State v. Edwards

[Cite as State v. Edwards, 2022-Ohio-3408.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200101
TRIAL NO. B-1903327
Plaintiff-Appellee, :

: O P I N I O N.
VS.
:

JAMES EDWARDS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 28, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, Paula Adams, Assistant
Prosecuting Attorney, and Adam Tieger, Assistant Prosecuting Attorney, for
Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Defendant-appellant James Edwards appeals the judgment of the

Hamilton County Court of Common Pleas sentencing him to an indefinite sentence

after he pled guilty to burglary, having weapons while under disability, and theft. In

his sole assignment of error, Edwards argues that the trial court erred as a matter of

law in sentencing him pursuant to the indefinite-sentencing scheme established under

2018 Am.Sub.S.B. 201, identified under R.C. 2901.011 as the Reagan Tokes Law,

because the law is facially unconstitutional under the Ohio and United States

Constitutions. Edwards challenges the constitutionality of the Reagan Tokes Law as

violative of the separation-of-powers doctrine, his substantive- and procedural-due-

process rights, and his right to equal protection of the law.

{¶2} Because we recently held that the indefinite-sentencing scheme set forth

in the Reagan Tokes Law is facially constitutional, see State v. Guyton, 1st Dist.

Hamilton No. C-190657, 2022-Ohio-2962, ¶ 69, we overrule the assignment of error

and affirm the trial court’s judgment.

I. Facts and Procedure

{¶3} In June 2019, a grand jury returned a five-count indictment against

Edwards, charging (1) burglary, in violation of R.C. 2911.12(A)(2), a second-degree

felony; (2) theft, in violation of R.C. 2913.02(A)(1), a third-degree felony; (3) having

weapons while under disability (“WUD”), in violation of R.C. 2923.13(A)(2), a third-

degree felony; (4) theft, in violation of 2913.02(A)(1), a fourth-degree felony; and (5)

forgery, in violation of R.C. 2913.31(A)(3), a fifth-degree felony. Edwards pled guilty

to the burglary, WUD, and fourth-degree theft counts in exchange for dismissal of the

third-degree theft and forgery counts.

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{¶4} The Reagan Tokes Law restored indefinite sentencing in Ohio for non-

life-sentence felony offenses of the first or second degree committed on or after March

22, 2019. Guyton at ¶ 11, citing State v. Maddox, Slip Opinion No. 2022-Ohio-764, ¶ 4,

and State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 1 (8th Dist.). Pursuant to the

Reagan Tokes Law, the trial court sentenced Edwards to an indefinite term of

incarceration of four to six years on the burglary count. Additionally, the trial court

sentenced Edwards to a consecutive two-year term for the WUD count and a

concurrent 18-month term on the theft count. Edwards timely appealed.

{¶5} In his assignment of error, Edwards challenges the constitutionality of

the Reagan Tokes Law. Edwards argues first that the Reagan Tokes Law impermissibly

delegates judicial power to the executive branch in a violation of the separation-of-

powers doctrine by permitting the Ohio Department of Rehabilitation and Correction

(“ODRC”) to extend an inmate’s term of incarceration beyond the sentence imposed

by the sentencing court. Second, Edwards argues that the Reagan Tokes Law violates

his right to substantive due process by depriving him of a fundamental liberty interest,

the right to be free from illegal bodily restraint, without due process when the ODRC

extends an inmate’s sentence. Edwards argues next that the Reagan Tokes law violates

his right to procedural due process by failing to provide notice to the inmate and a

meaningful and appropriate hearing before imposing an extended term of

incarceration. Finally, Edwards contends that the Reagan Tokes Law violates his right

to equal protection of the laws by permitting the state to treat inmates convicted of

first- or second-degree felonies differently from those convicted of third-, fourth-, or

fifth-degree felonies.

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II. The Reagan Tokes Law

{¶6} The indefinite terms established under the Reagan Tokes Law consist of

a minimum term set by the sentencing court based on the statutory range, see R.C.

2929.14(A)(1)(a), and a maximum term computed by formulas provided in R.C.

2929.144. The maximum term is generally an additional 50 percent added to the

minimum term. See R.C. 2929.144; Guyton, 1st Dist. Hamilton No. C-190657,

2022-Ohio-2962, at ¶ 12.

