State v. Delvallie

[Cite as State v. Delvallie, 2021-Ohio-1809.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109315
v. :

BRADLEY DELVALLIE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: May 27, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-645262-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Catherine Coleman and Daniel Van, Assistant
Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender,
Paul A. Kuzmins, Assistant Public Defender, for
appellant.

ANITA LASTER MAYS, P.J.:

I. Introduction

On November 26, 2019, defendant-appellant Bradley Delvallie

(“Delvallie”) pleaded guilty and was sentenced on one count of aggravated robbery,
R.C. 2911.01(A)(1), a first-degree felony. Delvallie’s sole challenge on appeal is to

the constitutionality of his sentence imposed pursuant to S.B. 201 known as the

Reagan Tokes Law. Delvallie assigns as error:

As amended by the Reagan Tokes Law, the Ohio Revised Code’s
sentences for first-and-second-degree qualifying felonies violate the
Constitutions of the United States and the State of Ohio.

II. Reagan Tokes Law

This court explained the sentencing impact of the law in State v.

Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991:

Senate Bill 201, commonly known as the Reagan Tokes Law, became
effective on March 22, 2019. The statute returns an indefinite
sentencing scheme to Ohio for certain qualifying offenses. All first-and
second-degree felonies committed after March 22, 2019, that are not
already carrying a life sentence are considered qualifying offenses.
When confronting a nonconsecutive or concurrent sentence, the
Reagan Tokes Law first requires the sentencing judge to impose an
indefinite sentence with a minimum term selected by the judge. The
judge must also impose a maximum term predetermined pursuant to a
statutory formula set forth in R.C. 2929.144. The maximum term is
50% of the minimum term plus the minimum term. An offender
sentenced under Reagan Tokes has a rebuttable presumption of release
at the conclusion of his minimum term. However, at the conclusion of
his minimum term, the Ohio Department of Rehabilitation and
Correction (“ODRC”), must hold a hearing and may rebut the
presumption of release.

At the hearing, the ODRC must make specific findings to justify keeping
the offender beyond the presumptive release date up to the maximum
sentence. In the instant case, Dames has a minimum sentence of seven
years, and a maximum sentence of ten and a half years, the ODRC may
make specific findings and hold Dames up to three and a half years
more than his minimum term until the conclusion of the maximum
term.

Pursuant to R.C. 2967.271(C), the ODRC must find that one of the
following three conditions applies in order to hold an offender beyond
the minimum term:
 (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. 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.

Id. at ¶ 2-4.

In addition,

[w]hile the ODRC may exercise its discretion to keep an offender
imprisoned, it also may exercise its discretion to demonstrate that the
offender merits early release, as long as the offender is not disqualified
due to his [or her] security level. Under the Reagan Tokes Law, the
ODRC must draft administrative rules that credit inmates who
demonstrate appropriate conduct with “earned reduction of minimum
prison term” (“ERMPT”). ERMPT can reduce the minimum term
between 5 and 15%. There is a rebuttable presumption that the
offender gets the ERMPT credit once the ODRC requests it for the
inmate.

The trial court will hold a hearing where the victim of the crime and the
state of Ohio can present arguments that the offender should stay in
 prison. The trial court must then make findings to rebut the
presumption; otherwise the ERMPT is considered earned.

Id. at ¶ 5-6.

III. Standard of Review

It has been established that:

There are two primary ways to challenge the constitutionality of a
statute: by facial challenge or through an “as-applied” challenge.
Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d
1165, ¶ 37. In a facial challenge to the constitutionality of a statute, the
claimant must show that there are no set of facts under which the
challenged statute is constitutional. An as-applied challenge alleges
that a particular application of a statute is unconstitutional. “Facial
challenges present a higher hurdle than as-applied challenges because,
in general, for a statute to be facially unconstitutional, it must be
unconstitutional in all applications.” State v. Romage, 138 Ohio St.3d
390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7, citing Oliver v. Cleveland
Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-
Ohio-5030, 915 N.E.2d 1205, ¶ 13.

Derrico v. State, 8th Dist. Cuyahoga No. 107192, 2019-Ohio-1767, ¶ 17.

“The interpretation of the constitutionality of a statute presents a

question of law.” In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777

and 87816, 2008-Ohio-4444, ¶ 11, citing Andreyko v. Cincinnati, 153 Ohio App.3d

108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist.). “‘Questions of law are reviewed

de novo, independently and without deference to the trial court’s decision.’” In re

Special Docket at id., quoting Andreyko at 112.

Additionally,

“[a] regularly enacted statute of Ohio is presumed to be constitutional
and is therefore entitled to the benefit of every presumption in favor of
its constitutionality” and “before a court may declare it
 unconstitutional it must appear beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible.”

In re Special Docket at ¶ 12, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio

St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.

“Moreover, the presumption of validity cannot be overcome unless it

appears that there is a clear conflict between the legislation in question and some

particular provision or provisions of the Constitution.” In re Special Docket at ¶ 13,

citing Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph two of the

syllabus.

IV. Discussion

Delvallie was sentenced as follows:

The court imposes a prison sentence at the Lorain Correctional
Institution of 3 year(s). The court imposes a minimum prison term of
3 year(s) and a maximum prison term of 4.5 year(s). The total stated
prison term is a total of 3 to 4.5 years at the Lorain Correctional
Institution. Count 1: F[elony] 1, an indefinite minimum prison term of
3 year(s), a maximum term of 4.5 years.

The court has notified the defendant that pursuant to
R.C. 2929.19(B)(2)(c), it is rebuttably presumed that the defendant will
be released from service of the sentence on the expiration of the
aggregate minimum prison term imposed (and after the service of the
specification) or presumptive early release date, whichever is earlier.
That the Department of Rehabilitation and Correction may rebut the
presumption if it makes specified determinations at a hearing
regarding offender’s conduct while confined, threat to society,
restrictive housing and/or security classification while confined
pursuant to R.C. 2967.271, and may then maintain the defendant’s
incarceration after the expiration of the aggregate minimum prison
term for a reasonable time and may make such determinations more
than one time up to the aggregate maximum prison term. The trial
court can conduct a hearing and find the early release date is rebutted
pursuant to R.C. 2967.271(F)(1).
Nov. 26, 2019 Sentencing Journal Entry. Postrelease control was also imposed with

related advisements.

