
    sentence, but the judge had no power over when parole might be granted
    in between those parameters. The judge had no power to control the
    conditions of parole or the length of the parole supervision.
    ***
    But, we observe that for as long as parole has existed in Ohio, the
    executive branch (the APA1 and its predecessors) has had absolute
    discretion over that portion of an offender’s sentence. See State ex rel. Atty.
    Gen. v. Peters (1885), 
    43 Ohio St. 629
    , 
    4 N.E. 81
    1   Adult Parole Authority
    Licking County, Case No. 2019 CA 00122                                               29
    .* * *
    Woods v. Telb, 89 Ohio St.3d at 511-512, 
    733 N.E.2d 1103
    .
    {¶51} Although entitled to the protection under the Due Process Clause, “prison
    disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
    rights due a defendant in such proceedings does not apply.” Wolfe v. McDonnell, 
    416 U.S. 539
    , 556, 
    94 S.Ct. 2963
    , 
    41 L.Ed.2d 935
    (1974) (citations omitted). In Wolfe, the
    United States Supreme Court observed,
    In striking the balance that the Due Process Clause demands,
    however, we think the major consideration militating against adopting the
    full range of procedures suggested by Morrissey [v. Brewer, 
    408 U.S. 471
    ,
    
    92 S.Ct. 2593
    , 
    33 L.Ed.2d 484
    (1972)] for alleged parole violators is the very
    different stake the State has in the structure and content of the prison
    disciplinary hearing. That the revocation of parole be justified and based
    on an accurate assessment of the facts is a critical matter to the State as
    well as the parolee; but the procedures by which it is determined whether
    the conditions of parole have been breached do not themselves threaten
    other important state interests, parole officers, the police, or witnesses—at
    least no more so than in the case of the ordinary criminal trial. Prison
    disciplinary proceedings, on the other hand, take place in a closed, tightly
    controlled environment peopled by those who have chosen to violate the
    criminal law and who have been lawfully incarcerated for doing so. Some
    are first offenders, but many are recidivists who have repeatedly employed
    illegal and often very violent means to attain their ends. They may have
    Licking County, Case No. 2019 CA 00122                                                     30
    little regard for the safety of others or their property or for the rules designed
    to provide an orderly and reasonably safe prison life. Although there are
    very many varieties of prisons with different degrees of security, we must
    realize that in many of them the inmates are closely supervised and their
    activities controlled around the clock. Guards and inmates co-exist in direct
    and intimate contact. Tension between them is unremitting. Frustration,
    resentment, and despair are commonplace.             Relationships among the
    inmates are varied and complex and perhaps subject to the unwritten code
    that exhorts inmates not to inform on a fellow prisoner.
    
    416 U.S. 539
    , 561-562, 
    94 S.Ct. 2963
    , 
    41 L.Ed.2d 935
    . Indeed, it has been noted,
    “[C]ourts are ill equipped to deal with the increasingly urgent
    problems of prison administration and reform.” [Procunier v. Martinez, 
    416 U.S. 396
    , 405, 
    94 S.Ct. 1800
    , 
    40 L.Ed.2d 224
    (1974), overruled on other
    grounds by Thornburgh v. Abbott, 
    490 U.S. 401
    , 413(1989)].                As the
    Martinez Court acknowledged, “the problems of prisons in America are
    complex and intractable, and, more to the point, they are not readily
    susceptible of resolution by decree.” 
    Id.,
     at 404–405, 94 S.Ct. at 1807.
    Running a prison is an inordinately difficult undertaking that requires
    expertise, planning, and the commitment of resources, all of which are
    peculiarly within the province of the legislative and executive branches of
    government. Prison administration is, moreover, a task that has been
    committed to the responsibility of those branches, and separation of powers
    concerns counsel a policy of judicial restraint. Where a state penal system
    Licking County, Case No. 2019 CA 00122                                               31
    is involved, federal courts have, as we indicated in Martinez, additional
    reason to accord deference to the appropriate prison authorities. See id.,
    at 405, 94 S.Ct. at 1807.
    Turner v. Safley, 
    482 U.S. 78
    , 84-85, 
    107 S.Ct. 2254
    , 
    96 L.Ed.2d 64
    (1987). “Viewed in
    this light it is immediately apparent that one cannot automatically apply procedural rules
    designed for free citizens in an open society, or for parolees or probationers under only
    limited restraints, to the very different situation presented by a disciplinary proceeding in
    a state prison.” Wolfe v. McDonnell, 
    418 U.S. at 560
    , 
    94 S.Ct. 2963
    , 
    41 L.Ed.2d 935
    .
    {¶52} The Courts have found therefore, that the following procedures should be
    accorded to prisoners facing prison disciplinary proceedings: 1). a prisoner is entitled to
    a review unaffected by “arbitrary” decision-making. Wolfe, 
    418 U.S. at 557-558
    ; (See,
    Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claimed violation. Wolfe,
    
