STATE OF OHIO v. LEWIS BOTHUEL
Court of Appeals No. L-20-1053
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
July 29, 2022
2022-Ohio-2606
Trial Court No. CR0201902776
DECISION AND JUDGMENT
Decided: July 29, 2022
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
MAYLE, J.
*****
{¶ 1} This case is before the court on remand from the Ohio Supreme Court.
I. Background
{¶ 2} Defendant-appellant, Lewis Bothuel, appealed the February 14, 2020 judgment of the Lucas County Court of Common Pleas, convicting him of burglary, and
- The sentencing provisions of Senate Bill 201, otherwise known as the Reagan Tokes Act, are unconstitutional.
- Appellant‘s sentence does not achieve the purposes and principles of sentencing.
{¶ 3} In a decision journalized on March 19, 2021, we affirmed the trial court judgment, however, we dismissed Bothuel‘s first assignment of error—challenging the constitutionality of the Reagan Tokes Law—on the basis that that assignment was not ripe for review pursuant to our decision in State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702. State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 18. Recognizing that our decision was in conflict with other Ohio appellate districts, we certified a conflict to the Ohio Supreme Court. The motion to certify was allowed. State v. Bothuel, 163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267. The case was held pending a decision in Maddox. Id.
{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox. State v. Maddox, Slip Opinion No. 2022-Ohio-764. It, therefore, reversed and remanded Bothuel. In re Cases Held for the Decision in State v. Maddox, Slip Opinion No. 2022-Ohio-1352. The merits of Bothuel‘s first assignment of error are now before the court.
{¶ 5} Senate Bill 201—the Reagan Tokes Law—became effective on March 22, 2019. The Law “significantly altered the sentencing structure for many of Ohio‘s most serious felonies” by implementing an indefinite sentencing system for non-life, first and second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1. The Law specifies that the indefinite prison terms will consist of a minimum term, selected by the sentencing judge from a range of terms set forth in
{¶ 6} In his first assignment of error, Bothuel challenges the Reagan Tokes Law on the basis that (1) it violates the separation-of-powers doctrine; (2) it violates the
A. Separation of Powers
{¶ 7} Bothuel claims that the Reagan Tokes Law violates the constitutional doctrine of separation of powers because it “removes the sentencing enhancement from the prerogative of the Judicial Branch and transfers it to the Executive Branch.” It compares the Law to the procedure for imposing “bad time” under former
{¶ 8} The state responds that the Reagan Tokes Law is different from the bad-time statute because unlike former
{¶ 9} We considered whether the Reagan Tokes Law violates the constitutional doctrine of separation of powers in State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620 (and more recently in State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072 and State v. Eaton, 6th Dist. Lucas No. L-21-1121). As we recognized in those cases, “the doctrine of separation of powers is ‘implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.‘” Bray at 134, quoting S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). “The legislative has the sole right and power to enact laws, the judiciary to declare their meaning and application, and the executive to enforce their execution.” Chesnut v. Shane‘s Lessee, 16 Ohio 599, 621 (1847). “‘The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.‘” Bray at 134, quoting State ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473, 166 N.E. 407 (1929).
{¶ 10} In connection with its role in declaring the “meaning and application” of laws, the judiciary is solely responsible for determining guilt and sentencing a defendant
{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and maximum sentence.
{¶ 12} As we summarized in Gifford, the Ohio Supreme Court in Woods recounted the evolution of Ohio‘s sentencing statutes. It explained that Ohio enacted truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by trial judges were the sentences served, unless altered by the judge. “This was primarily accomplished by two methods: eliminating indefinite sentences and eliminating parole.” Id. at 508. The court described that before S.B. 2, offenders rarely served the time to which they were sentenced because (1) indefinite sentences were prescribed for most serious felonies, (2) upon entering a correctional institution, an offender‘s sentence was automatically reduced by 30 percent for good behavior, and (3) the parole board “reviewed all prison sentences for disparity among offenders and attempted to abate inequities.” Id. at 508. Under S.B. 2, offenders were sentenced to definite sentences, good time was significantly reduced and had to be earned, and the parole board no longer had authority to determine how long an offender stayed in prison.