Delvallie posed objections to the constitutionality of Reagan Tokes

Law at the sentencing. Delvallie argues that the law directly impinges multiple state

and federal constitutional protections by: (1) delegating to the executive branch the

fact-finding necessary to impose a sentence beyond the statutory presumption in

violation of the right to trial by jury; and (2) failing to ensure adequate due process

prior to imposition of an enhanced sentence.

Specifically, Delvallie asserts that the following constitutional rights

are infringed, ignored, or diluted:

The right to trial by jury as protected by the Sixth Amendment of the
United States Constitution and Article I, Section 5 of the Ohio
Constitution.

The province of the judiciary pursuant to Article III of the United States
Constitution and Section 1, Article IV, of the Ohio Constitution.

The right to due process under the Fourteenth Amendment of the
United States Constitution and Article I, Section 16, of the Ohio
Constitution.

Inadequate guarantees for a fair hearing pursuant to Fourteenth
Amendment of the United States Constitution and Article I, Section 10,
of the Ohio Constitution.

A. Plain Error

Since its inception, the constitutionality of Reagan Tokes Law has

been challenged. The first wave of challenges was generally rebuffed by appellate

courts that determined that the failure to object in the trial court served to forfeit the
issue for appeal. See, e.g., State v. Young, 8th Dist. Cuyahoga No. 108868, 2020-

Ohio-4135, ¶ 21.

The failure to argue plain error also served as a death knell for

aspiring appellants. See, e.g., Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-

4991 at ¶ 14. (“Dames did not raise any plain error arguments for us to address.”).

Also, in Dames, this court recognized that Ohio’s appellate courts have taken

inconsistent approaches to a Reagan Tokes Law protest:

Finally, we note that some of our sister courts have found that
challenges to the Reagan Tokes Law are not yet ripe for review. See
State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-
Ohio-4227; State v. Manion, 5th Dist. Tuscarawas No. AP 03 0009,
2020-Ohio-4230; State v. Kibler, 5th Dist. Muskingum No. CT2020-
0026, 2020-Ohio-4631; State v. Maddox, 6th Dist. Lucas No. CL-19-
1253, 2020-Ohio-4702; see also State v. Conant, 4th Dist. Adams
No. 20CA1108, 2020-Ohio-4319 (declining to review a Reagan Tokes
Law challenge where the defendant did not present a plain error
argument and the defendant did not address whether his challenge was
ripe.)

Id. at ¶ 20. In the instant case, Delvallie properly preserved the issue for error.

B. Ripeness

This court also observe that the question of “the authority of the

executive branch to hold defendants beyond the end of the minimum term and

presumption of release” is inherent in a Reagan Tokes Law challenge. Id. The Fifth

and Sixth Districts have held that “there was no injury and therefore nothing for the

courts to do” because the defendant had not yet served their minimum term and

been imprisoned for all or a portion of the maximum term by the executive branch.

Id.
 Recently, the Ohio Supreme Court certified a conflict among the

districts regarding when the issue of constitutionality is ripe for review:

The parties are to brief the issue as stated on pages 1-2 of the court of
appeals’ October 14, 2020 entry: “Is the constitutionality of the
provisions of the Reagan Tokes Law, which allow the Department of
Rehabilitation and Correctio[n] 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?” The conflict cases are State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist.
Montgomery No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist.
Montgomery No. 28613, 2020-Ohio-4150; and State v. Guyton, 12th
Dist. Butler No. CA2019-12-203, 2020-Ohio-3837.

State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.

Notwithstanding the pending case, we elect to throw our hat into the

proverbial ring as we find that Delvallie’s argument is ripe for adjudication and has

merit. As the appellant argues in Maddox, the constitutional challenge to the

Reagan Tokes Law is ripe for direct appeal because the “maximum potential

punishment influences pretrial practice, plea-bargaining, and the decision to go to

trial.” Maddox brief, p. 7 (Jan. 26, 2021).

The Ohio Supreme Court’s clarification of void versus voidable

judgments in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d

248, effectively corralled the ability of a defendant to collaterally attack a sentence

or conviction. Where the trial court has personal jurisdiction over an accused and

subject matter jurisdiction over the case, and

the court had the constitutional and statutory power to enter a finding
of guilt and impose a sentence, any error in the exercise of its
 jurisdiction in failing to properly impose postrelease control rendered
the judgment of conviction voidable, not void, and it is not subject to
collateral attack.

(Emphasis added.) Id. at ¶ 5.

The court subsequently released State v. Henderson, 161 Ohio St.3d

285, 2020-Ohio-4784, 162 N.E.3d 776, and held that a “sentence is void only if the

sentencing court lacks jurisdiction over the subject matter of the case or personal

jurisdiction over the accused.” Id. at ¶ 27. The court rebuffed the state’s attempt to

have the statutorily required life tail imposed 18 years after sentencing because the

sentence was voidable, not void, and the state did not object at trial or by direct

appeal.

Thus, we find that, on the one hand, the issue is directly appealable

pursuant to Harper and Henderson because the sentence is voidable. We agree with

the argument in Maddox that

[it] makes no sense to “wait and see” if the Tokes law is unconstitutional
until after an inmate is held-over because a Byzantine system that
postpones adjudication until after someone is physically restrained
under an extended sentence results in the worst legal harm — loss of
liberty that cannot be retroactively remedied.

Maddox brief, p. 4.

C. Constitutionality

1. Right to Trial by Jury

Delvallie argues that Reagan Tokes is unconstitutional under the

Sixth Amendment to the United States Constitution and Article I, Section 5 of the

Ohio Constitution. The Ohio Supreme Court recently reiterated:
 The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an
impartial jury.” This entitles criminal defendants “to a jury
determination of any fact on which the legislature conditions an
increase in their maximum punishment.” Ring [v. Arizona], 536 U.S.
[584,] 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 [(2002)]. See also Hurst
[v. Florida, 577] U.S. [92], 136 S.Ct. 616, 619, 193 L.Ed.2d 504 [2016]
(“The Sixth Amendment requires a jury, not a judge, to find each fact
necessary to impose a sentence of death”). Ohio’s death-sentence
scheme satisfies this right.