    418 U.S. at 563
    . (See, Ohio Adm. Code 5120:1-8-12). 3). A written statement of the fact
    finders as to the evidence relied upon and the reasons for the disciplinary action taken.
    Wolfe, 
    418 U.S. at 563
    . (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120:1-
    11(G)(1)). 4). Prison officials must have the necessary discretion to keep the hearing
    within reasonable limits and to refuse to call witnesses that may create a risk of reprisal
    or undermine authority, as well as to limit access to other inmates to collect statements
    or to compile other documentary evidence. Wolfe, 
    418 U.S. at 566
    . (See, Ohio Adm.
    Code 5120-9-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). Where an illiterate inmate is
    involved, however, or whether the complexity of the issue makes it unlikely that the inmate
    will be able to collect and present the evidence necessary for an adequate
    comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that
    Licking County, Case No. 2019 CA 00122                                                32
    is forbidden, to have adequate substitute aid in the form of help from the staff or from a
    sufficiently competent inmate designated by the staff. Wolfe, 
    418 U.S. at 570
    . (See, Ohio
    Adm. Code 5120-9-07(H)(1)).
    {¶53} In the case at bar, in order to rebut the presumptive release date, the DRC
    must conduct a hearing and determine whether any of the following factors are applicable:
    (1) During the offender’s incarceration, the offender committed
    institutional rule infractions that involved compromising the security of a
    state correctional institution, compromising the safety of the staff of a state
    correctional institution or its inmates, or physical harm or the threat of
    physical harm to the staff of a state correctional institution or its inmates, or
    committed a violation of law that was not prosecuted, and the infractions or
    violations demonstrate that the offender has not been rehabilitated [and]
    [t]he offender’s behavior while incarcerated, including, but not limited to the
    infractions and violations specified in division (C)(1)(a) of this section,
    demonstrate that the offender continues to pose a threat to society.
    (2) Regardless of the security level in which the offender is classified
    at the time of the hearing, the offender has been placed by the department
    in extended restrictive housing at any time within the year preceding the
    date of the hearing.
    (3) At the time of the hearing, the offender is classified by the
    department as a security level three, four, or five, or at a higher security
    level.
    R.C. 2967.271(C)(1), (2) and (3).
    Licking County, Case No. 2019 CA 00122                                            33
    {¶87} Although the power to deny parole is purely discretionary as far as Ohio’s
    statutes are concerned, the state’s administrative regulations must also be considered.”
    Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 
    929 F.2d 233
    , 236-237(6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C.
    2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate rules of conduct. Ohio
    Adm. Code 5120-9-08 sets forth the disciplinary procedures for violations of inmate rules
    of conduct before the rules infraction board. Ohio Adm. Code 5120-9-10 sets forth the
    procedures for when and under what circumstances an inmate may be placed in and/or
    transferred to a restrictive housing assignment. Ohio Adm. Code 5120:1-1-11 sets forth
    the procedure of release consideration hearings. Thus, an inmate is given notice in
    advance of the behavior that can contribute or result in an extended sentence and under
    what circumstance the inmate can be placed or transferred to a restrictive housing
    assignment.
    {¶88} Each procedure employed provides at the least for notice and the
    opportunity to be heard. Under the Regan Tokes Law, an inmate is afforded notice and a
    hearing by R.C. 2967.271(E), which states:
    The [DRC] shall provide notices of hearings to be conducted under
    division (C) or (D) of this section in the same manner, and to the same
    persons, as specified in section 2967.12 and Chapter 2930 of the Revised
    Code with respect to hearings to be conducted regarding the possible
    release on parole of an inmate.
    Licking County, Case No. 2019 CA 00122                                            34
    See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 
    2020-Ohio-3837
    , ¶ 11; State
    v. Leet, 2nd Dist. Montgomery No. 28670, 
    2020-Ohio-4592
    , ¶11 (“Reagan Tokes does not
    facially violate a defendant’s right to procedural due process.”)
    Separation of Powers is not violated.
    {¶89} Nor can it be argued that because the DRC can increase a sentence beyond
    the minimum given by the trial judge, the Regan Tokes Law usurps judicial authority. As
    already noted, the DRC may not increase the sentence beyond the maximum sentence
    imposed by the trial court. The Ohio Supreme Court has made it clear that, when the
    power to sanction is delegated to the executive branch, a separation-of-powers problem
    is avoided if the sanction is originally imposed by a court and included in its sentence.
    See Hernandez v. Kelly, 
    108 Ohio St.3d 395
    , 
    2006-Ohio-126
    , 
    844 N.E.2d 301
    , ¶ 18-20,
    citing State v. Jordan, 
    104 Ohio St.3d 21
    , 
    2004-Ohio-6085
    , 
    817 N.E.2d 864
    , ¶ 19. Such
    is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson,
    2nd Dist. Montgomery No. 28644, 
    2020-Ohio-4153
    , ¶23. The statute does not permit the
    DRC to act “’as judge, prosecutor and jury,’ for an action that could be prosecuted as a
    felony in a court of law.” Woods v. Telb, 89 Ohio St.3d at 512, 
    733 N.E.2d 1103
    , quoting
    State, ex rel. Bray v. Russell, 
    89 Ohio St.3d 132
    , 135, 
    729 N.E.2d 359
    (2000). It should
    be noted that Bray was charged with and convicted of drug possession and sentenced to
    an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in
    violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed
    a ninety-day bad-time penalty to be added to Bray’s original term.        Bray’s original
    sentence of eight months for drug possession expired on June 5, 1998, at which time his
    additional ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus
    Licking County, Case No. 2019 CA 00122                                              35
    in the Court of Appeals for Warren County, claiming that Warden Harry Russell was
    unlawfully restraining him. 
    89 Ohio St.3d 132
    , 133, 
    729 N.E.2d 359
    . Thus, the Parole
    Board extended Brey’s sentence beyond the maximum sentence the trial court had
    impose. Buckner points to nothing within the Regan Tokes Law that would permit the
    DRC to extend his sentence beyond the eight year set by the trial judge. (T. at 29).
    {¶90} Further, as we have noted, under the Regan Tokes Law an inmate is afford
    the due process rights accorded to one who is incarcerated before any increase can
    occur. Prison disciplinary proceedings are not part of a criminal prosecution, and the full
    panoply of rights due a defendant in such proceedings does not apply. For as long as
    parole has existed in Ohio, the executive branch (the APA and its predecessors) has had
    absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at
    511-512, 
    733 N.E.2d 1103
    .
    Conclusion.
    {¶91} The Reagan Tokes Law does not allow the DRC to lengthen a defendant’s
    sentence beyond the maximum sentence imposed by the trial court. The Law does not
    give the DRC unfettered discretion to require an offender to serve more than the minimum
    term. The statutes afford an offender notice and an opportunity to be heard before a more
    than the minimum may be required. The Regan Tokes Law provides a prisoner with the
    appropriate due process rights accorded to prisoners.
    {¶92} Although entitled to the protection under the Due Process Clause, prison
    disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
    rights due a defendant in such proceedings does not apply. For as long as parole has
    existed in Ohio, the executive branch (the APA and its predecessors) has had absolute
    Licking County, Case No. 2019 CA 00122                                              36
    discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512,
    
    733 N.E.2d 1103
    .
    {¶93} Accordingly, I would overrule the Appellant’s First Assignment of Error and
    find the Regan Tokes Law is constitutional.
    II.
    {¶94} In his Second Assignment of Error, Appellant maintains that he was denied
    effective assistance of trail counsel because trial counsel failed to challenge the
    constitutionality of the Regan Tokes law in the trial court.
    {¶95} To prevail on a Sixth Amendment claim alleging ineffective assistance of
    counsel, a defendant must show that his counsel's performance was deficient and that
    his counsel's deficient performance prejudiced him. Strickland v. Washington, 
    466 U.S. 668
    , 694 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). To show deficiency, a defendant must
    show that “counsel's representation fell below an objective standard of reasonableness.”
    
    Id., at 688
    , 
    104 S.Ct. 2052
    . And to establish prejudice, a defendant must show “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
    , 
    104 S.Ct. 2052
    . See, also, Andrus,
    v. Texas, __U.S.__, 
    140 S.Ct. 1875
    , 1881, 
    207 L.Ed.2d 335
    (June 15, 2020).
    {¶96} Because the Regan Tokes Law is constitutional, there is no reasonable
    probability that, but for counsel’s failure to challenge the constitutionality of the Regan
    Tokes Law the result of the proceeding would have been different.
    {¶97} I would therefore overrule Appellant’s Second Assignment of Error.
    III.
    Licking County, Case No. 2019 CA 00122                                                 37
    {¶98} In his Third Assignment of Error, Appellant argues that that the trial court
    failed to comply with R.C. 2929.19(B)(2)(c) because the court did not provide the requisite
    notices at his sentencing hearing and that the sentence is contrary to law.
    {¶99} The language of R.C. 2929.19(B)(2)(c) became effective March 22, 2019
    and to date its application has not received close scrutiny. The relevant portions of this
    statute provide that:
    (B)(1) At the sentencing hearing, the court, before imposing
    sentence, shall consider the record, any information presented at the
    hearing by any person pursuant to division (A) of this section, and, if one
    was prepared, the presentence investigation report made pursuant to
    section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim
    impact statement made pursuant to section 2947.051 of the Revised Code.
    (2) Subject to division (B)(3) of this section, 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.)
    {¶100} Subsection (B)(2)(c) sets out the notifications that are to be provided in
    accordance with the directive of Subsections (B)(1) and (2) which mandates that the court
    notify the offender at the sentencing hearing:
    (c) If the prison term is a non-life felony indefinite prison term, notify
    the offender of all of the following:
    (i) That it is rebuttably presumed that the offender will be released
    from service of the sentence on the expiration of the minimum prison term
    Licking County, Case No. 2019 CA 00122                                                  38
    imposed as part of the sentence or on the offender’s presumptive earned
    early release date, as defined in section 2967.271 of the Revised Code,
    whichever is earlier;
    (ii) That the department of rehabilitation and correction may rebut the
    presumption described in division (B)(2)(c)(i) of this section if, at a hearing
    held under section 2967.271 of the Revised Code, the department makes
    specified determinations regarding the offender’s conduct while confined,
    the offender’s rehabilitation, the offender’s threat to society, the offender’s
    restrictive housing, if any, while confined, and the offender’s security
    classification;
    (iii) That if, as described in division (B)(2)(c)(ii) of this section, the
    department at the hearing makes the specified determinations and rebuts
    the presumption, the department may maintain the offender’s incarceration
    after the expiration of that minimum term or after that presumptive earned
    early release date for the length of time the department determines to be
    reasonable, subject to the limitation specified in section 2967.271 of the
    Revised Code;
    (iv) That the department may make the specified determinations and
    maintain the offender’s incarceration under the provisions described in
    divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
    the limitation specified in section 2967.271 of the Revised Code;
    Licking County, Case No. 2019 CA 00122                                                39
    (v) That if the offender has not been released prior to the expiration
    of the offender’s maximum prison term imposed as part of the sentence, the
    offender must be released upon the expiration of that term.
    (d) Notify the offender that the offender will be supervised under
    section 2967.28 of the Revised Code after the offender leaves prison if the
    offender is being sentenced, other than to a sentence of life imprisonment,
    for a felony of the first degree or second degree, for a felony sex offense,
    or for a felony of the third degree that is an offense of violence and is not a
    felony sex offense. This division applies with respect to all prison terms
    imposed for an offense of a type described in this division, including a non-
    life felony indefinite prison term and including a term imposed for any
    offense of a type described in this division that is a risk reduction sentence,
    as defined in section 2967.28 of the Revised Code. If a court imposes a
    sentence including a prison term of a type described in division (B)(2)(d) of
    this section on or after July 11, 2006, the failure of a court to notify the
    offender pursuant to division (B)(2)(d) of this section that the offender will
    be supervised under section 2967.28 of the Revised Code after the offender
    leaves prison or to include in the judgment of conviction entered on the
    journal a statement to that effect does not negate, limit, or otherwise affect
    the mandatory period of supervision that is required for the offender under
    division (B) of section 2967.28 of the Revised Code. Section 2929.191 of
    the Revised Code applies if, prior to July 11, 2006, a court imposed a
    sentence including a prison term of a type described in division (B)(2)(d) of
    Licking County, Case No. 2019 CA 00122                                                    40
    this section and failed to notify the offender pursuant to division (B)(2)(d) of
    this section regarding post-release control or to include in the judgment of
    conviction entered on the journal or in the sentence a statement regarding
    post-release control.
    (e) Notify the offender that the offender may be supervised under
    section 2967.28 of the Revised Code after the offender leaves prison if the
    offender is being sentenced for a felony of the third, fourth, or fifth degree
    that is not subject to division (B)(2)(d) of this section. This division applies
    with respect to all prison terms imposed for an offense of a type described
    in this division, including a term imposed for any such offense that is a risk
    reduction sentence, as defined in section 2967.28 of the Revised Code.
    Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a
    court imposed a sentence including a prison term of a type described in
    division (B)(2)(e) of this section and failed to notify the offender pursuant to
    division (B)(2)(e) of this section regarding post-release control or to include
    in the judgment of conviction entered on the journal or in the sentence a
    statement regarding post-release control.
    (f) Notify the offender that, if a period of supervision is imposed
    following the offender’s release from prison, as described in division
    (B)(2)(d) or (e) of this section, and if the offender violates that supervision
    or a condition of post-release control imposed under division (B) of section
    2967.131 of the Revised Code, the parole board may impose a prison term,
    as part of the sentence, of up to one-half of the definite prison term originally
    Licking County, Case No. 2019 CA 00122                                                41
    imposed upon the offender as the offender’s stated prison term or up to one-
    half of the minimum prison term originally imposed upon the offender as
    part of the offender’s stated non-life felony indefinite prison term. If a court
    imposes a sentence including a prison term on or after July 11, 2006, the
    failure of a court to notify the offender pursuant to division (B)(2)(f) of this
    section that the parole board may impose a prison term as described in
    division (B)(2)(f) of this section for a violation of that supervision or a
    condition of post-release control imposed under division (B) of section
    2967.131 of the Revised Code or to include in the judgment of conviction
    entered on the journal a statement to that effect does not negate, limit, or
    otherwise affect the authority of the parole board to so impose a prison term
    for a violation of that nature if, pursuant to division (D)(1) of section 2967.28
    of the Revised Code, the parole board notifies the offender prior to the
    offender’s release of the board’s authority to so impose a prison term.
    Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a
    court imposed a sentence including a prison term and failed to notify the
    offender pursuant to division (B)(2)(f) of this section regarding the possibility
    of the parole board imposing a prison term for a violation of supervision or
    a condition of post-release control
    (g)(i)1 Determine, notify the offender of, and include in the
    sentencing entry the total number of days, including the sentencing date but
    excluding conveyance time, that the offender has been confined for any
    reason arising out of the offense for which the offender is being sentenced
    Licking County, Case No. 2019 CA 00122                                               42
    and by which the department of rehabilitation and correction must reduce
    the definite prison term imposed on the offender as the offender’s stated
    prison term or, if the offense is an offense for which a non-life felony
    indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of section
    2929.14 of the Revised Code, the minimum and maximum prison terms
    imposed on the offender as part of that non-life felony indefinite prison term,
    under section 2967.191 of the Revised Code. The court’s calculation shall
    not include the number of days, if any, that the offender served in the
    custody of the department of rehabilitation and correction arising out of any
    prior offense for which the prisoner was convicted and sentenced.
    {¶101} Thus, the trial court must provide the information described in R.C.
    2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of the
    statute.
    {¶102} In this case, the court gave no advisement of any of the requirements set
    forth in R.C. 2929.19(B) at the sentencing hearing. The October 22, 2019 hearing was a
    change of plea hearing. The trial court clearly was not prepared to sentence Appellant;
    rather, the court deferred sentencing and ordered the preparation of a pre-sentence
    investigation report before the trial court could decide Appellant’s sentence.            The
    sentencing hearing occurred nearly one month later on November 15, 2019. R.C.
    2929.19(B)(1) and (B)(2) explicitly mandate that “if the sentencing court determines at the
    sentencing hearing that a prison term is necessary or required, the court shall” give the
    mandated advisements at the sentencing hearing.
    Licking County, Case No. 2019 CA 00122                                            43
    {¶103} I would find that the sentence is contrary to law. I would therefore sustain
    Appellant’s Third Assignment of Error and would reverse and remand the decision of the
    Licking County Court of Common Pleas for resentencing.
    

Document Info

Docket Number: 2019 CA 00122

Citation Numbers: 2020 Ohio 5329

Judges: Baldwin

Filed Date: 11/18/2020

Precedential Status: Precedential

Modified Date: 11/24/2020

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