State v. Joyce

[Cite as State v. Joyce, 2022-Ohio-3370.]

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

STATE OF OHIO, CASE NO. 2021-L-006

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

MICHAEL S. JOYCE,
Trial Court No. 2019 CR 000849
Defendant-Appellant.

OPINION

Decided: September 26, 2022
Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH 44115 (For Defendant-
Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Michael S. Joyce, appeals the trial court’s May 11, 2020

sentencing entry. On remand from the Supreme Court of Ohio, we affirm.

I. Introduction

{¶2} Appellant pled guilty to five offenses: Count One, attempted murder, a first-

degree felony; Count Six, grand theft of a motor vehicle, a fourth-degree felony; Count

Seven, aggravated robbery, a first-degree felony; Counts Eleven and Twelve, tampering

with evidence, third-degree felonies. The trial court sentenced appellant as follows: an
indefinite prison term with a stated minimum term of 11 years and a maximum prison term

of 16.5 years on Count One; 17 months in prison on Count Six; 9 years in prison on Count

Seven; 30 months in prison on Count Eleven; and 30 months in prison on Count Twelve.

Counts One and Seven are to be served consecutive to each other, while all other terms

are to be served concurrently, resulting in a stated aggregate minimum term of 20 years

and an aggregate maximum term of 25.5 years in prison.

{¶3} Appellant advances one assignment of error:

The sentencing under Ohio law violated the separation of
powers doctrine of the Constitutions of the State of Ohio and
United States, due process of law, are void for vagueness,
and conflict internally with other Ohio law.

{¶4} Appellant argues that the sentencing scheme under which he was

sentenced, identified under R.C. 2901.011 as the Reagan Tokes Law, is unconstitutional

on its face because it violates the separation of powers doctrine and infringes upon his

due process rights.

{¶5} Initially, we note that the constitutionality of the Reagan Tokes Law has

been addressed by other Ohio appellate courts, each of which has declared that the

sentencing scheme does not facially violate an inmate’s constitutional rights. See, e.g.,

State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-

Ohio-5048, 161 N.E.3d 112 (3d Dist.); State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d

607 (4th Dist.); State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372;

State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682 (6th Dist.); State v. Delvallie, 2022-

Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc); State v. Guyton, 12th Dist. Butler No.

CA2019-12-203, 2020-Ohio-3837. The issue is currently pending before the Supreme

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Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496, and State v.

Simmons, Sup. Ct. Case No. 2021-0532.

II. Standard of Review

{¶6} We review the constitutionality of a statute de novo, i.e., independently and

without deference to the trial court’s decision. State v. Jenson, 11th Dist. Lake No. 2005-

L-193, 2006-Ohio-5169, ¶ 5. “An enactment of the General Assembly is presumed to be

constitutional, and before a court may declare it unconstitutional it must appear beyond a

reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59

(1955), paragraph one of the syllabus; State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-

783, 7 N.E.3d 1156, ¶ 7 (“enactments of the General Assembly enjoy a strong

presumption of constitutionality”). “This means that courts must avoid an unconstitutional

construction where it is reasonably possible to do so.” Jenson at ¶ 5, citing United Air

Lines, Inc. v. Porterfield, 28 Ohio St.2d 97, 100, 276 N.E.2d 629 (1971). “Further, the

party challenging the statute bears the burden of proving the unconstitutionality of the

statute beyond a reasonable doubt.” Woods v. Telb, 89 Ohio St.3d 504, 511, 733 N.E.2d

1103 (2000), citing State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996).

{¶7} A party may challenge a statute as unconstitutional as applied to a particular

set of facts or, as here, on its face. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-

5334, 836 N.E.2d 1165, ¶ 37. “A facial challenge to a statute is the most difficult to bring

successfully because the challenger must establish that there exists no set of

circumstances under which the statute would be valid. The fact that a statute might

operate unconstitutionally under some plausible set of circumstances is insufficient to

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render it wholly invalid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.

2095, 95 L.Ed.2d 697 (1987).

III. The Reagan Tokes Law

{¶8} The Reagan Tokes Law, effective as of March 22, 2019, implemented a

system of indefinite sentencing for non-life felonies of the first and second degree

committed on or after the effective date. Pursuant to the Reagan Tokes Law, a

sentencing court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) is required

to order a minimum prison term under that provision and a maximum prison term as

determined by R.C. 2929.144(B).

