State v. Moran

[Cite as State v. Moran, 2022-Ohio-3610.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2020-L-114
2020-L-115
Plaintiff-Appellee, 2020-L-116
2020-L-117
-v-
JOEY L. MORAN, Criminal Appeals from the
Court of Common Pleas
Defendant-Appellant.
Trial Court Nos. 2019 CR 001299
2019 CR 001300
2019 CR 001301
2019 CR 001302
OPINION
Decided: October 11, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Joey L. Moran, appeals the trial court’s October 21, 2020
sentencing entry. On remand from the Supreme Court of Ohio, we affirm.
I. Introduction
{¶2} In State v. Moran, 11th Dist. Lake Nos. 2020-L-114, et seq., 2021-Ohio-
1987 (“Moran I”), this court affirmed Moran’s convictions in four cases. Thereafter, we
certified a conflict with respect to our holding that Moran’s challenges to the Reagan
Tokes Law were not ripe for review. Subsequently, the Supreme Court of Ohio decided
State v. Maddox, ––– Ohio St.3d ––––, 2022-Ohio-764, ––– N.E.3d ––––, in which it
concluded that such challenges are ripe for review, and it reversed Moran I for further
proceedings consistent with Maddox. In re Cases Held for the Decision in State v.
Maddox, 167 Ohio St.3d 409, 2022-Ohio-1352, 193 N.E.3d 553.
{¶3} In Moran I, Moran raised the following constitutional challenges to the
Reagan Tokes Law in his second through fifth assigned errors, as follow:
[2.] The defendant-appellant’s indeterminate prison sentence
of four to six years in trial court Case No. 19 CR 001300, which
was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate
Bill 201, must be rever[s]ed as the Reagan Tokes Act is
unconstitu[t]ionally void for vagueness.
[3.] The defendant-appellant’s indeterminate prison sentence
of four to six years in trial court Case No. 19 CR 001300, which
was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate
Bill 201, must be rever[s]ed as the Reagan Tokes Act
unconstitutionally violates the separation of powers.
[4.] The defendant-appellant’s indeterminate prison sentence
of four to six years in trial court Case Number 19 CR 001300,
which was ordered pursuant to the ‘Reagan Tokes Act,’ aka
Senate Bill 201, violates his constitutional right to trial by jury
as guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Section 5 of the
Ohio Constitution.
[5.] The defendant-appellant’s indeterminate prison sentence
of four to six years in trial court Case Number 19 CR 001300
which was ordered pursuant to the ‘Reagan Tokes Act,’ aka
Senate Bill 201, violates his constitutional rights to fair trial and
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due process as guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Sections 5 & 10 of the Ohio Constitution.
{¶4} Initially, we note that the constitutionality of the Reagan Tokes Law has
been addressed by other Ohio appellate courts, each of which has declared that the
sentencing scheme does not facially violate an inmate’s constitutional rights. See, e.g.,
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-
Ohio-5048, 161 N.E.3d 112 (3d Dist.); State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d
607 (4th Dist.); State v. Ratliff, 2022-Ohio-1372, 190 N.E.3d 684 (5th Dist.); State v.
Maddox, 2022-Ohio-1350, 188 N.E.3d 682 (6th Dist.); State v. Delvallie, 2022-Ohio-470,
185 N.E.3d 536 (8th Dist.) (en banc); State v. Guyton, 12th Dist. Butler No. CA2019-12-
203, 2020-Ohio-3837. The issue is currently pending before the Supreme Court of Ohio.
See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496, and State v. Simmons, Sup.
Ct. Case No. 2021-0532.
II. Standard of Review
{¶5} We review the constitutionality of a statute de novo, i.e., independently and
without deference to the trial court’s decision. State v. Jenson, 11th Dist. Lake No. 2005-
L-193, 2006-Ohio-5169, ¶ 5. “An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it must appear beyond a
reasonable doubt that the legislation and constitutional provisions are clearly
incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59(1955), paragraph one of the syllabus; State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-
783, 7 N.E.3d 1156, ¶ 7 (“enactments of the General Assembly enjoy a strong
presumption of constitutionality”). “This means that courts must avoid an unconstitutional
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construction where it is reasonably possible to do so.” Jenson at ¶ 5, citing United Air
Lines, Inc. v. Porterfield, 28 Ohio St.2d 97, 100, 276 N.E.2d 629 (1971). “Further, the
party challenging the statute bears the burden of proving the unconstitutionality of the
statute beyond a reasonable doubt.” Woods v. Telb, 89 Ohio St.3d 504, 511, 733 N.E.2d
1103 (2000), citing State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996).
{¶6} A party may challenge a statute as unconstitutional as applied to a particular
set of facts or, as here, on its face. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-
5334, 836 N.E.2d 1165, ¶ 37. “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. The fact that a statute might
operate unconstitutionally under some plausible set of circumstances is insufficient to
render it wholly invalid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.
2095, 95 L.Ed.2d 697 (1987).
III. The Reagan Tokes Law
{¶7} The Reagan Tokes Law, effective as of March 22, 2019, implemented a
system of indefinite sentencing for non-life felonies of the first and second degree
committed on or after the effective date. Pursuant to the Reagan Tokes Law, a
sentencing court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) is required
to order a minimum prison term under that provision and a maximum prison term as
determined by R.C. 2929.144(B).
