[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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{¶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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(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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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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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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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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