State v. Reffitt

[Cite as State v. Reffitt, 2022-Ohio-3371.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-129

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

MATTHEW A. REFFITT,
Trial Court No. 2021 CR 001063
Defendant-Appellant.

OPINION

Decided: September 26, 2022
Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, Jennifer A. McGee, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Matthew Reffitt, appeals following his guilty plea to one count of

felonious assault, in violation of R.C. 2903.11, and one count of disrupting public services,

in violation of R.C. 2909.04, in the Lake County Court of Common Pleas.

{¶2} Appellant raises six assignments of error, arguing that his sentence is

contrary to law because the trial court failed to consider factors that made his offense less

serious and that the Reagan Tokes indefinite sentencing law is unconstitutional.
 {¶3} After review of the record and the applicable caselaw, we find appellant’s

assignments of error to be without merit. Appellant’s sentence was not contrary to law

and we hold that appellant’s challenges to the Regan Tokes Law fail to demonstrate it is

unconstitutional.

{¶4} The judgment of the Lake County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶5} On August 14, 2021, appellant and the victim, his girlfriend, had been using

drugs. At some point, the victim refused to give him more drugs, they argued, and she

left the house. Appellant turned to alcohol and became intoxicated. Appellant claims that

he had been sober from alcohol for four to six months prior to this date although he was

not sober from drug use during this period.

{¶6} When the victim returned to the house, they continued to argue and

appellant became violent. The victim attempted to call 911 but appellant took her phone

and broke it while saying that he was going to kill her. Appellant struck the victim with a

belt multiple times with the buckle, striking her arm, body, and head and leaving bruises.

Appellant then strangled the victim with his belt and left bruising and red marks on her

neck. Eventually, she was able to escape and sought help from neighbors. The victim’s

injuries required three staples in her head to close a wound caused by the belt buckle.

{¶7} On September 30, 2021, appellant pled guilty by way of information to one

count of felonious assault, in violation of R.C. 2903.11, a felony of the second degree,

and one count of disrupting public services, in violation of R.C. 2909.04, a felony of the

fourth degree. The trial court ordered a presentence investigation and the matter was set

for sentencing.
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 {¶8} On November 8, 2021, the court held the sentencing hearing. The victim

addressed the court and said that she believed appellant deserved a second chance and

asked that he be given probation. She said that she believed the cause of the attack was

appellant’s alcohol use and that he was a different person when sober. The court said

that it had reviewed the presentence report which included a victim impact statement and

a psychological assessment. The court considered the facts of the case, the statement

from appellant, his counsel, and the oral victim impact statement made in court.

{¶9} The court concluded that the offense was more serious and that the

relationship with the victim facilitated the offense. The court noted that appellant had three

prior domestic violence convictions, an attempted burglary conviction, drug trafficking

charges, and that he had only been off postrelease control three months before the instant

offense. The court said that appellant had not responded favorably to previously imposed

sanctions and that he has done nothing to address his alcohol problem. The court said

that nothing about the offense made it less serious. The court sentenced appellant to an

indefinite prison term of six years to a maximum of nine years on count one, and twelve

months on count two to be served concurrently. Appellant objected to the imposition of

the indefinite sentence.

{¶10} Appellant timely appeals raising six assignments of error.

Assignments of Error and Analysis

{¶11} Appellant’s first assignment of error states:

{¶12} “[1.] THE DEFENDANT-APPELLANT [sic] SENTENCE IS CONTRARY TO

LAW BECAUSE THE TRIAL COURT FAILED TO CONSIDER FACTORS THAT MADE

THE OFFENSE LESS SERIOUS.”
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 {¶13} In his first assignment of error, appellant argues that his sentence is

contrary to law because the trial court failed to consider factors that made his offense less

serious. Appellant contends that R.C. 2953.08(G)(2) allows this court to increase, reduce,

or otherwise modify a sentence when it is contrary to law because the trial court failed to

consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and

the sentencing factors set forth in R.C. 2929.12.

{¶14} Specifically, appellant argues that the trial court erred by failing to consider

R.C. 2929.12(C)(4), which provides:

(C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other
relevant factors, as indicating that the offender’s conduct is less
serious than conduct normally constituting the offense.

(4) There are substantial grounds to mitigate the offender’s
conduct, although the grounds are not enough to constitute a
defense.

{¶15} Appellant cites R.C. 2953.08(G)(2)(a) as our standard of review for felony

sentencing matters. However, that statute only applies to challenges to sentences

imposed under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), and R.C.

2929.20(I), and appellant does not challenge his sentence in reference to any of these

statutes. See State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-Ohio-789, ¶

7. Here, appellant claims that the trial court issued a sentence contrary to law under R.C.

2929.12. As such, the standard provided under R.C. 2952.08(G)(2)(a) is inapplicable to

this matter. Id.

{¶16} In reviewing sentencing challenges relating to R.C. 2929.11 and R.C.

2929.12, this court previously followed the Supreme Court of Ohio’s language in State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002 which stated:
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 [I]t is fully consistent for appellate courts to review those sentences
that are imposed solely after consideration of the factors in R.C.
2929.11 and 2929.12 under a standard that is equally deferential to
the sentencing court. That is, an appellate court may vacate or
modify any sentence that is not clearly and convincingly contrary to
law only if the appellate court finds by clear and convincing evidence
that the record does not support the sentence.
Marcum, at ¶ 23.
{¶17} However, the Ohio Supreme Court concluded that the above language was

dicta. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.2d 649, ¶ 27. In

Jones, the court held that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate

court to modify or vacate a sentence based on its view that the sentence is not supported

by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. “[A]n appellate court’s

determination that the record does not support a sentence does not equate to a

determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.

2953.08(G)(2)(b).” Id. at ¶ 32. “Therefore, under Jones, an appellate court errs if it relies

on the dicta in Marcum and modifies or vacates a sentence ‘based on the lack of support

in the record for the trial court's findings under R.C. 2929.11 and R.C. 2929.12.’”

Shannon, supra, at ¶ 10, quoting Jones at ¶ 29.

{¶18} Thus, under Jones, an appellate court reviewing alleged error under R.C.

2929.11 and R.C. 2929.12 no longer evaluates whether those sentences are unsupported

by the record. Instead, the court “must simply analyze whether those sentences are

contrary to law.” Id. at ¶ 11. Jones offered that “legal dictionaries define ‘contrary to law’

as ‘in violation of statute or legal regulations at a given time,’ e.g., Black’s Law Dictionary

328 (6th Ed. 1990).” Id. at ¶ 34. However, Jones held that the phrase “contrary to law” is

not “equivalent” to an “appellate court’s conclusions that the record does not support a

sentence under R.C. 2929.11 or 2929.12.” Id.
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 {¶19} Appellant believes that the victim’s statement asking the trial court to not

impose a prison sentence and asking for leniency was a substantial ground to mitigate

his conduct. He argues that the trial court did not acknowledge her statements and merely

said that it reviewed the presentence report and considered her oral statement. Based on

this, he argues that the sentence was contrary to law. In support of his argument, he cites

State v. Howell, 7th Dist. Belmont No. 14BE30, 2015-Ohio-3428, ¶ 20.

{¶20} Howell pre-dates the Ohio Supreme Court’s decisions in both Marcum and

Jones, so its R.C. 2953.08(G) analysis is no longer applicable. Howell states that two

victims writing a letter to the court indicating a desire that the defendant not receive jail

“could be considered a factor that would make the offense less serious under R.C.

2929.12(C).” (Emphasis added). Id. at ¶ 20. However, this was a passing comment and

therefore mere obiter dictum. The Seventh District reviewed the R.C. 2929.11 and R.C.

2929.12 challenge in that case and affirmed, finding that the court considered all the

necessary sentencing factors. Id. at ¶ 15.

{¶21} In this case, appellant does not argue that the trial court failed to consider

the R.C. 2929.12 factors. Instead, appellant argues that the trial court improperly

discounted substantial grounds to mitigate his conduct. This argument fails because the

sentence in this case was within the statutory range. Moreover, not only did the trial court

consider the R.C. 2929.12(C) factors, but the trial court also made specific findings as to

R.C. 2929.12(C)(4) saying that there was “[n]othing that indicates it’s less serious.” We

decline to find reversible error on the “‘based on the lack of support in the record for the

trial court's findings under R.C. 2929.11 and R.C. 2929.12.’” Shannon, supra, at ¶ 10,

quoting Jones, supra, at ¶ 29.