{¶7} Under the Reagan Tokes Law, an offender is presumed to be released at

the end of the minimum term. R.C. 2967.271(B). However, ODRC may rebut that

presumption by holding a hearing and finding that one or more statutory factors

applies. R.C. 2967.271(C). These factors generally require that the offender committed

rule infractions that involved compromising the security of the correctional institution

or the offender jeopardized the safety of others while incarcerated. See R.C.

2967.271(C)(1)-(3). If ODRC finds the presence of these factors after a hearing, the

offender may continue to be held up to the maximum term imposed by the trial court.

R.C. 2967.271(D)(1). In any event, the offender shall be released at the expiration of

the maximum term imposed by the trial court. R.C. 2967.271(D)(2).

III. Ripeness

{¶8} This appeal was stayed pending the Ohio Supreme Court’s decision in

State v. Maddox. In Maddox, the Ohio Supreme Court held that a facial challenge to

the Reagan Tokes Law is ripe for review on direct appeal of a defendant’s conviction

and prison sentence. See Maddox, Slip Opinion No. 2022-Ohio-764, at ¶ 11 and 21;

Guyton at ¶ 10. Thus, Edwards’s challenge is ripe for review, even though he may later

bring an as-applied challenge to the law based on future factual development.

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IV. The Reagan Tokes Law is Facially Constitutional

{¶9} Edwards challenges the constitutionality of the Reagan Tokes Law

based on the separation-of-powers doctrine, substantive and procedural due process,

and equal-protection principles. As we recently held in Guyton, the statute is facially

constitutional on these bases. We address each in turn.

A. Separation of Powers

{¶10} Edwards argues that the Reagan Tokes Law is facially unconstitutional

because it violates the separation-of-powers doctrine. Edwards urges this court to

follow State ex rel. Bray v. Russel, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), which

struck down Ohio’s prior “bad-time” statute, the former R.C. 2967.11. Under the “bad-

time” statute, the Ohio Parole Board, an executive branch agency, was permitted to

extend the sentence of an offender based on the offender’s conduct while incarcerated.

Because the “bad-time” statute permitted the Ohio Parole Board to increase the

offender’s sentence without involvement from the judicial branch, the Ohio Supreme

Court held the statute invalid as a violation of the separation-of-powers doctrine. Bray

at 136.

{¶11} We recently decided this issue in Guyton, 1st Dist. Hamilton No.

C-190657, 2022-Ohio-2962, at ¶ 28. Unlike the prior “bad-time” statute, which

allowed the parole board to extend the offender’s judicially-imposed sentence

unilaterally, id. at ¶ 25, the Reagan Tokes Law creates an “indefinite sentencing

structure [that] requires the trial court to impose both a minimum and maximum

prison term at sentencing and include that sentence in the final judgment of

conviction.” Id. at ¶ 23. Under this structure, the trial court, not ODRC, imposes the

maximum sentence. Id.; State v. Eaton, 6th Dist. Lucas No. L-21-1121,

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2022-Ohio-2432, ¶ 59. As in other parole and postrelease-control schemes, the

authority of the executive branch is only to determine which portion of the offender’s

sentence, up to the judicially-imposed maximum, is actually served. Eaton at ¶ 59. On

this basis, we held in Guyton that the Reagan Tokes Law does not violate the

separation-of-powers doctrine. Guyton at ¶ 28.

B. Substantive Due Process

{¶12} Edwards next argues that the Reagan Tokes Law deprives him of his

right to substantive due process, which protects a person’s fundamental liberty

interest in freedom from illegal bodily restraint. Edwards contends that the Reagan

Tokes Law permits ODRC to detain an offender beyond the term of the judicially-

imposed sentence, thereby depriving the offender of a protected liberty interest

without the required safeguards provided at trial.

{¶13} As we previously held in Guyton, this argument misconstrues the nature

of the indefinite-sentencing scheme under the Reagan Tokes Law. Guyton at ¶ 34. It

is the trial court, not the ODRC, that establishes the range of time during which the

offender is subject to incarceration. Id. The ODRC has no authority under the Reagan

Tokes Law to extend the offender’s term beyond the maximum end of the range

imposed by the sentencing court. Id. The Reagan Tokes Law does not offend

substantive due process on this basis.

