STATE OF OHIO, Plaintiff-Appellee, v. KEIWAUN DANIEL, Defendant-Appellant.
No. 109583
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 10, 2021
[Cite as State v. Daniel, 2021-Ohio-1963.]
JUDGMENT: REVERSED IN PART, VACATED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: June 10, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-640871-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ashley Gilkerson Elias, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, for appellant.
LISA B. FORBES, P.J.:
{¶ 1} Keiwaun Daniel (“Daniel”) appeals his three-to-four-year prison sentence, challenging the constitutionality of the Reagan Tokes Law, as well as the no-contact order that the court imposed as part of his sentence. After reviewing the
I. Facts and Procedural History
{¶ 2} On January 29, 2020, Daniel entered a guilty plea to robbery in violation of
II. Law and Analysis
A. Standard of Review
{¶ 3} The constitutionality of a statute presents questions of law, which are “reviewed de novo, independently and without deference to the trial court’s decision.” Andreyko v. Cincinnati, 153 Ohio App.3d 108, 112, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist.). Our review must be conducted in light of the notion that
A party may challenge a statute as unconstitutional on its face or as applied to a particular set of facts. 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.
(Citations omitted.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In the instant case, the state challenges the trial court’s finding that the Reagan Tokes Law is unconstitutional as written.
{¶ 4} The Ohio Supreme Court has held that “[w]hen determining whether a law is facially invalid, a court must be careful not to exceed the statute’s actual language and speculate about hypothetical or imaginary cases.” Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21, citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449-450, 128 S.Ct. 1184, 170 L.Ed. 151 (2008). Furthermore, “[r]eference to extrinsic facts is not required to resolve a facial challenge.” Wymsylo at ¶ 21.
B. Constitutionality of the Reagan Tokes Law
{¶ 5} The Reagan Tokes Law sets forth an indefinite sentencing scheme for certain qualifying first- and second-degree felonies committed on or after March 22, 2019.
- Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:
- 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.
- 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.
- 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.
- 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.
{¶ 6} In other words, an inmate will be released at the end of his or her minimum prison term (“presumptive release date”) unless the DRC takes action.
{¶ 7} In the case at hand, the trial court’s journal entry declaring the Reagan Tokes Law unconstitutional included the following language: “This court
1. Due Process
{¶ 8} Under the
{¶ 9} The liberty interests protected under the Due Process Clause become limited to “the most basic” when the claimant is a prison inmate. Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (“We have repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests.”).
{¶ 10} It is with that context in mind that we turn to the United States Supreme Court’s two-step analysis for constitutional challenges based on due process violations: “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).
2. Is There a Liberty Interest in the Reagan Tokes Law?
{¶ 11} 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 * * *.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), citing Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in avoiding involuntary psychiatric treatment) and Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding the withdrawal of state-created system of good-time credits). To analyze whether there is a liberty interest in the Reagan Tokes Law, we look first to United States Supreme Court authority, then to Ohio law for guidance.
{¶ 12} In Wolff, prison inmates in Nebraska challenged a state statute that authorized each penal facility to reduce an inmate’s “good-time credit” if the inmate engaged in “flagrant or serious misconduct.” Id. at 545-546. The United States Supreme Court found that the state of Nebraska “itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious
{¶ 13} In a different setting, a California parole statute created a liberty interest by providing that the prison board ‘“shall set a release date unless it determines that * * * consideration of the public safety requires a more lengthy period of incarceration.’” Swarthout, 562 U.S. at 216-217, quoting
{¶ 14} Further guidance is found in Wilkinson. The United States Supreme Court made clear that inmates may have “a protected, state-created liberty interest in avoiding restrictive conditions of confinement” depending not on the particular language of the regulations regarding the conditions “but the nature of those conditions themselves ‘in relation to the ordinary incidents of prison life.’” Wilkinson, 545 U.S. at 223, quoting Sandin v. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Sandin Court stated that “[t]he time has come to return to the due process principles”
{¶ 15} As courts throughout Ohio have begun to review the constitutionality of the Reagan Tokes Law, many look to case law dealing with parole revocation and parole eligibility for guidance. Compare State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 17 (“The hearings conducted by the ODRC under
{¶ 16} 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. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (“There is a crucial distinction between being deprived of a liberty one has, as in [revocation of] parole, and being denied a conditional liberty that one desires[,]” as in “discretionary parole release from confinement” or parole eligibility.). See also Wolff, U.S. 539 at 560 (“Simply put, revocation proceedings determine whether the parolee will be free or in prison, a matter of obvious great moment to him.”).