State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 19.

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

(2002), the United States Supreme Court conducted a Sixth Amendment jury trial

guaranty inquiry. In Walton v. Arizona, 497 U.S. 639, 111 L.Ed.2d 511, 110 S.Ct.

3047 (1990), the court approved Arizona’s capital sentencing scheme that allowed a

trial judge, subsequent to a jury’s conviction of first-degree murder, to determine

whether aggravating factors existed to impose the death penalty. The court said the

Sixth Amendment protections remained intact because the judge was simply

addressing sentencing factors.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000), “a noncapital case,” the court determined “the Sixth Amendment did

not permit defendants to receive a penalty greater than they could receive under the

facts reflected in a jury’s verdict.” Ring at 588, hn. 1. This was true “even if a judge’s

additional findings were characterized as sentencing factors.” Id.

The court determined that the holdings could not be reconciled.

“Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and
today we overrule Walton in relevant part.” Ring at 589. “Capital defendants, no

less than noncapital defendants * * * are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum punishment.” Id.

There is “no reason to differentiate capital crimes from all others in this regard.” Id.

at 607. The Sixth Amendment applies to both “the factfinding necessary to increase

a defendant’s sentence by two years” and “the factfinding necessary to put him [or

her] to death.” Id. at 609.

In fact, the court had previously explained that,

“‘under the Due Process Clause of the Fifth Amendment and the notice
and jury trial guarantees of the Sixth Amendment, any fact (other than
prior conviction) that increases the maximum penalty for a crime must
be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.’” [Jones v. United States,] 526 U.S. at [227], [119
S.Ct. 1215, 143 L.Ed.2d 311 (1999),] fn. 6. The Fourteenth Amendment
commands the same answer in this case involving a state statute.

Apprendi, 530 U.S. at 476, 120 S.Ct. 2348, 147 L.Ed.2d 435, quoting Jones v. United

States, 526 U.S. 227, 243, 119 S.Ct. 1215, 143 L. Ed. 2d 311 (1999), fn. 6, construing

a federal statute.

Delvallie argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), holds that the Sixth Amendment prohibits a trial

judge “from making any finding necessary for the imposition of a particular sentence

unless that finding was reflected in the jury’s verdict.” Appellant’s brief, p. 5.

Blakely also explains that the prohibition does not apply solely to

sentences that exceed the maximum limit.
 the relevant “statutory maximum” is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he
[or she] may impose without any additional findings. When a judge
inflicts punishment that the jury’s verdict alone does not allow, the jury
has not found all the facts “which the law makes essential to the
punishment,” [ 1 J.] Bishop, [Criminal Procedure] § 87, p 55 [2d ed.
1872] and the judge exceeds his [or her] proper authority.

Id. at 303-304.

Delvallie also cites Blakely’s elaboration that:

Whether the judge’s authority to impose an enhanced sentence
depends on finding a specified fact (as in Apprendi), one of several
specified facts (as in Ring), or any aggravating fact (as here), it remains
the case that the jury’s verdict alone does not authorize the sentence.
The judge acquires that authority only upon finding some additional
fact.

Id. at 305.

In addition,

Nor does it matter that the judge must, after finding aggravating facts,
make a judgment that they present a compelling ground for departure.
He [or she] cannot make that judgment without finding some facts to
support it beyond the bare elements of the offense. Whether the
judicially determined facts require a sentence enhancement or merely
allow it, the verdict alone does not authorize the sentence.

(Emphasis added.) Blakely at fn. 8.

In State v. Foster, the Ohio Supreme Court considered

whether Ohio’s felony-sentencing structure violates the Sixth
Amendment to the United States Constitution in the manner set forth
in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004).
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 1. The court

determined that multiple felony sentencing statutes contained unconstitutional

provisions and severed the offending portions.1

The court concluded:

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 more than the
minimum sentences.”

Id. at ¶ 98-99.

The state argues that Delvallie’s focus on Blakley and Foster is

misplaced because the imposition of the Reagan Tokes Law does not require judicial

fact-finding. However, it has been explained that Apprendi stands for the

proposition that

when a “sentencing factor” increases the maximum penalties the
defendant is facing, then it is a “sentence enhancement” because it
effectively operates as an element of a greater offense, and thus needs
to be proven beyond a reasonable doubt. [Apprendi,] 530 U.S. at 494,
120 S.Ct. 2348, 147 L.Ed.2d 435, [n. 19]. Furthermore, the Court made
it clear that whether something is an “element” of an offense or a
“sentencing factor,” is a question not of its “label,” but of its “effect” on

1 After Foster, as to the consecutive sentence findings,

[e]ffective September 30, 2011, the General Assembly enacted Am.Sub.H.B.
No. 86, which “‘simultaneously repeal[ed] and revive[d]’” the severed
language in R.C. 2929.14(E)(4) and renumbered it as R.C. 2929.14(C)(4).
[State v.] Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 21,
quoting Section 11 of the bill. R.C. 2929.14(C)(4) is identical to former R.C.
2929.14(E)(4). We recognized that with the repeal of former R.C.
2929.14(E)(4) and its revival in 2929.14(C)(4), we have “now come full circle
on the question of whether a trial court must engage in judicial fact-finding
prior to imposing consecutive sentences on an offender.” Bonnell at ¶ 1.

State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 36.
 the defendant’s sentence. [Id. at 494.] Even when a State labels a
circumstance as a “sentencing factor,” if the effect of that circumstance
is “used to describe an increase beyond the maximum authorized
statutory sentence,” then it is the “functional equivalent of an element
of a greater offense” that was not proved under the burden of the jury’s
guilty verdict for the crime with which the defendant is charged. [Id. at
494, n. 19.]

Amber G. Damiani, Nix The “Fix”: An Analysis On Ohio’s Criminal Sentencing Law

And Its Effect On Prison Population, Capital University Law Review. Vol. 758,

47:755 (2019) (hereinafter referred to as “Nix the Fix”).