C. Procedural Due Process

{¶14} Edwards next argues that the Reagan Tokes Law violates the

constitutional guarantee of procedural due process. Core to the requirements of

procedural due process are notice and a meaningful opportunity to be heard. Mathews

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

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that the statutory text fails to provide parameters of or a procedure for the hearing

required under R.C. 2967.271(C) and (D). Similarly, although R.C. 2967.271(E) directs

notice to be provided to a litany of adverse parties, no similar provision is made for

notice to the offender. On this basis, Edwards contends that the statute is

unconstitutional on its face.

{¶15} In a due-process analysis, we must first determine whether a protected

liberty interest exists, and if so, we then consider what process is due. Eaton, 6th Dist.

Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 59, citing Morrisey v. Brewer, 408 U.S.

471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Generally, there is no protected interest in

an early release from confinement following a valid criminal conviction. Guyton, 1st

Dist. Hamilton No. C-190657, 2022-Ohio-2962, at ¶ 39. However, the presumption

created under the Reagan Tokes Law that an offender will be released following the

minimum term of incarceration “create[s] a right to early release for the prisoners

unless the ODRC after a hearing makes specific determinations that are based on

misconduct.” Id. at ¶ 42. As a result, we held that due-process protections are required

when ODRC seeks to continue an offender’s incarceration beyond the minimum term.

Id.

{¶16} As we noted in Guyton, “[a] statute directing an administrative action

that affects the deprivation of a liberty interest must be read as one with the

constitutional concept of due process, unless the express terms of the statute preclude

such a reading.” Guyton at ¶ 44, citing Am. Power & Light Co. v. SEC, 329 U.S. 90,

107-108, 67 S.Ct. 133, 91 L.Ed. 103 (1946), The Japanese Immigrant Case, 189 U.S.

86, 100-101, 23 S.Ct. 611, 47 L.Ed. 721 (1903), and Indus. Acc. Bd. v. O’Dowd, 157 Tex.

432, 436, 303 S.W.2d 763 (1957). The Reagan Tokes Law specifically requires a

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hearing before continuing the offender’s incarceration past the minimum term. R.C.

2967.271(C); Guyton at ¶ 57. And nothing about the statute precludes notice from

being provided to the offender. R.C. 2967.271; Guyton at ¶ 57. While the Reagan Tokes

Law does not explicitly require notice to the offender, nor does it outline the precise

procedure for the ODRC hearing, we held in Guyton that “we must presume that the

ODRC will fill in the ‘gaps’ to execute the law such that offenders are afforded due

process before depriving an offender of the statutory liberty interest created by the

Reagan Tokes Law.” Guyton at ¶ 55. Accordingly, Edwards has not overcome the high

burden to show that the statute is facially unconstitutional “since a set of

circumstances exists under which the statute satisfies due process.” See Guyton at

¶ 57.

D. Equal Protection

{¶17} Finally, Edwards argues that the Reagan Tokes Law denies equal

protection of the law, as guaranteed by the Ohio and United States Constitutions, to

himself and others within the ambit of the statute. Edwards correctly points out that

the Reagan Tokes Law provides for differentiated treatment of first- and second-

degree-felony offenders from those convicted of third-, fourth-, and fifth-degree

felonies. Edwards claims that this distinction is impermissible because those convicted

of more serious felonies are deprived of fundamental constitutional protections when

facing an extension of their prison terms, while those protections are not withheld

from those convicted of lower-degree felonies.

{¶18} We rejected this argument in Guyton, 1st Dist. Hamilton No. C-190657,

2022-Ohio-2962, at ¶ 68. In a traditional equal-protection analysis, disparate

treatment is permissible if the class distinctions are rationally related to a legitimate

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governmental interest. Id. at 60, citing State ex rel. Vana v. Maple Hts. City Council,

54 Ohio St.3d 91, 92, 561 N.E.2d 909 (1990). However, if a suspect classification is

used or the right implicated is a fundamental right, then a higher degree of scrutiny

will apply. Id. at ¶ 60. Edwards makes no claim that higher-degree felony offenders

are a suspect class. Although Edwards claims deprivation of many fundamental rights,

we held in Guyton that those rights were inapplicable in ODRC’s proceedings under

the Reagan Tokes Law, which differ substantially from criminal prosecutions. Guyton

at ¶ 64. Thus, the Reagan Tokes Law cannot be said to burden a fundamental right.

