State v. Bothuel

[Cite as State v. Bothuel, 2022-Ohio-2606.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1053

Appellee Trial Court No. CR0201902776

v.

Lewis Bothuel DECISION AND JUDGMENT

Appellant Decided: July 29, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

*****

MAYLE, J.

{¶ 1} This case is before the court on remand from the Ohio Supreme Court.

I. Background

{¶ 2} Defendant-appellant, Lewis Bothuel, appealed the February 14, 2020

judgment of the Lucas County Court of Common Pleas, convicting him of burglary, and
sentencing him to an indefinite prison term of a minimum of six years and a maximum of

nine years. He assigned two errors for our review:

1. The sentencing provisions of Senate Bill 201, otherwise known as

the Reagan Tokes Act, are unconstitutional.

2. Appellant’s sentence does not achieve the purposes and principles

of sentencing.

{¶ 3} In a decision journalized on March 19, 2021, we affirmed the trial court

judgment, however, we dismissed Bothuel’s first assignment of error—challenging the

constitutionality of the Reagan Tokes Law—on the basis that that assignment was not

ripe for review pursuant to our decision in State v. Maddox, 6th Dist. Lucas No. CL-19-

1253, 2020-Ohio-4702. State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875,

¶ 18. Recognizing that our decision was in conflict with other Ohio appellate districts,

we certified a conflict to the Ohio Supreme Court. The motion to certify was allowed.

State v. Bothuel, 163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267. The case was

held pending a decision in Maddox. Id.

{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality

of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox. State v.

Maddox, Slip Opinion No. 2022-Ohio-764. It, therefore, reversed and remanded Bothuel.

In re Cases Held for the Decision in State v. Maddox, Slip Opinion No. 2022-Ohio-1352.

The merits of Bothuel’s first assignment of error are now before the court.

2.
 II. Law and Analysis

{¶ 5} Senate Bill 201—the Reagan Tokes Law—became effective on March 22,

2019. The Law “significantly altered the sentencing structure for many of Ohio’s most

serious felonies” by implementing an indefinite sentencing system for non-life, first and

second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist.

Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1. The Law

specifies that the indefinite prison terms will consist of a minimum term, selected by the

sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a maximum

term determined by formulas set forth in R.C. 2929.144. The Law establishes a

presumptive release date from prison at the end of the minimum term, but the Ohio

Department of Rehabilitation and Correction (“ODRC”) may rebut the presumption if it

determines, after a hearing, that one or more factors apply, including that the offender’s

conduct while incarcerated demonstrates that he continues to pose a threat to

society. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption, it may

maintain the offender’s incarceration for a reasonable, additional period of time,

determined by ODRC, but not to exceed the offender’s maximum prison term. R.C.

2967.271(D).

{¶ 6} In his first assignment of error, Bothuel challenges the Reagan Tokes Law

on the basis that (1) it violates the separation-of-powers doctrine; (2) it violates the

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constitutional right to a trial by jury; and (3) it violates the constitutional right to due

process. We consider each of Bothuel’s arguments.

A. Separation of Powers

{¶ 7} Bothuel claims that the Reagan Tokes Law violates the constitutional

doctrine of separation of powers because it “removes the sentencing enhancement from

the prerogative of the Judicial Branch and transfers it to the Executive Branch.” It

compares the Law to the procedure for imposing “bad time” under former R.C. 2967.11,

which the Ohio Supreme Court found unconstitutional in State ex rel. Bray v. Russell, 89

Ohio St.3d 132, 729 N.E.2d 359 (2000). Bothuel also contends that the separation-of-

powers problem is further exacerbated by the fact that the reasons for extending a

sentence all depend on determinations that were, in the first place, made by ODRC.