The author of Nix the Fix offers that

Had the Ohio Supreme Court given a closer analysis of Apprendi and
its progeny, it would have seen two things: (1) the Sixth Amendment’s
concern is not whether judicial fact-finding occurs, but whether the
facts the judge is using were first authorized by the jury within the
limits set by the legislature; and (2) whether a judge has limited or
unlimited discretion is not determinative of whether a sentencing
system will comport with the Sixth Amendment.

Nix the Fix at p. 779, citing Blakely, 542 U.S. at 308-309, 296, 124 S.Ct. 2531, 159

L.Ed.2d 403.

We agree that the Reagan Tokes Law violates the Sixth Amendment

right to trial by jury. The United States Supreme Court has made clear that a Sixth

Amendment violation occurs when the facts considered in enhancing the sentence

have not been considered by the jury.

[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.

Blakely at 308.
 Under the Reagan Tokes Law, the role of the jury is, in fact, usurped

not by the trial court or other branch of the judiciary, but by the ODRC based on

conduct wholly unrelated to Delvallie’s conviction. Thus, we segue to Delvallie’s

next challenge.

2. Separation of Powers

Delvallie offers that the Reagan Tokes Law constitutes the legislative

delegation of judicial powers to the executive branch of the government. The Ohio

Supreme Court explained that

“The people possessing all governmental power, adopted constitutions
completely distributing it to appropriate departments.” Hale v. State,
55 Ohio St. 210, 214, 45 N.E. 199, 200 (1896). They vested the
legislative power of the state in the General Assembly (Section 1,
Article II, Ohio Constitution), the executive power in the Governor
(Section 5, Article III, Ohio Constitution), and the judicial power in the
courts (Section 1, Article IV, Ohio Constitution). They also specified
that “the general assembly shall [not] * * * exercise any judicial power,
not herein expressly conferred.” Section 32, Article II, Ohio
Constitution.

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 462,

715 N.E.2d 1062 (1999).

The court specified that

courts “possess all powers necessary to secure and safeguard the free
and untrammeled exercise of their judicial functions and cannot be
directed, controlled or impeded therein by other branches of the
government.” State ex rel. Johnston v. Taulbee, 66 Ohio St. 2d 417,
423 N.E.2d 80 (1981), paragraph two of the syllabus, approving and
following State ex rel. Foster v. Lucas Cty. Bd. of Commrs., 16 Ohio
St.2d 89, 242 N.E.2d 884 (1968), paragraph two of the syllabus. “It is
indisputable that it is a judicial function to hear and determine a
controversy between adverse parties, to ascertain the facts, and,
applying the law to the facts, to render a final judgment.” Fairview v.
Giffee, 73 Ohio St. 183, 190, 76 N.E. 865, 867 (1905).
State v. Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001).

Delvallie relies on State ex rel. Bray v. Russell, 89 Ohio St.3d 132,

729 N.E.2d 359 (2000), also cited in State v. Oneal, Hamilton C.P. No. B 1903562,

2019 WL 7670061 (Nov. 20, 2019), that determined that the Reagan Tokes Law

violated the separation of powers and deprived the offender of procedural due

process.

Bray declared that former R.C. 2967.11 which allowed the parole

board to punish a violation by extending the stated prison term was

unconstitutional. The court explained:

R.C. 2967.11(B) states: “As 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. * * * If a prisoner’s stated
prison term is extended under this section, the time by which it is so
extended shall be referred to as ‘bad time.’’’ A “violation” is defined as
“an act that is a criminal offense under the law of this state or the United
States, whether or not a person is prosecuted for the commission of the
offense.” R.C. 2967.11(A). * * *

In short, R.C. 2967.11(C), (D), and (E) enables 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.

Id. at 135.

The court concluded,

[p]rison discipline is an exercise of executive power and nothing in this
opinion should be interpreted to suggest otherwise. However, trying,
convicting, and sentencing inmates for crimes committed while in
prison is not an exercise of executive power. Accordingly, we hold that
 R.C. 2967.11 violates the doctrine of separation of powers and is
therefore unconstitutional.

Id. at 136.

Delvallie contends that both the former R.C. 2967.11 bad time

provision addressed in Bray and the Reagan Tokes Law “provide for the executive

branch prison system to tell an inmate that the sentence imposed by the judge is not

enough and that the inmate will be serving a longer sentence as a result of an

executive agency’s determination.” Appellant’s brief, p. 9.

The state counters that the bad time provision actually extended the

term beyond that imposed by the sentencing court. In contrast, the state argues that

the Reagan Tokes Law “provides that the sentencing court will have imposed the

sentence with the maximum-term provision allowing the defendant to be kept

beyond the presumptive minimum-term release date.” Appellee’s brief, p. 15.

Thus, the state argues that appellant’s reliance on Bray for the

separation of powers analysis is misplaced, and that Woods v. Telb, 89 Ohio St.3d

504, 733 N.E.2d 1103 (2000), and State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629,

647, 4 N.E. 81 (1885), govern here.

Woods involved former R.C. 2967.28 and ODRC’s management of

postrelease control (“PRC”) violations. The court determined the PRC statute was

constitutional and did not violate the separation of powers or due process clauses of

the federal and state constitutions.
 The sentencing scheme in effect at the time was implemented under

Am.Sub.S.B. No. 2 (“SB 2”), and its companion bill, Am.Sub.S.B. No. 269 (“SB 269”),

effective July 1, 1996. Id. at 507-508.

One of the overriding goals of SB 2 was “truth in sentencing,” meaning
that the sentence imposed by the judge is the sentence that is served,
unless altered by the judge. This was primarily accomplished by two
methods: eliminating indefinite sentences and eliminating parole.

Pre-SB 2, an offender rarely served the time actually sentenced for
three main reasons. First, indefinite sentences were prescribed for
most serious felonies. Second, upon entering a state correctional
institution, an offender’s sentence was “automatically” reduced by
thirty percent for good behavior. Former R.C. 2967.19, 145 Ohio Laws,
Part IV, 6437. Finally, the Ohio Parole Board (“APA” herein) reviewed
all prison sentences for disparity among offenders and attempted to
abate inequities. Former R.C. 2967.03, 145 Ohio Laws, Part IV, 6428.

Id. at 508.

SB 2 required,

a period of post-release control * * * for all offenders who are
imprisoned for first- or second-degree felonies, felony sex offenses, or
a third-degree felony, not a felony sex offense, in which the offender
caused or threatened to cause physical harm to a person.
R.C. 2967.28(B). Further, post-release control is authorized for those
imprisoned for other felonies at the discretion of the Parole Board.
R.C. 2967.28(C).

Id. “The Parole Board has significant discretion to impose conditions of release

designed to protect the public and to promote the releasee’s successful reintegration

into the community. Ohio Adm.Code 5120:1-1-17(A).” Id.

Woods distinguished PRC from bad time on the ground that PRC is

part of the “original judicially imposed sentence.” Id. at 512. The court explained

that PRC “sanctions are sanctions aimed at behavior modification in the attempt to
reintegrate the offender safely into the community, not mere punishment for an

additional crime, as in bad time.” Id.

PRC is not based on behavior that took place during the offender’s

incarceration as with Bray and under the Reagan Tokes Law. We do not find that

Delvallie’s reliance on Bray is misplaced. In Bray, the appellant prisoners were

sentenced to additional terms of incarceration for acts committed in prison during

their term of incarceration under former R.C. 2967.11. Under the Reagan Tokes

Law, a defendant is sentenced to a “minimum prison term” that the court may

choose from the listed term choices in the statute. R.C. 2967.271(A)(1). An offender

is also sentenced to a “maximum term” of an additional fifty percent of the minimum

term pursuant to R.C. 2929.144. R.C. 2929.14(A). However, serving the maximum

term is specifically conditioned on the offender’s acts committed during the

incarceration and is at the full discretion of the ODRC.

The minimum term is the presumptive release date or, where the

offender earns an early release approval, that date will become the presumptive

release date. R.C. 2967.271(B). An offender may receive early release that shall be

for five to fifteen percent of the offender’s minimum term “determined in

accordance with rules adopted by the department under division (F)(7) of this

section.” R.C. 2967.271(F)(1)(b). Early release is labeled the “[o]ffender’s

presumptive earned early release date.” R.C. 2967.271(A)(2).

The ODRC develops the rules for what is required for a reduction

recommendation, including offense levels. ODRC assembles supporting
information and makes a recommendation to the sentencing court to receive

approval for early release. A court hearing is conducted, and the prosecutor and

victim, if any, may present information. Documents and reports may also be

submitted. If the court determines that the early release presumption has not been

rebutted by the presence of the cited factors, the reduction will be granted. The

statute does not provide that, as a result of the hearing, the presumptive release date

may be extended.

The factors considered by the court for early release are:

(a) Regardless of the security level in which the offender is classified at
the time of the hearing, 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 (F)(4)(a)
of this section, demonstrates that the offender continues to pose a
threat to society.

(c) 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) During the offender’s incarceration, the offender did not
productively participate in a majority of the rehabilitative programs
and activities recommended by the department for the offender, or the
offender participated in a majority of such recommended programs or
activities but did not successfully complete a reasonable number of the
programs or activities in which the offender participated.

(e) After release, the offender will not be residing in a halfway house,
reentry center, or community residential center licensed under division
 (C) of section 2967.14 of the Revised Code and, after release, does not
have any other place to reside at a fixed residence address.

R.C. 2967.271(F)(4)(a)-(e). The court also considers the relevant seriousness and

recidivism factors in R.C. 2929.12(B) to (D).

Under R.C. 2967.271(F)(5), the court must provide notice of approval

or denial to the ODRC within 60 days. If the court denies the reduction, “[t]he court

shall specify in the notification the reason or reasons for which it found that the

presumption was rebutted and disapproved the recommended reduction.”

R.C. 2967.271(F)(5). The statute does not provide for notice to the offender,

participation by the offender, submission of information by the offender, or appeal

of the decision.

The law provides that the ODRC “shall” release the offender on the

presumptive release date unless ODRC unilaterally determines that the offender is

guilty of committing one of the acts cited in R.C. 2967.271(B) during his or her

incarceration. Clearly, this indicates that the presumptive minimum term is deemed

to be punishment commensurate with the crime committed. The sentencing court,

based on the facts underlying convictions authorized by the jury within the limits set

forth by the legislature, imposed the presumed minimum date.

The legislated incentive for good behavior is codified at

R.C. 2971.271(F) where the court may reduce the presumptive minimum term based

on factors similar to those employed by the ODRC to prevent an offender’s release.
This leaves the conclusion that the maximum is a sanction for acts that violate rules

and regulations of the institution or other illegal acts.

R.C. 2967.271(C) governing the ODRC’s rebuttal provides in part:

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:
[R.C. 2967.271(F)(1)(a)].

(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. [R.C. 2967.271(F)(1)(a)].

(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. [R.C. 2967.271(F)(1)(b)].

(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(F)(1)(a)].

R.C. 2967.271(C)(1)-(3).2

2 The bracketed statutes are the generally corresponding paragraphs for the court’s
assessment of a minimum term reduction. The court does not assess R.C. 2967.271(C)(2).
Additional factors considered by the court for a minimum term reduction are whether the
offender participated in programs, and where the offender will be housed after release.
R.C. 2967.271(F)(4)(d)-(e).
 Under R.C. 2967.271(D), the ODRC makes the rules, has unfettered

discretion to determine what charges to initiate against the offender, investigates

the charges, serves as adjudicator and factfinder and determines how far beyond the

presumed release date, whether by minimum term or reduced term, the offender

shall remain in prison. PRC applies as advised during sentencing. The ODRC will

set a reconsideration date for release and this process may occur multiple times but

may not exceed the maximum sentence.

As stated in Bray, “[p]rison discipline is an exercise of executive

power and nothing in this opinion should be interpreted to suggest otherwise.”