Guyton at ¶ 64. We therefore apply rational-basis analysis.

{¶19} As we held in Guyton, Edwards’s equal-protection claim against the

Reagan Tokes Law fails under a rational-basis review. See Guyton at ¶ 68. The

legislature has ample reason to provide disparate treatment for higher-degree felony

offenders apart from lower-degree offenders. Guyton at ¶ 68. “The legislature’s focus

on Ohio’s most serious felony offenders is not surprising considering the significant

resources that are required to administer the indeterminate sentencing scheme.”

Guyton at ¶ 68. The state has ample interest in applying a sentencing model that

strikes a balance between protecting the public against recidivism and promoting

rehabilitation. Guyton at ¶ 66-68. Because the Reagan Tokes Law withstands rational-

basis review, Edwards’s facial challenge to its constitutionality on equal-protection

grounds fails.

V. Conclusion

{¶20} Edwards has failed to show that the Reagan Tokes Law is facially

unconstitutional on the bases of separation of powers, substantive and procedural due

process, and equal protection of the law. In light of the foregoing analysis and this

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court’s prior decision in Guyton, we overrule Edwards’s assignment of error and affirm

the judgment of the trial court.

Judgment affirmed.
BOCK, J., concurs separately.
ZAYAS, P.J., concurs in part and dissents in part.
BOCK, J., concurring separately.

{¶21} I agree with the majority opinion that the Reagan Tokes Law is not

facially unconstitutional under separation-of-powers, equal-protection, and

substantive-due-process grounds. And I will follow this court’s precedent in State v.

Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, by concurring with the

majority opinion.

{¶22} But I agree with Judge Bergeron’s thoughtful dissent in Guyton and, but

for this court’s precedent, would have held that the liberty interest implicated by an

incarcerated person’s presumptive release date is closer to a parole-revocation

hearing, requiring the protections established under Morrissey v. Brewer, 408 U.S.

471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Guyton at ¶ 68 (Bergeron, J., dissenting).

And, like Judge Bergeron, I believe that the additional-term hearing procedures under

the Reagan Tokes Law contravene fundamental requirements of procedural due

process. Id. at ¶ 88-96 (Bergeron, J., dissenting). Particularly, I believe the notice and

hearing provisions in R.C. 2967.271 are deficient, rendering the statute

unconstitutional on its face.

{¶23} I write separately to express my concerns over the disproportionate

impact that the Reagan Tokes Law could have on women and minorities. Admittedly,

a law described as an incentive-laden plan that centers around rehabilitation would

not ordinarily raise concerns about fairness in prison discipline. After all, who does
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not favor a sentencing scheme that “empowers [incarcerated people]?” And conferring

authority to an executive agency in sentencing review is nothing new—“ ‘the executive

branch’s review has been a mainstay of Ohio law since time immemorial.’ ” Guyton,

1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, at ¶ 28, quoting State v. Delvallie,

2022-Ohio-470, 185 N.E.3d 536, ¶ 15 (8th Dist.).

{¶24} Nevertheless, “ ‘ “a law nondiscriminatory on its face may be grossly

discriminatory in its operation.” ’ ” M.L.B. v. S.L.J., 519 U.S. 102, 126-127, 117 S.Ct.

555, 136 L.Ed.2d 473 (1996), quoting Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct.

2018, 26 L.Ed.2d 586 (1970), quoting Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585,

100 L.Ed. 891 (1955), fn. 11.

{¶25} The Reagan Tokes Law instructs ODRC, an executive agency, to

determine whether ORDC itself has rebutted the presumption that incarcerated

people will be released at the conclusion of their minimum terms. R.C. 2967.271(B).

That determination hinges on 1.) disciplinary infractions, 2.) restrictive housing

placements, or 3.) a level three, four, or five security classification. R.C. 2967.271(C).

