[Cite as State v. Williams, 2022-Ohio-2812.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1152
Appellee Trial Court No. CR0202002242
v.
Melvin Williams DECISION AND JUDGMENT
Appellant Decided: August 12, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Adam H. Houser, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Melvin Williams, appeals the July 28, 2021 judgment
of the Lucas County Court of Common Pleas, convicting him of aggravated burglary and
sentencing him to an indefinite prison term of a minimum of four years and a maximum
of six years. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} Melvin Williams entered a plea of no contest to one count of aggravated
burglary, a violation of R.C. 2911.11(A)(1) and (B), a first-degree felony. Williams was
sentenced under Senate Bill 201, known as the Reagan Tokes Law, to an indefinite term
of a minimum of four years in prison and a maximum of six years. His conviction was
memorialized in a judgment journalized on July 28, 2021.
{¶ 3} Williams appealed. He assigns five errors for our review:
1. The Constitutional Challenges to S.B. 201 are Ripe for Review.
2. The Trial Court Committed Reversable [sic] Error When It
Overrule[d] Appellant’s Trial Counsel [sic] Objection When It Sentence[d]
Appellant Pursuant To Senate Bill 201 (“S.B. 201”) AND O.R.C. 2929.144
Violates The Constitutional Doctrine Of The Separation Of Powers.
3. The Trial Court improperly overruled Appellant’s Trial Counsel
[sic] Objection of Senate Bill 201 (“S.B. 201”) and []R.C. 2929.144 as it
Violates Appellants [sic] 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.
4. The Trial Court Committed Reversable [sic] Error When It
Overrule[d] Appellant Trial Counsel’s Object[ion] to S.B. 201 Because The
Judgment Violates The Appellant’s Due Process Rights Pursuant To The
2.
Fifth and Fourteenth Amendments Of The United States Constitution As It
Relates To The Indefinite Sentence.
5. Appellant Received Ineffective Assistance Of Counsel When
Counsel Failed To Preserve the Objection To Appellant Being Sentenced
By An Unconstitutional Statute Of The Indefinite Sentence.
II. Law and Analysis
{¶ 4} Williams’s assignments of error relate to his various challenges to the
constitutionality of the Reagan Tokes Law, which became effective on March 22, 2019.
The Law implemented 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 ¶ 5, fn. 1. It 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,
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additional period of time, determined by ODRC, but not to exceed the offender’s
maximum prison term. R.C. 2967.271(D).
{¶ 5} In his first assignment of error, Williams contends that constitutional
challenges to the Reagan Tokes Law are ripe for review. In his second assignment of
error, he challenges the Law on the basis of the constitutional doctrine of separation of
powers. In his third assignment of error, he argues that the Law violates the
constitutional right to a trial by jury. In his fourth assignment of error, he challenges the
Law on due process grounds. And in his fifth assignment of error, he claims that trial
counsel was ineffective for failing to object to the constitutionality of the Law at
sentencing. We address each of these assignments in turn.
A. Ripeness
{¶ 6} In his first assignment of error, Williams argues that constitutional challenges to the
Reagan Tokes Law are ripe for review. On March 16, 2022—about six weeks after Williams
submitted his brief on appeal—the Ohio Supreme Court decided State v. Maddox, Slip Opinion
No. 2022-Ohio-764, ¶ 1, which concluded that challenges to the constitutionality of the Reagan
Tokes Law are, in fact, ripe for review on direct appeal of the offender’s conviction and prison
sentence.
{¶ 7} Accordingly, we find Williams’s first assignment of error well-taken.
4.
B. Separation of Powers
{¶ 8} In his second assignment of error, Williams argues that the Reagan Tokes
Law violates the constitutional doctrine of separation of powers because it divests the
judicial branch of its authority to prosecute and sentence offenders and instead vests this
power in the executive branch. The state responds that because the trial court sentences
the offender to both a minimum and maximum prison term and ODRC cannot extend the
prison sentence beyond the maximum term originally imposed by the court, the Law does
not violate the constitutional doctrine of separation of powers. It cites as authority Ohio
Supreme Court case law upholding the constitutionality of other statutes that grant similar
discretion to the Adult Parole Authority.
{¶ 9} We recently addressed this argument in State v. Gifford, 6th Dist. Lucas No.
L-21-1201, 2022-Ohio-1620, State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-
Ohio-2072, State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, and
several other recent cases. In those cases, we concluded that the Reagan Tokes Law does
not violate the constitutional doctrine of separation of powers.
{¶ 10} Put simply, in Gifford, Stenson, and Bothuel, we compared the authority
granted to ODRC under the Reagan Tokes Law to other similar statutory schemes that the
Ohio Supreme Court has upheld, most notably parole and postrelease control. See Woods
v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000) (upholding postrelease control
statute despite discretion granted to executive branch); State ex rel. Atty. Gen. v. Peters,
5.
43 Ohio St. 629, 646, 4 N.E. 81 (1885) (finding no violation of separation of powers in
“act providing for parol of convicts,” which vested discretion in executive branch);
McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334 (1964) (recognizing 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 * * *” and noting
that “[w]hether a prisoner should be released before he has served his maximum sentence
is an administrative not a judicial matter.”).
{¶ 11} We recognized that there are strong similarities between the authority of
the judiciary 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 and Peters.
{¶ 12} Under the Reagan Tokes Law, the trial court imposes a minimum sentence
and a maximum sentence. 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, under no circumstances may ODRC “increase”
the prisoner’s sentence beyond the maximum sentence imposed by the trial 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;
Stenson at ¶ 20; Bothuel at ¶ 20.
6.
{¶ 13} Accordingly, we find Williams’s second assignment of error not well-
taken.
C. Right to Trial by Jury
{¶ 14} Williams argues that the Reagan Tokes Law violates the constitutional
right to a trial by jury. He contends that the law permits ODRC to increase a sentence
without allowing the court or a jury to consider the facts or the offender’s conduct,
thereby contravening U.S. Supreme Court authority, including 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). The state responds that the Law does not violate the
right to a trial by jury because the sentence is still determined by a court based upon
findings made by the trier of fact, and ODRC merely administers the judicially-imposed
sentence. The state also contends that Williams waived this assignment of error when he
entered a guilty plea.
{¶ 15} The right to a trial by jury is protected by the Sixth Amendment to the U.S.
Constitution and Article I, Section 5, of the Ohio Constitution. In 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
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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.
{¶ 16} As we recognized in Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-
2606, 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 period 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.”). We concluded, therefore, that the Law 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. We reach the same conclusion here.
{¶ 17} Accordingly, we find Williams’ third assignment of error not well-taken.
D. Due Process
{¶ 18} In his fourth assignment of error, Williams argues that the Reagan Tokes
Law violates his due-process rights. He claims that the Law is void for vagueness, fails
to provide any restrictions on the discretion of the executive branch to expand his
sentence beyond the minimum term, and provides inadequate guarantees for a fair
hearing. In response, the state does not address Williams’s void-for-vagueness argument,
8.
however, it contends that the Law does not violate due process because ODRC is granted
discretion similar to the discretion afforded the Adult Parole Authority in making parole-
release decisions. It also claims that only minimal process is due an offender under the
Reagan Tokes Law, and R.C. 2967.271(C) and (D) satisfy minimal due process
requirements.
{¶ 19} 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
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).
{¶ 20} In Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, 6th Dist. No.
L-20-1053, Bothuel, and other recent decisions, we found that the Law’s presumption of
release after service of an offender’s minimum sentence creates a liberty interest
implicating due process rights. See Stenson at ¶ 25 and Bothuel at ¶ 28, citing Greenholtz
9.
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”). We concluded that that liberty interest created under the Law is
analogous to the liberty interest at issue in a parole-revocation decision, and offenders
should be afforded process similar to what the U.S. Supreme Court deemed is due
parolees whose parole is being revoked. See Stenson at ¶ 30-31; Bothuel at ¶ 34. Those
procedures are set forth in Morrissey and include “(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.