{¶8} “Of the many changes to Ohio’s criminal sentencing scheme that were
brought about by the Reagan Tokes Law, the change that is most pertinent to our present
discussion centers around R.C. 2967.271(B)-(F), which permits prison authorities within
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the executive branch to hold defendants in confinement during the indefinite portion of
their sentence for conduct that violates prison rules and regulations.” State v. Eaton, 6th
Dist. Lucas No. L-21-1121, 2022-Ohio-2432, ¶ 13.
{¶9} R.C. 2967.271(B) sets forth 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.”
R.C. 2967.271(C) provides that the Ohio Department of Rehabilitation and Correction
(“ODRC”) may rebut the presumption for release if it holds a hearing and determines that
any of the three enumerated factors, discussed below, are applicable. If the ODRC rebuts
the presumption for release, R.C. 2967.271(D)(1) provides that the ODRC may “maintain”
the offender in confinement for a “reasonable period,” which “shall not exceed the
offender’s maximum prison term.” R.C. 2967.271(E) provides that the ODRC “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 it provides for the possible release of inmates
on parole. Finally, R.C. 2967.271(F) permits the director of the ODRC to recommend a
reduction in the offender’s minimum prison term (except for sexually oriented offense
convictions), which creates a presumption in favor of the reduction that may be rebutted
by the prosecutor at a hearing before the sentencing court.
{¶10} Although indefinite sentencing has previously been utilized as the law in
Ohio for first- and second-degree felonies, the presumptive release date is novel to the
Reagan Tokes Law. See State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-
5501, ¶ 56 (Gwin, J., dissenting), citing State v. Davis, 9th Dist. Summit No. 13092, 1987
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Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11, and State v. Jenks, 2d Dist.
Montgomery No. 10264, 1987 WL 20267 (Nov. 16, 1987), citing former R.C. 2929.1.
IV. Due Process Arguments
{¶11} Here, in his second and fifth assigned errors, Moran maintains that the
Reagan Tokes Law is void for vagueness and violates his constitutional rights to fair trial
and due process, respectively. These are facial challenges to the constitutionality of the
enactment, thereby placing the burden on Moran to prove beyond a reasonable doubt
that there is no set of circumstances under which the Reagan Tokes Law would be
constitutional.
V. Due Process Rights
{¶12} “The touchstone of due process is protection of the individual against
arbitrary action of government.” (Citation omitted.) Wolff v. McDonnell, 418 U.S. 539,
558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
{¶13} The Due Process Clause in the Fourteenth Amendment to the United States
Constitution provides: “No State shall * * * deprive any person of life, liberty, or property,
without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16
of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury
done him in his land, goods, person, or reputation, shall have remedy by due course of
law, and shall have justice administered without denial or delay.” The two clauses are
coextensive and provide equivalent due process protections. State v. Aalim, 150 Ohio
St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15; State v. Anderson, 148 Ohio St.3d 74,
2016-Ohio-5791, 68 N.E.3d 790, ¶ 21. We can therefore rely on decisions of both the
United States Supreme Court and the Ohio Supreme Court. Anderson at ¶ 23.
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{¶14} The standard analysis of due process 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.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732(2011), citing Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,
104 L.Ed.2d 506 (1989). In other words, “[o]nce it is determined that due process applies,
the question remains what process is due. * * * [N]ot all situations calling for procedural
safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). At a minimum, “[o]ur courts have long recognized
that due process requires both notice and an opportunity to be heard.” In re Thompkins,
115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13.
VI. The Liberty Interest
{¶15} Those who seek to invoke the procedural protection of the Due Process
Clause must establish that one of three interests is at stake: life, liberty, or property.
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). A “liberty
interest may arise from the Constitution itself, by reason of guarantees implicit in the word
‘liberty,’” or “from an expectation or interest created by state laws or policies.” (Citations
omitted.) Id.{¶16} At stake here is an inmate’s liberty interest. “[L]awfully incarcerated persons
retain only a narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460,
467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). “There is no constitutional or inherent right
of a convicted person to be conditionally released [e.g., released on parole] before the
expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal & Corr.
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Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “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.” (Emphasis added.) Ratliff, 2022-Ohio-1372, at ¶
20, citing Greenholtz at 11-16 (“where the [United States] 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”).
{¶17} With this in mind, the relevant sections of the Reagan Tokes Law provide
as follows:
(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.
(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
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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.
(Emphasis added.) R.C. 2967.271.
{¶18} “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 Reagan Tokes Law has arguably created
enforceable liberty interests in parole.” Ratliff at ¶ 30, citing Board of Pardons v. Allen,
482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (where the United States Supreme
Court so held in the context of a Montana statute providing that the parole board “shall”
release a prisoner, subject to certain restrictions). See also State ex rel. Bailey v. Ohio
Parole Bd., 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.’” (Citation omitted; emphasis sic.)); and Inmates of Orient Corr.
Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 236-237 (6th Cir.1991) (where the
court suggested that a protected liberty interest would be created by regulations alone if
they “created an explicit presumption of entitlement to release on parole” or “otherwise
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used ‘mandatory language’ in connection with ‘specific substantive predicates’ for release
on parole”).