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 {¶22} Accordingly, appellant’s first assignment of error is without merit.

{¶23} Appellant’s second through sixth assignments of error challenge the

constitutionality of R.C. 2967.271, the Reagan Tokes Law. Specifically, appellant argues

that the Reagan Tokes Law is ripe for review, is void for vagueness, violates the

separation of powers, violates his right to a trial by jury, and violates due process rights.

Presumption of Constitutionality:

{¶24} Initially we note that “we are to presume that the state statute is

constitutional, and the burden is on the person challenging the statute to prove otherwise

beyond a reasonable doubt.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861

N.E.2d 512, ¶ 17. “Further, the constitutionality of a statute is a matter of law that we

review de novo.” State v. Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, ¶

46, citing State v. Jenson, 11th Dist. Lake No.2005–L–193, 2006–Ohio–5169, ¶ 5.

Therefore, we must independently review the constitutionality of R.C. 2967.271 while

presuming it to be constitutional.

{¶25} Appellant’s second assignment of error states:

{¶26} “[2.] THE DEFENDANT-APPELLANT’S CONSTITUTIONAL

CHALLENGES TO THE INDETERMINATE PRISON SENTENCE OF SIX TO NINE

YEARS THAT WAS ORDERED PURSUANT TO THE ‘REAGAN TOKES ACT,’ AKA

SENATE BILL 201, ARE RIPE FOR REVIEW.”

Ripeness:

{¶27} The Ohio Supreme Court recently held that the Reagan Tokes Law is ripe

for review in State v. Maddox, Slip Opinion No. 2022-Ohio 764. In Maddox, the Court said

that the “challenge to the statute’s constitutionality is ripe for review on direct appeal

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because (1) [appellant] has been sentenced under the statute, (2) no further factual

development is necessary for a court to analyze the challenge, and (3) delaying review

would result in duplicative litigation forcing Maddox and similarly situated people to

endure potential violations of their constitutional rights in order to challenge the law.” Id.

at ¶ 11. Therefore, we hold that appellant’s challenge to the constitutionality of the Reagan

Tokes Law is ripe for review.

{¶28} Appellant’s third assignment of error states:

{¶29} “[3.] THE DEFENDANT-APPELLANT’S INDETERMINATE PRISON

SENTENCE OF SIX TO NINE YEARS THAT WAS ORDERED PURSUAUNT TO THE

‘REAGAN TOKES ACT,’ AKA SENATE BILL 201, MUST BE REVERSED AS THE

REAGAN TOKES ACT IS UNCONSTITUTIONALLY VOID FOR VAGUENESS.”

Void for Vagueness:

{¶30} Appellant next argues that the Reagan Tokes Law is void for vagueness

because it fails to provide sufficient clarity for what conduct could result in the

indeterminate portion of his prison sentence being invoked.

{¶31} “‘[A] law will survive a void-for-vagueness challenge if it is written so that a

person of common intelligence is able to ascertain what conduct is prohibited, and if the

law provides sufficient standards to prevent arbitrary and discriminatory enforcement.’”

Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, at ¶ 16, quoting State

v. Williams, 88 Ohio St.3d 513, 533, 728 N.E.2d 342 (2000), citing Chicago v. Morales,

527 U.S. 41, 56–57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). 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

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552 (1991), citing Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d

110 (1972). 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.

{¶32} In Grayned v. Rockford (1972), 408 U.S. 104, 108–109, 92 S.Ct. 2294,

2298–2299, 33 L.Ed.2d 222, 227–228, the United States Supreme Court set out the

following guidelines for evaluating a void for vagueness claim:

Vague laws offend several important values. First, 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. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. * * * ” (Footnotes
omitted.) Accordingly, when a statute is challenged under the
due process doctrine of vagueness, a court must determine
whether the enactment (1) provides sufficient notice of its
proscriptions and (2) contains reasonably clear guidelines to
prevent official arbitrariness or discrimination in its
enforcement. Smith v. Goguen (1974), 415 U.S. 566, 94 S.Ct.
1242, 39 L.Ed.2d 605.

