State v. Halfhill

[Cite as State v. Halfhill, 2021-Ohio-177.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY

STATE OF OHIO, : Case No. 20CA7

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
AUSTIN R. HALFHILL, :

Defendant-Appellant. : RELEASED 1/20/2021

______________________________________________________________________
APPEARANCES:

Michael R. Huff, Athens, Ohio, for appellant.

James K. Stanley, Meigs County Prosecutor, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Hess, J.

{¶1} Austin R. Halfhill appeals his sentence for aggravated vehicular homicide

and operating a vehicle while under the influence of alcohol or drugs (OMVI). Halfhill

contends that the trial court erred when it sentenced him under the Reagan Tokes Law

because it is unconstitutional. Halfhill argues that the provisions that enable the Ohio

Department of Rehabilitation and Corrections (ODRC) to increase his prison sentence

without judicial involvement and to future imprison him without notice, a hearing, and a

jury trial violates the separation of powers doctrine, his due process rights, and his right

to a jury trial.
Meigs App. No. 20CA7 2

{¶2} We dismiss his appeal because the question of the constitutionality of the

Reagan Tokes Law is not ripe for review. Halfhill was sentenced to an indefinite prison

term of a minimum of sixteen years and a maximum of twenty years. Under the Reagan

Tokes Law, there is a rebuttable presumption that Halfhill will be released at the end of

his minimum sentence. The ODRC may, under certain circumstances, rebut that

presumption and keep Halfhill incarcerated for an additional reasonable period, not to

exceed his maximum prison term as sentenced by the trial court. However, Halfhill has

not yet served his minimum sentence. Therefore, he has not yet been subject to the

application of the provisions he challenges. Because he has not yet been subject to the

actions by the ODRC, the constitutional issue is not yet ripe for our review.

{¶3} We dismiss this appeal.

I. FACTS AND PROCEDURAL HISTORY

{¶4} The Meigs County grand jury indicted Halfhill on nine counts, including

three OMVI counts, first-degree misdemeanors; two counts of aggravated vehicular

homicide, first-degree felonies; two counts of aggravated vehicular homicide, second-

degree felonies; and two counts of vehicular manslaughter, first-degree misdemeanors.

The charges arose from an accident in which Halfhill struck a motorcycle, killing both

riders. In a negotiated plea agreement, Halfhill pleaded guilty to two counts of

aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), first-degree

felonies, and one count of OMVI in violation of R.C. 4511.19(A)(1)(a), a first-degree

misdemeanor. Pursuant to the plea agreement, the trial court dismissed the remaining

counts. The parties did not reach an agreement as to sentencing.
Meigs App. No. 20CA7 3

{¶5} At the sentencing hearing, Halfhill filed a sentencing memorandum in

which he asked the trial court to strike as unconstitutional the indefinite sentencing

provisions of the recently enacted Reagan Tokes Law, Am.Sub.S.B. No 201, effective

March 22, 2019. The trial court rejected his argument and found Reagan Tokes Law

constitutional and sentenced Halfhill to an indefinite term of eight years minimum to

twelve years maximum on one of the aggravated vehicular homicide counts, eight years

on the other aggravated vehicular homicide count, and 180 days of local jail time for

OMVI. The trial court ordered the aggravated vehicular homicide sentences to run

consecutive to one another and concurrent with the OMVI sentence for an aggregate

prison term of sixteen to twenty years.

II. ASSIGNMENT OF ERROR

{¶6} Halfhill assigns the following error for our review:

AS AMENDED BY THE REAGAN TOKES ACT (SB 201, EFF. 3/22/19),
THE REVISED CODE’S SENTENCES FOR FIRST AND SECOND
DEGREE QUALIFYING FELONIES VIOLATE THE CONSTITUTIONS OF
THE UNITED STATES AND THE STATE OF OHIO.

{¶7} Halfhill contends that the Reagan Tokes Law violates the separation of

powers doctrine, due process, and his right to a jury trial.

III. REAGAN TOKES LAW

{¶8} 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). 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
Meigs App. No. 20CA7 4

earned early release date, whichever is earlier.” R.C. 2967.271(B). 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 ODRC may rebut the presumption if

it determines at a hearing that one or more statutorily numerated factors applies. R.C.

2967.271(C). If ODRC 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 ODRC,

that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D)(1).

