*1
[Cite as
State v. Delvallie
,
Plaintiff-Appellee, :
No. 109315 v. :
BRADLEY DELVALLIE, :
Defendant-Appellant. :
JOURNAL ENTRY AND DECISION EN BANC JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 17, 2022 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-645262-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Catherine M. Coleman and Daniel T. Van, Assistant Prosecuting Attorneys, for appellee .
Cullen Sweeney, Cuyahoga County Public Defender, and Paul A. Kuzmins, Assistant Public Defender, for appellant .
SEAN C. GALLAGHER, A.J.:
The Reagan Tokes Law (enacted through S.B. 201) represents the Ohio legislature’s first major departure from the so-called “truth in sentencing law,” enacted through S.B. 2 in 1996. It embodies a policy determination by the Ohio *2 legislature that definite terms under S.B. 2 failed for serious felony offenders. The rape and murder of 21-year-old Reagan Tokes by an offender who had served his definite sentence, despite perpetual misconduct during his term of imprisonment and during his postrelease control, brought the legislature to the nearly unanimous, bipartisan conclusion that definite sentences for serious offenders who displayed no rehabilitative qualities during their incarceration created an unsafe condition for an unsuspecting public. Senate Bill 201 Votes Results, available at https://web.archive.org/web/20211117125521/https://www.legislature.ohio.gov/le gislation/legislation-votes?id=GA132-SB-201 (last visited Jan. 22, 2022) (both houses of the legislature voted in favor of enacting S.B. 201 in its final form with a
single dissenting vote).
The law reverts Ohio to an indefinite sentencing scheme for the most
serious offenses under Ohio’s criminal law — a sentencing structure that has been
in place for well over a century.
See State ex rel. Atty. Gen. v. Peters
, 43 Ohio St.
629,
defendant’s right to a jury under the Sixth Amendment).
In
Sealey
, in an appeal filed by the state, the panel declared subsections
(C) and (D) of R.C. 2967.271 unconstitutional. While it may have been the panel’s
intent to only find subsections (C) and (D) of R.C. 2967.271 unconstitutional, the net
effect of the panel’s ruling affirmed the trial court’s holding that the “Reagan Tokes
Law” is unconstitutional in its entirety.
Id.
at ¶ 45 (“the trial court’s finding the
Reagan Tokes Law unconstitutional is affirmed”);
see also Daniel
(after declaring
subsections (C) and (D) of R.C. 2967.271 unconstitutional, the panel concluded
without additional analysis that “the
Reagan Tokes Law
does not satisfy the
*4
requirements of due process and, as such, violates [the defendant’s] constitutional
rights” (Emphasis added.));
but see State v. Wilburn
, 8th Dist. Cuyahoga No.
109507,
unenforceable because of the constitutional analysis limited to one provision.
But
see State ex rel. Sunset Estate Properties, L.L.C. v. Lodi
,
Pursuant to App.R. 26, Loc.App.R. 26, and
McFadden v. Cleveland
State Univ
., 120 Ohio St.3d 54,
I. Putting the background of the Reagan Tokes Law into perspective
At the outset, it is important to examine the apparent legislative intent behind the law and its effect on Ohio’s criminal justice scheme in light of the conflicting conclusions reached in Delvallie , Sealey, and Daniel . [2]
The Reagan Tokes Law offers the chance for Ohio to return to an incentive-based, rehabilitative prison process for serious offenders. See, e.g., Siegel, Reagan Tokes Act seeks to undo years of definitive sentencing in Ohio , The Columbus Dispatch (Oct. 25, 2017) (quoting State Senator Kevin Bacon describing the intent behind passing the Reagan Tokes Law), available at https://web.archive.org/web/20210818163121/https://www.timesreporter.com/n ews/20171025/reagan-tokes-act-seeks-to-undo-years-of-definitive-sentencing-in- ohio (last visited Jan. 22, 2022). [3] That process can incentivize socially acceptable conduct by offering inmates a tangible way to reduce their overall sentences through buying into the social contract — a tacit agreement to live together in accordance to the socially established rules of behavior. See id. The Reagan Tokes Law offers inmates the opportunity to demonstrate their willingness to reform and in the
process to receive lesser sentences based on their behavior, instead of serving
definite terms. Reagan Tokes case spurs Ohio legislation to change incarceration guidelines , TrueCrimeDaily.com (May 14, 2018) (“‘The data and evidence has found that the indefinite sentencing worked to actually help rehabilitate these offenders because they are more incentivized to participate in programming and to not face longer prison terms,’ said Ohio State Rep. Kristin Boggs.”), available at https://web.archive.org/web/20210818164113/https://truecrimedaily.com/2018/ 05/14/reagan-tokes-case-spurs-ohio-legislation-to-change-incarceration- guidelines/ (last visited Jan. 22, 2022). These changes provide the inmate the
opportunity to reduce the overall prison term below what would be served under the pre-S.B. 201 definite sentencing structure. Id. Under the pre-S.B. 201 definite sentencing law, Ohio focused on the punitive nature of the imprisonment system. The Reagan Tokes Law offers an albeit small, but beginning, step away from that draconian approach.