Incarcerated people are placed in restrictive housing for, among other reasons,

disciplinary infractions. Ohio Adm.Code 5190-9-10(B). Likewise, security

classifications are based, in part, on an incarcerated person’s history of “disruptive

behavior.” In other words, the statute conditions the release date of an incarcerated

person on that person’s compliance with prison disciplinary policies.

{¶26} But underneath this gloss of objectivity lies a scheme that history and

statistics tell us will subject incarcerated women and minorities to longer sentences.

{¶27} We know that mass incarceration disproportionately burdens minority

groups—“ ‘African Americans are incarcerated in state prisons across the country at

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more than five times the rate of whites, and at least ten times the rate in five states.’ ”

Ellis v. Ohio Dept. of Rehab. & Correction, 2020-Ohio-6877, 165 N.E.3d 389, ¶ 27

(10th Dist.), quoting Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity

in State Prisons, https://www.sentencingproject.org/publications/color-of-justice-

racial-and-ethnic-disparity-in-state-prisons (accessed Dec. 21, 2020). And the

Association of Correctional Administrators found that, on average, the percentage of

Black individuals in solitary confinement was disproportionate to the percentage of

Black individuals in the total male population. The Arthur Liman Public Interest

Program and Association of State Correctional Administrators, Time-In-Cell, 30

https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-

cell_combined_-web_august_2015.pdf (accessed September 8, 2022).

{¶28} Studies suggest that “minority offenders may be more likely to be

perceived as a disciplinary threat by correctional officers, regardless of an offender’s

actual behavior.” Andrea C. Armstrong, Race, Prison Discipline, and the Law, 5

U.C.IrvineL.Rev. 759, 770 (2015). And “[i]mplicit bias studies may also implicate the

severity of the punishment an offender would receive for a rule violation.” Id. A 2020

study found that Black and Indigenous people were more likely to receive write ups in

prison and “received more sanctions such as disciplinary segregation, lost sentence

credits, lost privileges, and extra duty hours as a result.” Katherine M. Becker, Racial

Bias and Prison Discipline: A Study of North Carolina State Prisons, 43

N.C.Cent.L.Rev. 175, 178-179 (2021).

{¶29} Consider the experiences of DeWayne McGee Richardson who, along

with all other Black incarcerated individuals, was repeatedly subjected to

administrative segregation, or lock downs, following rule violations committed by

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Black incarcerated people. Richardson v. Runnels, 594 F.3d 666, 669 (9th Cir.2010).

Prison officials explained that they “locked down black people because they were

black * * * because the blacks were the ones who were, who were at risk. These inmates

were the ones creating the security risk.” Id. at 671 (reversing the grant of summary

judgment in favor of the prison-official defendants because there was “no evidence to

disprove [Richardson’s] claim of racial discrimination governing the prison lockdowns

to which he was subjected.”).

{¶30} This disparate treatment goes beyond race. Recently, the United States

Commission on Civil Rights warned that incarcerated women “often experience

disparities in discipline” despite being less likely than their male counterparts to

engage in violent conduct in prisons. U.S. Commission on Civil Rights, Women in

Prison: Seeking Justice Behind Bars, 5-6 (Feb. 2020). Instead, “women receive a

disproportionate number of disciplinary tickets for lower-level offenses—such as being

disruptive, being ‘insolent,’ disobeying orders, cursing, and altering clothing.” Id. at

124. Investigators were told that “the female prison population is distinct from the

male population, and * * * prison rules and staff training are designed with the male

population in mind.” Id.

{¶31} When prison classification systems are not calibrated for gender-

specific characteristics, women in prison are classified “at higher security requirement

levels than necessary for the safety and security of prisons.” Id. at 5. In turn, some

women end up “serving time in more restrictive environments than is necessary and

appropriate.” Id.

{¶32} Still more, “women of color in prison and those who identify as LGBT

face specific discipline disparities.” Id. In prison, Black women comprised nearly 40

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percent of the restrictive-housing population despite accounting for only 23 percent of

the total female prison population. Id. at 138. Compared to their white counterparts,

Black women “were over 2 times more likely than white women to serve time in

restrictive housing.” Id.

{¶33} LGBTQI+ people in prison “are subjected to harassment, abuse, and

discriminatory treatment at the hands of prison officials and other inmates,

particularly if they are transgender women placed in men’s prisons.” U.S. Commission

on Civil Rights at 4. And lesbian, gay, or bisexual people in prison “were more likely

than heterosexual inmates * * * to have spent some time in restrictive housing.” U.S.