{¶19} A liberty interest is always at stake when an inmate is entitled to release
from confinement, whether that entitlement is presumptive or otherwise. And there is no
disagreement that some liberty interest arises from an expectation or interest that is
created by the Reagan Tokes Law. See Eaton, 2022-Ohio-2432, at ¶ 127 (“The courts
that have considered similar due process challenges to the Reagan Tokes Law have had
no difficulty in concluding that defendants do, in fact, have a liberty interest sufficient to
trigger due process safeguards.”). Nevertheless, the exact nature of this liberty interest—
and, by extension, the nature of the process due—has been the subject of much debate
within and amongst our sibling courts. This disagreement is discussed further below,
pertaining to the procedural safeguards of the additional term hearing. But first, we
consider notice.
VII. Notice of Proscribed Conduct
{¶20} “In the criminal context, the requirement of notice concerns ‘the accused’s
right to fair notice of the proscribed conduct.’” State v. Philpotts, 2019-Ohio-2911, 132
N.E.3d 743, ¶ 44 (8th Dist.), quoting State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578,
¶ 33 (4th Dist.), citing Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70
L.Ed. 322 (1926). “This refers to the principle that due process requires criminal statutes
to be written clearly so that individuals are provided with a fair warning that a certain
conduct is within the statute’s prohibition.” Philpotts at ¶ 44, citing Wheatley at ¶ 33, citing
Screws v. United States, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945);
Connally at 391 (“a statute which either forbids or requires the doing of an act in terms so
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vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law”); and State v. Elmore,
122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 23 (due process requires law to
be written so that the public can adequately inform itself before acting).
{¶21} Again, in order to rebut the presumptive release date, the ODRC is required
to conduct a hearing and make at least one of the following statutory findings before it
may maintain the inmate beyond the presumptive release date:
(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) 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.
(Emphasis added.) R.C. 2967.271(C).
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{¶22} The inmate rules of conduct are set forth in Ohio Adm.Code 5120-9-06. The
disciplinary procedures for violations of inmate rules of conduct before the rules infraction
board are set forth in Ohio Adm.Code 5120-9-08. The procedures for when and why an
inmate may be placed in a restrictive housing assignment are set forth in Ohio Adm.Code.
5120-9-10. The hearing procedure for release consideration is set forth in Ohio
Adm.Code 5120:1-1-11. See also Ratliff, 2022-Ohio-1372, at ¶ 47. Each of these Ohio
Administrative Code procedures provides, at a minimum, notice and an opportunity to be
heard. See also id. at ¶ 48.
{¶23} Accordingly, we conclude that an inmate is provided with advance notice
under the Revised Code and the Ohio Administrative Code of the behavior and conduct
that may contribute to or could result in the ODRC rebutting the presumption of release.
Therefore, Moran’s second assigned error lacks merit.
VIII. Procedural Safeguards
{¶24} With respect to Moran’s fifth assigned error regarding procedural
safeguards, “Although the concept is flexible, at its core, procedural due process under
both the Ohio and United States Constitutions requires, at a minimum, an opportunity to
be heard when the state seeks to infringe a protected liberty or property right.” (Footnote
omitted.) State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, ¶ 8,
citing Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
“[T]he opportunity to be heard must occur at a meaningful time and in a meaningful
manner.” (Citations omitted.) Cowan at ¶ 8; see also Vitek v. Jones, 445 U.S. 480, 500,
100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (Powell, J., concurring) (“The essence of
procedural due process is a fair hearing.”).
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{¶25} As stated above, our sibling districts are at odds regarding the extent of the
liberty interest and the process that safeguards a fair hearing. The disagreement is rooted
in whether the rebuttable presumption of release in the Reagan Tokes Law is most
analogous to parole revocation proceedings or parole release proceedings (alternatively
referred to as parole eligibility proceedings).
{¶26} “The distinction between parole eligibility and parole revocation is significant
when discussing due process because the liberty interest in parole revocation – which
entails taking someone’s freedom away – is much greater than the liberty interest in
parole eligibility – which typically entails the hope or anticipation of freedom.” Delvallie,
2022-Ohio-470, at ¶ 139 (Forbes, J., dissenting), citing Greenholtz, 442 U.S. at 9(“[P]arole release and parole revocation are quite different. There is a crucial distinction
between being deprived of a liberty one has, as in parole [revocation], and being denied
a conditional liberty that one desires[,]” as in parole release or eligibility. (Emphasis sic.)).
Although neither affords an inmate the “full panoply of rights due” in a criminal
prosecution, Morrissey, 408 U.S. at 480, parole revocation requires greater procedural
safeguards than parole eligibility or parole release. Greenholtz at 10.
{¶27} The Sixth and Twelfth Districts have concluded that the additional term
hearings under the Reagan Tokes Law are more analogous to parole revocation
proceedings. State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 31 (6th Dist.) (“the
Reagan Tokes Law creates a liberty interest more akin to probation revocation
decisions”); Guyton, 2020-Ohio-3837, at ¶ 17 (“[t]he hearings conducted by the ODRC
under R.C. 2967.271(C) are analogous to parole revocation proceedings, probation
revocation proceedings, and postrelease control violation hearings”). The Twelfth District
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explains this conclusion merely by stating that “[t]his is because * * * all three situations
concern whether a convicted felon has committed violations while under the control and
supervision of the ODRC.” Guyton at ¶ 17. The Sixth District undertakes a more thorough
analysis, explaining that “the Reagan Tokes Law functions unlike the merely discretionary
decision to release an offender on parole,” which is largely “‘subjective’ and ‘predictive.’”