{¶9} Halfhill maintains that the Reagan Tokes Law violates the separation of

powers doctrine, due process and his right to a jury trial because R.C. 2967.271(C)(1)

allows ODRC to extend a prison sentence if it determines, among other things, that the

offender committed an unprosecuted violation of the law. He asserts that when the

Reagan Tokes Law is compared to former R.C. 2967.11 (the “bad time” law), which

allowed the parole board to extend an offender’s stated prison term under certain

circumstances, “the net results are indistinguishable.” Halfhill argues that in State ex

rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), the Supreme Court of

Ohio held that former R.C. 2967.11 violated the separation of powers doctrine because

trying, convicting, and sentencing inmates for crimes committed while incarcerated is

not an exercise of executive power. He also argues that due process requires that the

decision to restrict an individual’s freedom be made by a judge and that he has a right to

a trial by jury on the question of whether his minimum sentence should be increased.
Meigs App. No. 20CA7 5

{¶10} The state contends both that Halfhill lacks standing1 to challenge the

constitutionality of the Reagan Tokes Law and that his constitutional challenge is not

ripe for review because he has not been injured by its allegedly unconstitutional

provision as ODRC has not maintained his incarceration beyond his minimum prison

term. Alternatively, the state argues that the law is constitutional and cites a number of

Second and Twelfth District decisions that have found the Reagan Tokes Law to be

constitutional.

{¶11} The constitutionality of a statute presents a question of law we review de

novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.). However,

“[i]t is well settled that this court will not reach constitutional issues unless absolutely

necessary.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9.

To determine the necessity of a constitutional analysis, therefore, we must first decide

whether the issue is ripe for review.

{¶12} At least eight appellate districts have had the opportunity to address the

constitutionality of the Reagan Tokes Law. In our district and in the Eighth and Eleventh

District Courts of Appeals, when the defendant fails to raise constitutional objections in

the trial court, the appellate courts refuse to conduct a plain error analysis of the issue.

State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 40 (“we decline to

1 As Halfhill correctly argues in his reply brief, although the state contends Halfhill lacks “standing” the
proper question is one of “ripeness” rather than “standing.” See Wells Fargo Bank, N.A. v. Horn, 142 Ohio
St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 8 (2015) (“Generally speaking, standing is ‘[a] party's right
to make a legal claim or seek judicial enforcement of a duty or right.’ Black's Law Dictionary 1625 (10th
Ed.2014). ‘It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the
court unless he has, in an individual or representative capacity, some real interest in the subject matter of
the action.’”). “Ripeness ‘is peculiarly a question of timing.’” State ex rel. Elyria Foundry Co. v. Indus.
Comm., 82 Ohio St.3d 88, 89, 1998-Ohio-366, 694 N.E.2d 459. Thus, while Halfhill undoubtedly has
standing to challenge his sentence, because he has not yet been subject to the ODRC actions, the
question is whether the constitutionality of Reagan Tokes Law is ripe for review.
Meigs App. No. 20CA7 6

construct a plain error argument on his behalf, particularly when R.C. 2967.271(C)(1)

has not been and might never be applied to him, and he has not responded to the

state’s standing argument”); State v. Young, 8th Dist. Cuyahoga No. 108868, 2020-

Ohio-4135, ¶ 21 (“Young failed to raise a constitutional challenge to the Reagan Tokes

Act in the trial court, and we decline to address the issue for the first time on appeal”);

State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 12, 19 (“Given the

lack of presentment to the trial court and the absence of plain error arguments, we

decline to address the constitutionality of the Reagan Tokes Act as to this case”); State

v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-57 (declining to

address constitutionality of Reagan Tokes Act for the first time on appeal); State v.

Ferguson, 11th Dist. Lake No. 2020-L-0431, 2020-Ohio-5578, ¶ 13 (defendant failed to

raise it at the trial level, appellate court declined to address it).

{¶13} Recently, when the issue was properly preserved for appeal, we held that

a defendant’s constitutional challenge to the Reagan Tokes Law was not ripe for review.