Back in 1974 when Ohio revamped the Revised Code, there were no definite sentences. First-degree felony offenses were imposed using a range — a minimum of 4, 5, 6, or 7 years to a maximum of 25 years. https://www.supremecourt.ohio.gov/Boards/Sentencing/Materials/2017/May/fel onyRangeSB2.pdf. Second-degree felony offenses had a minimum of 2, 3, 4, or 5 to the maximum of 15 years. Id. Third-degree felony offenses had a range of 1, 1-1/2, 2, or 3 years to 10 years, and fourth-degree felony offenses had a range of 1/2, 1, 1-1/2 years, or 2 years up to 5 years. Id., see also H.B. 511. Every inmate was given an indefinite range with a parole eligibility date. Inmates ages 18-25 were given *7 what was termed as “reformatory” time, while adults over 25 were given “penitentiary” time. For example, a reformatory inmate serving an indefinite 5-year sentence would become parole eligible after serving 1 year and 10 months. A penitentiary inmate with the same 5-year indefinite sentence would be eligible after
serving 2 full years.
Definite sentences did not exist in Ohio until S.B. 199, effective July 1, 1983. That enactment created two nonmandatory determinate prison sentence ranges for low-level nonviolent felons, and a three-year mandatory sentence for using or possessing a gun while committing a felony. The overall result was eight new sentencing ranges added to the original four ranges from the 1974 criminal
code.
Assessing and crediting behavior in prison was very much a part of both H.B. 511 and S.B. 199 and the parole process in general. Inmates doing reformatory time could get up to 12 days per month, prorated for each month, if they obeyed the rules of the institution. Good time likewise reduced the time for penitentiary inmates by up to 8 days per month, prorated for each month, if they obeyed the rules
of the institution.
The so-called truth-in-sentencing scheme known as S.B. 2, became effective July 1, 1996. S.B. 2 brought definite sentencing to Ohio for the vast majority of crimes and ended parole eligibility for those inmates sentenced to definite terms. Many of the behavioral incentives previously in place affecting the parole determinations were also lost. In essence, definite sentencing transformed what had *8 been a rehabilitative focus underlying prison terms into a purely punitive system. It is not a coincidence that the prison population exploded under the weight of the definite sentencing structure. It also turned out to be one of the costliest pieces of legislation in Ohio history.