{¶9} “Of the many changes to Ohio’s criminal sentencing scheme that were

brought about by the Reagan Tokes Law, the change that is most pertinent to our present

discussion centers around R.C. 2967.271(B)-(F), which permits prison authorities within

the executive branch to hold defendants in confinement during the indefinite portion of

their sentence for conduct that violates prison rules and regulations.” State v. Eaton, 6th

Dist. Lucas No. L-21-1121, 2022-Ohio-2432, ¶ 13.

{¶10} R.C. 2967.271(B) sets forth a “presumption that the person shall be

released from service of the sentence on the expiration of the offender’s minimum prison

term or on the offender’s presumptive earned early release date, whichever is earlier.”

R.C. 2967.271(C) provides that the Ohio Department of Rehabilitation and Correction

(“ODRC”) may rebut the presumption for release if it holds a hearing and determines that

any of the three enumerated factors, discussed below, are applicable. If the ODRC rebuts

the presumption for release, R.C. 2967.271(D)(1) provides that the ODRC may “maintain”

the offender in confinement for a “reasonable period,” which “shall not exceed the

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offender’s maximum prison term.” R.C. 2967.271(E) provides that the ODRC “shall

provide notices of hearings to be conducted under division (C) or (D) of this section in the

same manner, and to the same persons” as it provides for the possible release of inamtes

on parole. Finally, R.C. 2967.271(F) permits the director of the ODRC to recommend a

reduction in the offender’s minimum prison term (except for sexually oriented offense

convictions), which creates a presumption in favor of the reduction that may be rebutted

by the prosecutor at a hearing before the sentencing court.

{¶11} Although indefinite sentencing has previously been utilized as the law in

Ohio for first- and second-degree felonies, the presumptive release date is novel to the

Reagan Tokes Law. See State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-

5501, ¶ 56 (Gwin, J., dissenting), citing State v. Davis, 9th Dist. Summit No. 13092, 1987

WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11, and State v. Jenks, 2d Dist.

Montgomery No. 10264, 1987 WL 20267 (Nov. 16, 1987), citing former R.C. 2929.1.

IV. Due Process Arguments

{¶12} The first question before us is whether the Reagan Tokes Law violates due

process by failing to provide adequate protections for inmates during the process by

which the ODRC determines whether it should maintain an inmate in confinement after

the expiration of the minimum prison term. Appellant’s due process arguments can be

summarized as follows: (1) the law is vague with respect to the conduct that would permit

the ODRC to continue imprisonment after expiration of the minimum term; (2) the law fails

to provide adequate procedural safeguards to be used by the ODRC in conducting the

hearing and exercising its discretion; and (3) the law fails to provide a court hearing prior

to imposing prison time beyond the minimum term. These are facial challenges to the

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constitutionality of the enactment, thereby placing the burden on appellant to prove

beyond a reasonable doubt that there is no set of circumstances under which the Reagan

Tokes Law would be constitutional.

V. Due Process Rights

{¶13} “The touchstone of due process is protection of the individual against

arbitrary action of government.” (Citation omitted.) Wolff v. McDonnell, 418 U.S. 539,

558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

{¶14} The Due Process Clause in the Fourteenth Amendment to the United States

Constitution provides: “No State shall * * * deprive any person of life, liberty, or property,

without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16

of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation, shall have remedy by due course of

law, and shall have justice administered without denial or delay.” The two clauses are

coextensive and provide equivalent due process protections. State v. Aalim, 150 Ohio

St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15; State v. Anderson, 148 Ohio St.3d 74,

2016-Ohio-5791, 68 N.E.3d 790, ¶ 21. We can therefore rely on decisions of both the

United States Supreme Court and the Ohio Supreme Court. Anderson at ¶ 23.

{¶15} The standard analysis of due process proceeds in two steps: “We first ask

whether there exists a liberty or property interest of which a person has been deprived,

and if so we ask whether the procedures followed by the State were constitutionally

sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732

(2011), citing Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,

104 L.Ed.2d 506 (1989). In other words, “[o]nce it is determined that due process applies,

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the question remains what process is due. * * * [N]ot all situations calling for procedural

safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481,

92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). At a minimum, “[o]ur courts have long recognized

that due process requires both notice and an opportunity to be heard.” In re Thompkins,

115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13.

