State v. Shannon , 2022 Ohio 4160 ( 2022 )

[Cite as State v. Shannon, 2022-Ohio-4160.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2021-T-0049
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MARQUES L. SHANNON,
Trial Court No. 2021 CR 00581
Defendant-Appellant.
OPINION
Decided: November 21, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Joseph F. Salzgeber, P.O. Box 799, Brunswick, OH 44212 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Marques L. Shannon, appeals his convictions and
sentence for Domestic Violence, Felonious Assault, and Intimidation of a Witness in the
Trumbull County Court of Common Pleas. For the following reasons, we affirm the
decision of the lower court.
{¶2} On August 5, 2021, Shannon was indicted by the Trumbull County Grand
Jury for Domestic Violence, a felony of the third degree, in violation of R.C. 2919.25(A);
Felonious Assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1); and
Intimidation of a Witness in a Criminal Case, a felony of the third degree, in violation of
R.C. 2921.04(B)(1).
{¶3} A jury trial was held on October 12-14, 2021. The following pertinent
testimony and evidence were presented:
{¶4} Laken Cortese had a romantic and sexual relationship with Shannon from
November 2020 until June 2021. Shannon would sometimes spend the night at her home
and had been living with her since March 7, 2021. On March 22, 2021, at around 7 p.m.,
the two got in an argument. Shannon began using expletives and Cortese called him a
“bi**h.” Shannon hit her multiple times on the face and head and dumped salad dressing
on her. He said, “that’s what [Cortese] got for calling him a bi**h.” She could not
remember what happened afterward until she was inside her residence in the shower.
Shannon was present with her in the bathroom. She took pictures of her injuries, sent
them to friends, and “told them if they didn’t hear from me the next day to send help.”
When a friend called her, Shannon took the phone away from Cortese.
{¶5} The next day, Cortese went with Shannon to his mother’s house. She
subsequently visited a friend and later received a call from her mother that her child was
in the emergency room, which call was made in an attempt to get Cortese to seek
treatment. Cortese received treatment at the hospital and had suffered bruising to her
face, jaw pain, and a “minor brain bleed.”
{¶6} Cortese testified that Shannon threatened her and her children and stated
that if she thought about pressing charges, she would not make it to the preliminary
hearing. Cortese received calls in the days before trial asking if she was going to court
and a text message telling her not to testify.
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{¶7} The State introduced screenshots of posts on Shannon’s Facebook
account. One post made after the incident stated: “Ladies if you have the nerve to call a
man a bi**h, don’t act all scared and s**t when you get bi**hed. Watch your mouth.”
Another post stated: “Women better act like women or they’re getting clapped like men.”
In messages between Shannon and Cortese, Shannon asked what he did, Cortese
described her injuries, and he responded “I’m sorry. I’m very strong. I don’t kno[w] my
strength. I’ll NEVER touch you aggressively again.”
{¶8} Kourtney Willrich, Cortese’s friend, described that, on March 22, she
received a call from Cortese who was crying, but the phone disconnected. She also
received pictures through Snapchat which showed Cortese was crying and had a swollen
face. She attempted to contact Cortese via Facetime and Shannon stated, “If your friend
would have never called me a bi**h, * * * this would have never ended like this” and hung
up. Shaunci Osborne called Cortese via Facetime around 8 p.m. on March 22 and
Shannon answered. He said “this is what happens to your friend when she wants to call
me a bi**h.” He then showed Cortese in the shower with a bloody face, crying.
{¶9} Ashley Beach, another friend, testified that Cortese sent her a message
around 9 p.m. on March 22 “and said that they had gotten into a fight and that she was
scared. She was hurt. She didn't know what to do. * * * And then she had Snapchatted
me and was asking me if I don't hear from her to please make sure that she’s okay in the
morning.” On March 23, Beach cleaned out Cortese’s car, which was covered in Italian
dressing and had blood smeared on the roof. On that date, Beach observed that Shannon
repeatedly sent messages to Cortese, who she described as acting frantic and shaky.
{¶10} Patrolman Bryce Lapierre of the Girard Police Department was dispatched
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to the hospital on March 24 and encountered Cortese who was crying and scared. A
video of his interview with Cortese was played, in which she described Shannon
assaulting her.