Stenson at ¶ 28-30, quoting Greenholtz at 13. Rather, the Sixth District finds that the
additional term hearing of the Reagan Tokes Law functions more like a parole revocation
decision by requiring “two determinations under R.C. 2967.271(C)(1): (1) did the offender,
during his incarceration, commit certain rule violations or unprosecuted crimes?—‘wholly
retrospective factual question[s]’; and (2) does this behavior demonstrate that the
offender still poses a threat to society?” Stenson at ¶ 30, quoting Greenholtz at 8. This
conclusion is also expressly favored by the five dissenting judges in the Eighth District’s
en banc opinion. See Delvallie at ¶ 140-142 (Forbes, J., et al., dissenting) (“Unlike Ohio’s
parole eligibility proceedings, the Reagan Tokes Law includes an express presumption
of release[.]”) and ¶ 192 (Mays, J., et al., dissenting in part).
{¶28} Under this parole revocation view, the process that is due with regard to the
additional term hearing under the Reagan Tokes Law is set forth in the United States
Supreme Court’s decision in Morrissey. See Stenson at ¶ 31; Guyton at ¶ 14; and
Delvallie at ¶ 148 (Forbes, J., dissenting). Pursuant to Morrissey, the minimum
requirements of due process include the following for parole revocation proceedings:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses
and documentary evidence;
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(d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not
allowing confrontation);
(e) a “neutral and detached” hearing body such as a traditional
parole board, members of which need not be judicial officers
or lawyers; and
(f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.
Morrissey at 489; accord State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975).
{¶29} On the other hand, 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,” i.e., akin to parole eligibility/release, rather than parole
revocation. State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.
“Simply put, 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.” Id. This
conclusion, that the liberty interest at stake under the Reagan Tokes Law is most
analogous to parole eligibility/release, is also favored by the Sixth District’s lead opinion
in Eaton, albeit the minority view of that panel’s decision. Eaton, 2022-Ohio-2432, at ¶
133. The author of that opinion provides several reasons in support of this conclusion:
First, the defendant is suffering a loss of his physical liberty in
institutional confinement in both situations [the initial parole
release hearing and the additional term hearing under the
Reagan Tokes Law], unlike the relative freedom he enjoys
when already released on parole or post-release control. This
is important because a defendant who is already in
confinement has a reduced liberty interest and is therefore
entitled to less process than a defendant who is already free.
Second, in both the parole release hearing and the [additional
term] review hearing under the Reagan Tokes Law, the
reviewing body is focused upon whether the defendant’s
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conduct justifies his release from confinement, not whether he
should be returned to confinement. Again, the liberty interests
are different and thus the protections to which a defendant is
entitled are different.
Since the trial court imposes both the minimum and maximum
sentence, a defendant sentenced under the Reagan Tokes
Law is still serving his sentence at the time of the additional
term hearing and, if ordered to serve the indefinite portion of
the sentence, will continue to serve the sentence previously
imposed by the trial court. Therefore, the issue in the
additional term hearing is release from confinement, not
revocation of parole. Stripping away the semantics, the reality
here is that, from [the inmate’s] perspective, he is presently
incarcerated and wishes to be freed from incarceration – by
definition, this is release and not revocation.
(Emphasis sic.) Id. at ¶ 131-132. Further support for this view can be found in the fact
that R.C. 2967.271 is referenced in R.C. 2967.13, the statute governing “parole eligibility”
(“(F) A prisoner serving a stated prison term that is a non-life felony indefinite prison term
shall be released in accordance with sections 2967.271 and 2967.28 of the Revised
Code.”); compare R.C. 2967.15 (the statute governing parole revocation makes no
mention of R.C. 2967.271).
{¶30} Under this parole eligibility/release view, the process that is due with regard
to the additional term hearing under the Reagan Tokes Law is equivalent to “the process
required for defendants under the presumptive parole regime”—i.e., “minimal process
including an opportunity to be heard and an explanation of the basis for denial of parole
release.” Eaton at ¶ 137, citing Greenholtz, 442 U.S. at 16 (“The Constitution does not
require more.”); Swarthout, 562 U.S. at 220 (“In the context of parole, we have held that
the procedures required are minimal.”); see also Bailey, 2017-Ohio-9202, at ¶ 9-10.
{¶31} We find it premature to reach a conclusion on this issue. Again, “[a] facial
challenge to a statute is the most difficult to bring successfully because the challenger
16
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
must establish that there exists no set of circumstances under which the statute would be
valid.” Harrold, 2005-Ohio-5334, at ¶ 37, citing Salerno, 481 U.S. at 745. To prevail, it
must be shown that the statute cannot be constitutionally applied in any circumstances.
Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21. “The
fact that a statute might operate unconstitutionally under some plausible set of
circumstances is insufficient to render it wholly invalid.” Harrold at ¶ 37, citing Salerno at
745. Additionally, we caution that “[t]he judicial authority to override the legislative will
should be used with extreme caution and restraint, because declaring a statute
unconstitutional based on a facial challenge is an ‘exceptional remedy.’” State v. Mole,
149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 96 (Kennedy, J., dissenting),
quoting Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir.2010); see also Sabri v. United
States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), quoting United States
v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (“Facial adjudication
carries too much promise of ‘premature interpretation of statutes’ on the basis of factually
barebones records.”).