State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2, 2020-Ohio-6733. In Ramey,

the defendant raised the same constitutional challenges to the Reagan Tokes Law as

Halfhill raises. We analyzed decisions from other appellate districts and found that some

districts held that the constitutionality of Reagan Tokes Law was not ripe for review and

other districts reviewed the statute and found it constitutional. Ramey at ¶ 20. The Fifth

District Court of Appeals has held that constitutional challenges to the Reagan Tokes

Law are not yet ripe for review because the appellant has not yet been subject to the

application of those provisions. It determined that the appropriate method to challenge

the constitutionality of the Reagan Tokes Law is by filing a petition for a writ of habeas
Meigs App. No. 20CA7 7

corpus if the defendant is not released at the conclusion of the minimum term of

incarceration. State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-

4227, ¶ 7-12; State v. Manion, 5th Dist. Tuscarawas No. 2020AP030009, 2020-Ohio-

4230, ¶ 7-12; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631,

¶ 13-16; but see State v. Cochran, 5th Dist. Licking No. 2019CA122, 2020-Ohio-5329, ¶

25-63 and State v. Wolfe, 5th Dist. Licking No. 2020CA21, 2020-Ohio-3501, ¶ 41-81

(Gwin, J., dissenting in both Cochran and Wolfe and finding the question of the

constitutionality of Reagan Tokes Law ripe for review and finding the law constitutional).

{¶14} The Fifth District determined that the issue was not ripe for review

because the appellant “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.” Downard at ¶ 7; Manion at ¶ 7.

In discussing the ripeness issue, the appellate court explained:

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
Meigs App. No. 20CA7 8

of the defendant foretells legal injury to the plaintiff.” Comment,
Mootness and Ripeness: The Postman Always Rings Twice (1965),
65 Colum. L.Rev. 867, 876.

Id. at 89, 694 N.E.2d at 460.

Downard at ¶ 8-9; Manion at ¶ 8-9.

{¶15} The Fifth District Court of Appeals also noted that, in analyzing an

analogous constitutional challenge to R.C. 2967.28 (which allows the Parole Board to

impose sanctions for violations of post-release control), the Eighth District Court of

Appeals concluded that because the defendant “was not currently the subject of such

action by the Parole Board, the issue was not yet ripe for review.” Id. at ¶ 10, citing

State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, ¶ 6. The appellate

court in Downard and Manion analogized the appellant before them to the appellant in

McCann and found:

Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut
the presumption Appellant will be released after serving his eight year
minimum sentence and potentially continue his incarceration to a term not
exceeding ten and one-half years, 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; Manion at ¶ 11.

{¶16} While Ramey’s appeal was pending in our court, the Sixth District Court of

Appeals issued a series of decisions adopting the Fifth District’s analysis in Downard

and finding that the constitutionality of Reagan Tokes Law was not ripe for review. See

State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, ¶ 7 -14; State v.

Velliquette, 2020-Ohio-4855, __N.E.3d__, ¶ 29 (6th Dist.); State v. Montgomery, 6th

Dist. Lucas No. L-19-1202, 2020-Ohio-5552, ¶ 25. In both Velliquette and Montgomery,

the Sixth District recognized that its decision was in conflict with decisions in the Second
Meigs App. No. 20CA7 9

and Twelfth District Courts of Appeals, which found the Reagan Tokes Law

constitutional without addressing the ripeness issue. The Sixth District Court of Appeals

certified the conflict to the Supreme Court of Ohio for review. Velliquette at ¶ 32.

We therefore sua sponte certify a conflict to the Supreme Court of Ohio,
pursuant to Article IV, Section 3(B)(4), Ohio Constitution. As this case
concerns the same conflict at issue in Maddox, we certify the same
question for review:

Is the constitutionality of the provisions of the Reagan Tokes
Act, which allow the Department of Rehabilitation and
Corrections to administratively extend a criminal defendant's
prison term beyond the presumptive minimum term, ripe for
review on direct appeal from sentencing, or only after the
defendant has served the minimum term and been subject to
extension by application of the Act?

Montgomery at ¶ 25. The Velliquette matter is currently pending in the Supreme Court

of Ohio, Case No. 2020-1243.

{¶17} Although the Fourth, Fifth, Sixth, Eighth, and Eleventh District Courts of

Appeals have either refused to conduct a plain error analysis of the constitutional

challenge or found the issue not yet ripe for review, the Second, Third, and Twelfth

District Courts of Appeals have upheld the Reagan Tokes Law as constitutional without

addressing the ripeness issue. State v. Ferguson, 2d Dist. Montgomery No. 28644,

2020-Ohio-4153 (specifically discussing the State v. Oneal, infra decision from the

Hamilton County Court of Common Pleas); State v. Barnes, 2d Dist. Montgomery No.