{¶11} Elizabeth Sheets, a friend of Shannon, testified for the defense. She
testified that she was with Shannon on March 22 from around 5 p.m. to 11 p.m. when she
dropped him off at another friend’s home. He did not leave the residence during the time
she was with him. The prosecutor inquired about whether she had committed sexual acts
with Shannon and the nature of their relationship. She maintained that they were friends.
Sheets admitted to posting Facebook comments online at his request, including a
comment about “running to the cops.”
{¶12} The jury found Shannon guilty of the offenses as charged in the indictment.
The court held a sentencing hearing on November 2, 2021. Domestic Violence and
Felonious Assault were merged for sentencing. The court noted Shannon’s felony record,
including prior domestic violence convictions, and imposed a sentence of 8 to 12 years
for Felonious Assault and one year for Intimidation of a Witness, to be run consecutively.
The sentence was memorialized in a November 9, 2021 Judgment Entry.
{¶13} On appeal, Shannon raises the following assignments of error:
{¶14} “[1.] The evidence was insufficient to support the jury’s verdicts of ‘guilty’
with respect to the charged offenses of felonious assault, domestic violence and
intimidation against defendant-appellant.
{¶15} “[2.] Defendant-appellant’s convictions of the charged offenses of felonious
assault, domestic violence and intimidation were against the manifest weight of the
evidence.
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{¶16} “[3.] The state of Ohio committed prosecutorial misconduct in the cross-
examination of the defense alibi witness, which constituted plain error and prejudicially
affected the defendant-appellant’s substantive rights.
{¶17} “[4.] The Reagan Tokes sentencing law is unconstitutional as applied in the
instant case where the trial court imposed an indefinite prison term on defendant-
appellant of a minimum of 8 years up to a maximum of 12 years, with respect to
defendant-appellant’s felonious assault conviction as to count two, a felony of the second
degree.”
{¶18} We will consider Shannon’s first and second assignments of error jointly.
Shannon argues that the convictions were unsupported by sufficient evidence and were
against the weight of the evidence.
{¶19} Sufficiency is a test of the adequacy of the evidence to determine “whether
the evidence is legally sufficient to support the * * * verdict as a matter of law.” (Citation
omitted.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “An
appellate court’s function when reviewing the sufficiency of the evidence to support a
criminal conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt,” i.e., “whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶20} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
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evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “[A]
reviewing court asks whose evidence is more persuasive—the state’s or the
defendant’s?” Id. An appellate court must consider all the evidence in the record, the
reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.” (Citation
omitted.) Thompkins at 387. “Since there must be sufficient evidence to take a case to
the jury, it follows that ‘a finding that a conviction is supported by the weight of the
evidence necessarily must include a finding of sufficiency.’” (Citation omitted.) State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶21} Shannon raises several arguments relating to the weight and sufficiency of
the evidence. First, he contends that the State failed to establish all of the elements of
Felonious Assault and Domestic Violence, specifically whether he was present during the
alleged time of the commission of the acts, citing to the testimony of his alibi witness.
{¶22} To convict Shannon of Domestic Violence, the State was required to prove
that he did “knowingly cause or attempt to cause physical harm to a family or household
member.” R.C. 2919.25(A). To convict him of Felonious Assault, it was required to prove
that he did “knowingly * * * [c]ause serious physical harm to another.” R.C. 2903.11(A)(1).
{¶23} As an initial matter, this court has held that, “where allied offenses are
merged and there is sufficient evidence on the offense for which the defendant is
sentenced, errors relating to sufficiency and weight of the evidence on the count that is
merged are harmless and need not be considered.” State v. McCleery, 11th Dist.
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Trumbull No. 2021-T-0024, 2022-Ohio-263, ¶ 21, citing State v. Mugrage, 11th Dist.
Portage No. 2020-P-0066, 2021-Ohio-4136, ¶ 133. See also State v. Johnson, 1st Dist.
Hamilton Nos. C-190658 and C-190659, 2021-Ohio-1321, ¶ 12 (declining to address
arguments relating to the finding of guilt on a Domestic Violence charge where it merged
into Assault conviction at sentencing). Thus, we will address the issues raised by
Shannon in relation to Felonious Assault but not Domestic Violence.
{¶24} We do not find that the verdict was against the weight of the evidence or
supported by insufficient evidence due to the testimony of the alibi witness. Sheets
testified that Shannon was with her at the time of the alleged assault. However, Cortese
testified that during that same time, she was with Shannon and he assaulted her.
Cortese’s version of events was corroborated by the testimony of multiple friends who
received calls or messages documenting Cortese’s injuries and who spoke to Shannon
on Facetime, demonstrating he was present with Cortese at that time. It is evident the
jurors found Sheets’ testimony lacking in credibility when compared to the other
witnesses. “The choice between credible witnesses and their conflicting testimony rests
solely with the finder of fact and an appellate court may not substitute its own judgment
for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277(1986). “Since the jury is in the best position to assess credibility, we generally decline
to second guess its credibility determinations.” State v. Tiggett, 11th Dist. Trumbull No.
2018-T-0036, 2019-Ohio-1715, ¶ 34.
{¶25} Shannon also argues that Cortese’s acts were not consistent with a victim
of assault, emphasizing that she did not call the police or ask her friends to do so and she
continued to date Shannon and have a sexual relationship with him after the incident.
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These arguments also relate to Cortese’s credibility and are best left for the jurors to
decide. Her actions after the assault and decision to stay with Shannon do not negate
the testimony from several witnesses about the injuries she suffered and there was
extensive testimony and evidence that Shannon made statements on social media and
to Cortese’s friends that implied or admitted the assault.
{¶26} Shannon contends that Cortese’s injuries could have been caused by her
falling in the shower. Again, however, there was extensive testimony supporting the fact
that he was the cause of her injuries. Further, Patrolman Lapierre of the Girard Police
Department testified that in his opinion and experience with assaults and domestic
violence, the injuries were not caused by passing out or falling. There is also no question
Cortese suffered serious physical harm, given her testimony, the photographs of her
injuries, and medical records showing injuries to her head. See State v. Bowden, 11th
Dist. Ashtabula No. 2013-A-0040, 2014-Ohio-158, ¶ 33 (“it is well-established that this
element may be reasonably inferred ‘[w]here injuries to the victim are serious enough to
cause him or her to seek medical treatment’”) (citation omitted.)
{¶27} Shannon next argues that the State failed to prove that the victim was a
“family or household member” as is necessary for Domestic Violence. As stated above,
however, since the offense of Domestic Violence merged into Felonious Assault, it is not
necessary to address the sufficiency or weight of the evidence as to this charge.
{¶28} Finally, Shannon asserts that the conviction for Intimidation of a Witness
was against the weight and sufficiency of the evidence because Cortese provided
testimony that she was not threatened by or afraid of him and had maintained their
relationship after the alleged assault occurred.
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{¶29} To convict Shannon of Intimidation of a Witness, the State was required to
prove that he “knowingly and by force or by unlawful threat of harm to any person or
property or by unlawful threat to commit any offense or calumny against any person, * * *
attempt[ed] to influence, intimidate, or hinder * * * [t]he victim of a crime or delinquent act
in the filing or prosecution of criminal charges.” R.C. 2921.04(B)(1).
{¶30} Here, Cortese testified that Shannon threatened her and stated that she
would not make it to the preliminary hearing if she reported the assault. This testimony
meets the requirements of using a threat to attempt to influence, intimidate or hinder the
victim from prosecuting charges. Regardless of whether Cortese was in fear from these
threats and continued to remain in contact with Shannon, the elements of this offense do
not require that the State prove that the victim was in fear. As has been observed, under
R.C. 2921.04(B), “[t]he defendant need only try to create fear about or try to influence or
hinder the filing or prosecution of criminal charges” and “[t]here is no requirement that the
victim actually feel intimidated.” (Citation omitted.) State v. Serrano, 69 N.E.3d 87, 2016-
Ohio-4691, ¶ 44 (8th Dist.).
{¶31} At the preliminary hearing, Cortese testified that she was not threatened
by Shannon and was not concerned for her safety, before subsequently proceeding to
identify Shannon as assaulting her. While Cortese may have been inconsistent in her
testimony regarding the threats, this again is an issue of credibility for the jury to
determine. It was within their province to decide whether Cortese was telling the truth at
trial and may have had reasons, including the threats, to give inconsistent testimony at
the preliminary hearing. As Cortese testified at trial, her conduct relating to Shannon after
the assault and decision to stay with him arose in part due to the threat he made and her
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fear that he may harm her family.
{¶32} The first and second assignments of error are without merit.