{¶ 8} The state responds that the Reagan Tokes Law is different from the bad-time

statute because unlike former R.C. 2967.11, ODRC is not permitted to extend an

offender’s prison term beyond the maximum term originally imposed by the sentencing

court. It argues that the discretion afforded ODRC under the Law is consistent with the

authority granted to the Adult Parole Authority to grant parole and to impose postrelease

control. The state emphasizes that the trial court—not ODRC—is responsible for

determining whether to impose a prison term, selecting the length of the minimum

sentence, deciding whether to order sentences to be served concurrently or consecutively,

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and pronouncing and imposing the indefinite sentence based on the selected minimum

term and the resulting maximum term.

{¶ 9} We considered whether the Reagan Tokes Law violates the constitutional

doctrine of separation of powers in State v. Gifford, 6th Dist. Lucas No. L-21-1201,

2022-Ohio-1620 (and more recently in State v. Stenson, 6th Dist. Lucas No. L-20-1074,

2022-Ohio-2072 and State v. Eaton, 6th Dist. Lucas No. L-21-1121). As we recognized

in those cases, “the doctrine of separation of powers is ‘implicitly embedded in the entire

framework of those sections of the Ohio Constitution that define the substance and scope

of powers granted to the three branches of state government.’” Bray at 134, quoting

S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). “The

legislative has the sole right and power to enact laws, the judiciary to declare their

meaning and application, and the executive to enforce their execution.” Chesnut v.

Shane’s Lessee, 16 Ohio 599, 621 (1847). “‘The essential principle underlying the policy

of the division of powers of government into three departments is that powers properly

belonging to one of the departments ought not to be directly and completely administered

by either of the other departments, and further that none of them ought to possess directly

or indirectly an overruling influence over the others.’” Bray at 134, quoting State ex rel.

Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473, 166 N.E. 407 (1929).

{¶ 10} In connection with its role in declaring the “meaning and application” of

laws, the judiciary is solely responsible for determining guilt and sentencing a defendant

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who has been convicted of a crime. Id. at 136. Like the defendant in Gifford, Bothuel

argues that because R.C. 2967.271 permits ODRC to rebut the presumption that an

offender will be released after serving his or her minimum sentence, the statute deprives

the judiciary of its exclusive authority and instead authorizes ODRC to increase an

offender’s sentence, thereby undermining judicial power and vesting this authority in the

ODRC. We disagree.

{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and

maximum sentence. R.C. 2929.14 and 2929.144. As we emphasized in Gifford, while

R.C. 2967.271(C) and (D) permit ODRC to “maintain” an offender’s incarceration for

“additional”—and “reasonable”—periods beyond the prisoner’s presumptive minimum

term, ODRC is not permitted to “increase” the prisoner’s sentence beyond the maximum

sentence imposed by the trial court. In this way, the Law is different than other

legislation struck down by the Ohio Supreme Court as violating separation of powers,

such as the “bad time” statute (former R.C. 2967.11), which allowed ODRC to extend an

offender’s prison term beyond the original sentence imposed by the court for misconduct

committed during incarceration. Here, any additional period of incarceration “shall not

exceed the offender’s maximum prison term.” R.C. 2967.271(D). As such, the authority

granted to ODRC under the Reagan Tokes Law is more comparable to the authority

granted to the parole board under the postrelease control statute, R.C. 2967.28, which the

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Ohio Supreme Court upheld in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103

(2000).

{¶ 12} As we summarized in Gifford, the Ohio Supreme Court in Woods

recounted the evolution of Ohio’s sentencing statutes. It explained that Ohio enacted

truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by trial judges

were the sentences served, unless altered by the judge. “This was primarily

accomplished by two methods: eliminating indefinite sentences and eliminating parole.”

Id. at 508. The court described that before S.B. 2, offenders rarely served the time to

which they were sentenced because (1) indefinite sentences were prescribed for most

serious felonies, (2) upon entering a correctional institution, an offender’s sentence was

automatically reduced by 30 percent for good behavior, and (3) the parole board

“reviewed all prison sentences for disparity among offenders and attempted to abate

inequities.” Id. at 508. Under S.B. 2, offenders were sentenced to definite sentences,

good time was significantly reduced and had to be earned, and the parole board no longer

had authority to determine how long an offender stayed in prison.

