State v. Taylor

[Cite as State v. Taylor, 2022-Ohio-3611.]

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

STATE OF OHIO, CASE NO. 2021-P-0052

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

HENRY TAYLOR, JR.,
Trial Court No. 2020 CR 00977
Defendant-Appellant.

OPINION

Decided: October 11, 2022
Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Thomas Rein, 820 Superior Avenue, Suite 800, Cleveland, OH 44113 (For Defendant-
Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Henry Taylor, Jr., appeals his convictions of felonious assault

and domestic violence following a jury trial. We affirm.

I. Introduction

{¶2} In December 2020, the Portage County Grand Jury returned an indictment

charging appellant with one count each of aggravated robbery, a first-degree felony, in

violation of R.C. 2911.01; kidnapping, a first-degree felony, in violation of R.C. 2905.01;

felonious assault, a second-degree felony, in violation of R.C. 2903.11; and domestic
violence, a first-degree misdemeanor, in violation of R.C. 2919.25. The indictment

alleged that appellant committed the offenses against a single victim on or about

December 21, 2020.

{¶3} A three-day jury trial was held in March 2021. The prosecution called

several witnesses: a 9-1-1 caller, a 9-1-1 supervisor, two road officers, a detective, an

emergency room physician, a custodian of medical records, and the victim, albeit on

cross-examination. At the close of the state’s case, the defense moved for a Crim.R. 29

judgment of acquittal. The trial court granted the motion as to the charge of kidnapping.

The defense rested without presenting any witnesses. The jury returned guilty verdicts

on the charges of felonious assault and domestic violence; it could not reach a decision

as to the charge of aggravated robbery. The trial court imposed a minimum prison term

of six years to a maximum term of nine years for the offense of felonious assault and six

months for the offense of domestic violence, to run concurrently. The sentencing entry

was journalized on April 29, 2021.

{¶4} From the final judgment of conviction, appellant advances five assignments

of error.

II. Sufficiency and Manifest Weight

{¶5} Appellant’s first two assigned errors challenge the legal sufficiency and

weight of the evidence:

[1.] The State failed to present sufficient evidence to sustain a
conviction against Appellant.

[2.] Appellant’s convictions are against the manifest weight of
the evidence.

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 {¶6} “Whether the evidence is legally sufficient to sustain a verdict is a question

of law.” (Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997); State v. Davis, 11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 187. “In a

sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when

viewed in a light most favorable to the prosecution, would allow any rational trier of fact

to find the essential elements of the crime beyond a reasonable doubt.” State v. Dent,

163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15, citing State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In essence,

sufficiency is a test of adequacy.” Thompkins at 386.

{¶7} In contrast, a challenge to the manifest weight of the evidence “concerns

‘the inclination of the greater amount of credible evidence * * * to support one side of the

issue rather than the other.’” (Emphasis sic.) Id. at 387, quoting Black’s Law Dictionary

1594 (6th Ed.1990). In reviewing the manifest weight of the evidence, we must “consider

the entire record, including the credibility of the witnesses, the weight of the evidence,

and any reasonable inferences, and determine whether ‘“the [jury] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.”’” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71

N.E.3d 180, ¶ 75, quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Settle, 2017-Ohio-703, 86 N.E.3d 35,

¶ 51 (11th Dist.)

{¶8} A conclusion that the jury verdict is not against the manifest weight of the

evidence necessarily means it was supported by sufficient evidence. State v. Masters,

11th Dist. Lake No. 2019-L-037, 2020-Ohio-864, ¶ 17. Thus, the appellate court need

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not engage in a separate analysis of sufficiency if it determines the verdict is not against

the manifest weight. Id.

{¶9} To convict appellant, the state was required to prove the following elements

beyond a reasonable doubt: Domestic violence: “No person shall knowingly cause or

attempt to cause physical harm to a family or household member.” R.C. 2919.25(A).

Felonious assault: “No person shall knowingly * * * [c]ause serious physical harm to

another * * *.” R.C. 2903.11(A)(1). “A person acts knowingly, regardless of purpose,

when the person is aware that the person’s conduct will probably cause a certain result

or will probably be of a certain nature.” R.C. 2901.22(B).

{¶10} “Family or household member” includes a “person living as a spouse,” which

means “a person who is living or has lived with the offender in a common law marital

relationship, who otherwise is cohabiting with the offender, or who otherwise has

cohabited with the offender within five years prior to the date of the alleged commission

of the act in question.” R.C. 2919.25(F)(1)(a)(i) and (2).

{¶11} “‘Physical harm to persons’ means any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). “‘Serious physical

harm to persons’ means any of the following:

(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;

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 (d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;

(e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves
any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

{¶12} Testimony from trial witnesses revealed the following:

{¶13} On December 21, 2020, at 5:00 a.m., Kathryn Scott was driving to work on

State Route 5. It was a very cold morning. Ms. Scott observed what she initially thought

was a coyote on the opposite side of the road. As she got closer, she realized the figure

was a person, who was on their hands and knees in the middle of the road. Ms. Scott,

who was traveling alone, called 9-1-1 but did not remain on scene. The 9-1-1 recording

was played for the jury.

{¶14} Deputy Dustin Henry Diemert was dispatched to State Route 5 in response

to several callers reporting a female subject crawling on the roadway without shoes in the

20- to 30- degree weather. This area of State Route 5 is a two-lane roadway with a speed

limit of 55 miles per hour; it is a rural area, dark with no streetlights, and few houses

located far off the roadway. Deputy Diemert observed two bystanders and a female on

the ground. He testified that “she has no shoes on, her hair is all over the place, her

clothing had black marks, almost like she was dragged from the asphalt of the concrete,

clothes were ripped. * * * She was crying, on the ground shivering, shaking and just very

disoriented.” Deputy Diemert placed the female into his warm vehicle and called for an

ambulance.

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 {¶15} The female (hereinafter “the Victim”) identified herself to Deputy Diemert

and repeatedly stated that her feet hurt and that her head was heavy. She appeared to

be in shock, suffering from pain in her feet, head, and had visible swelling to her jaw. She

also smelled strongly of alcohol. The Victim eventually disclosed to the deputy that her

boyfriend, appellant, assaulted her and stole her car, in which were her purse, wallet, and

shoes. She identified the make and model of her vehicle and a BMV image of appellant.

{¶16} The Victim told Deputy Diemert that she and appellant were driving when

they got into a verbal altercation. Appellant hit her in the face and head with closed fists.

At a gas station, the Victim lied about having to use the restroom and instead called her

father. Appellant decided to return home and, while driving, again struck the Victim in the

head and face with a closed fist. The Victim grabbed the steering wheel to pull the car

over or crash the car in order to stop the beating. Appellant stopped the car, and the

Victim jumped out. Appellant chased her down, tackled her to the ground, and continued

beating her head and face with a closed fist. The Victim refused to stand up, and

appellant dragged her back to the car as she was screaming and crying. The Victim

said that appellant kicked her in the ribs, left her on the ground, and took her vehicle.

{¶17} Trooper Tyler Totani also responded to the scene. He testified that it was

cold, and the Victim was not dressed for the weather. She was hysterical, had no shoes

on, and complained about pain to her face. Trooper Totani testified that the Victim had

to be physically picked up and placed into the vehicle because she was not able to get

there on her own.

{¶18} The Victim was transported to the hospital by ambulance. Dr. Gwendlyn

Fletcher, an emergency medicine physician, treated the Victim the morning of December

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21, 2020. Dr. Fletcher testified that the Victim presented with sizable abrasions on her

chest and back from direct contact with the ground and a large hematoma on the right

side of her forehead. Dr. Fletcher ordered multiple CT scans, which showed fractures of

the fifth, sixth, seventh, and eighth ribs on her left side and a fracture of the second rib on

her right side.

{¶19} Dr. Fletcher testified that the Victim reported that her boyfriend assaulted

her and left her at the side of the road. On cross-examination, Dr. Fletcher stated the

Victim reported that her injuries were from being assaulted both by hitting and kicking.

Dr. Fletcher also agreed that the medical records contain a notation that the Victim stated

she jumped from a moving vehicle. The medical records contain a surgical resident’s

note that the Victim thought the rib fractures might have been from a former fight with her

boyfriend. Dr. Fletcher could not determine when the rib fractures occurred, but she did

not recall the Victim stating that they had occurred prior to December 21, 2020. The

doctor testified, and the State stipulated, that the Victim’s blood alcohol level at the time

of her examination was 127 milligrams per deciliter, which would be an illegal level for

driving in Ohio.

{¶20} Detective Springer interviewed the Victim at the hospital the morning of

December 21, 2020. He identified photographs that were taken of the Victim that morning

at the hospital, as well as photographs of the clothing she was wearing. The photographs

were shared with the jury. Detective Springer testified that appellant’s version of events

at the time of his arrest was “inconsistent” with the Victim’s version of events. Appellant

told the detective that he was with the Victim and had left her on the road, but he denied

assaulting the Victim.