VI. The Liberty Interest

{¶16} Those who seek to invoke the procedural protection of the Due Process

Clause must establish that one of three interests is at stake: life, liberty, or property.

Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). A “liberty

interest may arise from the Constitution itself, by reason of guarantees implicit in the word

‘liberty,’” or “from an expectation or interest created by state laws or policies.” (Citations

omitted.) Id.

{¶17} At stake here is an inmate’s liberty interest. “[L]awfully incarcerated persons

retain only a narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460,

467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). “There is no constitutional or inherent right

of a convicted person to be conditionally released [e.g., released on parole] before the

expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal & Corr.

Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “However, if state law

entitles an inmate to release on parole, that entitlement is a liberty interest that is not to

be taken away without due process.” (Emphasis added.) Ratliff, 2022-Ohio-1372, at ¶

20, citing Greenholtz at 11-16 (“where the [United States] Supreme Court so held in the

context of a statute providing that the Nebraska parole board ‘shall’ release parole-eligible

inmates unless one of several factors specified in the statute should be found to exist”).

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 {¶18} With this in mind, the relevant sections of the Reagan Tokes Law provide

as follows:

(B) When an offender is sentenced to a non-life felony
indefinite prison term, there shall be a presumption that the
person shall be released from service of the sentence on the
expiration of the offender’s minimum prison term or on the
offender’s presumptive earned early release date, whichever
is earlier.

(C) The presumption established under division (B) of this
section is a rebuttable presumption that the department of
rehabilitation and correction may rebut as provided in this
division. Unless the department rebuts the presumption, the
offender shall be released from service of the sentence on the
expiration of the offender’s minimum prison term or on the
offender’s presumptive earned early release date, whichever
is earlier. The department may rebut the presumption only if
the department determines, at a hearing, that one or more of
the following applies:

(1) Regardless of the security level in which the
offender is classified at the time of the hearing, both of
the following apply:

(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.

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 (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.

(Emphasis added.) R.C. 2967.271.

{¶19} “The legislature by choosing the language ‘there shall be a presumption that

the person shall be released’ and ‘Unless the department rebuts the presumption, the

offender shall be released,’ within the Reagan Tokes Law has arguably created

enforceable liberty interests in parole.” Ratliff at ¶ 30, citing Board of Pardons v. Allen,

482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (where the United States Supreme

Court so held in the context of a Montana statute providing that the parole board “shall”

release a prisoner, subject to certain restrictions). See also State ex rel. Bailey v. Ohio

Parole Bd., 152 Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶ 10 (“The Revised

Code creates an inherent expectation ‘that a criminal offender will receive meaningful

consideration for parole.’” (Citation omitted; emphasis sic.)); and Inmates of Orient Corr.

Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 236-237 (6th Cir.1991) (where the

court suggested that a protected liberty interest would be created by regulations alone if

they “created an explicit presumption of entitlement to release on parole” or “otherwise

used ‘mandatory language’ in connection with ‘specific substantive predicates’ for release

on parole”).

{¶20} A liberty interest is always at stake when an inmate is entitled to release

from confinement, whether that entitlement is presumptive or otherwise. And there is no

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disagreement that some liberty interest arises from an expectation or interest that is

created by the Reagan Tokes Law. See Eaton, 2022-Ohio-2432, at ¶ 127 (“The courts

that have considered similar due process challenges to the Reagan Tokes Law have had

no difficulty in concluding that defendants do, in fact, have a liberty interest sufficient to

trigger due process safeguards.”). Nevertheless, the exact nature of this liberty interest—

and, by extension, the nature of the process due—has been the subject of much debate

within and amongst our sibling courts. This disagreement is discussed further below,

pertaining to the procedural safeguards of the additional term hearing. But first, we

consider notice.

VII. Notice of Proscribed Conduct

{¶21} “In the criminal context, the requirement of notice concerns ‘the accused’s

right to fair notice of the proscribed conduct.’” State v. Philpotts, 2019-Ohio-2911, 132

N.E.3d 743, ¶ 44 (8th Dist.), quoting State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578,

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

L.Ed. 322 (1926). “This refers to the principle that due process requires criminal statutes

to be written clearly so that individuals are provided with a fair warning that a certain

conduct is within the statute’s prohibition.” Philpotts at ¶ 44, citing Wheatley at ¶ 33, citing

Screws v. United States, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945);

Connally at 391 (“a statute which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at its meaning and differ

as to its application violates the first essential of due process of law”); and State v. Elmore,

122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 23 (due process requires law to

be written so that the public can adequately inform itself before acting).