{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were

subject to parole if they were convicted of first- or second-degree felonies or third- or

fourth-degree felonies that involved an act of violence, or if they had previously been

convicted of a crime of violence. Instead of parole, S.B. 2 introduced “post-release

control.” Similar to parole, a period of postrelease control is required for all offenders

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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.” Id., citing R.C. 2967.28(B). Postrelease control may also be

required at the discretion of the Parole Board for offenders imprisoned for other felonies.

Id., citing R.C. 2967.28(C).

{¶ 14} The Ohio Supreme Court recognized that R.C. 2967.28 gives the parole

board significant discretion to impose conditions of release “designed to protect the

public and to promote the releasee’s successful reintegration into the community.” Id.,

citing Ohio Adm.Code 5120:1–1–17(A). R.C. 2967.28(D) sets forth factors for the APA

to consider in determining whether to impose postrelease control and what conditions to

impose. It even permits the board to impose residential sanctions including a prison term.

{¶ 15} Ultimately, the Ohio Supreme Court reversed the decision of this court—

which had found that the postrelease control statute violated the separation of powers

doctrine because the delegation of powers to the Adult Parole Authority usurped judicial

authority—after it concluded that the delegation of power to the APA is no different for

postrelease control than it was under the former system of parole. It compared the two

systems.

{¶ 16} Under the parole system, the Ohio Supreme Court explained, a sentencing

court imposed an indefinite sentence with the possibility of parole. It could control the

maximum length of the prison sentence, but had no power over when parole might be

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granted or what conditions of parole would be imposed. Similarly, under postrelease

control, the sentencing court imposes a sentence from the options available under the

sentencing scheme, informs the offender that he or she may be subject to a period of

postrelease control, and advises him or her that a violation of the conditions of

postrelease control could result in additional time up to 50 percent of the original

sentence.

{¶ 17} In Woods, the defendant argued that the postrelease control statute was

similar to the bad time statute that was found unconstitutional in Bray. But the Ohio

Supreme Court found that unlike bad time—where a crime committed while incarcerated

resulted in an additional sentence not imposed by the trial court—the imposition of

postrelease control is part of the judicially-imposed sentence. Also, it explained,

postrelease control sanctions are aimed at behavior modification to facilitate reintegration

into the community rather than mere punishment for an additional crime, as was the case

with the bad-time statute. The court acknowledged that the sentencing judge has no

control over how much time an offender may serve on postrelease control, but it observed

that this was also true for parole. It noted that “for as long as parole has existed in Ohio,

the executive branch * * * has had absolute discretion over that portion of an offender’s

sentence.” Id. at 512, citing State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N.E. 81

(1885). It concluded that “the APA’s discretion in managing post-release control does

9.
not impede the function of the judicial branch,” therefore, the statute did not violate the

separation of powers doctrine. Id. at 512.

{¶ 18} As we recognized in Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-

1620, since Woods, a unanimous decision of the Ohio Supreme Court reaffirmed the

holding and reasoning in that case, recognizing that a trial court’s imposition of

postrelease-control in its original sentence “avoids any potential separation-of-powers

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

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

{¶ 19} Moreover, it is important to note that Woods is not the first time that the

Ohio Supreme Court has recognized the role of the executive branch in determining the

circumstances under which a properly-sentenced offender should be released from prison.

In McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334, 337 (1964), the Ohio

Supreme Court recognized that “[t]he granting of parole and the final release of prisoners

is the function of the Pardon and Parole Commission * * * as is the supervision of those

on parole * * *. It emphasized that “[w]hether a prisoner should be released before he

has served his maximum sentence is an administrative not a judicial matter.” Id.

{¶ 20} Here, there are strong similarities between the authority of the judicial and

executive branches under the Reagan Tokes Law and their authority under the systems of

parole and postrelease control that the Ohio Supreme Court upheld in Woods and

supported in McDougle. Under the Reagan Tokes Law, the trial court imposes a

10.
minimum sentence and a maximum sentence. While ODRC may rebut the presumption

that an offender will be released after service of his or her minimum sentence (or on the

presumptive earned early release date) if it demonstrates any of the circumstances

enumerated in R.C. 2967.271(C), under no circumstances may it maintain an offender’s

incarceration beyond the maximum term imposed by the sentencing court. As such, the

executive agency does not impede the function of the judicial branch, and the

constitutional doctrine of separation of powers is not violated. See Gifford at ¶ 36.