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 {¶21} The Victim was called and examined by the prosecution as a reluctant

witness. She identified appellant as her fiancé and the individual that she was living with

in December 2020. The Victim testified that they had both been drinking that night and

that she was highly under the influence. She also told that jury that the State forced her

to be a witness by threatening that she would never see her daughter again unless she

complied with the subpoena to appear.

{¶22} The Victim’s trial testimony was different from the information that she gave

to the officers who found her on State Route 5 and from the information she gave to the

emergency room physician who treated her injuries. She claimed that she lied to the

officers. At trial, the Victim testified that she grabbed the steering wheel because she

was trying to kill both of them by driving into a semi-truck; appellant had saved them; she

hit appellant in the head; she jumped out of the car without shoes on and took off running.

{¶23} Appellant contends that the jury’s guilty verdicts are not supported by

sufficient evidence to link him to the crimes and that there is insufficient evidence of

“serious physical harm” to support the felonious assault conviction. Appellant further

argues his convictions are against the manifest weight of the evidence because the only

evidence linking him to the crimes are his association with the Victim coupled with

Detective Springer’s improper testimony as to appellant’s credibility. Specifically,

appellant complains of the detective’s statement that appellant’s version of events was

“inconsistent with what [the Victim] said.” Appellant also takes issue with the Victim’s

admission on the stand that she had been under the influence for the past eight weeks,

staying awake three and four days in a row.

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 {¶24} Contrary to appellant’s arguments, we cannot say that the jury lost its way

in finding appellant guilty of felonious assault and domestic violence. The jury heard the

9-1-1 call, how the Victim appeared when found by responding officers, and what the

Victim told the emergency and medical personnel as to how she became injured and left

on the road. At the scene, the Victim identified appellant as her assailant and provided

specific details of the assault. And the victim needed to be physically placed in a vehicle

by the officers because she could not get there on her own. In the emergency room, the

Victim again identified appellant as her assailant, and the exam revealed multiple serious

injuries—fractured ribs, a large hematoma on the forehead, swollen jawline, etc. The

visible injuries were photographed by investigators that day. The evidence supports a

conclusion that these injuries amounted to “serious physical harm,” in that the victim

suffered “some temporary, substantial incapacity.” See R.C. 2901.01(A)(5)(c). At trial,

the Victim was a reluctant witness, claiming she was unable to recall any prior statements,

assuming the blame for appellant’s conduct.

{¶25} Appellant’s convictions are not against the manifest weight of the evidence.

And, upon finding that his convictions are not against the manifest weight of the evidence,

they are also necessarily supported by sufficient evidence. See State v. Struble, 2019-

Ohio-4650, 148 N.E.3d 24, ¶ 35 (11th Dist.).

{¶26} Appellant’s first and second assigned errors lack merit.

III. Trial Rights

{¶27} Appellant’s third assigned error contends:

[3.] Appellant was denied a fair trial and his right to due
process by the trial court by forcing Appellant be shackled in
front of the jury throughout the whole trial.

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 {¶28} Appellant argues the trial court violated his rights to a fair trial and due

process by ordering that his feet be secured and his hands secured at his hips with a hip

chain while in the courtroom.

{¶29} “No one should be tried while shackled, absent unusual circumstances. The

use of restraints tends to erode the presumption of innocence that the justice system

attaches to every defendant.” (Internal citations omitted.) State v. Neyland, 139 Ohio

St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 82; Deck v. Missouri, 544 U.S. 622, 628-

629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (a criminal defendant has the right to remain

free of physical restraints that are visible to the jury). “But it is widely accepted that a

prisoner may be shackled when there is a danger of violence or escape. The decision to

require restraints is left to the sound discretion of the trial court, which is in a position to

consider the prisoner’s actions both inside and outside the courtroom, as well as his

demeanor while the court is in session.” (Internal citations omitted.) Neyland at ¶ 82;

State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79 (“a court need

not sit by helplessly waiting for a defendant to commit a violent or disruptive act in the

courtroom before being cloaked with the power to invoke extra security measures”).