{¶33} In his third assignment of error, Shannon argues that prosecutorial
misconduct was committed during the State’s cross-examination of Sheets “by repeatedly
and falsely claiming to have recorded telephone conversations” between Shannon and
Sheets in which she allegedly talked about committing certain sexual acts with him.
{¶34} To address allegations of prosecutorial misconduct, we “must determine (1)
whether the prosecutor’s conduct was improper and (2) if so, whether it prejudicially
affected [the defendant’s] substantial rights.” State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, ¶ 121. “[P]rosecutorial misconduct alone does not require a
new trial.” State v. Hamad, 11th Dist. Trumbull No. 2017-T-0108, 2019-Ohio-2664, ¶ 123.
“The conduct of a prosecuting attorney during trial cannot be made a ground of error
unless the conduct deprives defendant of a fair trial.” State v. Apanovitch, 33 Ohio St.3d
19, 24, 514 N.E.2d 394 (1987), citing State v. Maurer, 15 Ohio St.3d 239, 266, 473 N.E.2d
768 (1984). “[I]t must be clear beyond a reasonable doubt that, absent the prosecutor’s
comments, the jury would have found defendant guilty.” Maurer at 267.
{¶35} Here, Shannon did not object to the statements in question and thus has
“forfeited all argument relative to these statements except that of plain error.” State v.
Furmage, 11th Dist. Ashtabula No. 2020-A-0057, 2022-Ohio-1465, ¶ 80. “Plain error
exists when it can be said that but for the error, the outcome of the trial would clearly have
been otherwise.” State v. Issa, 93 Ohio St.3d 49, 56, 752 N.E.2d 904 (2001). Notice of
plain error “is to be taken with the utmost caution, under exceptional circumstances and
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only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶36} During Sheets’ cross-examination, the prosecutor asked whether she
planned on “being with” Shannon once he is released from jail, to which she responded
negatively. The prosecutor stated: “I can show you the messages where you talk about
[performing sexual acts involving Shannon] and those types of things, if you want.”
Sheets responded that she did not send that type of message. The prosecutor asked:
“You agree that there are messages between you and him talking sexually, though;
correct?” including from the jail, to which Sheets responded “Yeah.” No records of phone
calls or text messages referenced were introduced.
{¶37} Here, it is not clear if the prosecution was in possession of text messages
or phone calls of the alleged interactions between Sheets and Shannon. However, there
is nothing in the record to indicate that the questions were asked to convey false
information or mislead the jury. “The prosecution * * * must avoid insinuations and
assertions which are calculated to mislead the jury.” State v. Grable, 11th Dist. Ashtabula
No. 2019-A-0042, 2019-Ohio-4516, ¶ 16. In fact, Sheets ultimately admitted that she did
engage in sexual text messages with Shannon, although the content of such messages
is unknown.
{¶38} Nonetheless, even presuming the prosecutor’s comments were improper,
they had no prejudicial impact on Shannon’s rights or the outcome of the trial. As outlined
above, there was overwhelming evidence supporting Shannon’s convictions, including
the testimony of the victim and multiple witnesses regarding the events that occurred that
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night, which directly contradicted Sheets’ alibi testimony, and Shannon’s own Facebook
comments.
{¶39} The third assignment of error is without merit.
{¶40} In his fourth assignment of error, Shannon argues that “the Reagan Tokes
Law, as applied to the sentence in Mr. Shannon’s case, violates [his] Sixth Amendment
right to trial by jury, the doctrine of separation of powers, and Fourteenth Amendment due
process based on (1) lack of notice due to vagueness, (2) inadequate parameters on
executive branch discretion, and (3) inadequate guarantees for a fair hearing.”
{¶41} In support of the contention that sentences under Reagan Tokes are invalid,
Shannon cites extensively to State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th
Dist.). We emphasize that this opinion was vacated by the Eighth District sitting en banc
and the court upheld the constitutionality of the law in State v. Delvallie, 2022-Ohio-470,
185 N.E.3d 536 (8th Dist.).
{¶42} We reject Shannon’s arguments that the Reagan Tokes Law is
unconstitutional. Initially, “we are to presume that [a] state statute is constitutional, and
the burden is on the person challenging the statute to prove otherwise beyond a
reasonable doubt.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512,
¶ 17. Further, no objection was raised to the sentence in the lower court. “[A]n appellate
court will not consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court's attention at a time when
such error could have been avoided or corrected by the trial court.” (Citation omitted.)