B. Right to Trial by Jury

{¶ 21} Bothuel argues that the Reagan Tokes Law violates the constitutional right

to a trial by jury. He claims that under U.S. Supreme Court authority—Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S.

584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)—any finding of fact upon which an offender’s

authorized punishment may be increased must be found by a jury beyond a reasonable

doubt. He maintains that because under the Reagan Tokes Law an increase in

punishment beyond the presumptive sentence is dependent on findings made by ODRC—

not a jury—the Law violates the right to a jury trial. The state does not specifically

respond to this argument.

{¶ 22} The right to a trial by jury is protected by the Sixth Amendment of the

United States Constitution and Article I, Section 5, of the Ohio Constitution. In

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Apprendi, the U.S. Supreme Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 492. In Ring,

the Court held that the presence or absence of aggravating factors required for imposition

of the death penalty must be found by a jury. Id. at 609. And in Blakely, the Court held

that the right to a trial by jury was violated where the defendant was subject to a prison

term of three years more than the statutory maximum based on a finding of “deliberate

cruelty” made by the trial judge and not a jury. Id. at 305.

{¶ 23} Under the Reagan Tokes Law, there are no circumstances under which

ODRC may increase punishment beyond the maximum term permitted by statute or

imposed by the sentencing court. Any additional term of incarceration imposed under the

Law may not exceed the maximum term imposed by the sentencing court. See R.C.

2967.271(D)(1) (“The additional period of incarceration * * * shall not exceed the

offender’s maximum prison term.”). The Law, therefore, does not run afoul of the

principals announced in Apprendi, Ring, or Blakely and does not violate the constitutional

right to a trial by jury.

C. Due Process

{¶ 24} Finally, Bothuel claims that the Reagan Tokes Law violates the right to due

process. He argues that the statute fails to give adequate notice of what it takes to trigger

“additional” prison time and fails to define what it means to “pose a threat to society” or

12.
to “not be[] rehabilitated.” He also argues that offenders’ security classes and placement

in restrictive housing are matters of prison administration that are virtually unreviewable,

yet under R.C. 2967.271(A)(2) and (3) constitute triggering events that allow offenders’

prison terms to be extended beyond the minimum sentence. And Bothuel contends that

the statute provides no structure for how additional-term hearings will be conducted and

what rights offenders will have at those hearings.

{¶ 25} The state responds to some, but not all, of these arguments. It claims that

the presumption of release after service of the minimum term is analogous to parole-

release decisions and it claims that only minimal process is due offenders under the

Reagan Tokes Law. It emphasizes that R.C. 2967.271(C) permits a hearing before

ODRC may rebut the presumption of release and disagrees that the Law fails to provide

the requisite due-process protections.

{¶ 26} We begin by addressing Bothuel’s claim that the statute provides no

structure for how additional-term hearings will be conducted and what rights offenders

will have at those hearings.

{¶ 27} As we recently recognized in State v. Stenson, 6th Dist. Lucas No. L-20-

1074, 2022-Ohio-2072, the Fifth and Fourteenth Amendments to the U.S. Constitution

and Article I, Section 16 of the Ohio Constitution guarantee procedural due process.

“The Due Process Clause applies when government action deprives a person of liberty or

property[.]” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442

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U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). If due process applies, the question

becomes what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33

L.Ed.2d 484 (1972). “[D]ue process is flexible and calls for such procedural protections

as the particular situation demands.” Id. At a minimum, due process requires an

opportunity to be heard at a meaningful time and in a meaningful manner. State v.

Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, ¶ 8, citing Mathews v.

Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

{¶ 28} In Stenson, we concluded that because the Reagan Tokes Law creates a

presumption of release after service of an offender’s minimum sentence, it creates a

liberty interest implicating due process rights. See Stenson at ¶ 25, citing Greenholtz at

12; See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935

(1974) (finding that inmates had liberty interest in state-created right to good-time credit,

the extinguishment of which entitled them to due process to insure that the right “is not

arbitrarily abrogated”). Having concluded that a liberty interest exists, we proceeded in

Stenson to determine what process is due under the circumstances.

{¶ 29} We recognized in Stenson that courts that have considered what process is

due under the additional-term provisions of the Reagan Tokes Law often draw analogies

between the Law and either (1) probation or parole release decisions, or (2) probation or

parole revocation decisions. We acknowledged that neither release nor revocation

decisions afford a defendant the “full panoply of rights due” in a criminal prosecution,

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however, the U.S. Supreme Court has determined that the latter requires greater

procedural safeguards than the former. Stenson at ¶ 26, quoting Morrissey at 480;

Greenholtz, at 10.

{¶ 30} As we observed in Stenson, the Court concluded in Morrissey, where

parole revocation was at issue, that due process required “(a) written notice of the

claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c)

opportunity to be heard in person and to present witnesses and documentary evidence; (d)

the right to confront and cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’

hearing body such as a traditional parole board, members of which need not be judicial

officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied

on and reasons for revoking parole.” Morrissey at 489. It concluded in Greenholtz,

where parole release was at issue, that due process was afforded where an offender was

given an opportunity to be heard, and in the case of denial of parole, information was

provided concerning in what respects the offender fell short of qualifying for parole. Id.

at 16.

{¶ 31} The U.S. Supreme Court explained in Greenholtz its rationale for

differentiating between release and revocation decisions. In a parole revocation decision,

the Court explained, an offender is threatened with the deprivation of the liberty he has;

in a parole release decision, the offender merely desires liberty. The U.S. Supreme Court

15.
recognized that parole-revocation determinations actually require two decisions:

“whether the parolee in fact acted in violation of one or more conditions of parole and

whether the parolee should be recommitted either for his or society’s benefit.” Id. at 9. It

emphasized that the first step in a parole revocation decision “involves a wholly

retrospective factual question.” Id. at 9. Parole release decisions, on the other hand, are

“more subtle and depend[] on an amalgam of elements, some of which are factual but

many of which are purely subjective appraisals by the Board members based upon their

experience with the difficult and sensitive task of evaluating the advisability of parole

release.” (Internal citations and quotations omitted.) Id. at 9-10. “Unlike the revocation

decision,” when the board reviews a parole eligibility decision, “there is no set of facts

which, if shown, mandate a decision favorable to the individual.” Id. at 10. To the

contrary, the parole release decision is “subjective” and “predictive,” and the statute

“vests very broad discretion” in the parole board. Id. at 13.

{¶ 32} We noted in Stenson that the Reagan Tokes Law creates a presumption that

an offender will be released after service of his or her minimum sentence. But we also

observed that it does not provide for a “purely subjective appraisal” whether release is

advisable after service of the minimum sentence. Rather, under R.C. 2967.271(B) and

(C), an Ohio offender must be released after service of the minimum sentence unless

ODRC makes the purely factual finding that (1) the offender is a security level three or

higher at the time of the hearing, or (2) the offender was placed in extended restrictive

16.
housing within the year preceding the hearing—classifications and decisions made

pursuant to ODRC’s own detailed sets of policies and procedures—or (3) during his

incarceration, the offender committed rule violations that involved compromising the

security of the institution, compromising the safety of the staff or inmates, or physical

harm or the threat of physical harm to the staff or, or committed a violation of law that

was not prosecuted, and the infractions show that the offender has not been rehabilitated,

and the offender’s behavior while incarcerated demonstrates that he or she continues to

pose a threat to society.

{¶ 33} As we emphasized in Stenson, in this way, the Reagan Tokes Law

functions unlike the merely discretionary decision to release an offender on parole and

more like a parole revocation decision. It requires two determinations under R.C.