Bray, 89 Ohio St.3d at 136, 729 N.E.2d 359. “However, trying, convicting, and

sentencing inmates for crimes committed while in prison is not an exercise of

executive power.” Id. “Accordingly, we hold that R.C. 2967.11 violates the doctrine

of separation of powers and is therefore unconstitutional.” Id. Imposition of the

rather elaborate protocol under the Reagan Tokes Law does not alter the fact that

the ODRC executive branch is “trying, convicting, and sentencing inmates for crimes

committed while in prison.” Id.

“The reason the legislative, executive, and judicial powers are

separate and balanced is to protect the people, not to protect the various branches

of government.” Id. at 135.

3. Due Process

Delvallie asserts that the Reagan Tokes Law violates due process

under the Fourteenth Amendment and Article I, Section 16 of the Ohio Constitution
by: (1) lack of notice due to vagueness, (2) inadequate parameters on executive

branch discretion, and (3) inadequate guarantees for a fair hearing. We examine his

claims.

“The Due Process Clause has been interpreted to contain two

components: substantive due process and procedural due process.” State v. Ward,

130 Ohio App.3d 551, 557, 720 N.E.2d 603 (8th Dist.1999):

“Procedural due process” ensures that a state will not deprive a person
of life, liberty, or property unless fair procedures are used in making
that decision, Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108
L.Ed.2d 100 (1990). “Substantive due process” guarantees that the
state will not deprive a person of those rights for an arbitrary reason
regardless of how fair the procedures are that are used in making the
decision. Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 676, 96 S.Ct.
2358, 49 L.Ed.2d 132 (1976).

Id.

To elaborate,

Procedural due process is a “guarantee of fair procedure.” Procedural
due process guarantees an affected individual the right to some form of
hearing, with notice and an opportunity to be heard, before that
individual is divested of a protected interest. See Cleveland Bd. of
Edn. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985). The requirements of procedural due process are “flexible” and
call for such procedural protections “as the particular situation
demands.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47
L.Ed.2d 18 (1976); State v. Hamilton, 75 Ohio St.3d 636, 639, 665
N.E.2d 669 (1996). The process due an individual varies according to
the type of proceeding involved.

Id.

4. Notice and Vagueness

Here Delvallie argues that the statute is void for vagueness on its face

because it does not provide adequate notice of what conduct will extend the
presumed release date at the behest of the ODRC. Specifically referenced by

Delvallie are the provisions of R.C. 2967.271(C).

Delvallie explains that:

Basic to any penal enactment is the requirement that it be sufficiently
clear in defining the activity proscribed, and that it contain
“ascertainable standards of guilt.” Winters v. New York, 333 U.S. 507,
515 [68 S.Ct 665, 92 L.Ed. 840 (1948)].

The purpose of such a requirement is, as stated in Connally v. General
Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322 (1926)], “* * *
to inform those who are subject to it what conduct on their part will
render them liable to its penalties * * *. And a statute which either
forbids or requires the doing of an act in terms so 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.
* * *”

Columbus v. Thompson, 25 Ohio St.2d 26, 30, 266 N.E.2d 571 (1971).

Also,

In Connally, at p. 329, the Supreme Court cited with approval the
decision in United States v. Capital Traction Co., 34 App. D.C. 592
[1910 U.S. App. LEXIS 5856], in the course of which opinion the
appellate court said:

“* * * The dividing line between what is lawful and unlawful cannot be
left to conjecture. The citizen cannot be held to answer charges based
upon penal statutes whose mandates are so uncertain that they will
reasonably admit of different constructions. A criminal statute cannot
rest upon an uncertain foundation. The crime, and the elements
constituting it, must be so clearly expressed that the ordinary person
can intelligently choose, in advance, what course it is lawful for him [or
her] to pursue. Penal statutes prohibiting the doing of certain things,
and providing a punishment for their violation, should not admit of
such a double meaning that the citizen may act upon the one
conception of its requirements and the courts upon another.”

Id. at 30-31.
 Proponents of due process notice compliance under the Reagan

Tokes Law argue that the rules set forth in the Ohio Administrative Code provide for

satisfactory notice. See State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-

Ohio-939, State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578.

The Ohio Supreme Court has determined that a void for vagueness

challenge requires a tripartite analysis to address three pivotal values. State v.

Collier, 62 Ohio St.3d 267, 269-270, 581 N.E.2d 552 (1991), citing Papachristou v.

Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Grayned v.

Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Kolender v. Lawson,

461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

The first value is to “‘provide fair warning to the ordinary citizen so

behavior may comport with the dictates of the statute.’” Collier, quoting State v.

Tanner, 15 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984). The second value is to “‘preclude

arbitrary, capricious and generally discriminatory enforcement by officials given too

much authority and too few constraints.’” Id., quoting id. The third value is “‘to

ensure that fundamental constitutionally protected freedoms are not unreasonably

impinged or inhibited.’” Id., quoting id. “‘Proper constitutional analysis

necessitates a review of each of these rationales with respect to the challenged

statutory language.’” Id., quoting id.

Delvallie complains that portions of R.C. 2967.271(C)(1)-(3) that list

what acts will effectively extend the presumed minimum term of incarceration at the

sole discretion of the ODRC are unclear:
 (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.

R.C. 2967.271(C)(1)-(3).

Delvallie also provides examples.

[Delvallie may commit an infraction] by committing any violation of
law which indicates a lack of rehabilitation. This is too vague. If, for
example, he argues verbally with a guard and thus slows the guard’s
progress in making a mid-day inmate count, has he hamper[ed] or
impeded a public official in the performance of the public off1cial’s
lawful duties in violation of R.C. 2921.31? If he fails to clean up a spilled
cup of coffee in the mess hall, thus creating a risk of physical harm to
someone who might slip, has he engaged in disorderly conduct under
R.C. 2917.11(A)(5)? If, in response to a written questionnaire during a
therapy session, he writes that he is innocent of the crime and disagrees
with the jury’s verdict, has he falsified a government writing under
R.C. 2913.42(A)(1), (B)(4)? And, how does he know that what he has
done indicates a lack of rehabilitation, the second prong of subsection
(A)(1), and a threat to society, as required by (A)(2)?
Appellant’s brief, p. 12.