{¶ 21} We found in Stenson and Bothuel, however, that ODRC had not yet sought
to extend the offenders’ terms beyond the presumptive minimum sentence, therefore,
their challenge to the Reagan Tokes Law was 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
10.
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 Salerno at
745.
{¶ 22} In Stenson and Bothuel, we observed that the U.S. Supreme Court in
Morrissey acknowledged that most states have enacted legislation setting forth procedural
requirements for parole revocation hearings, but others have done so by judicial decision.
We interpreted Morrissey to imply that the specific procedural requirements applicable to
protect a particular liberty interest need not be set forth in the legislation itself. In other
words, we concluded, 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.
11.
{¶ 23} Again, we reach the same conclusion here. Because 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.” However, as we commented in Stenson and
Bothuel, 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 could be the
subject of an appropriate future challenge.”).
{¶ 24} As to Williams’s void-for-vagueness challenge, he claims that what
constitutes a rule infraction or violation of law demonstrating a lack of rehabilitation or a
threat to society under R.C. 2967.271(C)(1) is vague. He maintains that the statute does
not provide fair warning to citizens so that they can ensure that their behavior comports
with the law.
{¶ 25} 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:
12.
(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.
{¶ 26} We recently recognized in Bothuel that security classifications and the
decision to place an offender in extended restrictive housing—triggers under R.C.
13.
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. Bothuel at ¶ 39. As for R.C. 2967.271(C)(1), the Ohio Revised Code
provides notice of what constitutes a violation of law, the inmate rules of conduct are
enumerated in Ohio Administrative Code 5120-9-06., and 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. Bothuel at ¶ 40-41. Thus, it cannot be said that an offender lacks notice of
what constitutes a rule infraction or a violation of law.
{¶ 27} We also acknowledged in Bothuel that R.C. 2967.271 does not define 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)). Id. at ¶ 42.
Nevertheless, we found that these phrases are not so vague as to render the statute facially
infirm. “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
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).
14.
{¶ 28} As we recognized in Bothuel, a standard is specified in the statute. Bothuel
at ¶ 43. Williams’s facial challenge, therefore, fails. However, as we found in Bothuel,
this does not preclude Williams 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.’” Carrick 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).
{¶ 29} Accordingly, we find that the Reagan Tokes Law does not, on its face,
violate the constitutional right to due process, and we find Williams’s fourth assignment
of error not well-taken.
E. Ineffective Counsel
{¶ 30} In his final assignment of error, Williams argues that trial counsel was
ineffective for failing to challenge the constitutionality of the Reagan Tokes Law at
sentencing. In order to prevail on a claim of ineffective assistance of counsel, an
appellant must show (1) counsel’s performance fell below an objective standard of
reasonable representation, and (2) prejudice, meaning that but for counsel’s errors, the
result of the proceedings would have been different. State v. Hale, 119 Ohio St.3d 118,
2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v. Washington, 466 U.S. 668,
687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
15.
{¶ 31} Given our conclusion that Williams has failed to demonstrate that the
Reagan Tokes Law is unconstitutional, we find that counsel was not ineffective for
failing to challenge its constitutionality in the trial court. See State v. Shelor, 6th Dist.
Fulton No. F-21-011, 2022-Ohio-2613, ¶ 53.
{¶ 32} Accordingly, we find Williams’s fifth assignment of error not well-taken.
III. Conclusion
{¶ 33} We find that Williams’s challenge to the constitutionality of the Reagan
Tokes Law is ripe for review. We, therefore, find his first assignment of error well-taken.
However, we reject Williams’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 trial by jury, therefore, we find his second and third assignments of error not
well-taken. We also conclude that the Law, on its face, does not violate the constitutional
right to due process, therefore, we find his fourth assignment of error not well-taken.
Finally, given our conclusion that the Law is not unconstitutional on its face, trial counsel
was not ineffective for failing to object to Williams being sentenced under the Law, and
we find his fifth assignment of error not well-taken.
{¶ 34} We affirm the July 28, 2021 judgment of the Lucas County Court of
Common Pleas. Williams is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
16.
State of Ohio
v. Melvin Williams
L-21-1152
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
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
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/.
17.