28613, 2020-Ohio-4150 (conducting a plain error review of the constitutionality of the

Reagan Tokes Law and rejecting the reasoning in State v. Oneal, Hamilton C.P. No. B

1903562, 2019 WL 7670061 (Nov. 20, 2019), the only known case finding the Reagan

Tokes Law unconstitutional); State v. Leet, 2d Montgomery No. 28670, 2020-Ohio-

4592; State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359, ¶ 29, 32
Meigs App. No. 20CA7 10

(court acknowledged the state’s ripeness challenge but found “we need not address

these arguments because we recently upheld the constitutionality of the Reagan Tokes

Act” in Ferguson, supra); State v. Hacker, 2020-Ohio-5048, __N.E.3d__ (3d Dist.)

(conducting a de novo review of the constitutionality of the Reagan Tokes Law and

rejecting the reasoning in State v. Oneal); State v. Guyton, 12th Dist. Butler No.

CA2019-12-203, 2020-Ohio-3837; State v. Morris, 12th Dist. Butler No. CA2019-12-205,

2020-Ohio-4103, ¶ 10. These courts noted critical distinctions between the “bad time”

statute and the Reagan Tokes Law. See Ramey, 2020-Ohio-6733, ¶ 19 (discussing

Barnes, Ferguson, and Guyton).

{¶18} In Ramey, although we found the analyses of the Second, Third, and

Twelfth District Courts of Appeals persuasive, we did not reach the merits of Ramey’s

constitutional challenge because, like the analysis of the Fifth District Court of Appeals,

we found that it was not yet ripe for review:

Ramey has not yet been subject to the application of the provisions, has
not served his minimum time, and therefore has not been denied release
at the expiration of his minimum term of incarceration. We have historically
practiced restraint in addressing challenges to sentencing issues which
are not yet ripe for review. See State v. Edwards, 4th Dist. Jackson No.
06CA5, 2006-Ohio-6288, ¶ 27; State v. Sparks, 4th Dist. Washington No.
03CA21, 2003-Ohio-6300, ¶ 1 (“Sparks contends that the trial court
violated his right to due process and usurped the authority of the Ohio
Adult Parole Authority * * * by sentencing him to a period of post-release
control. Because we find that Sparks has not yet been sentenced to any
period of post release control, we find that his appeal is not yet ripe for
judicial review.”). This is particularly true where constitutional challenges
are raised; appellate courts will not reach constitutional issues unless
“absolutely necessary.” State v. Breidenbach, 4th Dist. Athens No.
10CA10, 2010-Ohio-4335, ¶ 12. If the provisions of the Reagan Tokes
Law which give the ODRC authority to keep Ramey incarcerated until he
has served his maximum prison term are unconstitutional, Ramey can
challenge those by a petition for a writ of habeas corpus – if, after he has
served his minimum prison term, the ODRC acts to maintain him beyond
it. See Bray, supra; Downard, supra; Minion, supra.
Meigs App. No. 20CA7 11

Id. at ¶ 20.

{¶19} As discussed in Ramey, a petition for a writ of habeas corpus was the

procedure by which the defendants in Bray, infra, and Woods, infra, challenged the

constitutionality of the “bad time” statute, R.C. 2967.11, and the post-release control

statute, R.C. 2967.28. Ramey at ¶ 21 (discussing State ex rel. Bray v. Russell, 89 Ohio

St.3d 132, 729 N.E.2d 359 (2000), in which the Supreme Court of Ohio determined that

the “bad time” statute violated the separation of powers doctrine and was

unconstitutional and discussing Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733

N.E.2d 1103, in which an inmate filed a petition for a writ of habeas corpus arguing that

the post-release control statute, R.C. 2967.28, was unconstitutional as it violated the

separation of powers doctrine and due process). Thus, like Ramey, we find that a

habeas corpus petition is the appropriate method for Halfhill to challenge the

constitutionality of the Reagan Tokes Law when – if ever – the ODRC holds him beyond

the minimum sentence.

{¶20} We find the constitutional challenge raised by Halfhill in his sole

assignment of error is not yet ripe for review. The assignment of error is overruled.

IV. CONCLUSION

{¶21} We overrule the assignment of error. The appeal is dismissed.

{¶22} The clerk shall serve a copy of this order on all counsel of record at their

last known addresses by ordinary mail.

APPEAL DISMISSED.
Meigs App. No. 20CA7 12

JUDGMENT ENTRY

It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs
County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty-day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.