{¶32} Here, because the ODRC has not sought to extend appellant’s term beyond
the presumptive minimum sentence, appellant’s challenge to the procedural safeguards
of the additional term hearing is necessarily a facial challenge to the Reagan Tokes Law.
See Stenson, 2022-Ohio-2072, at ¶ 31; see also Delvallie, 2022-Ohio-470, at ¶ 53, citing
Morrissey, 408 U.S. at 480 (an inmate’s liberty interest in the right to be released from a
prison term “does not arise until after the offender is sentenced and his conviction deemed
final”).
17
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
{¶33} As noted by the Sixth and Eighth Districts, the United States Supreme
Court’s opinion in “Morrissey is instructive because it necessarily implies that the specific
procedural requirements applicable to protect a particular liberty interest need not be set
forth in the legislation itself.” Stenson at ¶ 32, citing Morrissey; Delvallie at ¶ 66
(“Morrissey itself does not even require the legislature to codify the procedural details,
nor does it require the executive agency to formally draft rules in compliance with
Morrissey.”). We agree. Albeit in the specific context of the process due a parolee whose
parole is being revoked, the Court acknowledged that most states have enacted
legislation setting forth procedural requirements for parole revocation hearings, while
others have done so by judicial decision. Morrissey at 488 (“We cannot write a code of
procedure; that is the responsibility of each State. Most States have done so by
legislation, others by judicial decision usually on due process grounds.”). “In other words,
Morrissey suggests that the Reagan Tokes Law may not be found to be unconstitutional,
on its face, as violating due process merely because the specific procedures for invoking
an additional period of incarceration are not set forth in the Law itself.” Stenson at ¶ 32.
{¶34} “No constitutional provision requires the legislature to expressly set forth
each and every right afforded to an offender at every stage of proceedings created by
statutory process. For that, the legislature is free to delegate authority to the executive
branch.” Delvallie at ¶ 58, citing AMOCO v. Petroleum Underground Storage Tank
Release Comp. Bd., 89 Ohio St.3d 477, 480, 733 N.E.2d 592 (2000) (the General
Assembly may delegate rule-making authority to an executive agency); State v.
Schreckengost, 30 Ohio St.2d 30, 32, 282 N.E.2d 50 (1972) (“Delegation to state
administrative officials of the authority to adopt and enforce regulations to implement such
18
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
a declared legislative policy is not, per se, unlawful.”); and O’Neal v. State, 2020-Ohio-
506, 146 N.E.3d 605, ¶ 50 (10th Dist.) (“the General Assembly constitutionally may
delegate authority to promulgate rules, policies, and regulations to subordinate boards
and agencies”). “[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 at ¶ 59, citing Wilkinson, 545
U.S. at 226 and Wolff, 418 U.S. at 563 (both cases involved reviewing the rules or
procedures established by the executive agency for constitutional compliance).
{¶35} R.C. 2967.271 does not include procedural requirements for the additional
term hearing, nor does it include language authorizing the ODRC to draft rules and
regulations for the review hearings. Nevertheless, the enabling statute R.C. 5120.01
requires that “[a]ll duties” conferred upon the ODRC by the legislature “shall be performed
under the rules and regulations that the director prescribes and shall be under the
director’s control.” See Delvallie, 2022-Ohio-470, at ¶ 60, quoting Bibler v. Stevenson,
150 Ohio St.3d 144, 2016-Ohio-8449, 80 N.E.3d 424, ¶ 15 (“R.C. 2967.271 ‘does not
exist in a vacuum. It is a creature of the Revised Code, it is subservient to the Revised
Code, and it necessarily incorporates the Revised Code.’”).
{¶36} Expressly under the authority of R.C. 5120.01 and R.C. 2967.271, the
Director of the ODRC promulgated ODRC Policy 105-PBD-15, available at
https://drc.ohio.gov/policies/parole-board (last visited July 25, 2022). “The purpose of this
policy is to establish a standard procedure for the [ODRC] to carry out its statutory duties
efficiently and consistently concerning the Additional Term Hearing Process for persons
19
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
sentenced under Senate Bill 201 (132nd Ohio General Assembly).” ODRC Policy 105-
PBD-15, Section II. The Policy itself is set forth as follows:
Pursuant to the authority granted to ODRC under ORC
2967.271, it is the policy of ODRC to establish an Additional
Term Hearing process for conducting hearings to determine
whether the presumption of release at the expiration of an
incarcerated adult’s minimum term is rebutted, and if so, to
maintain incarceration of an incarcerated adult for an
additional period of time, up to the maximum term.
Incarcerated adults sentenced under ORC 2967.271 may be
subject to an Additional Term Hearing following a finding of
guilt of certain Inmate Rules of Conduct by the Rules
Infraction Board (RIB) and affirmance of that finding after
completion of any RIB appeals or following a recommendation
from the Annual Security Review Team.
ODRC Policy 15-PBD-15, Section V.