Commission on Civil Rights at 135. A national survey revealed that 37 percent of

transgender respondents reported harassment from correctional officers and staff.

Jaime M. Grant, Lisa A. Mottet & Justin Tanis, Injustice at Every Turn:

A Report of the National Transgender Discrimination Survey, 166

https://transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf

(accessed Sept. 8, 2022). Non-white respondents “experienced officer/staff

harassment at higher rates (44%-56%) than their white peers.” Id. Transgender men

in prison “experience officer/staff harassment at a higher incident than their

transgender female peers.” Id.

{¶34} Statistics and research show that prison disciplinary “decisions are

inextricably linked to race and gender.” Dr. Melinda Tasca & Dr. Jillian Turanovic,

Examining Race and Gender Disparities in Restrictive Housing Placements,

https://www.ojp.gov/pdffiles1/nij/grants/252062.pdf (accessed Sept. 8, 2022).

Corrections officers and administration “have wide discretion in sanctioning and

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segregating inmates.” Id. This discretion “can open the door to discriminatory

practices.” Id.

{¶35} That the Reagan Tokes Law ties these disciplinary practices to the

decision to extend the length of an incarcerated person’s sentence beyond the

presumption is concerning. If incarcerated minorities and women receive disparate

discipline in prison, their sentences will be increased beyond the Reagan Tokes Law

presumption in a disparate manner. Indeed, such disparate treatment, whether a

product of implicit or explicit biases, is exacerbated by the lack of due process provided

in the Reagan Tokes Law. Due process provides protections to mitigate the effects of

implicit bias. But under this statute as it currently stands, there are no protections and

disparate treatment will go unchecked.

{¶36} Also concerning is the absence of public accountability for ODRC

decisionmakers who extend a person’s presumptive term of incarceration. Unlike Ohio

judges, who face the scrutiny of the electorate every six years, appointed agency

officials evade such scrutiny. Indeed, “prisons are largely secluded from public

scrutiny.” Id. And historically “American courts have expressed reservations about

their capacity to regulate penal institutions.” Justin Driver & Emma Kaufman, The

Incoherence of Prison Law, 135 Harv.L.Rev. 515, 536 (2021). Out of concerns about

not interfering with those having expertise in prison management and the propriety

of judges regulating penal institutions grew a “reluctance to act [as] a core theme of

American prison law.” Id. at 537. As a result, prison officials are afforded unparalleled

deference and courts considering constitutional challenges must weigh an

incarcerated person’s rights against the “legitimate penological interests” and possible

“ripple effects” of protecting the person’s rights. Driver & Kaufman at 536. This

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deferential standard of review “render[s] prison law so unfavorable” that claims are

“almost invariably extinguished.” Id. at 539.

{¶37} I share Judge Bergeron’s concern about the practicality of as-applied

challenges to the Reagan Tokes Law. And I have serious concerns about how a person

who has been unfairly disciplined based on race, sex, sexual orientation, or some other

inappropriate factor could even begin to wage an as-applied challenge to the Reagan

Tokes Law. With the lack of transparency of prison discipline, the lack of avenues to

challenge such discipline, and the lack of due process provided in the statute, it would

be difficult to challenge an increased sentence when it is based on such discipline.

ZAYAS, P.J., concurring in part and dissenting in part.

{¶38} I agree with the majority opinion that the Reagan Tokes Law is not

facially unconstitutional under separation-of-powers, equal-protection, and

substantive-due-process grounds. With respect to procedural due process, I

respectfully dissent because I agree with Judge Bergeron’s thoughtful dissent in

Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962 at ¶ 107 (Bergeron, J.,

concurring in part and dissenting in part), that the notice and hearing procedures

under the Reagan Tokes Law violate the fundamental requirements of procedural due

process. I depart from this court’s precedent because “ ‘stare decisis’ does not apply

with the same force and effect when constitutional interpretation is at issue.” State v.

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 35-37; State v.

Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 38 (Fischer, J.,

concurring).

Please note:

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The court has recorded its entry on the date of the release of this opinion.

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