{¶30} The trial court held a hearing on the state’s pretrial motion to secure and

restrain appellant throughout the trial. A recording was played of a jail call between

appellant and the Victim, in which appellant stated his plan was “to grab a chair, throw it

at the Judge, get a gun, shoot the prosecutor and shoot the Judge.” The state relayed to

the court that other prosecutors had warned of appellant’s courtroom behavior, as he had

caused a mistrial in a neighboring jurisdiction by “acting out violently” in the courtroom.

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There was also discussion as to whether appellant should be restrained in the courtroom

or in another room for viewing the trial.

{¶31} The morning of trial, citing Neyland, the trial court ruled that appellant would

be restrained in the courtroom because there was a danger of violence. The court

observed the following:

[H]e does have on clothing that it is certainly not easy to see
unless you are really looking for those chains. He has long
sleeves on, he has a suit coat on. When he stands, when the
jury enters, if he crosses his hands in front of his waist, you’re
not able to see that chain going around his belly area. We did
it a couple times to make sure that that was the case. I’m
certainly not opposed to the defense making those efforts and
ensuring that when he stands up, that is not visible.

{¶32} Appellant claims the court should have first forewarned him that any

improper actions on his part would result in restraints and that, after he had caused no

disturbances, the court should have granted defense counsel’s request later in the trial to

remove the restraints. He has failed to establish, however, that the trial court’s decision

was an abuse of discretion or a violation of his rights to a fair trial and due process. The

decision was based upon clear threats appellant made regarding his anticipated conduct

at trial toward the judge and other court personnel. The trial court took measures to

assure that the restraints would not be visible to the jury, and the record does not reflect

that the jury observed the restraints.

{¶33} Appellant’s third assigned error lacks merit.

{¶34} Appellant’s fourth assigned error contends:

[4.] The trial court violated Appellant’s rights by not allowing
him to be present in open court for his sentencing hearing.

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 {¶35} Appellant challenges the trial court’s decision to hold a sentencing hearing

without allowing him to be physically present due to his prior threats of violence. Appellant

was present via video-link from the jail.

{¶36} A defendant “has a fundamental right to be present at all critical stages of

his criminal trial.” State v. Hill, 73 Ohio St.3d 433, 444, 653 N.E.2d 271 (1995). See also

Section 10, Article 1, Ohio Constitution (“In any trial, in any court, the party accused shall

be allowed to appear and defend in person and with counsel[.]”); R.C. 2945.12 (“No other

person [other than a person indicted for a misdemeanor] shall be tried unless personally

present[.]”).

{¶37} Procedurally, Crim.R. 43(A)(1) provides that “the defendant must be

physically present at every stage of the criminal proceeding and trial, including * * * the

imposition of sentence, except as otherwise provided by these rules.” In felony cases,

“the court may permit the presence and participation of a defendant by remote

contemporaneous video for any proceeding,” but only where the defendant has waived,

“in writing or on the record, the defendant’s right to be physically present under these

rules with leave of court.” Crim.R. 43(A)(2)-(3). The court may also conduct proceedings

in the defendant’s absence or by remote contemporaneous video where the defendant’s

“conduct in the courtroom is so disruptive that the hearing or trial cannot reasonably be

conducted with the defendant’s continued physical presence.” Crim.R. 43(B).

{¶38} A trial court may commit reversible error when it imposes sentence without

complying with the mandatory provisions of Crim.R. 43. See State v. Welch, 53 Ohio

St.2d 47, 48, 372 N.E.2d 346 (1978). “An accused’s absence, however, does not

necessarily result in prejudicial or constitutional error. ‘[T]he presence of a defendant is

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a condition of due process to the extent that a fair and just hearing would be thwarted by

his absence, and to that extent only.’” (Parallel citations omitted.) State v. Davis, 116

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90, quoting Snyder v. Massachusetts,

291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds;

see also State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983), and State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 50.

{¶39} Here, no waiver appears in writing or on the record, and there is no

documentation of disruptive courtroom behavior by appellant. Accordingly, the trial court

failed to comply with Crim.R. 43 by imposing sentence without appellant physically

present at the hearing. Nevertheless, appellant has not shown prejudice resulted from

his presence at the hearing via video-link. Appellant’s interests were represented by

defense counsel who was physically present in the courtroom; no objection was raised

as to his physical absence; appellant was able to see and hear the courtroom and to be

seen and heard by the courtroom; although he chose not to, appellant was permitted the

opportunity to make a statement; and appellant advances no argument on appeal that his

physical absence prevented a fair hearing. Accordingly, we conclude that the trial court’s

failure to comply with Crim.R. 43 amounts to harmless error.

