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. 81

1 Adult Parole Authority
Licking County, Case No. 2019 CA 00122 29

.* * *

Woods v. Telb, 89 Ohio St.3d at 511-512, 733 N.E.2d 1103.

{¶51} Although entitled to the protection under the Due Process Clause, “prison

disciplinary proceedings are not part of a criminal prosecution, and the full panoply of

rights due a defendant in such proceedings does not apply.” Wolfe v. McDonnell, 416

U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974) (citations omitted). In Wolfe, the

United States Supreme Court observed,

In striking the balance that the Due Process Clause demands,

however, we think the major consideration militating against adopting the

full range of procedures suggested by Morrissey [v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2d 484(1972)] for alleged parole violators is the very

different stake the State has in the structure and content of the prison

disciplinary hearing. That the revocation of parole be justified and based

on an accurate assessment of the facts is a critical matter to the State as

well as the parolee; but the procedures by which it is determined whether

the conditions of parole have been breached do not themselves threaten

other important state interests, parole officers, the police, or witnesses—at

least no more so than in the case of the ordinary criminal trial. Prison

disciplinary proceedings, on the other hand, take place in a closed, tightly

controlled environment peopled by those who have chosen to violate the

criminal law and who have been lawfully incarcerated for doing so. Some

are first offenders, but many are recidivists who have repeatedly employed

illegal and often very violent means to attain their ends. They may have
Licking County, Case No. 2019 CA 00122 30

little regard for the safety of others or their property or for the rules designed

to provide an orderly and reasonably safe prison life. Although there are

very many varieties of prisons with different degrees of security, we must

realize that in many of them the inmates are closely supervised and their

activities controlled around the clock. Guards and inmates co-exist in direct

and intimate contact. Tension between them is unremitting. Frustration,

resentment, and despair are commonplace. Relationships among the

inmates are varied and complex and perhaps subject to the unwritten code

that exhorts inmates not to inform on a fellow prisoner.

416 U.S. 539, 561-562, 94 S.Ct. 2963, 41 L.Ed.2d 935. Indeed, it has been noted,

“[C]ourts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform.” [Procunier v. Martinez, 416

U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224(1974), overruled on other

grounds by Thornburgh v. Abbott, 490 U.S. 401, 413(1989)]. As the

Martinez Court acknowledged, “the problems of prisons in America are

complex and intractable, and, more to the point, they are not readily

susceptible of resolution by decree.” Id., at 404–405, 94 S.Ct. at 1807.

Running a prison is an inordinately difficult undertaking that requires

expertise, planning, and the commitment of resources, all of which are

peculiarly within the province of the legislative and executive branches of

government. Prison administration is, moreover, a task that has been

committed to the responsibility of those branches, and separation of powers

concerns counsel a policy of judicial restraint. Where a state penal system
Licking County, Case No. 2019 CA 00122 31

is involved, federal courts have, as we indicated in Martinez, additional

reason to accord deference to the appropriate prison authorities. See id.,

at 405, 94 S.Ct. at 1807.

Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987). “Viewed in

this light it is immediately apparent that one cannot automatically apply procedural rules

designed for free citizens in an open society, or for parolees or probationers under only

limited restraints, to the very different situation presented by a disciplinary proceeding in

a state prison.” Wolfe v. McDonnell, 418 U.S. at 560, 94 S.Ct. 2963, 41 L.Ed.2d 935.

{¶52} The Courts have found therefore, that the following procedures should be

accorded to prisoners facing prison disciplinary proceedings: 1). a prisoner is entitled to

a review unaffected by “arbitrary” decision-making. Wolfe, 418 U.S. at 557-558; (See,

Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claimed violation. Wolfe,

418 U.S. at 563. (See, Ohio Adm. Code 5120:1-8-12). 3). A written statement of the fact

finders as to the evidence relied upon and the reasons for the disciplinary action taken.

Wolfe, 418 U.S. at 563. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120:1-

11(G)(1)). 4). Prison officials must have the necessary discretion to keep the hearing

within reasonable limits and to refuse to call witnesses that may create a risk of reprisal

or undermine authority, as well as to limit access to other inmates to collect statements

or to compile other documentary evidence. Wolfe, 418 U.S. at 566. (See, Ohio Adm.