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 {¶33} The Ohio Supreme Court has analyzed and upheld R.C. Chapter 2950,

Ohio’s sex offender registration enactments, against a challenge it was void for

vagueness. The Court said that the chapter did not prohibit any specific conduct but

“merely establish[ed] remedial registration and notification.” State v. Williams, 88 Ohio

St.3d 513, 533, 728 N.E.2d 342 (2000). These remedial measures “require less specificity

to satisfy a void-for-vagueness challenge than do criminal statutes.” Id.

{¶34} In like manner, the Fifth District compared the sexual offender classification

scheme approved in Williams to Ohio’s postrelease control enactments. State v. Hopkins,

5th Dist. Stark Nos. 2000CA00053, 2000CA000054, 2000 WL 1751286, * 4 (Nov. 27,

2000). In Hopkins, the court said that postrelease control enactments were not

unconstitutionally vague because they do “not prohibit any specific conduct.” Id.

{¶35} Guided by the U.S. and Ohio Supreme Court in Grayned and Collier as well

as the framework set forth in Williams and Hopkins, we address R.C. 2967.271. R.C.

2967.271(B) establishes a rebuttable presumption that the offender shall be released

upon the expiration of the minimum prison term or early release date, whichever is earlier.

Division (C) provides the means by which that presumption may be overcome. Division

(C)(1) provides that the presumption may be rebutted if the offender both: (a) committed

institutional rule infractions that involved compromising the security or safety of staff or

inmates that demonstrates the offender has not been rehabilitated, and (b) the behavior

while incarcerated demonstrates a continued threat to society. Division (C)(2) continues

that the presumption may be rebutted when the offender’s behavior demonstrates that

the offender is a continued threat to society. Division (C)(3) continues that the

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presumption may be rebutted when the offender’s security level at the time of the hearing

is classified as level three, four, or five, or higher.

{¶36} As in Williams, we note that R.C. 2967.271 does not prohibit any specific

conduct. Therefore, the statute requires less specificity than a typical criminal enactment.

In Hopkins, the Fifth District found that postrelease control enactments were not

unconstitutionally void because they did not prohibit specific conduct.

{¶37} However, Appellant argues that Regan Tokes violates all three prongs of

the tripartite analysis. He argues that institutional rule violations and infractions are

enforced by the same people who will determine if his conduct warrants extending his

prison term. He further claims that different institutions may have different definitions for

what conduct constitutes a security threat and suggests that constitutionality protected

rights such as freedom of speech or religion might “draw the ire” of the Ohio Department

of Rehabilitation and Corrections (“ODRC”) and arbitrarily subject him to the indefinite

portion of his sentence.

{¶38} In State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-

1809, opinion vacated on reh'g en banc, 8th Dist. Cuyahoga No. 1093152022-Ohio-470,

the Eighth District found that R.C. 2967.271 was void for vagueness. However, upon en

banc rehearing, the court upheld the constitutionality of the law in State v. Delvallie, 8th

Dist. Cuyahoga No. 109315, 2022-Ohio-470. The en banc opinion addressed the claim

that R.C. 2967.271 was vague and said that the “challenge to the prison rule infraction

system as a reason to invalidate the Reagan Tokes Law cannot be viewed in isolation.”

Id. at ¶ 86.

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 {¶39} The court emphasized that the Reagan Tokes Law does not create a new

prison rule infraction system and that Ohio Adm.Code 5120-0-08 sets forth “an inmate's

rights and the procedures the Rules Infraction Board are to follow in imposing any and all

institutional infractions upon the inmates. See, e.g., Oko v. Lake Erie Corr. Inst., 11th Dist.

Ashtabula No. 2010-A-0002, 2010-Ohio-2821, 2010 WL 2499702, ¶ 3 (overruling a

constitutional challenge to the decision by the Rules Infraction Board).” Id. at ¶ 86. The

Eighth District reasoned that R.C. 2967.271(C) and (D) merely rely on the results of the

already well established and well-regulated proceedings which are conducted under the

Administrative Code. Id. at ¶ 87.