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 {¶22} Again, in order to rebut the presumptive release date, the ODRC is required

to conduct a hearing and make at least one of the following statutory findings before it

may maintain the inmate beyond the presumptive release date:

(1) Regardless of the security level in which the offender is
classified at the time of the hearing, both of the following
apply:

(a) During the offender’s incarceration, the offender
committed institutional rule infractions that involved
compromising the security of a state correctional
institution, compromising the safety of the staff of a
state correctional institution or its inmates, or physical
harm or the threat of physical harm to the staff of a
state correctional institution or its inmates, or
committed a violation of law that was not prosecuted,
and the infractions or violations demonstrate that the
offender has not been rehabilitated.

(b) The offender’s behavior while incarcerated,
including, but not limited to the infractions and
violations specified in division (C)(1)(a) of this section,
demonstrate that the offender continues to pose a
threat to society.

(2) Regardless of the security level in which the offender is
classified at the time of the hearing, the offender has been
placed by the department in extended restrictive housing at
any time within the year preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the
department as a security level three, four, or five, or at a
higher security level.

(Emphasis added.) R.C. 2967.271(C).

{¶23} The inmate rules of conduct are set forth in Ohio Adm.Code 5120-9-06. The

disciplinary procedures for violations of inmate rules of conduct before the rules infraction

board are set forth in Ohio Adm.Code 5120-9-08. The procedures for when and why an

inmate may be placed in a restrictive housing assignment are set forth in Ohio Adm.Code.

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5120-9-10. The hearing procedure for release consideration is set forth in Ohio

Adm.Code 5120:1-1-11. See also Ratliff, 2022-Ohio-1372, at ¶ 47. Each of these Ohio

Administrative Code procedures provides, at a minimum, notice and an opportunity to be

heard. See also id. at ¶ 48.

{¶24} Accordingly, we conclude that an inmate is provided with advance notice

under the Revised Code and the Ohio Administrative Code of the behavior and conduct

that may contribute to or could result in the ODRC rebutting the presumption of release.

VIII. Procedural Safeguards

{¶25} “Although the concept is flexible, at its core, procedural due process under

both the Ohio and United States Constitutions requires, at a minimum, an opportunity to

be heard when the state seeks to infringe a protected liberty or property right.” (Footnote

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

citing Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.E.2d 113 (1971).

“[T]he opportunity to be heard must occur at a meaningful time and in a meaningful

manner.” (Citations omitted.) Cowan at ¶ 8; see also Vitek v. Jones, 445 U.S. 480, 500,

100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (Powell, J., concurring) (“The essence of

procedural due process is a fair hearing.”).

{¶26} As stated above, our sibling districts are at odds regarding the extent of the

liberty interest and the process that safeguards a fair hearing. The disagreement is rooted

in whether the rebuttable presumption of release in the Reagan Tokes Law is most

analogous to parole revocation proceedings or parole release proceedings (alternatively

referred to as parole eligibility proceedings).

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 {¶27} “The distinction between parole eligibility and parole revocation is significant

when discussing due process because the liberty interest in parole revocation – which

entails taking someone’s freedom away – is much greater than the liberty interest in

parole eligibility – which typically entails the hope or anticipation of freedom.” Delvallie,

2022-Ohio-470, at ¶ 139 (Forbes, J., dissenting), citing Greenholtz, 442 U.S. at 9

(“[P]arole release and parole revocation are quite different. There is a crucial distinction

between being deprived of a liberty one has, as in parole [revocation], and being denied

a conditional liberty that one desires[,]” as in parole release or eligibility. (Emphasis sic.)).

Although neither affords an inmate the “full panoply of rights due” in a criminal

prosecution, Morrissey, 408 U.S. at 480, parole revocation requires greater procedural

safeguards than parole eligibility or parole release. Greenholtz at 10.