Code 5120-9-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). Where an illiterate inmate is

involved, however, or whether the complexity of the issue makes it unlikely that the inmate

will be able to collect and present the evidence necessary for an adequate

comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that
Licking County, Case No. 2019 CA 00122 32

is forbidden, to have adequate substitute aid in the form of help from the staff or from a

sufficiently competent inmate designated by the staff. Wolfe, 418 U.S. at 570. (See, Ohio

Adm. Code 5120-9-07(H)(1)).

{¶53} In the case at bar, in order to rebut the presumptive release date, the DRC

must conduct a hearing and determine whether any of the following factors are applicable:

(1) During the offender’s incarceration, the offender committed

institutional rule infractions that involved compromising the security of a

state correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated [and]

[t]he offender’s behavior while incarcerated, including, but not limited to the

infractions and violations specified in division (C)(1)(a) of this section,

demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified

at the time of the hearing, the offender has been placed by the department

in extended restrictive housing at any time within the year preceding the

date of the hearing.

(3) At the time of the hearing, the offender is classified by the

department as a security level three, four, or five, or at a higher security

level.

R.C. 2967.271(C)(1), (2) and (3).
Licking County, Case No. 2019 CA 00122 33

{¶87} Although the power to deny parole is purely discretionary as far as Ohio’s

statutes are concerned, the state’s administrative regulations must also be considered.”

Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d

233, 236-237(6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C.

2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate rules of conduct. Ohio

Adm. Code 5120-9-08 sets forth the disciplinary procedures for violations of inmate rules

of conduct before the rules infraction board. Ohio Adm. Code 5120-9-10 sets forth the

procedures for when and under what circumstances an inmate may be placed in and/or

transferred to a restrictive housing assignment. Ohio Adm. Code 5120:1-1-11 sets forth

the procedure of release consideration hearings. Thus, an inmate is given notice in

advance of the behavior that can contribute or result in an extended sentence and under

what circumstance the inmate can be placed or transferred to a restrictive housing

assignment.

{¶88} Each procedure employed provides at the least for notice and the

opportunity to be heard. Under the Regan Tokes Law, an inmate is afforded notice and a

hearing by R.C. 2967.271(E), which states:

The [DRC] shall provide notices of hearings to be conducted under

division (C) or (D) of this section in the same manner, and to the same

persons, as specified in section 2967.12 and Chapter 2930 of the Revised

Code with respect to hearings to be conducted regarding the possible

release on parole of an inmate.
Licking County, Case No. 2019 CA 00122 34

See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 11; State

v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶11 (“Reagan Tokes does not

facially violate a defendant’s right to procedural due process.”)

Separation of Powers is not violated.

{¶89} Nor can it be argued that because the DRC can increase a sentence beyond

the minimum given by the trial judge, the Regan Tokes Law usurps judicial authority. As

already noted, the DRC may not increase the sentence beyond the maximum sentence

imposed by the trial court. The Ohio Supreme Court has made it clear that, when the

power to sanction is delegated to the executive branch, a separation-of-powers problem

is avoided if the sanction is originally imposed by a court and included in its sentence.

See Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20,

citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19. Such

is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson,

2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit the

DRC to act “’as judge, prosecutor and jury,’ for an action that could be prosecuted as a

felony in a court of law.” Woods v. Telb, 89 Ohio St.3d at 512, 733 N.E.2d 1103, quoting

State, ex rel. Bray v. Russell, 89 Ohio St.3d 132, 135, 729 N.E.2d 359(2000). It should

be noted that Bray was charged with and convicted of drug possession and sentenced to

an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in

violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed

a ninety-day bad-time penalty to be added to Bray’s original term. Bray’s original

sentence of eight months for drug possession expired on June 5, 1998, at which time his

additional ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus
Licking County, Case No. 2019 CA 00122 35

in the Court of Appeals for Warren County, claiming that Warden Harry Russell was

unlawfully restraining him. 89 Ohio St.3d 132, 133, 729 N.E.2d 359. Thus, the Parole

Board extended Brey’s sentence beyond the maximum sentence the trial court had

impose. Buckner points to nothing within the Regan Tokes Law that would permit the

DRC to extend his sentence beyond the eight year set by the trial judge. (T. at 29).

{¶90} Further, as we have noted, under the Regan Tokes Law an inmate is afford

the due process rights accorded to one who is incarcerated before any increase can

occur. Prison disciplinary proceedings are not part of a criminal prosecution, and the full

panoply of rights due a defendant in such proceedings does not apply. For as long as

parole has existed in Ohio, the executive branch (the APA and its predecessors) has had

absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at

511-512, 733 N.E.2d 1103.

Conclusion.