{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were subject to parole if they were convicted of first- or second-degree felonies or third- or fourth-degree felonies that involved an act of violence, or if they had previously been convicted of a crime of violence. Instead of parole, S.B. 2 introduced “post-release control.” Similar to parole, a period of postrelease control is required for all offenders
{¶ 14} The Ohio Supreme Court recognized that
{¶ 15} Ultimately, the Ohio Supreme Court reversed the decision of this court—which had found that the postrelease control statute violated the separation of powers doctrine because the delegation of powers to the Adult Parole Authority usurped judicial authority—after it concluded that the delegation of power to the APA is no different for postrelease control than it was under the former system of parole. It compared the two systems.
{¶ 16} Under the parole system, the Ohio Supreme Court explained, a sentencing court imposed an indefinite sentence with the possibility of parole. It could control the maximum length of the prison sentence, but had no power over when parole might be
{¶ 17} In Woods, the defendant argued that the postrelease control statute was similar to the bad time statute that was found unconstitutional in Bray. But the Ohio Supreme Court found that unlike bad time—where a crime committed while incarcerated resulted in an additional sentence not imposed by the trial court—the imposition of postrelease control is part of the judicially-imposed sentence. Also, it explained, postrelease control sanctions are aimed at behavior modification to facilitate reintegration into the community rather than mere punishment for an additional crime, as was the case with the bad-time statute. The court acknowledged that the sentencing judge has no control over how much time an offender may serve on postrelease control, but it observed that this was also true for parole. It noted that “for as long as parole has existed in Ohio, the executive branch * * * has had absolute discretion over that portion of an offender‘s sentence.” Id. at 512, citing State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N.E. 81 (1885). It concluded that “the APA‘s discretion in managing post-release control does
{¶ 18} As we recognized in Gifford, 2022-Ohio-1620, since Woods, a unanimous decision of the Ohio Supreme Court reaffirmed the holding and reasoning in that case, recognizing that a trial court‘s imposition of postrelease-control in its original sentence “avoids any potential separation-of-powers problem.” Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 19, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19.
{¶ 19} Moreover, it is important to note that Woods is not the first time that the Ohio Supreme Court has recognized the role of the executive branch in determining the circumstances under which a properly-sentenced offender should be released from prison. In McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334, 337 (1964), the Ohio Supreme Court recognized that “[t]he granting of parole and the final release of prisoners is the function of the Pardon and Parole Commission * * * as is the supervision of those on parole * * *. It emphasized that “[w]hether a prisoner should be released before he has served his maximum sentence is an administrative not a judicial matter.” Id.
{¶ 20} Here, there are strong similarities between the authority of the judicial and executive branches under the Reagan Tokes Law and their authority under the systems of parole and postrelease control that the Ohio Supreme Court upheld in Woods and supported in McDougle. Under the Reagan Tokes Law, the trial court imposes a
B. Right to Trial by Jury
{¶ 21} Bothuel argues that the Reagan Tokes Law violates the constitutional right to a trial by jury. He claims that under U.S. Supreme Court authority—Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)—any finding of fact upon which an offender‘s authorized punishment may be increased must be found by a jury beyond a reasonable doubt. He maintains that because under the Reagan Tokes Law an increase in punishment beyond the presumptive sentence is dependent on findings made by ODRC—not a jury—the Law violates the right to a jury trial. The state does not specifically respond to this argument.
{¶ 22} The right to a trial by jury is protected by the
{¶ 23} Under the Reagan Tokes Law, there are no circumstances under which ODRC may increase punishment beyond the maximum term permitted by statute or imposed by the sentencing court. Any additional term of incarceration imposed under the Law may not exceed the maximum term imposed by the sentencing court. See
C. Due Process
{¶ 24} Finally, Bothuel claims that the Reagan Tokes Law violates the right to due process. He argues that the statute fails to give adequate notice of what it takes to trigger “additional” prison time and fails to define what it means to “pose a threat to society” or
{¶ 25} The state responds to some, but not all, of these arguments. It claims that the presumption of release after service of the minimum term is analogous to parole-release decisions and it claims that only minimal process is due offenders under the Reagan Tokes Law. It emphasizes that
{¶ 26} We begin by addressing Bothuel‘s claim that the statute provides no structure for how additional-term hearings will be conducted and what rights offenders will have at those hearings.
{¶ 27} As we recently recognized in State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, the
{¶ 28} In Stenson, we concluded that because the Reagan Tokes Law creates a presumption of release after service of an offender‘s minimum sentence, it creates a liberty interest implicating due process rights. See Stenson at ¶ 25, citing Greenholtz at 12; See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (finding that inmates had liberty interest in state-created right to good-time credit, the extinguishment of which entitled them to due process to insure that the right “is not arbitrarily abrogated“). Having concluded that a liberty interest exists, we proceeded in Stenson to determine what process is due under the circumstances.