Public media is replete with reports of attacks by inmates against

inmates, inmates against corrections officers, and corrections officers against

inmates. Does the statute advise, for example, that if attacked by a definite term

inmate with nothing to lose, the offender best run like the wind because involvement

in an altercation, assuming he survives, could cost him his release?

We find that the first analytical value is established as the statute does

not “‘provide fair warning to the ordinary citizen so behavior may comport with the

dictates of the statute.’” Collier, 62 Ohio St.3d at 269-270, 581 N.E.2d 552, quoting

Tanner, 15 Ohio St.3d at 3, 472 N.E.2d 689. The second value is to “‘preclude

arbitrary, capricious and generally discriminatory enforcement by officials given too

much authority and too few constraints.’” Id., quoting id. The ODRC has unfettered

discretion to decide, based on the nebulous statutory guidance, whether the offender

should remain imprisoned beyond the presumed release date to the maximum term.

The third value is “‘to ensure that fundamental constitutionally protected freedoms

are not unreasonably impinged or inhibited.’” Id., quoting id.

It is indisputable that notice of prohibited conduct is pivotal to due

process and should not be easily assumed:

“[T]he first essential of due process of law” is the accused’s right to fair
notice of the proscribed conduct. Connally v. Gen. Const. Co., 269 U.S.
385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); accord Johnson v.
United States, 135 S.Ct. 2551, 2556-2557, 192 L.Ed.2d 569 (2015)
(explaining that Due Process Clause prohibits state from “taking away
someone’s life, liberty, or property under a criminal law so vague that
it fails to give ordinary people fair notice of the conduct it punishes, or
so standardless that it invites arbitrary enforcement”); Rogers v.
Tennessee, 532 U.S. 451, 459, 121 S.Ct. 1693, 1698, 149 L.Ed.2d 697
(2001) (defining “core due process concepts” as “notice, foreseeability,
and, in particular, the right to fair warning”); Chicago v. Morales, 527
U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67 (1999) (stating that
“the purpose of the fair notice requirement is to enable the ordinary
citizen to conform his or her conduct to the law”); Rose v. Locke, 423
U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975) (“All the Due
Process Clause requires is that the law give sufficient warning that men
may conduct themselves so as to avoid that which is forbidden.”);
Parker v. Levy, 417 U.S. 733, 756-757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d
439 (1974), quoting United States v. National Dairy Products Corp.,
372 U.S. 29, 32-33, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963) (“‘criminal
responsibility should not attach where one could not reasonably
understand that his contemplated conduct is proscribed.’”);
Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d
222 (1972) (“because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly”); Bouie v. Columbia, 378
U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964), quoting
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811-812, 98
L.Ed. 989 (1954) (“‘The * * * principle is that no man shall be held
criminally responsible for conduct which he could not reasonably
understand to be proscribed.’”); Screws v. United States, 325 U.S. 91,
103-104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945) (explaining that due
process requires statutes to be written so as to provide individual with
“fair warning that his conduct is within [statute’s] prohibition”);
McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed.
816 (1931) (stating that “[a]lthough it is not likely a criminal will
carefully consider the text of the law before” committing a crime “it is
reasonable that a fair warning should be given * * * in language that the
common world will understand, of what the law intends to do if a
certain line is passed”); Connally v. Gen. Const. Co., 269 U.S. 385, 391,
46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) (“a statute which either forbids
or requires the doing of an act in terms so 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.”); State v.
Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶23
(stating that due process requires law to be written so that the “public”
can “adequately inform itself * * * before acting”); State v. Tanner, 15
Ohio St.3d 1, 3, 472 N.E.2d 689 (1984), quoting Columbus v.
Thompson, 25 Ohio St.2d 26, 30, 266 N.E.2d 571 (1971), quoting
 United States v. Capital Traction Co., 34 D.C.App. 592 (1910), and
citing Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.
322 (1926) (“‘“[t]he crime, and the elements constituting it, must be so
clearly expressed that the ordinary person can intelligently choose, in
advance, what course it is lawful for him to pursue.’”“).

State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶ 33 (4th Dist.).

Where “factors other than those enumerated in the statute can be

considered,” the statute is void for vagueness. Cleveland v. Mathis, 136 Ohio App.3d

41, 45, 735 N.E.2d 949 (8th Dist.1999), citing Ohio Dept. of Liquor Control v. Sons

of Italy Lodge 0917, 65 Ohio St.3d 532, 534-535, 605 N.E.2d 368 (1992).

Delvallie has overcome the presumption of validity beyond a

reasonable doubt because the Law and the constitution are clearly incompatible. In

re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777 and 87816, 2008-Ohio-

4444, at ¶ 12.

5. Inadequate Parameters on Executive Branch Discretion

The broad scope of the ODRC’s discretion is described throughout

this opinion. Effectively a subset of Delvallie’s void for vagueness argument,

Delvallie calls additional attention to R.C. 2967.271(C)(2)-(3) which make the

ODRC’s decision on the stated issues virtually unreviewable:

(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.

Delvallie explains:
 “The classification of prisoners and their placement are administrative
functions which are due great deference. Bell v. Wolish, 441 U.S. 520,
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). This court will not interfere with
prison officials’ decision on where an inmate is placed within the
institution.

Furthermore, [a prison’s] decision to change [a prisoner’s] security
status while not changing his cell assignment is one involving the
making of a basic policy decision which is characterized by the exercise
of a high degree of official judgment or discretion.” Reynolds v. State,
14 Ohio St.3d 68, 70, 14 OBR 506, 508, 471 N.E.2d 776, 778 (1984). No
liability can attach to a decision involving a high degree of official
discretion.”

Appellant’s brief, p. 12-13, quoting Williams v. Ohio Dept. of Rehab. & Corr., 67

Ohio Misc.2d 1, 3, 643 N.E.2d 1182 (Ct. of Cl.1993).

This example further supports this court’s finding that the statute is

void for vagueness.