Awan, 22 Ohio St.3d at 122, 489 N.E.2d 277. While an appellate court may hear a
constitutional challenge that has not been raised below, such an issue is evaluated only
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for plain error. State v. Freetage, 11th Dist. Portage No. 2020-P-0083, 2021-Ohio-4050,
¶ 34. “When the court hears an appeal for plain error, it must presume the constitutionality
of the statute at issue and will not invalidate it unless the challenger establishes that it is
unconstitutional beyond a reasonable doubt.” Id.{¶43} Shannon argues that Reagan Tokes violates the right to a trial by jury,
noting that Delvallie found that it improperly removed the fact-finding duty from the jury
and put it in the hands of the ODRC.
{¶44} In the en banc Delvallie opinion, 2022-Ohio-470, the Eighth District found
that R.C. 2967.271(C) and (D) do not violate the right to a jury trial. It rejected its prior
determination and found that, while Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), prevents the trial court from imposing a sentence in excess
of the statutory maximum without the factual circumstances justifying the enhanced
sentence first being found by a jury beyond a reasonable doubt, R.C. 2967.271 statutorily
requires a court “to impose the minimum and maximum terms upon the offender being
found guilty of the qualifying felony offense – similar to an offender being sentenced to
life with the possibility of parole under the indefinite life sentencing structure.” Id. at ¶ 40.
Reagan Tokes does not authorize “a sentencing court, or the ODRC for that matter, to
impose a sentence beyond the maximum set forth in the sentencing statutes or to elevate
the minimum term beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a).”
Id. at ¶ 41. Further, it emphasized that under Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517 (2009), a state court’s imposition of consecutive sentences did not
violate the right to a jury trial because juries historically “played no role in” the decision to
impose consecutive or concurrent sentences and that “specification of the regime for
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administering multiple sentences has long been considered the prerogative of state
legislatures.” Delvallie at ¶ 42, citing Ice at 168. Under Reagan Tokes, the court cannot
impose a term greater than the maximum as prohibited under Apprendi nor does it impose
a sentence longer than the minimum term prescribed by statute based on findings of facts
in addition to those considered by the jury.
{¶45} Next, Shannon argues that Reagan Tokes violates the separation of
powers. This argument has been consistently rejected by courts throughout this state.
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36; State v. Hacker,
2020-Ohio-5048, 161 N.E.3d 112, ¶ 22 (3d Dist.); State v. Bontrager, 2022-Ohio-1367,
188 N.E.3d 607, ¶ 44 (4th Dist.); State v. Ratliff, 2022-Ohio-1372, 190 N.E.3d 684, ¶ 56
(5th Dist.); State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682, ¶ 7 (6th Dist.); Delvallie,
2022-Ohio-470, at ¶ 38.
{¶46} Shannon cites the application of State ex rel. Bray v. Russell, 89 Ohio St.3d
132, 729 N.E.2d 359 (2000), in support of the argument that the Reagan Tokes Law
violates the separation of powers because it vests judicial power in the executive branch.
Bray addressed the constitutionality of R.C. 2967.11, which allowed the parole board to
punish a rule violation committed by the prisoner by extending the stated prison term. In
Bray, the Ohio Supreme Court held that R.C. 2967.11 was unconstitutional because the
parole board “act[ed] as judge, prosecutor, and jury” and its enactment intruded “well
beyond the defined role of the executive branch as set forth in our Constitution.” Id. at
135.
{¶47} Bray is inapplicable to the Reagan Tokes Act. R.C. 2967.11 authorized the
parole board to impose an additional prison term beyond the one the trial court imposed.
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Under Reagan Tokes, the executive branch cannot impose additional time beyond the
maximum sentence imposed by the trial court at the time of sentencing. This situation is
more similar to that in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), where
the court found Ohio’s postrelease control statute, R.C. 2967.27, to be constitutional since
the postrelease control terms are made part of the sentence imposed by the court and
the parole board’s discretionary power to impose postrelease control sanctions did not
impinge on the judiciary’s mandate to impose sentence. Id. at 512. In Reagan Tokes
sentences, the court imposes both presumptive minimum and possible maximum prison
terms in its sentence. Thereafter, the ODRC determines whether the offender’s conduct
warrants more than the minimum imposed but cannot exceed the judiciary’s maximum
imposed sentence. This procedure has been characterized as “not meaningfully distinct
from Ohio’s current parole system, in which offenders may be kept in prison following
service of the minimum term for parole eligibility” and as “similar, if not identical, to the
executive branch’s authority to release offenders from sentences under Ohio’s parole
system for indefinite life sentences.” Delvallie, 2022-Ohio-470, at ¶ 24-25. Therefore,
Bray does “not compel the conclusion that the Reagan Tokes Law violates the separation
of powers doctrine.” Barnes at ¶ 36.