{¶ 29} We recognized in Stenson that courts that have considered what process is due under the additional-term provisions of the Reagan Tokes Law often draw analogies between the Law and either (1) probation or parole release decisions, or (2) probation or parole revocation decisions. We acknowledged that neither release nor revocation decisions afford a defendant the “full panoply of rights due” in a criminal prosecution,
{¶ 30} As we observed in Stenson, the Court concluded in Morrissey, where parole revocation was at issue, that due process required “(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 (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey at 489. It concluded in Greenholtz, where parole release was at issue, that due process was afforded where an offender was given an opportunity to be heard, and in the case of denial of parole, information was provided concerning in what respects the offender fell short of qualifying for parole. Id. at 16.
{¶ 31} The U.S. Supreme Court explained in Greenholtz its rationale for differentiating between release and revocation decisions. In a parole revocation decision, the Court explained, an offender is threatened with the deprivation of the liberty he has; in a parole release decision, the offender merely desires liberty. The U.S. Supreme Court
{¶ 32} We noted in Stenson that the Reagan Tokes Law creates a presumption that an offender will be released after service of his or her minimum sentence. But we also observed that it does not provide for a “purely subjective appraisal” whether release is advisable after service of the minimum sentence. Rather, under
{¶ 33} As we emphasized in Stenson, in this way, the Reagan Tokes Law functions unlike the merely discretionary decision to release an offender on parole and more like a parole revocation decision. It requires two determinations under
{¶ 34} Because the Reagan Tokes Law creates a liberty interest more akin to probation revocation decisions, we found in Stenson that this means that the type of
{¶ 35} As we observed in Stenson, in considering the process due a parolee whose parole is being revoked, the U.S. Supreme Court in Morrissey, 408 U.S. at 488, acknowledged that most states have enacted legislation setting forth procedural requirements for parole revocation hearings, but others have done so by
{¶ 36} Here, the Reagan Tokes Law states simply that ODRC may rebut the presumption of release at a “hearing.”
{¶ 37} Accordingly, we find that the Reagan Tokes Law does not, on its face, violate the constitutional right to due process as it concerns the procedures for additional-term hearings. We next turn to whether the Law provides adequate notice of what conduct may trigger an additional term under the Law.
{¶ 38}
(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.
{¶ 39} As previously recognized in this decision, security classifications and the decision to place an offender in extended restrictive housing—triggers under
{¶ 40} As for
{¶ 41} “‘[T]he first essential of due process of law’ is the accused‘s right to fair notice of the proscribed conduct.” State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶ 33 (4th Dist.), quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). The Ohio Revised Code provides notice of what constitutes a violation of law, while the inmate rules of conduct are enumerated in
{¶ 42} As for what it means to “pose a threat to society” (
{¶ 43} “A facial challenge requires that the challenging party * * * show that the statute is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” (Internal quotations omitted.) State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 15, quoting State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Here, a standard is specified in the statute. We, therefore, find that Bothuel‘s facial challenge fails. Again, however, this does not preclude Bothuel from advancing an as-applied challenge should he one day be able to show ““that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.“” Id. at ¶ 16, quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting).
{¶ 44} Accordingly, we find Bothuel‘s first assignment of error not well-taken.
III. Conclusion
{¶ 45} We reject Bothuel‘s challenges to the constitutionality of the Reagan Tokes Law. We conclude that the Law does not violate the separation-of-powers doctrine or the right to a jury trial and does not, on its face, deprive offenders of their right to due process. We, therefore, find Bothuel‘s first assignment of error not well-taken.
{¶ 46} We affirm the February 14, 2020 judgment of the Lucas County Court of Common Pleas. Bothuel is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
Mark L. Pietrykowski, J. JUDGE
Christine E. Mayle, J. JUDGE
CONCUR.
Gene A. Zmuda, J. JUDGE
CONCURS AND WRITES SEPARATELY.
ZMUDA, J.
{¶ 47} I agree with the majority‘s disposition of Bothuel‘s first assignment of error. I write separately, because I find that the Reagan Tokes Law does not facially violate a defendant‘s constitutional right to due process, and thus Bothuel‘s first assignment of error is not well-taken, based upon the reasoning I articulated in this court‘s lead opinion in State v. Eaton, 6th Dist. Lucas No. L-21-1121. I disagree with the majority‘s determination that the Reagan Tokes Law creates a liberty interest akin to
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.