{¶40} Importantly, these administrative proceedings under Ohio Adm.Code 5120-

0-08 are not part of the Reagan Tokes framework itself. Appellant has not asserted a

facial challenge of the Rules Infractions Board itself or the procedures that the Rules

Infraction Board are to follow in imposing institutional infractions. Any as applied

challenge of an infraction received under that Board would have to be raised through a

separate writ upon imposition of the infraction. Therefore, appellant’s challenges to the

vagueness of the enforcement of the Rules infractions Board are not properly before this

court as they must “be advanced through a separate writ action when the infraction has

been declared and impacts the duration of confinement. State ex rel. Larkins v. Wilkinson,

79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997) (writ of mandamus will not lie “absent

evidence that the challenged institutional action would affect the inmate's duration of

confinement”), citing Samuels v. Mockry, 77 F.3d 34, 37 (2d Cir. 1996); Lane v. Russell,

109 Ohio App.3d 470, 473, 672 N.E.2d 684 (12th Dist. 1996).” Id. at ¶ 87.

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 {¶41} Appellant’s claims as to the enforcement of the prison infraction system

have no bearing on his objection to the Reagan Tokes Law. The provisions in R.C.

2967.271 are not vague, therefore, we hold that on its face, R.C. 2967.271 does set forth

sufficient specific guidelines to prevent arbitrary and discriminatory enforcement.

{¶42} Accordingly, appellant’s third assignment of error is without merit.

{¶43} Appellant’s fourth assignment of error states:

{¶44} “[4.] THE DEFENDANT-APPELLANT’S INDETERMININATE PRISON

SENTENCE OF SIX TO NINE YEARS THAT WAS ORDRED PURSUANT TO THE

‘REAGAN TOKES ACT,’ AKA SENATE BILL 201, MUST BE REVERSED AS THE

REAGAN TOKES ACT UNCONSTITUTIONALLY VIOLATES THE DOCTRINE OF

SEPARATION OF POWERS.”

Separation of Powers:

{¶45} Appellant argues that the Reagan Tokes Law violates the separation of

powers because it vests judicial power in the executive branch. He cites State ex rel. Bray

v. Russel, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000). Bray addressed the constitutionality

of R.C. 2967.11, which allowed the parole board to punish a violation committed by the

prisoner by extending the stated prison term. Violations were 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). Any extension of the

prisoner’s term under that enactment was referred to as “bad time.”

{¶46} In Bray, the Ohio Supreme Court held that R.C. 2967.11 was

unconstitutional because the parole board “acted ‘as judge, prosecutor, and jury,’ for an

action that could be prosecuted as a felony in a court of law.” Id. at 135. The enactment

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intruded “well beyond the defined role of the executive branch as set forth in our

Constitution.” Id. The Court held the statute was unconstitutional and violated the

separation of powers doctrine. Id. at 136.

{¶47} Appellant’s reliance on Bray is misplaced. R.C. 2967.11 authorized the

parole board to impose an additional prison term beyond the one the trial court imposed.

Under Reagan Tokes, the executive branch cannot impose additional time beyond the

maximum sentence imposed by the trial court at the time of sentence. See State v. Leet,

2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 15.

{¶48} Further, in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000),

decided a few months after Bray, the Ohio Supreme Court considered the constitutionality

of R.C. 2967.28, Ohio’s postrelease control statute. There, the court found it was distinct

from the bad time statute at issue in Bray because the postrelease control terms are made

part of the sentence imposed by the court. Woods, at 512. The court found no violation

of the separation of powers in that case because the parole board’s discretionary power

to impose postrelease control sanctions did not impinge on the judiciary’s mandate to

impose sentence. Id.

{¶49} In Reagan Tokes sentences, the court imposes both presumptive minimum

and possible maximum prison terms in its sentence. Thereafter, the ODRC determines

whether the offender’s conduct warrants more than the minimum imposed. However, the

ODRC cannot exceed the judiciary’s maximum imposed sentence. Therefore, Bray does

“not compel the conclusion that the Reagan Tokes Law violates the separation of powers

doctrine.” Id.; State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State

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v. Suder, 12th Dist. Clermont No. CA2020-06-035, 2021-Ohio-465, ¶ 25; State v. Wilburn,

8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, ¶ 27.

{¶50} Accordingly, appellant’s fourth assignment of error is without merit.

{¶51} Appellant’s fifth assignment of error states:

{¶52} “[5.] THE DEFENDANT-APPELLANT’S INDETERMINATE PRISON

SENTENCE OF SIX TO NINE YEARS THAT WAS ORDERED PURSUANT TO THE

‘REAGAN TOKES ACT,’ AKA SENATE BILL 201, VIOLATES HIS CONSTITUTIONAL

RIGHT TO TRIAL BY JURY AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

5 OF THE OHIO CONSTITUTION.”

Trial by Jury:

{¶53} Appellant argues that R.C. 2967.271(C) and (D) violate his constitutional

right to a jury trial because the law authorizes ODRC to make findings of fact and hold

hearings to extend his prison term without judicial fact finding. Appellant cites Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 403 (2000), Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 in support of his contention. He also

cites Delvallie, 2021-Ohio-1809 ¶ 32, opinion vacated on reh'g en banc, which held that

the “Reagan Tokes Law” is unconstitutional because R.C. 2967.271 infringes on the

defendant's right to a jury under the Sixth Amendment. However, Delvallie was vacated

upon an en banc rehearing of the matter.

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 {¶54} In the en banc rehearing in Delvallie, 2022-Ohio-470, the Eighth District

addressed Apprendi, Blakey, and Foster and found that R.C. 2967.271(C) and (D) do not

violate the right to a jury trial.

{¶55} The Eighth District said that Apprendi was inapposite because the issue in

Apprendi was the court’s ability to impose a sentence in excess of the statutory maximum

without the factual circumstances justifying the enhanced sentence first being found by a

jury beyond a reasonable doubt. Id. at ¶ 40. In contrast, R.C. 2967.271 statutorily requires

a court “to impose the minimum and maximum terms upon the offender being found guilty

of the qualifying felony offense – similar to an offender being sentenced to life with the

possibility of parole under the indefinite life sentencing structure.” Id. Reagan Tokes does

not authorize “a sentencing court, or the ODRC for that matter, to impose a sentence

beyond the maximum set forth in the sentencing statutes or to elevate the minimum term

beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a).” Id. at ¶ 41.

{¶56} The Eighth District also distinguished Foster, where the Ohio Supreme

Court concluded that the “sentencing structure permitting a trial court to impose a

consecutive sentence resulting in a term of imprisonment beyond the minimum based on

the issuance of findings violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004).” Id. at ¶ 42. However, Foster was superseded by the Supreme

Court in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), where the

Court determined that a state court’s imposition of consecutive sentences did not violate

the right to a jury trial because juries historically “played no role in” the decision to impose

consecutive or concurrent sentences. Id., at ¶ 42, citing Ice, 555 U.S. at 167-168.

“Instead, specification of the regime for administering multiple sentences has long been

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considered the prerogative of state legislatures.” Ice at 168. Thus, the Eighth District

concluded that the rationale underlying Foster “did not stand the test of time.” Delvallie,

at ¶ 42.

{¶57} Because R.C. 2967.271 requires the trial court to impose a minimum and

maximum indefinite term, the only discretion granted to the trial court is the minimum

term. The court is not imposing a term greater than the maximum as prohibited under

Apprendi. Further, the court is not imposing a sentence longer than the minimum term

prescribed by statute based on findings of facts in addition to those considered by the jury

as in Blakely or Foster. We do not find that R.C. 2967.271(C) or (D) is unconstitutional

under Apprendi or its progeny.

{¶58} Accordingly, appellant’s fifth assignment of error is without merit.

{¶59} Appellant’s Sixth assignment of error states:

{¶60} “[6.] THE DEFENDANT-APPELLANT’S INDETERMINATE PRISON

SENTENCE OF SIX TO NINE YEARS THAT WAS ORDERED PURSUANT TO THE

‘REAGAN TOKES ACT,’ AKA SENATE BILL 201, VIOLATES HIS CONSTITUTIONAL

RIGHTS TO FAIR TRIAL AND DUE PROCESS AS GUARANTEED BY THE FIFTH,

SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION and ARTICLE I, SECTION 5 & 10 OF THE OHIO CONSTITUTION.”

Due Process:

{¶61} Appellant next claims that the Regan Tokes Law violates due process

because it fails to provide proper notice as to what type of conduct would allow the ODRC

to extend his prison sentence. He further argues that R.C. 2967.271 empowers the ODRC

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to hold hearings that do not satisfy Constitutional due process rights, such as the right to

a fair trial.