{¶91} The Reagan Tokes Law does not allow the DRC to lengthen a defendant’s

sentence beyond the maximum sentence imposed by the trial court. The Law does not

give the DRC unfettered discretion to require an offender to serve more than the minimum

term. The statutes afford an offender notice and an opportunity to be heard before a more

than the minimum may be required. The Regan Tokes Law provides a prisoner with the

appropriate due process rights accorded to prisoners.

{¶92} Although entitled to the protection under the Due Process Clause, prison

disciplinary proceedings are not part of a criminal prosecution, and the full panoply of

rights due a defendant in such proceedings does not apply. For as long as parole has

existed in Ohio, the executive branch (the APA and its predecessors) has had absolute
Licking County, Case No. 2019 CA 00122 36

discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512,

733 N.E.2d 1103.

{¶93} Accordingly, I would overrule the Appellant’s First Assignment of Error and

find the Regan Tokes Law is constitutional.

II.

{¶94} In his Second Assignment of Error, Appellant maintains that he was denied

effective assistance of trail counsel because trial counsel failed to challenge the

constitutionality of the Regan Tokes law in the trial court.

{¶95} To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel's performance was deficient and that

his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must

show that “counsel's representation fell below an objective standard of reasonableness.”

Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. See, also, Andrus,

v. Texas, __U.S.__, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335(June 15, 2020).

{¶96} Because the Regan Tokes Law is constitutional, there is no reasonable

probability that, but for counsel’s failure to challenge the constitutionality of the Regan

Tokes Law the result of the proceeding would have been different.

{¶97} I would therefore overrule Appellant’s Second Assignment of Error.

III.
Licking County, Case No. 2019 CA 00122 37

{¶98} In his Third Assignment of Error, Appellant argues that that the trial court

failed to comply with R.C. 2929.19(B)(2)(c) because the court did not provide the requisite

notices at his sentencing hearing and that the sentence is contrary to law.

{¶99} The language of R.C. 2929.19(B)(2)(c) became effective March 22, 2019

and to date its application has not received close scrutiny. The relevant portions of this

statute provide that:

(B)(1) At the sentencing hearing, the court, before imposing

sentence, shall consider the record, any information presented at the

hearing by any person pursuant to division (A) of this section, and, if one

was prepared, the presentence investigation report made pursuant to

section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim

impact statement made pursuant to section 2947.051 of the Revised Code.

(2) Subject to division (B)(3) of this section, if the sentencing court

determines at the sentencing hearing that a prison term is necessary or

required, the court shall do all of the following:

(Emphasis added.)

{¶100} Subsection (B)(2)(c) sets out the notifications that are to be provided in

accordance with the directive of Subsections (B)(1) and (2) which mandates that the court

notify the offender at the sentencing hearing:

(c) If the prison term is a non-life felony indefinite prison term, notify

the offender of all of the following:

(i) That it is rebuttably presumed that the offender will be released

from service of the sentence on the expiration of the minimum prison term
Licking County, Case No. 2019 CA 00122 38

imposed as part of the sentence or on the offender’s presumptive earned

early release date, as defined in section 2967.271 of the Revised Code,

whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the

presumption described in division (B)(2)(c)(i) of this section if, at a hearing

held under section 2967.271 of the Revised Code, the department makes

specified determinations regarding the offender’s conduct while confined,

the offender’s rehabilitation, the offender’s threat to society, the offender’s

restrictive housing, if any, while confined, and the offender’s security

classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the

department at the hearing makes the specified determinations and rebuts

the presumption, the department may maintain the offender’s incarceration

after the expiration of that minimum term or after that presumptive earned

early release date for the length of time the department determines to be

reasonable, subject to the limitation specified in section 2967.271 of the

Revised Code;

(iv) That the department may make the specified determinations and

maintain the offender’s incarceration under the provisions described in

divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to

the limitation specified in section 2967.271 of the Revised Code;
Licking County, Case No. 2019 CA 00122 39

(v) That if the offender has not been released prior to the expiration

of the offender’s maximum prison term imposed as part of the sentence, the

offender must be released upon the expiration of that term.