6. Inadequate Guarantees for A Fair Hearing

While Delvallie’s argument regarding void for vagueness notice

involved substantive due process, Delvallie’s challenge here is to procedural due

process under the Sixth Amendment and Article I, Section 10 of the Ohio

Constitution. Ward, 130 Ohio App.3d at 557, 720 N.E.2d 603.

In addition to Apprendi’s holding that punishment may not be

imposed based on facts that the jury did not find as part of the conviction, the

procedures employed by ODRC are not designed to afford the constitutional right to

trial by jury, Delvallie states the procedure lacks:

The presumption of innocence and the requirement that proof by the
prosecution rises to the level of proof beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 90 S.Ct. 106, 825 L.Ed.2d 368 (1970);
 The right to counsel and to the appointment of counsel if indigent.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963).

The right to confront Witnesses. Crawford v. Washington, 541 U.S.
36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The right to call Witnesses and require their presence via subpoena.
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(1967).

The right to offer testimony. In re Oliver, 333 U.S. 257, 68 S.Ct. 499,
92 L.Ed. 682 (1948).

Appellant’s brief, p. 14.

The majority in State v. Cochran, 5th Dist. Licking No. 2019 CA

00122, 2020-Ohio-5329, determined that the question of constitutionality of the

Reagan Tokes Law was not ripe for adjudication. The dissent disagreed and offered

an analysis. Id. at ¶ 25-93 (Gwinn, J., dissenting).

The dissent observed that the language “there shall be a presumption

that the person shall be released” [upon completion of the minimum term] 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.” Id. at 46, quoting Bd. of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96

L.Ed.2d 303 (1987). We respectfully disagree, however, that the dissent correctly

determined that the Law is constitutional.

The dissent acknowledged, and other proponents of the Law endorse,

that the ODRC’s disciplinary rules and procedures set forth the inmates’ rules of

conduct in the ODRC’s regulations set forth in Ohio Adm.Code 5120. See, e.g., Ohio
Adm.Code 5120-9-06.3 The Ohio Administrative Code sets forth various processes

and procedures but does not afford the due process protections cited by Delvallie.

This fact, coupled with the provision in Ohio Adm.Code 5120-9-08’s provision that

the offender will receive notice that a hearing will be afforded, has been deemed

sufficient by some courts to meet due process requirements.

In fact, it has been held that ““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.’” Cochran at ¶ 51, quoting Wolff v. McDonnell, 418 U.S.

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

due process rights of offenders serving pursuant to the Reagan Tokes Law are

admittedly diluted though their liberty interest is directly impacted.

Wolff provided a list of modified due process rights for prisoners. The

court observed:

“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 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.

3 The rules are amended from time to time. Prior effective dates for the cited code
are listed as 04/05/1976, 10/30/1978, 08/18/1979, 08/29/1983, 06/03/1985,
01/14/1993, 07/18/1997, 07/19/2004, and 05/23/2014. They were not amended upon
imposition of the Reagan Tokes Law.
 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.”

(Emphasis added.) Cochran at id., quoting Wolff at 561-562. This explanation is

problematic where the presumed minimum sentence under the Reagan Tokes Law

is deemed to be sufficient penance for the act, but that term may be extended by the

ODRC without the due process protections.

The court continued:

“[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, 109 S. Ct. 1874,
104 L.Ed.2d 459 (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.

Cochran at id., quoting Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96

L.Ed.2d 64 (1987).

Thus, the court recognized that “‘it is immediately apparent that one

cannot automatically apply procedural rules designed for free citizens in an open

society * * * to the very different situation presented by a disciplinary proceeding in

a state prison.’” Cochran at id., quoting, Wolff, 418 U.S. at 560, 94 S.Ct. 2963, 41

L.Ed.2d 935. Yet, under R.C. 2967.271, an offender’s presumptive release, his liberty

interest, will be unilaterally determined by the ODRC based on an alleged failure to

comply with rules and procedures that are uniquely promulgated for the prison

environment. And, the conduct is construed to indicate that the offender poses a
threat in a wholly different environment comprised of free citizens in an open

society. Cochran at id.

The administration and operation of the prison system “‘are

peculiarly within the province of the legislative and executive branches * * * and

separation of powers concerns counsel a policy of judicial restraint.’” Cochran at id.,

quoting Turner, 482 U.S. at 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64.

Thus, Delvallie’s due process rights are violated in spite of a

constitutional liberty interest because he is incarcerated.

V. Conclusion

The legislature was faced with a daunting task in formulating this

Law. The murder of Ms. Tokes, the namesake of the Reagan Tokes Law, was a

heinous, reprehensible act that truly shocks the conscience. According to reports,

the assailant had a history of juvenile criminal activity that included raping minor

children and threatening his mother with a knife. He subsequently raped a pregnant

mother in front of her toddler son. The victim refused to testify after the assailant

warned her that he would have one of his gang associates take revenge. He was

sentenced to six years for attempted rape and robbery, to run concurrently.

The assailant committed 52 rule infractions during incarceration and

was transferred to five different prisons but was released at the end of his sentence

in November 2016, and was subject to state supervision. A convicted sex offender,

he was fitted with a tracking bracelet as part of an ex-offender program. His

whereabouts were not actively monitored, he did not check in with his parole officer
and was not followed by his parole officer. He committed at least six robberies

between January 24, and February 7, 2018. One robbery involved a knife and two

involved guns. Parole was not revoked after the third violation on February 1, 2017,

though a parole hearing was set for February 23, 2017. He murdered Ms. Tokes on

February 8, 2017.

The system clearly failed. Had the assailant been convicted and

sentenced under the current law, the ODRC would arguably have extended his term

due to the multiple infractions. However, he would still have been released at the

end of the term and subject to state supervision. Hence, the Reagan Tokes Law also

includes provisions to enhance GPS monitoring and parole officer workloads.

Legislation and protocols to address the release of incarcerated

individuals who are deemed to pose a danger to the public is clearly imperative.

Though well-intentioned, the measures must be crafted within the constitutional

boundaries and executed by the appropriate branch of government.

The sentence is vacated. The case is remanded for resentencing

pursuant to our findings herein.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

ANITA LASTER MAYS, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
EMANUELLA D. GROVES, J., CONCUR