{¶62} In State ex rel. Blake v. Schoemaker, 4 Ohio St.3d 43, 446 N.E.2d 169

(1983), the Ohio Supreme Court said that a right to parole consideration did not create a

“liberty interest sufficient to establish a right to procedural due process.” Id. The Court

said that this argument was “rejected in Greenholtz v. Nebraska Penal Inmates, 442 U.S.

1, 99 S.Ct. 2100, 60 L.Ed.2d 668 [(1979)], with the exception of where the state statute

itself creates an expectancy of release.” Id.

{¶63} Thus, while no Ohio appellate district has held that R.C. 2967.271(C)

violates due process, some districts have come to differing conclusions in whether

requiring a prisoner to remain in prison beyond the rebuttable presumption of release is

most analogous to parole eligibility proceedings involving release from prison or parole

revocation/postrelease control violation proceedings involving a termination of liberty

which would require an informal hearing to verify facts supporting revocation. See

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), at paragraph

one of the syllabus.

{¶64} The Twelfth District concluded that the "hearings conducted by the ODRC

under R.C. 2967.271(C) are analogous to parole revocation proceedings, probation

revocation proceedings, and postrelease control violation hearings at issue in Morrissey,

Gagnon [v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)], and Woods.”

State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 17.

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 {¶65} The Second District concluded that “requiring a defendant to remain in

prison beyond the presumptive minimum term is akin to the decision to grant or deny

parole, which in Ohio is an executive function that does not involve the judiciary.” State v.

Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.

{¶66} However, whether the rebuttable presumption of release under the Reagan

Tokes Law is more akin to parole revocation proceedings or parole eligibility proceedings

is not presently important for determining whether R.C. 2967.271 constitutes a facial

violation of due process.

{¶67} Appellant’s challenges to the Reagan Tokes Law are facial in nature and he

must therefore establish that there exists no set of circumstances under which the statute

would be valid. Harrold v. Collier, 107 Ohio St.3d 44 at ¶ 37. Appellant’s arguments

relating to a future hearing to rebut his presumptive release are a challenge to the due

process safeguards that will be afforded in the future under R.C. 2967.271 through a

hearing to rebut his presumption of release. “The fact that a statute might operate

unconstitutionally under some plausible set of circumstances is insufficient to render it

wholly invalid.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, paragraph

four of the syllabus, and United States v. Salerno, 481 U.S. 739, 745. “Should the Law

ultimately be applied in a manner that is unconstitutional, an offender would not be

precluded from challenging the Law as applied.” State v. Stenson, 6th Dist. No. L-20-

1074, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 33.

{¶68} Therefore, appellant’s arguments relating to R.C. 2967.271(C) and the

procedural safeguards of the hearing to rebut his presumptive release constitute an as

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applied challenge and is not yet ripe for review, because those aspects of the statute

have not been applied to him.

{¶69} Finally, in order to satisfy due process, a guilty plea must be knowing,

intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23

L.Ed.3d 274 (1969). A trial court must engage in a plea colloquy pursuant to Crim.R.

11(C). State v. Corpening, 11th Dist. Ashtabula No. 2011-A-0005, 2011-Ohio-6002, ¶ 24.

{¶70} In this case, the trial court advised appellant that he was subject to an

indefinite term of imprisonment with a presumptive minimum release date and possible

maximum sentence. The trial court advised that he would be presumptively released after

the minimum term if he did not commit institutional violations. Appellant was told that the

presumption of early release is not automatic and that he could be subject to a maximum

prison sentence which was up to one half of his minimum sentence. He was told that he

had a right to a hearing in order to overcome the imposition of the indefinite portion of his

sentence. The trial court also explained the ability to earn good time credit based on his

behavior in prison to reduce the minimum sentence. The court said that an earned early

release was presumptive but that the trial court could oppose such early release and, in

that event, appellant would be entitled to a hearing.

{¶71} Appellant said that he understood these components of his indefinite

sentence and pled guilty to the charge. In this case, the trial court fully advised appellant

of the consequences of his plea, and he acknowledged that he understood those

consequences.

{¶72} Accordingly, appellant’s sixth assignment of error is without merit.

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 {¶73} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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