{¶37} Two issues arise: (1) whether the policy is of sufficient legal force and effect
to fill the legislative procedural gaps left by R.C. 2971.271; and (2) whether the policy
provides constitutionally sufficient due process. See, e.g., Delvallie (where the issues are
debated at length in the en banc and dissenting opinions). These issues, however, should
be addressed in an as-applied challenge to the procedural safeguards in effect at the
time, if ever, appellant is subjected to an additional term hearing. But see Eaton, 2022-
Ohio-2432, at ¶ 141 (addressing the substance and constitutional sufficiency of the
administrative policy). “This cannot be overemphasized. The appropriate mechanism to
challenge the validity of policies, rules, regulations, or protocols established by the
executive is through a separate declaratory judgment or habeas action seeking to
preclude ODRC from enforcing them, which only occurs at the actual time when those
policies, rules, regulations, or protocols are being applied against the inmate.” (Citations
omitted.) Delvallie at ¶ 91.
20
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
{¶38} “[G]iven 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.’ Should
the Law ultimately be applied in a manner that is unconstitutional, an offender would not
be precluded from challenging the Law as applied.” Stenson, 2022-Ohio-2072, at ¶ 33,
citing Wilkinson, 545 U.S. at 230 (“If an inmate were to demonstrate that the New Policy
did not in practice operate in [a constitutionally-permissible] fashion, resulting in a
cognizable injury, that could be the subject of an appropriate future challenge.”); see also
Delvallie, 2022-Ohio-470, at ¶ 90 (“If the sentence, as imposed, is valid at this stage, an
inmate has the later right to challenge the actual process or procedures that particular
inmate will be subjected to when the sentence is actually carried out by the executive
branch.”).
{¶39} Accordingly, Moran’s arguments contained in his fifth assigned error
pertaining to the procedural safeguards of the additional term hearing are as-applied
challenges and not ripe for review. Accordingly, we conclude that the Reagan Tokes Law
does not, on its face, violate the constitutional right to due process.
IX. Separation of Powers
{¶40} In his third assigned error, Moran argues that the Reagan Tokes Law
violates separation of powers. “The Ohio Supreme Court has said that ‘[t]he
administration of justice by the judicial branch of the government cannot be impeded by
the other branches of the government in the exercise of their respective powers.’” State
v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 21, quoting State ex
rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the
syllabus.
21
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{¶41} In arguing that the Reagan Tokes Law violates the separation of powers,
offenders have generally relied on State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729
N.E.2d 359 (2000), where the Supreme Court of Ohio held unconstitutional former R.C.
2967.11, commonly known as “the bad-time law.” The relevant portion of the bad-time
law provided that “[a]s part of a prisoner’s sentence, the parole board may punish a
violation committed by the prisoner by extending the prisoner’s stated prison term for a
period of fifteen, thirty, sixty, or ninety days in accordance with this section.” (Emphasis
added.) Former R.C. 2967.11(B).
{¶42} The Bray court concluded that the various provisions of former R.C. 2967.11
enabled “the executive branch to prosecute an inmate for a crime, to determine whether
a crime has been committed, and to impose a sentence for that crime. This is no less
than the executive branch’s acting as judge, prosecutor, and jury. R.C. 2967.11 intrudes
well beyond the defined role of the executive branch as set forth in our Constitution.” Bray
at 135.
{¶43} However, after deciding Bray, the Ohio Supreme Court decided Woods, 89
Ohio St.3d 504, “holding that the post-release-control statute did not violate the
separation-of-powers doctrine.” Ferguson, 2020-Ohio-4153, at ¶ 22. “The post-release-
control statute required a court to impose the terms of post-release control and left it to
the Adult Parole Authority (APA) to determine whether to impose sanctions for any
violation of the terms. The Court said that this statute was ‘clearly distinguishable’ from
the bad-time statute at issue in Bray.” Id. at ¶ 22, quoting Woods at 512. “Unlike
additional prison time under the latter statute, post-release-control terms were made part
of the original judicially imposed sentence.” Ferguson at ¶ 22. “‘[B]ecause the APA's
22
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
discretion in managing post-release control does not impede the function of the judicial
branch,’ said the Court, the post-release-control statute did not violate the separation-of-
powers doctrine.” Id. at ¶ 22, quoting Woods at 512.
{¶44} The Second District in Ferguson determined that the Reagan Tokes Law
does not violate separation of powers, noting that the Ohio Supreme Court had “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.” Ferguson at ¶ 23, citing 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, overruled on other grounds, citing Woods. “Such is the case
under the scheme established by the Reagan Tokes Law.” Ferguson at ¶ 23. The
Ferguson court explained that pursuant to the Reagan Tokes Law:
A court imposes both the minimum and maximum prison
terms, including both in its sentence. The [ODRC] then
determines whether the offender merits more than the
minimum and up to the maximum imposed. In terms of the
separation of powers, the delegation of power to the [ODRC]
is like the system of post-release control: “Those terms are
part of the actual sentence, unlike bad time, where a crime
committed while incarcerated resulted in an additional
sentence not imposed by the court. In other words, the court
imposes the full sentence and the [ODRC] determines
whether violations merited its imposition.”
Id. at ¶ 23, quoting Woods at 511.