{¶ 17} In Ohio, parole revocation, unlike parole eligibility, “implicates a liberty interest which cannot be denied without certain procedural protections.” State ex rel. Jackson v. McFaul, 73 Ohio St.3d 186, 186, 652 N.E.2d 746 (1995). See also
{¶ 18} Unlike Ohio’s parole eligibility proceedings, the Reagan Tokes Law includes an express presumption of release: “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 * * *.”
{¶ 19} We find that, like the Nebraska statute in Wolff and the California statute in Swarthout, the Reagan Tokes Law creates a liberty interest. We also find that, like the nature of the deprivation found in Wilkinson and Sandin, Ohio prison inmates have an inherent liberty interest in being released from confinement on their presumptive release date under the Reagan Tokes Law. We agree with the Twelfth District Court of Appeals’ opinion in Guyton that the presumptive release date mandate is more akin to parole revocation proceedings than parole eligibility proceedings. The liberty interest at stake here is the inmate’s freedom.
{¶ 20} As of the date of this opinion, this court has found the Reagan Tokes Law constitutional in two cases, State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, and State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939. In both opinions, this court assumed without deciding that the Reagan Tokes Law created a liberty interest, while at the same time stating that it was akin to parole eligibility. Wilburn at ¶ 30; Simmons at ¶ 19. We disagree with the analogy
3. What Process is Due?
{¶ 21} Having found that the Reagan Tokes Law creates a liberty interest, we turn our attention to what process is due in light of that liberty interest. “Our 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. “[T]he fundamental requisite of due process of law is the opportunity to be heard in a meaningful time and in a meaningful manner.” Woods v. Telb, 89 Ohio St.3d 504, 514, 733 N.E.2d 1103 (2000). Additionally, in the criminal context, the accused is entitled to fair notice of what conduct is “punishable.” State v. Philpotts, 8th Dist. Cuyahoga No. 107374, 2019-Ohio-2911. “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.” Id. at ¶ 44.
{¶ 22} “It is axiomatic that due process ‘is flexible and calls for such procedural protections as the particular situation demands.’” Greenholtz, 442 U.S. at 12, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In considering what process is due to protect the liberty interest created by the Reagan Tokes Law, we are mindful that the United States Supreme Court recognized that:
Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the
considerations underlying our penal system.” Price v. Johnston, 334 US. 266, 285 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. * * * Prisoners may * * * claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law.
{¶ 23} To analyze what process is due, the United States Supreme Court has provided a framework requiring consideration of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Wilkinson, 545 U.S. at 224-225, quoting Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
{¶ 24} The Matthews factors should be balanced. In removing an individual from free society for a parole violation, as in Morrissey, or revoking good-time credits based on some specific serious misbehavior, as in Wolff, “more formal, adversary-type procedures” might be useful; on the other hand, “where the inquiry draws more on the experience of prison administrators, and where the State’s interest implicates the safety” of others, more informal, nonadversarial procedures are more appropriate. Wilkinson at 229.
{¶ 25} Applying the Matthews factors to the Reagan Tokes Law, we find that the private interest is an inmate’s freedom; the risk of erroneous deprivation is high,
{¶ 26} As explained by the Morrissey Court “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 (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Morrisey, 408 U.S. at 489. The Morrisey due process safeguards have been applied to proceedings other than parole revocation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying Morrissey’s due process requirements regarding parole revocation hearings to probation violation hearings); Woods, 89 Ohio St.3d 504 (applying Morrissey’s due process requirements to postrelease control violation hearings).