The litigation it spawned went on for decades and often resulted in the unending process of transporting inmates back and forth for resentencing hearings, largely for judges to make perfunctory findings or to utter magic words. Burt W. Griffin and Lewis R. Katz, Sentencing Consistency: Basic Principles Instead Of Numerical Grids: The Ohio Plan , 53 Case W.Res.L.Rev. 1, 30-31, 32 (2002) (explaining the necessary conclusions needed under the then newly enacted definite sentencing scheme leading to appellate reversals of sentences). The results of S.B. 2 were in the details. Ohio’s prison population topped 50,000 for the first time around 2008. Amber G. Damiani, [4] Nix The “Fix”: An Analysis On Ohio’s Criminal Sentencing Law And Its Effect On Prison Population , 47 Cap.U.L.Rev. 755, 755 (2019). Many inmates serving these definite terms were subjected to consecutive sentences with no option for parole, resulting in what amounted to de facto life terms. See State v. Gwynne , 5th Dist. Delaware No. 16 CAA12 0056, 2021-Ohio-
2378. There has been a slow recognition that the felony sentencing scheme under S.B. 2 has become not only more complex, but also more costly — driving up the prison population with no mechanisms to assess inmates’ reformative conduct. *9 Siegel, Reagan Tokes Act seeks to undo years of definitive sentencing in Ohio , supra (“For some offenders, there is no incentive to help yourself or not commit acts against other prisoners[.]”). One solution was to increase the Ohio Department of Rehabilitation and Correction’s (“ODRC”) and its Adult Parole Authority’s participation in the prison process by increasing the use of indefinite sentencing and the ability of ODRC to be involved in release options. Nix the “Fix” at 785-786.
The Reagan Tokes Law appears to be an effort to return Ohio to its core sentencing approach, implementing the reformative incentive for offenders that was lost to the definite sentencing structure. Griffin and Katz, Sentencing Consistency: Basic Principles Instead Of Numerical Grids: The Ohio Plan , 53 Case W.Res.L.Rev. 1, 38 (explaining the history Ohio’s implementation of rehabilitative sentencing through indefinite sentencing and good time reductions dating back to 1869 and 1856). The law, for example, includes a provision for “earned reduction of minimum prison term” (“ERMPT”) of between 5 percent and 15 percent off the minimum term — a sentencing reduction not afforded to nonqualifying felony
offenders. R.C. 2967.271(F)(1)(b). The law identifies “exceptional conduct or adjustment to incarceration” as the basis for awarding the reduction under R.C. 2967.271(F)(7). In addition, the new law empowers inmates with a presumption of release at the end of their minimum term, something unparalleled in Ohio history with respect to indefinite sentences and parole eligibility. Inmates never had a presumption of release in any other legislative enactment of indefinite prison terms. *10 The presumption before the Reagan Tokes Law was always in favor of serving the full term.
Despite the legislature’s incentive-laden approach to criminal justice, there has been a broad push by opponents of the law to summarily declare the whole of the Reagan Tokes Law unconstitutional while focusing only on aspects of R.C. 2967.271(B)-(F), which permit the executive branch to “maintain” the indefinite
portion of the sentence for offenders that flout prison rules and regulations.
The defendants’ rush to eliminate the entirety of the legislature’s departure from a purely punitive prison policy overlooks the reductions afforded under the new law, and it might shock those offenders who learn that their sentences could have been reduced under R.C. 2967.271(F) to discover that their opportunity for a shorter prison term could be declared unconstitutional or unenforceable by these appeals. Rather than broadly attacking the new law, one would have thought there would be a greater call for more incentive-based sentence reductions for
inmates like those that are available under this law.
While it is true some inmates could serve longer terms under the Reagan Tokes Law based on the nature of the indefinite prison sentence structure, those longer terms are determined by the conduct of the inmate. That policy determination is purely within the legislature’s role under the tripartite system of
government. Permitting the executive agency to review an inmate’s prison conduct is a process deeply rooted within the Ohio Revised Code. See, e.g. , R.C. 2967.193(A); R.C. 2967.13. This idea is also nothing new. It is important to recognize that the *11 indefinite prison sentence with the executive branch’s review has been a mainstay of Ohio law since time immemorial, and it does not appear that any argument as to the constitutional validity of the Reagan Tokes Law challenges R.C. 2929.144 or the imposition of the indefinite term. Instead, the primary focus is on R.C. 2967.271(C) and (D), which incidentally are modeled on existing Ohio law and rely on the
currently enacted prison rule infraction system. See R.C. 2967.15; Ohio Adm.Code 5120-9-08.