{¶28} The Sixth and Twelfth Districts have concluded that the additional term

hearings under the Reagan Tokes Law are more analogous to parole revocation

proceedings. State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, ¶ 31

(“the Reagan Tokes Law creates a liberty interest more akin to probation revocation

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

(“[t]he 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”). The Twelfth District explains this conclusion merely by stating that

“[t]his is because * * * all three situations concern whether a convicted felon has

committed violations while under the control and supervision of the ODRC.” Guyton at ¶

17. The Sixth District undertakes a more thorough analysis, explaining that “the Reagan

Tokes Law functions unlike the merely discretionary decision to release an offender on

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parole,” which is largely “‘subjective’ and ‘predictive.’” Stenson at ¶ 28-30, quoting

Greenholtz at 13. Rather, the Sixth District finds that the additional term hearing of the

Reagan Tokes Law functions more like a parole revocation decision by requiring “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?” Stenson at ¶ 30, quoting Greenholtz at 8. This conclusion is also expressly

favored by the five dissenting judges in the Eighth District’s en banc opinion. See

Delvallie at ¶ 140-142 (Forbes, J., et al., dissenting) (“Unlike Ohio’s parole eligibility

proceedings, the Reagan Tokes Law includes an express presumption of release[.]”) and

¶ 192 (Mays, J., et al., dissenting in part).

{¶29} Under this parole revocation view, the process that is due with regard to the

additional term hearing under the Reagan Tokes Law is set forth in the United States

Supreme Court’s decision in Morrissey. See Stenson at ¶ 31; Guyton at ¶ 14; and

Delvallie at ¶ 148 (Forbes, J., dissenting). Pursuant to Morrissey, the minimum

requirements of due process include the following for parole revocation proceedings:

(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

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 (f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.

Morrissey at 489; accord State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975).

{¶30} On the other hand, the Second District has concluded that “requiring a

defendant to remain in prison beyond the presumptive minimum term is akin to the

decision to grant or deny parole,” i.e., akin to parole eligibility/release, rather than parole

revocation. State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.

“Simply put, if [the offender] commits rule infractions or crimes while in prison, he may be

required to serve the entire sentence already imposed by the trial court.” Id. This

conclusion, that the liberty interest at stake under the Reagan Tokes Law is most

analogous to parole eligibility/release, is also favored by the Sixth District’s lead opinion

in Eaton, albeit the minority view of that panel’s decision. Eaton, 2022-Ohio-2432, at ¶

133. The author of that opinion provides several reasons in support of this conclusion:

First, the defendant is suffering a loss of his physical liberty in
institutional confinement in both situations [the initial parole
release hearing and the additional term hearing under the
Reagan Tokes Law], unlike the relative freedom he enjoys
when already released on parole or post-release control. This
is important because a defendant who is already in
confinement has a reduced liberty interest and is therefore
entitled to less process than a defendant who is already free.

Second, in both the parole release hearing and the [additional
term] review hearing under the Reagan Tokes Law, the
reviewing body is focused upon whether the defendant’s
conduct justifies his release from confinement, not whether he
should be returned to confinement. Again, the liberty interests
are different and thus the protections to which a defendant is
entitled are different.

Since the trial court imposes both the minimum and maximum
sentence, a defendant sentenced under the Reagan Tokes
Law is still serving his sentence at the time of the additional

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 term hearing and, if ordered to serve the indefinite portion of
the sentence, will continue to serve the sentence previously
imposed by the trial court. Therefore, the issue in the
additional term hearing is release from confinement, not
revocation of parole. Stripping away the semantics, the reality
here is that, from [the inmate’s] perspective, he is presently
incarcerated and wishes to be freed from incarceration – by
definition, this is release and not revocation.

(Emphasis sic.) Id. at ¶ 131-132. Further support for this view can be found in the fact

that R.C. 2967.271 is referenced in R.C. 2967.13, the statute governing “parole eligibility”

(“(F) A prisoner serving a stated prison term that is a non-life felony indefinite prison term

shall be released in accordance with sections 2967.271 and 2967.28 of the Revised

Code.”); compare R.C. 2967.15 (the statute governing parole revocation makes no

mention of R.C. 2967.271).

{¶31} Under this parole eligibility/release view, the process that is due with regard

to the additional term hearing under the Reagan Tokes Law is equivalent to “the process

required for defendants under the presumptive parole regime”—i.e., “minimal process

including an opportunity to be heard and an explanation of the basis for denial of parole

release.” Eaton at ¶ 137, citing Greenholtz, 442 U.S. at 16 (“The Constitution does not

require more.”); Cooke, 562 U.S. at 220 (“In the context of parole, we have held that the

procedures required are minimal.”); see also Bailey, 2017-Ohio-9202, at ¶ 9-10.