{¶45} Accordingly, appellate courts considering this challenge to the Reagan
Tokes Law have concluded that the law does not violate separation of powers. Ferguson
at ¶ 23 (2d Dist.); Hacker, 2020-Ohio-5048, at ¶ 22-23 (3d Dist.); Alexander, 2022-Ohio-
1812, at ¶ 56 (4th Dist.); Ratliff, 2022-Ohio-1372, at ¶ 56 (5th Dist.); Maddox, 2022-Ohio-
23
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
1350, at ¶ 7 (6th Dist.); Delvallie, 2022-Ohio-470, at ¶ 36 (8th Dist.); State v. Henderson,
12th Dist. Warren No. CA2020-11-072, 2021-Ohio-3564, ¶ 10-12. We agree.
Accordingly, Moran’s third assigned error lacks merit.
X. Right to Jury Trial
{¶46} In his fourth assigned error, Moran argues that the Reagan Tokes Law
violates the right to a jury trial. The Sixth Amendment to the United States Constitution
and Article I, Section 5 of the Ohio Constitution protect the right to a jury trial. “In
Apprendi, the [Supreme Court of the United States] held that the Sixth Amendment
requires that ‘any fact that increases the penalty for a crime beyond the prescribed
statutory maximum,’ except for the fact of a prior conviction, ‘must be submitted to a jury,
and proved beyond a reasonable doubt.’” State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-
5167, 167 N.E.3d 947, ¶ 13, quoting Apprendi v. New Jersey, 530 U.S. 466, 490,120
S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, Apprendi did not hold that all judicial
factfinding is violative of the right to a jury trial, as it explained that trial courts may
“exercise discretion—taking into consideration various factors relating both to offense and
offender—in imposing a judgment within the range prescribed by statute.” (Emphasis
sic.) Apprendi at 481. The Apprendi Court determined that “the relevant inquiry is one
not of form, but of effect—does the required finding expose the defendant to a greater
punishment than that authorized by the jury’s guilty verdict?” (Footnote omitted.) Id. at
494.
{¶47} Thereafter, in Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), the United States Supreme Court reaffirmed its holding in
Apprendi, explaining that “[w]hen a judge inflicts punishment that the jury’s verdict alone
24
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
does not allow, the jury has not found all the facts ‘which the law makes essential to the
punishment,’ and the judge exceeds his proper authority.” Id., quoting 1 J. Bishop,
Criminal Procedure § 87, p. 55 (2d ed.1872). In Blakely, the Supreme Court illustrated
the distinction between permissible and impermissible judicial factfinding in the context of
determinate and indeterminate sentencing schemes:
[T]he Sixth Amendment by its terms is not a limitation on
judicial power, but a reservation of jury power. It limits judicial
power only to the extent that the claimed judicial power
infringes on the province of the jury. Indeterminate
sentencing does not do so. It increases judicial discretion, to
be sure, but not at the expense of the jury’s traditional function
of finding the facts essential to lawful imposition of the penalty.
Of course indeterminate schemes involve judicial factfinding,
in that a judge (like a parole board) may implicitly rule on those
facts he deems important to the exercise of his sentencing
discretion. But the facts do not pertain to whether the
defendant has a legal right to a lesser sentence—and that
makes all the difference insofar as judicial impingement upon
the traditional role of the jury is concerned. In a system that
says the judge may punish burglary with 10 to 40 years, every
burglar knows he is risking 40 years in jail. In a system that
punishes burglary with a 10-year sentence, with another 30
added for use of a gun, the burglar who enters a home
unarmed is entitled to no more than a 10-year sentence—and
by reason of the Sixth Amendment the facts bearing upon that
entitlement must be found by a jury.
(Emphasis sic.) Blakely at 308-309.
{¶48} Subsequently, in Alleyne v. United States, 570 U.S. 99, 108, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court held that the Apprendi
“principle applies equally to facts increasing mandatory minimums: ‘Facts that increase
the mandatory minimum sentence are * * * elements and must be submitted to the jury
and found beyond a reasonable doubt.’” Bowers at ¶ 13, quoting Alleyne at 108. See
also United States v. Haymond, ––– U.S. ––––, 139 S.Ct. 2369, 2379, 204 L.Ed.2d 89725
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
(2019), quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556(2002) (“As this Court has repeatedly explained, any ‘increase in a defendant’s authorized
punishment contingent on the finding of a fact’ requires a jury and proof beyond a
reasonable doubt ‘no matter’ what the government chooses to call the exercise.”).
{¶49} More recently, the Supreme Court addressed Apprendi and its progeny in
Haymond. In Haymond, the defendant was convicted of possessing child pornography,
for which the district judge was authorized to impose a prison term of zero to ten years
and a period of supervised release between five years and life. Id. at 2373. The district
judge sentenced Haymond to a prison term of 38 months, followed by ten years of
supervised release. Id. After completing his prison sentence, while on supervised
release, a search of Haymond’s computers revealed what appeared to be images of child
pornography, and the government then sought to revoke supervised release. Id. at 2374.