{¶48} Shannon also argues that Reagan Tokes violates his due process rights,
contending that it is void for vagueness because factors other than those stated in the
statute can be considered to extend his sentence. Again, he cites to the vacated opinion
in Delvallie, in which the appellant argued that the requirements for a rule violation in
prison were too vague to allow for extending the minimum sentence. We observe that
although Shannon states in his brief that the Reagan Tokes Law “as applied to the
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sentence in Mr. Shannon’s case, violates * * * due process,” the substantive arguments
raised relate to the validity of the statute as a whole rather than in relation to his particular
conduct. See Kruppa v. Warren, 11th Dist. Trumbull No. 2009-T-0017, 2009-Ohio-4927,
¶ 12 (“[a]n as applied challenge asserts that a statute is unconstitutional as applied to the
challenger’s particular conduct,” while a facial challenge asserts the statute is
unconstitutional in “all of its applications”). We thus address his arguments as a facial
challenge to the law.
{¶49} “‘[A] law will survive a void-for-vagueness challenge if it is written so that a
person of common intelligence is able to ascertain what conduct is prohibited, and if the
law provides sufficient standards to prevent arbitrary and discriminatory enforcement.’”
(Citations omitted.) Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633,
¶ 16. A tripartite analysis must be conducted to address a void for vagueness challenge:
the statute must provide “adequate notice and fair warning to persons of ordinary
intelligence so that they can conform their conduct to the dictates of the statute”; it cannot
permit arbitrary and discriminatory enforcement; and it cannot unreasonably hinder
fundamental constitutional freedoms. State v. Collier, 62 Ohio St.3d 267, 270, 581 N.E.2d
552 (1991). See also Perez v. Cleveland, 78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997)
(“when a statute is challenged under the due process doctrine of vagueness, a court must
determine whether the enactment (1) provides sufficient notice of its proscriptions and (2)
contains reasonably clear guidelines to prevent official arbitrariness or discrimination in
its enforcement”).
{¶50} In State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000), the Ohio
Supreme Court found a sex offender classification statute was not vague where it did not
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prohibit specific conduct but established remedial registration and notification, since such
remedial measures “require less specificity to satisfy a void-for-vagueness challenge than
do criminal statutes.” Id. at 533. Applying this analysis, the Fifth District found that
postrelease control enactments were also not unconstitutionally vague, emphasizing that
they did not prohibit specific conduct. State v. Hopkins, 5th Dist. Stark Nos.
2000CA00053 and 2000CA000054, 2000 WL 1751286, *4 (Nov. 27, 2000).
{¶51} The foregoing is applicable to the Reagan Tokes Law. R.C. 2967.271(B)
establishes a rebuttable presumption that the offender shall be released upon the
expiration of the minimum prison term or early release date, whichever is earlier. Division
(C) provides a detailed description of means by which that presumption may be
overcome, including commission of institutional rule infractions, the offender’s security
level classification, and when the behavior while incarcerated demonstrates a continued
threat to society. As in Williams, R.C. 2967.271 does not prohibit any specific conduct.
Therefore, the statute requires less specificity than a typical criminal enactment.
{¶52} As the en banc panel in Delvallie explained, the Reagan Tokes Law does
not create a new prison rule infraction system; Ohio Adm.Code 5120-9-08 sets forth “an
inmate’s rights and the procedures the Rules Infraction Board are to follow in imposing
any and all institutional infractions upon the inmates. See, e.g., Oko v. Lake Erie Corr.
Inst., 11th Dist. Ashtabula No. 2010-A-0002, 2010-Ohio-2821, 2010 WL 2499702, ¶ 3
(overruling a constitutional challenge to the decision by the Rules Infraction Board).”