{¶ 27} In the context of prison discipline, the Wolff Court held that inmates facing a reduction of their good-time credit must be provided “advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.” Wolff, 418 U.S. at 563. Specifically, the court held that “written notice of the charges must be given to the disciplinary-action defendant in order to
{¶ 28} In the context of a statutorily created liberty interest in parole, the Swarthout Court found the due process “procedures required are minimal.” Swarthout, 562 U.S. at 220. The prisoners at issue received adequate process when “[t]hey were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.” Id. at 221.
4. Does the Reagan Tokes Law Satisfy the Requirements of Due Process?
{¶ 29} Next, we determine whether the procedures identified in
{¶ 30} For the reasons that follow, we disagree with the holdings in both Wilburn and Simmons, where this court determined that the Reagan Tokes Law
{¶ 31}
{¶ 32} Subsections (1), (2), and (3) of
{¶ 33} Moreover, the DRC may rebut the presumption of release based on the inmate having “committed a violation of law that was not prosecuted.”
{¶ 34} Furthermore, if a rule infraction or an unprosecuted crime is relied on by the DRC to rebut the presumption of release, the DRC must also establish that the “offender has not been rehabilitated” and that the “offender continues to pose a threat to society.”
{¶ 35} If the DRC determines that the DRC has rebutted the presumption of release pursuant to
{¶ 36}
{¶ 38} While we recognize that
{¶ 39} We find that the Reagan Tokes Law, as written, does not afford inmates a meaningful hearing, which is the fundamental element of due process required by the liberty interest the statute itself creates. In other words, without looking at extrinsic facts or speculating about hypothetical or imaginary scenarios, which is not proper in the analysis of a facial challenge to the constitutionality of a statute, the Reagan Tokes Law is incompatible with constitutional due process. We are mindful that the analogy of Reagan Tokes Law proceedings and parole revocation or prison discipline proceedings may not be perfectly on point. Such is the nature of analogies. However, we conclude that the Reagan Tokes Law triggers more than the minimum due process protections. The Morrissey and Wolff requirements should serve as guidelines for Reagan Tokes Law proceedings. Of particular concern is how these proceedings will impact inmates who suffer from mental-health and substance-abuse issues. But failing to provide an inmate the right to present a defense — any defense at all — flies in the face of well-established due process jurisprudence at its very core.
{¶ 40} What process is due is a malleable concept, and one we think better left to the legislature to sort out. Courts cannot simply rewrite a statute to make it constitutional. Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 54. The Reagan Tokes Law remains young and its implementation untested. Our analysis concludes that subsections (C) and (D) are unconstitutional. However, we stop short of delineating the procedural safeguards necessary to align the statute’s proceedings with the
{¶ 41} The Ohio legislature knows how to include due process safeguards in statutes. For example, in
{¶ 42} This court is aware that effective March 15, 2021, the director of the DRC issued policy number 105-PBD-15 establishing procedures for the “Additional Term Hearing Process” under the Reagan Tokes Law. That policy was not in effect
{¶ 43} The protected liberty interest in Reagan Tokes Law proceedings is the expectation of release from prison on the presumptive release date. In other words, the nature of the deprivation at issue is freedom. “Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that [the constitution] protects.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
[I]t is clear that a convict does not lose all his constitutional rights once he enters the prison population; constitutional rights of a fundamental nature, adapted to the context and penologic purposes of the imprisonment, are still available to him. * * * The extension of fundamental fairness to prison inmates is not in any way inconsistent with appropriate penologic considerations; indeed, it may well be that the grant of basic constitutional rights to prisoners will enhance, rather than impede, legitimate penologic ends.
In re Lamb, 34 Ohio App.2d 85, 87-88, 296 N.E.2d 280 (8th Dist.1973).
{¶ 44} As written, the Reagan Tokes Law does not satisfy the requirements of due process and, as such, violates Daniel’s constitutional rights.
C. Conceded Error — No-Contact Order
{¶ 45} In State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 32, the Ohio Supreme Court held that courts “cannot impose a prison term and a community-control sanction for the same offense,” and a no-contact order is a
III. Conclusion
{¶ 46}
{¶ 47} The judgment is reversed in part, vacated in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
LISA B. FORBES, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR