State v. Cochran

[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. 811 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.