{¶32} We find it premature to reach a conclusion on this issue. Again, “[a] facial

challenge to a statute is the most difficult to bring successfully because the challenger

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

valid.” Harrold, 2005-Ohio-5334, at ¶ 37, citing Salerno, 481 U.S. at 745. To prevail, it

must be shown that the statute cannot be constitutionally applied in any circumstances.

Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21. “The

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fact that a statute might operate unconstitutionally under some plausible set of

circumstances is insufficient to render it wholly invalid.” Harrold at ¶ 37, citing Salerno at

745. Additionally, we caution that “[t]he judicial authority to override the legislative will

should be used with extreme caution and restraint, because declaring a statute

unconstitutional based on a facial challenge is an ‘exceptional remedy.’” State v. Mole,

149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 96 (Kennedy, J., dissenting),

quoting Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir.2010); see also Sabri v. United

States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), quoting United States

v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (“Facial adjudication

carries too much promise of ‘premature interpretation of statutes’ on the basis of factually

barebones records.”).

{¶33} Here, because the ODRC has not sought to extend appellant’s term beyond

the presumptive minimum sentence, appellant’s challenge to the procedural safeguards

of the additional term hearing is necessarily a facial challenge to the Reagan Tokes Law.

See Stenson, 2022-Ohio-2072, at ¶ 31; see also Delvallie, 2022-Ohio-470, at ¶ 53, citing

Morrissey, 408 U.S. at 480 (an inmate’s liberty interest in the right to be released from a

prison term “does not arise until after the offender is sentenced and his conviction deemed

final”).

{¶34} As noted by the Sixth and Eighth Districts, the United States Supreme

Court’s opinion in “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.” Stenson at ¶ 32, citing Morrissey; Delvallie at ¶ 66

(“Morrissey itself does not even require the legislature to codify the procedural details,

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nor does it require the executive agency to formally draft rules in compliance with

Morrissey.”). We agree. Albeit in the specific context of the process due a parolee whose

parole is being revoked, the Court acknowledged that most states have enacted

legislation setting forth procedural requirements for parole revocation hearings, while

others have done so by judicial decision. Morrissey at 488 (“We cannot write a code of

procedure; that is the responsibility of each State. Most States have done so by

legislation, others by judicial decision usually on due process grounds.”). “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.” Stenson at ¶ 32.

{¶35} “No constitutional provision requires the legislature to expressly set forth

each and every right afforded to an offender at every stage of proceedings created by

statutory process. For that, the legislature is free to delegate authority to the executive

branch.” Delvallie at ¶ 58, citing AMOCO v. Petroleum Underground Storage Tank

Release Comp. Bd., 89 Ohio St.3d 477, 480, 733 N.E.2d 592 (2000) (the General

Assembly may delegate rule-making authority to an executive agency); State v.

Schreckengost, 30 Ohio St.2d 30, 32, 282 N.E.2d 50 (1972) (“Delegation to state

administrative officials of the authority to adopt and enforce regulations to implement such

a declared legislative policy is not, per se, unlawful.”); and O’Neal v. State, 2020-Ohio-

506, 146 N.E.3d 605, ¶ 50 (10th Dist.) (“the General Assembly constitutionally may

delegate authority to promulgate rules, policies, and regulations to subordinate boards

and agencies”). “[T]he legislature is not required to codify all rules and procedures under

the statutory provision but instead can defer to the executive agency’s establishment of

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its own rules or procedures to safeguard constitutional concerns, which must be

challenged through the appropriate mechanisms.” Delvallie at ¶ 59, citing Wilkinson, 545

U.S. at 226 and Wolff, 418 U.S. at 563 (both cases involved reviewing the rules or

procedures established by the executive agency for constitutional compliance).

{¶36} R.C. 2967.271 does not include procedural requirements for the additional

term hearing, nor does it include language authorizing the ODRC to draft rules and

regulations for the review hearings. Nevertheless, the enabling statute R.C. 5120.01

requires that “[a]ll duties” conferred upon the ODRC by the legislature “shall be performed

under the rules and regulations that the director prescribes and shall be under the

director’s control.” See Delvallie, 2022-Ohio-470, at ¶ 60, quoting Bibler v. Stevenson,

150 Ohio St.3d 144, 2016-Ohio-8449, 80 N.E.3d 424, ¶ 15 (“R.C. 2967.271 ‘does not

exist in a vacuum. It is a creature of the Revised Code, it is subservient to the Revised

Code, and it necessarily incorporates the Revised Code.’”).