A district court conducted a hearing and found that, by a preponderance of the evidence,
Haymond knowingly possessed and downloaded numerous of these images. Id. The
district court sentenced Haymond pursuant to 18 U.S.C. Section 3583(k), which provided
that “if a judge finds by a preponderance of the evidence that a defendant on supervised
release committed one of several enumerated offenses, including the possession of child
pornography, the judge must impose an additional prison term of at least five years and
up to life without regard to the length of the prison term authorized for the defendant’s
initial crime of conviction.” (Emphasis sic. and footnote omitted.) Haymond at 2374. The
special provisions of Section 3583(k) can be contrasted with the “typical supervised
release procedure” contained in Section 3583(e), “where the maximum prison time for
revocation is determined solely by the defendant’s underlying conviction, and the judge
26
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
can refuse to revoke the supervised release altogether, even if the defendant has
engaged in criminal behavior.” Horner, Haymond’s Riddles: Supervised Release, the
Jury Trial Right, & the Government’s Path Forward, 57 Am. Crim. L. Rev. 275, 276 (2020).
In Haymond, the Supreme Court found Section 3583(k) unconstitutional as applied.
Haymond (per Justice Gorsuch, with three Justices concurring and one Justice concurring
in the judgment). However, the Supreme Court limited its decision to Section 3583(k)
and specifically did not reach the issue of the constitutionality of Section 3583(e). Id. at
2382, fn. 7.
{¶50} Unlike Section 3583(k), the Reagan Tokes Law does not mandate a new
minimum prison term for an offender who has been released from confinement. Given
the limited context of Haymond and because the Reagan Tokes Law does not permit the
trial court or the ODRC to impose a new sentence unrelated to the initial sentence,
Haymond is inapplicable.
{¶51} Without regard to Haymond, based upon the Apprendi line of cases, many
offenders challenging the Reagan Tokes Law have argued that “the presumptive-release
provisions of R.C. 2967.271 violates [an offender’s] right to a trial by jury in that it permits
ODRC (and not the jury) to engage in fact-finding increasing the offender’s minimum
prison term, a right protected by the Sixth Amendment [to] the United States Constitution
applicable to the states through the due process clause of the Fourteenth Amendment
[to] the United States Constitution and also guaranteed by Article I, Section 5 of the
Constitution of the State of Ohio.” Hacker, 2020-Ohio-5048, at ¶ 17.
{¶52} Challengers to the law have focused on imprisonment extending beyond
the presumptive release date and not on the sentence initially imposed by the trial court,
27
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
which, aside from Haymond, has been the focus of the Apprendi line of cases. However,
unlike the laws at issue in Apprendi, Blakely, and Alleyne, the Reagan Tokes Law does
not permit the trial court or the ODRC to lengthen the statutorily authorized sentence
based upon facts not found by the jury. Delvallie, 2022-Ohio-470, at ¶ 42, quoting Oregon
v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009) (the Reagan Tokes Law
does not permit a trial court to “impose a sentence ‘beyond the prescribed statutory
maximum’ based on consideration and determination of facts not considered by the jury”);
Ratliff, 2022-Ohio-1372, at ¶ 60. “The only sentencing discretion provided to the trial
court lies with the length of the minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a);
the maximum term is determined based upon a mathematical formula as applied to the
minimum term of imprisonment. The maximum prison term component of a Reagan
Tokes indefinite sentence is therefore authorized by the jury’s guilty verdict and is not
based upon factors not submitted to the jury.” State v. Rogers, 12th Dist. Butler No.
CA2021-02-010, 2021-Ohio-3282, ¶ 17.
{¶53} As explained by the Twelfth District in Rogers:
Once imposed by the trial court, the indefinite sentence is then
implemented by ODRC. ODRC simply enforces the sentence
imposed by the trial court and its review is limited to
determining the offender’s release date. R.C. 2967.271
establishes a presumptive release date upon completion of
the minimum term. Once the minimum term is served, ODRC
may rebut the presumption of release under certain conditions
and enforce the remainder of the maximum term already
imposed by the trial court. R.C. 2967.271(B). However, “[t]hat
codified process does not alter the fact that the trial court
imposed a maximum term as calculated under R.C.
2929.144.” State v. Gamble, 8th Dist. Cuyahoga No. 109613,
2021-Ohio-1810, ¶ 35. In rebutting the presumption of
release, ODRC “is not extending the defendant’s prison term
or imposing its own sentence for violations that occur while
the offender is serving the imposed term of imprisonment.” Id.28
Case Nos. 2020-L-114, 2020-L-115, 2020-L-116, 2020-L-117
at ¶ 7. In other words, ODRC does not “increase” a penalty
based upon facts not found by a jury but merely administers
the sentence already imposed by the trial court for conviction
of an offense for which the offender has the right to a jury trial.
Rogers at ¶ 18.
{¶54} Accordingly, appellate courts reviewing this challenge have found that the
Reagan Tokes Law does not violate an offender’s right to jury trial. State v. Thompson,
2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 24; State v. Freeman, 3d Dist. Allen
No. 1-21-17, 2022-Ohio-1991, ¶ 13; Ratliff at ¶ 61 (5th Dist.); Maddox, 2022-Ohio-1350,
at ¶ 7 (6th Dist.); Delvallie at ¶ 47 (8th Dist.); Rogers at ¶ 14-18 (12th Dist.). We agree.
Accordingly, Morans’s fourth assigned error lacks merit.
XI. Conclusion
For these reasons, we conclude that Moran has not established that the Reagan
Tokes Law is unconstitutional on its face. Moran’s second through fifth assigned errors
are without merit.
{¶55} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
29
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