(d) Notify the offender that the offender will be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced, other than to a sentence of life imprisonment,

for a felony of the first degree or second degree, for a felony sex offense,

or for a felony of the third degree that is an offense of violence and is not a

felony sex offense. This division applies with respect to all prison terms

imposed for an offense of a type described in this division, including a non-

life felony indefinite prison term and including a term imposed for any

offense of a type described in this division that is a risk reduction sentence,

as defined in section 2967.28 of the Revised Code. If a court imposes a

sentence including a prison term of a type described in division (B)(2)(d) of

this section on or after July 11, 2006, the failure of a court to notify the

offender pursuant to division (B)(2)(d) of this section that the offender will

be supervised under section 2967.28 of the Revised Code after the offender

leaves prison or to include in the judgment of conviction entered on the

journal a statement to that effect does not negate, limit, or otherwise affect

the mandatory period of supervision that is required for the offender under

division (B) of section 2967.28 of the Revised Code. Section 2929.191 of

the Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in division (B)(2)(d) of
Licking County, Case No. 2019 CA 00122 40

this section and failed to notify the offender pursuant to division (B)(2)(d) of

this section regarding post-release control or to include in the judgment of

conviction entered on the journal or in the sentence a statement regarding

post-release control.

(e) Notify the offender that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the third, fourth, or fifth degree

that is not subject to division (B)(2)(d) of this section. This division applies

with respect to all prison terms imposed for an offense of a type described

in this division, including a term imposed for any such offense that is a risk

reduction sentence, as defined in section 2967.28 of the Revised Code.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term of a type described in

division (B)(2)(e) of this section and failed to notify the offender pursuant to

division (B)(2)(e) of this section regarding post-release control or to include

in the judgment of conviction entered on the journal or in the sentence a

statement regarding post-release control.

(f) Notify the offender that, if a period of supervision is imposed

following the offender’s release from prison, as described in division

(B)(2)(d) or (e) of this section, and if the offender violates that supervision

or a condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose a prison term,

as part of the sentence, of up to one-half of the definite prison term originally
Licking County, Case No. 2019 CA 00122 41

imposed upon the offender as the offender’s stated prison term or up to one-

half of the minimum prison term originally imposed upon the offender as

part of the offender’s stated non-life felony indefinite prison term. If a court

imposes a sentence including a prison term on or after July 11, 2006, the

failure of a court to notify the offender pursuant to division (B)(2)(f) of this

section that the parole board may impose a prison term as described in

division (B)(2)(f) of this section for a violation of that supervision or a

condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code or to include in the judgment of conviction

entered on the journal a statement to that effect does not negate, limit, or

otherwise affect the authority of the parole board to so impose a prison term

for a violation of that nature if, pursuant to division (D)(1) of section 2967.28

of the Revised Code, the parole board notifies the offender prior to the

offender’s release of the board’s authority to so impose a prison term.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term and failed to notify the

offender pursuant to division (B)(2)(f) of this section regarding the possibility

of the parole board imposing a prison term for a violation of supervision or

a condition of post-release control

(g)(i)1 Determine, notify the offender of, and include in the

sentencing entry the total number of days, including the sentencing date but

excluding conveyance time, that the offender has been confined for any

reason arising out of the offense for which the offender is being sentenced
Licking County, Case No. 2019 CA 00122 42

and by which the department of rehabilitation and correction must reduce

the definite prison term imposed on the offender as the offender’s stated

prison term or, if the offense is an offense for which a non-life felony

indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of section

2929.14 of the Revised Code, the minimum and maximum prison terms

imposed on the offender as part of that non-life felony indefinite prison term,

under section 2967.191 of the Revised Code. The court’s calculation shall

not include the number of days, if any, that the offender served in the

custody of the department of rehabilitation and correction arising out of any

prior offense for which the prisoner was convicted and sentenced.

{¶101} Thus, the trial court must provide the information described in R.C.

2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of the

statute.

{¶102} In this case, the court gave no advisement of any of the requirements set

forth in R.C. 2929.19(B) at the sentencing hearing. The October 22, 2019 hearing was a

change of plea hearing. The trial court clearly was not prepared to sentence Appellant;

rather, the court deferred sentencing and ordered the preparation of a pre-sentence

investigation report before the trial court could decide Appellant’s sentence. The

sentencing hearing occurred nearly one month later on November 15, 2019. R.C.

2929.19(B)(1) and (B)(2) explicitly mandate that “if the sentencing court determines at the

sentencing hearing that a prison term is necessary or required, the court shall” give the

mandated advisements at the sentencing hearing.
Licking County, Case No. 2019 CA 00122 43

{¶103} I would find that the sentence is contrary to law. I would therefore sustain

Appellant’s Third Assignment of Error and would reverse and remand the decision of the

Licking County Court of Common Pleas for resentencing.