{¶40} Appellant’s fourth assigned error is without merit.

IV. Constitutionality of the Reagan Tokes Law

{¶41} Appellant’s fifth assigned error contends:

[5.] The trial court erred by imposing an indefinite prison
sentence upon Appellant which is unconstitutional.

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 {¶42} 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.

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

been addressed by this and 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. Joyce, 11th Dist. Lake No. 2021-L-006, 2022-Ohio-3370; 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, 2022-Ohio-1372, 190 N.E.3d 684 (5th Dist.); 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 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.

A. Standard of Review

{¶44} 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

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(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).

{¶45} 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

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).

B. The Reagan Tokes Law

{¶46} 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).

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 {¶47} “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.

{¶48} 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

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 inmates

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.

{¶49} 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

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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.

C. Separation of Powers Doctrine

{¶50} Appellant initially 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.

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

offenders generally rely 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.).

R.C. 2967.11(B)

{¶52} 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

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

Constitution.” Bray at 135.

{¶53} 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

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.

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

does not violate separation of powers, noting that 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:

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 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
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.

{¶55} 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.);

State v. Alexander, 4th Dist. Adams No. 21CA1144, 2022-Ohio-1812, ¶ 56; Ratliff, 2022-

Ohio-1372, at ¶ 56 (5th Dist.); Maddox, 2022-Ohio-1350, at ¶ 7 (6th Dist.); Delvallie, 2022-

Ohio-470, at ¶ 34 (8th Dist.); State v. Henderson, 12th Dist. Warren No. CA2020-11-072,

2021-Ohio-3564, ¶ 10-12. We agree.

{¶56} Appellant’s challenge to the Reagan Tokes Law under the separation of

powers doctrine is without merit.

D. Due Process of Law

1. Introduction

{¶57} The next 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. This is a facial challenge to the constitutionality

of the enactment, thereby placing the burden on appellant to prove beyond a reasonable

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doubt that there is no set of circumstances under which the Reagan Tokes Law would be

constitutional.

{¶58} “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).

{¶59} 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.

{¶60} 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,

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,

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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.

2. The Liberty Interest

{¶61} 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.

{¶62} 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”).

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

as follows:

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 (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.

(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

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 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.

{¶64} “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”).

{¶65} 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

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

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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.

3. Notice of Proscribed Conduct

{¶66} “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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 {¶67} 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).

{¶68} 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.

{¶69} 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.

4. Procedural Safeguards

{¶70} “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 Biddie 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.”).

{¶71} 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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Case No. 2021-P-0052
 {¶72} “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.

{¶73} 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, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 31 (6th Dist.) (“the

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

decisions”); Guyton, 2020-Ohio-3837, at ¶ 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 parole,” which is largely “‘subjective’ and ‘predictive.’”

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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).

{¶74} 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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Case No. 2021-P-0052
 (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).

{¶75} 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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Case No. 2021-P-0052
 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).

{¶76} 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.”); Swarthout, 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.

{¶77} 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.

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Case No. 2021-P-0052
Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21. “The

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.”).

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

the presumptive minimum sentence, appellant’s challenge 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”).

{¶79} 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.

{¶80} “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).

{¶81} 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.’”).

{¶82} 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

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 maintain incarceration of an incarcerated adult for an
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.

{¶83} 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.

{¶84} “[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,

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Case No. 2021-P-0052
citing Wilkinson, 545 U.S. at 230 (“If an inmate were to demonstrate that the New Policy

did not in practice operate in [a constitutionally-permissible] fashion, resulting in a

cognizable injury, that could be the subject of an appropriate future challenge.”); 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.”).

{¶85} Appellant’s arguments pertaining to the procedural safeguards of the

additional term hearing are as-applied challenges and not ripe for review. Accordingly,

we conclude that the Reagan Tokes Law does not, on its face, violate the constitutional

right to due process.

5. Court Hearing

{¶86} Finally, the argument that the Reagan Tokes Law violates an inmate’s right

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

beyond the minimum term has been found without merit by the Second, Fourth, and

Twelfth District Courts of Appeal, 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

Alexander, 2022-Ohio-1812, at ¶ 60; see also Barnes, 2020-Ohio-4150, at ¶ 38, fn. 2.

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

its face, violate the constitutional right to due process.

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 {¶88} Appellant’s fifth assigned error is without merit.

V. Conclusion

{¶89} The judgment of the Portage County Court of Common Pleas is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

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