Delvallie, 2022-Ohio-470, at ¶ 86. An as applied challenge of an infraction received under
that Board would have to be raised through a separate writ upon imposition of the
infraction. Therefore, any challenges to the vagueness of the enforcement of the Rules
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Infraction Board must be pursued through a writ of mandamus. Id. at ¶ 87. Based on the
foregoing, we conclude that the provisions in R.C. 2967.271 are not vague.
{¶53} Finally, we address the proposition that due process is violated due to a
lack of procedural safeguards in relation to rebuttal of the presumption of release. As
noted above, the rights in the present matter have been compared to those involving
parole. The Ohio Supreme Court has held that a right to parole consideration does not
create a “liberty interest sufficient to establish a right to procedural due process.” State
ex rel. Blake v. Shoemaker, 4 Ohio St.3d 42, 446 N.E.2d 169 (1983). “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.” Ratliff, 2022-Ohio-1372, at ¶ 20.
{¶54} While no Ohio appellate district has held that R.C. 2967.271(C) violates due
process, some districts have reached different conclusions regarding whether requiring a
prisoner to remain in prison beyond the rebuttable presumption of release is analogous
to parole eligibility or parole revocation proceedings involving a termination of liberty
which would require an “informal hearing” to verify facts supporting revocation. Morrissey
v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
{¶55} The Twelfth and Sixth Districts have concluded that hearings conducted
under the Reagan Tokes Law are analogous to parole revocation proceedings. In State
v. Stenson, 190 N.E.3d 1240, 2022-Ohio-2072 (6th Dist.), the court found that “the
Reagan Tokes Law creates a liberty interest more akin to probation revocation decisions,”
emphasizing that a parole release/eligibility is more discretionary and subjective than
parole revocation. Id. at ¶ 31. See also State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837, ¶ 17 (“[t]he hearings conducted by the ODRC under R.C.
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2967.271(C) are analogous to parole revocation proceedings, probation revocation
proceedings, and postrelease control violation hearings”).
{¶56} In contrast, the Second District has concluded that “requiring a defendant
to remain in prison beyond the presumptive minimum term is akin to the decision to grant
or deny parole” since “if [the offender] commits rule infractions or crimes while in prison,
he may be required to serve the entire sentence already imposed by the trial court.” State
v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.
{¶57} We find it premature to reach a conclusion as to whether parole revocation
or parole eligibility procedures most closely resemble the present matter. Shannon does
not raise a challenge to the statute as applied; since he has not yet been subject to a
sentence beyond the minimum term, his challenge necessarily is facial in nature. See
Stenson at ¶ 31 (the “ODRC has not sought to extend [appellant’s] term beyond the
presumptive minimum sentence * * * [and his] challenge to the Reagan Tokes Law is
necessarily a facial challenge”). “A facial challenge to a statute is the most difficult to
bring successfully because the challenger must establish that there exists no set of
circumstances under which the statute would be valid.” Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. “The fact that a statute might operate
unconstitutionally under some plausible set of circumstances is insufficient to render it
wholly invalid.” Id. “If a statute is unconstitutional on its face, the statute may not be
enforced under any circumstances.” Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-
Ohio-2187, 970 N.E.2d 898, ¶ 21.
{¶58} It has been held that “the Reagan Tokes Law may not be found to be
unconstitutional, on its face, as violating due process merely because the specific
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procedures for invoking an additional period of incarceration are not set forth in the Law
itself.” State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 22. “[T]he
legislature is not required to codify all rules and procedures under the statutory provision
but instead can defer to the executive agency’s establishment of its own rules or
procedures to safeguard constitutional concerns, which must be challenged through the
appropriate mechanisms.” Delvallie, 2022-Ohio-470, at ¶ 59. We do not find that, as a
facial challenge, there are no circumstances under which the statute can be enforced.
Stenson at ¶ 33 (“given that this is a facial challenge to the Law, it cannot be said at this
juncture that the Law ‘cannot be applied constitutionally in any circumstances’”).
{¶59} We find that Shannon’s arguments relating to R.C. 2967.271(C) and the
procedural safeguards of the hearing to rebut his presumptive release constitute an as
applied challenge which is not yet ripe for review, because those aspects of the statute
have not been applied to him.
{¶60} The fourth assignment of error is without merit.
{¶61} For the foregoing reasons, Shannon’s convictions and sentence in the
Trumbull County Court of Common Pleas are affirmed. Costs to be taxed against
appellant.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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