2967.271(C)(1): (1) did the offender, during his incarceration, commit certain rule

violations or unprosecuted crimes?—“wholly retrospective factual question[s]”; and (2)

does this behavior demonstrate that the offender still poses a threat to society? Id. at 8.

For these reasons, we concluded in Stenson that the liberty interest at stake under the

Reagan Tokes Law is more akin to the liberty interest at stake in a parole revocation

decision rather than a parole release decision. Id. at ¶ 30. See also Eaton, 6th Dist. Lucas

No. L-21-1121 (Mayle, J., concurring).

{¶ 34} Because the Reagan Tokes Law creates a liberty interest more akin to

probation revocation decisions, we found in Stenson that this means that the type of

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process due in Morrissey is due under the additional-term provisions of the Law. Here,

however—as in Stenson—ODRC has not sought to extend Bothuel’s term beyond the

presumptive minimum sentence. Bothuel’s challenge to the Reagan Tokes Law is

necessarily a facial challenge. “To prevail on a facial constitutional challenge, the

challenger must prove the constitutional defect, using the highest standard of proof,

which is also used in criminal cases, proof beyond a reasonable doubt.” State ex rel.

Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-

Ohio-5512, 857 N.E.2d 1148, ¶ 21, citing State ex rel. Dickman v. Defenbacher, 164

Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. “A facial challenge

to a legislative act is the most difficult to mount successfully, since the challenger must

establish that no set of circumstances exists under which the act would be valid.” State v.

Coleman, 124 Ohio App.3d 78, 80, 705 N.E.2d 419 (10th Dist.1997), citing United States

v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 69 (1987). “The fact that a

statute might operate unconstitutionally under some plausible set of circumstances is

insufficient to render it wholly invalid.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-

Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing id.

{¶ 35} As we observed in Stenson, in considering the process due a parolee whose

parole is being revoked, the U.S. Supreme Court in Morrissey, 408 U.S. at 488, 92 S.Ct.

2593, 33 L.Ed.2d 484, acknowledged that most states have enacted legislation setting

forth procedural requirements for parole revocation hearings, but others have done so by

18.
judicial decision. Although the legislation in the present case does not involve parole

revocation, Morrissey is instructive because it necessarily implies that the specific

procedural requirements applicable to protect a particular liberty interest need not be set

forth in the legislation itself. In other words, Morrissey suggests that the Reagan Tokes

Law may not be found to be unconstitutional, on its face, as violating due process merely

because the specific procedures for invoking an additional period of incarceration are not

set forth in the Law itself.

{¶ 36} Here, the Reagan Tokes Law states simply that ODRC may rebut the

presumption of release at a “hearing.” R.C. 2967.271(C) and (D). It provides no details

concerning the type or timing of notice that must be provided to the offender, the

procedures for the hearing (including pre-hearing disclosure of evidence, the type of

evidence and witnesses that may be presented, or the offender’s right to confront and

cross-examine adverse witnesses), or the manner in which the offender must be apprised

of ODRC’s decision. But given that this is a facial challenge to the Law, it cannot be said

at this juncture that the Law “cannot be applied constitutionally in any circumstances.”

As we commented in Stenson, should the Law ultimately be applied in a manner that is

unconstitutional, an offender would not be precluded from challenging the Law as

applied. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 230, 125 S.Ct. 2384, 162 L.Ed.2d

174 (2005) (“If an inmate were to demonstrate that the New Policy did not in practice

operate in [a constitutionally-permissible] fashion, resulting in a cognizable injury, that

19.
could be the subject of an appropriate future challenge.”). See also Eaton, 6th Dist.

Lucas No. L-21-1121 (Mayle, J., concurring).

{¶ 37} Accordingly, we find that the Reagan Tokes Law does not, on its face,

violate the constitutional right to due process as it concerns the procedures for additional-

term hearings. We next turn to whether the Law provides adequate notice of what

conduct may trigger an additional term under the Law.

{¶ 38} R.C. 2967.271(C) provides that ODRC may rebut the presumption of

release from prison after serving the minimum prison term (or on the presumptive early

release date) if it 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) of

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 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.