{¶37} Expressly under the authority of R.C. 5120.01 and R.C. 2967.271, the

Director of the ODRC promulgated ODRC Policy 105-PBD-15, available at

https://drc.ohio.gov/policies/parole-board (last visited July 25, 2022). “The purpose of this

policy is to establish a standard procedure for the [ODRC] to carry out its statutory duties

efficiently and consistently concerning the Additional Term Hearing Process for persons

sentenced under Senate Bill 201 (132nd Ohio General Assembly).” ODRC Policy 105-

PBD-15, Section II. The Policy itself is set forth as follows:

Pursuant to the authority granted to ODRC under ORC
2967.271, it is the policy of ODRC to establish an Additional
Term Hearing process for conducting hearings to determine
whether the presumption of release at the expiration of an
incarcerated adult’s minimum term is rebutted, and if so, to
maintain incarceration of an incarcerated adult for an

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 additional period of time, up to the maximum term.
Incarcerated adults sentenced under ORC 2967.271 may be
subject to an Additional Term Hearing following a finding of
guilt of certain Inmate Rules of Conduct by the Rules
Infraction Board (RIB) and affirmance of that finding after
completion of any RIB appeals or following a recommendation
from the Annual Security Review Team.

ODRC Policy 15-PBD-15, Section V.

{¶38} Two issues arise: (1) whether the policy is of sufficient legal force and effect

to fill the legislative procedural gaps left by R.C. 2971.271; and (2) whether the policy

provides constitutionally sufficient due process. See, e.g., Delvallie (where the issues are

debated at length in the en banc and dissenting opinions). These issues, however, should

be addressed in an as-applied challenge to the procedural safeguards in effect at the

time, if ever, appellant is subjected to an additional term hearing. But see Eaton, 2022-

Ohio-2432, at ¶ 141 (addressing the substance and constitutional sufficiency of the

administrative policy). “This cannot be overemphasized. The appropriate mechanism to

challenge the validity of policies, rules, regulations, or protocols established by the

executive is through a separate declaratory judgment or habeas action seeking to

preclude ODRC from enforcing them, which only occurs at the actual time when those

policies, rules, regulations, or protocols are being applied against the inmate.” (Citations

omitted.) Delvallie at ¶ 91.

{¶39} “[G]iven 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.’ Should

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

be precluded from challenging the Law as applied.” Stenson, 2022-Ohio-2072, at ¶ 33,

citing Wilkinson, 545 U.S. at 230 (“If an inmate were to demonstrate that the New Policy

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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.”); see also

Delvallie, 2022-Ohio-470, at ¶ 90 (“If the sentence, as imposed, is valid at this stage, an

inmate has the later right to challenge the actual process or procedures that particular

inmate will be subjected to when the sentence is actually carried out by the executive

branch.”).

{¶40} Accordingly, appellant’s arguments pertaining to the procedural safeguards

of the additional term hearing are as-applied challenges and not ripe for review.

IX. Court Hearing

{¶41} Finally, appellant argues the Reagan Tokes Law violates his right to due

process because it fails to provide a court hearing prior to imposing prison time beyond

the minimum term. This argument has been found without merit by the Second, Fourth,

and Twelfth District Courts of Appeals, and we agree with their conclusion. Even under

Morrissey’s heightened standard of minimum due process pertaining to parole revocation,

it is not required that the sentencing court conduct the proceedings. See Guyton, 2020-

Ohio-3837, at ¶ 16-17, citing Woods, 89 Ohio St.3d 504 (Morrissey requires no more than

a hearing conducted by a neutral and detached Parole Board hearing officer); accord

State v. Alexander, 4th Dist. Adams No. 21CA1144, 2022-Ohio-1812, ¶ 60; see also

Barnes, 2020-Ohio-4150, at ¶ 38, fn. 2.

{¶42} For these reasons, we conclude that the Reagan Tokes Law does not, on

its face, violate the constitutional right to due process.