{¶ 39} As previously recognized in this decision, security classifications and the

decision to place an offender in extended restrictive housing—triggers under R.C.

2967.271(C)(2) and (3)—are the subject of detailed sets of policies and procedures. See,

e.g., ODRC Procedure 53-CLS-01 and 55-SPC-02; Ohio Administrative Code 5120-9-10

and 5120-9-11.

{¶ 40} As for R.C. 2967.271(C)(1), the statute really requires ODRC to

demonstrate three things to rebut the presumption of release: (1) the offender committed

an institutional rule infraction that involves compromising security, compromising safety,

causing physical harm, or threatening physical harm, or committed a violation of law that

was not prosecuted, and (2) the infractions or violations demonstrate that the offender has

21.
not been rehabilitated; and (3) the offender’s behavior while incarcerated demonstrates

that he or she continues to pose a threat to society.

{¶ 41} “‘[T]he first essential of due process of law’ is the accused’s right to fair

notice of the proscribed conduct.” State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶

33 (4th Dist.), quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70

L.Ed. 322 (1926). The Ohio Revised Code provides notice of what constitutes a violation

of law, while the inmate rules of conduct are enumerated in Ohio Administrative Code

5120-9-06. Detailed disciplinary procedures for rule infractions—which include

provisions for challenging a claimed rule infraction and appealing an adverse decision—

are set forth in Ohio Administrative Code 5120-9-08. Thus, it cannot be said that an

offender lacks notice of what constitutes a rule infraction or a violation of law.

{¶ 42} As for what it means to “pose a threat to society” (R.C. 2967.271(C)(1)(b))

or what constitutes proof that an offender “has not been rehabilitated” (R.C.

2967.271(C)(1)(a)), it is true that R.C. 2967.271 does not define these terms.

Nevertheless, we find that these phrases are not so vague as to render the statute facially

infirm.

{¶ 43} “A facial challenge requires that the challenging party * * * show that the

statute is vague not in the sense that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but rather in the sense that no standard

of conduct is specified at all.” (Internal quotations omitted.) State v. Carrick, 131 Ohio

22.
St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 15, quoting State v. Anderson, 57 Ohio

St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611,

614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Here, a standard is specified in the statute.

We, therefore, find that Bothuel’s facial challenge fails. Again, however, this does not

preclude Bothuel from advancing an as-applied challenge should he one day be able to

show “‘that application of the statute in the particular context in which he has acted, or in

which he proposes to act, [is] unconstitutional.’” Id. at ¶ 16, quoting State v. Lowe, 112

Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of

Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992)

(Scalia, J., dissenting).

{¶ 44} Accordingly, we find Bothuel’s first assignment of error not well-taken.

III. Conclusion

{¶ 45} We reject Bothuel’s challenges to the constitutionality of the Reagan Tokes

Law. We conclude that the Law does not violate the separation-of-powers doctrine or the

right to a jury trial and does not, on its face, deprive offenders of their right to due

process. We, therefore, find Bothuel’s first assignment of error not well-taken.

{¶ 46} We affirm the February 14, 2020 judgment of the Lucas County Court of

Common Pleas. Bothuel is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

23.
 State of Ohio
v. Lewis Bothuel
L-20-1053

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
CONCUR. ____________________________
JUDGE

Gene A. Zmuda, J. ____________________________
CONCURS AND WRITES JUDGE
SEPARATELY.

ZMUDA, J.

{¶ 47} I agree with the majority’s disposition of Bothuel’s first assignment of

error. I write separately, because I find that the Reagan Tokes Law does not facially

violate a defendant’s constitutional right to due process, and thus Bothuel’s first

assignment of error is not well-taken, based upon the reasoning I articulated in this

court’s lead opinion in State v. Eaton, 6th Dist. Lucas No. L-21-1121. I disagree with the

majority’s determination that the Reagan Tokes Law creates a liberty interest akin to

24.
probation revocation, but this disagreement does not yield a different conclusion on the

ultimate question of constitutionality in this case. Therefore, I concur.

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

25.