X. Separation of Powers

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 {¶43} Appellant additionally argues that the Reagan Tokes Law violates the

separation of powers doctrine. “The Ohio Supreme Court has said that ‘[t]he

administration of justice by the judicial branch of the government cannot be impeded by

the other branches of the government in the exercise of their respective powers.’” State

v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 21, quoting State ex

rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the

syllabus.

{¶44} In arguing that the Reagan Tokes Law violates the separation of powers,

offenders have generally relied on State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729

N.E.2d 359 (2000), where the Supreme Court of Ohio held unconstitutional former R.C.

2967.11, commonly known as “the bad-time law.” The relevant portion of the bad-time

law, provided that “[a]s part of a prisoner’s sentence, the parole board may punish a

violation committed by the prisoner by extending the prisoner’s stated prison term for a

period of fifteen, thirty, sixty, or ninety days in accordance with this section.” (Emphasis

added.) Former R.C. 2967.11(B).

{¶45} The Bray Court concluded that the various provisions of former R.C.

2967.11 enabled “the executive branch to prosecute an inmate for a crime, to determine

whether a crime has been committed, and to impose a sentence for that crime. This is

no less than the executive branch’s acting as judge, prosecutor, and jury. R.C. 2967.11

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

Constitution.” Bray at 135.

{¶46} However, after deciding Bray, the Ohio Supreme Court decided Woods, 89

Ohio St.3d 504, “holding that the post-release-control statute did not violate the

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separation-of-powers doctrine.” Ferguson, 2020-Ohio-4153, at ¶ 22. “The post-release-

control statute required a court to impose the terms of post-release control and left it to

the Adult Parole Authority (APA) to determine whether to impose sanctions for any

violation of the terms. The Court said that this statute was ‘clearly distinguishable’ from

the bad-time statute at issue in Bray.” Id. at ¶ 22, quoting Woods at 512. “Unlike

additional prison time under the latter statute, post-release-control terms were made part

of the original judicially imposed sentence.” Ferguson at ¶ 22. “‘[B]ecause the APA’s

discretion in managing post-release control does not impede the function of the judicial

branch,’ said the Court, the post-release-control statute did not violate the separation-of-

powers doctrine.” Id. at ¶ 22, quoting Woods at 512.

{¶47} The Second District in Ferguson determined that the Reagan Tokes Law

does not violate separation of powers, noting the Ohio Supreme Court had “made it clear

that, when the power to sanction is delegated to the executive branch, a separation-of-

powers problem is avoided if the sanction is originally imposed by a court and included in

its sentence.” Ferguson at ¶ 23, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-

Ohio-126, 844 N.E.2d 301, ¶ 18-20, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-

6085, 817 N.E.2d 864, ¶ 19, overruled on other grounds, citing Woods. “Such is the case

under the scheme established by the Reagan Tokes Law.” Ferguson at ¶ 23. The

Ferguson court explained that pursuant to the Reagan Tokes Law:

A court imposes both the minimum and maximum prison
terms, including both in its sentence. The [ODRC] then
determines whether the offender merits more than the
minimum and up to the maximum imposed. In terms of the
separation of powers, the delegation of power to the [ODRC]
is like the system of post-release control: “Those terms are
part of the actual sentence, unlike bad time, where a crime
committed while incarcerated resulted in an additional

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 sentence not imposed by the court. In other words, the court
imposes the full sentence and the [ODRC] determines
whether violations merited its imposition.”

Id. at ¶ 23, quoting Woods at 511.

{¶48} Accordingly, appellate courts considering this challenge to the Reagan

Tokes Law have concluded that the law does not violate the separation of powers

doctrine. Ferguson at ¶ 23 (2d Dist.); Hacker, 2020-Ohio-5048, at ¶ 22-23 (3d Dist.);

Alexander, 2022-Ohio-1812, at ¶ 56 (4th Dist.); Ratliff, 2022-Ohio-1372, at ¶ 56 (5th Dist.);

Maddox, 2022-Ohio-1350, at ¶ 7 (6th Dist.); Delvallie, 2022-Ohio-470, at ¶ 36 (8th Dist.);

State v. Henderson, 12th Dist. Warren No. CA2020-11-072, 2021-Ohio-3564, ¶ 10-12.

We agree.

XI. Conclusion

{¶49} For these reasons, we conclude that appellant has not established that the

Reagan Tokes Law is unconstitutional on its face. Appellant’s assigned error is without

merit.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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