As with all appeals, we must begin with the arguments as presented. II. Defendants bear the burden to demonstrate the law is unconstitutional
We find that the Reagan Tokes Law, as defined under R.C. 2901.011, is not unconstitutional based on the arguments presented, reaffirming the principles
established in
Gamble
, 8th Dist. Cuyahoga No. 109613,
No. 109507,
In order to succeed in a constitutional challenge, a defendant must
demonstrate that the law is unconstitutional beyond a reasonable doubt.
State v.
Bloomer
,
Courts in Ohio do not share the responsibility of establishing
“legislative policies or [second-guessing] the General Assembly’s policy choices.
‘[T]he General Assembly is responsible for weighing [policy] concerns and making
policy decisions; [courts] are charged with evaluating the constitutionality of their
choices.’”
Stetter v. R.J. Corman Derailment Servs
.,
L.L.C.,
125 Ohio St.3d 280,
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.
(Emphasis added.)
Harrold v. Collier
, 107 Ohio St.3d 44,
Defendants challenging the Reagan Tokes Law generally advance
three claims in support of the due process violation argument, citing the Fourteenth
Amendment to the United States Constitution and Article I, Section 16, of the Ohio
Constitution: (1) that the Reagan Tokes Law violates the right to trial by jury or (2)
that the Reagan Tokes Law violates the separation-of-powers doctrine and (3) that
R.C. 2967.271(C) and (D), which provide offenders with the right to a hearing before
imposition of the maximum term imposed under R.C. 2929.144, fail to provide the
full panoply of constitutional pretrial rights in violation of their due process rights.
The cases giving rise to our en banc review are no different, offering at least some
derivation of those arguments, if not a verbatim recitation.
Importantly, however, no one has demonstrated that the imposition
of an indefinite term under R.C. 2929.144 and 2929.14 itself violates any
constitutional provision or that the legislature’s lack of procedural guidance within
R.C. 2967.271(C) and (D) is integral to the whole of the Reagan Tokes Law.
State v.
Foster
,
Our review of the constitutional validity of the Reagan Tokes Law is not limited to just the general impressions. We cannot look to the vague assertions that the “Reagan Tokes Law is unconstitutional” in its entirety as it interweaves itself throughout the Revised Code and administrative process. Declaring the Reagan Tokes Law unconstitutional or unenforceable invalidates all 54 statutory sections listed under R.C. 2901.011. Since we must presume the constitutional validity of statutes, we must begin with the defendants’ challenges meant to rebut the presumption.
a. The defendants’ general presumption regarding ODRC’s role in the sentencing structure is fundamentally flawed There is an overarching issue that appears to permeate every aspect of the constitutional challenge against the statutory sections codified as part of the
Reagan Tokes Law. The defendants’ claims depend solely on the belief that ODRC
“extends” or “imposes” a prison term under R.C. 2967.271(C) and (D) beyond the
maximum sentence imposed by the sentencing court.
See, e.g., Delvallie
, 8th Dist.
Cuyahoga No. 109315,
on an offender [under R.C. 2929.14(A)] for a qualifying felony of the first or second *15 degree shall sentence the offender, as part of the sentence, to the maximum prison term determined under division (B) of this section” and impose both the minimum and maximum terms in the final entry of conviction.).
Under R.C. 2967.271(D)(1), if ODRC rebuts the presumption of
release following the minimum term, by considering the inmate’s institutional
record at a hearing, “the department may
maintain
the offender’s incarceration in a
state correctional institution under the sentence after the expiration of the offender’s
minimum prison term * * *.” (Emphasis added.)
Id.
“‘Maintain’ is defined as ‘to
continue in possession of.’”
Griffith v. Aultman Hosp.
,
“1 : to keep in a state of repair, efficiency, or validity : preserve from failure or decline * * * 2 a : to sustain against opposition or danger : back up : DEFEND, UPHOLD * * * b : to uphold in argument : contend for * * * 3 : to persevere in : carry on : keep up : CONTINUE * * * 4 : to provide for : bear the expense of : SUPPORT * * * 5 : to affirm in or as if in argument : ASSERT, DECLARE * * * 6 : to assist (a party to legal action) so as to commit maintenance.”
Ginn v. Stonecreek Dental Care
, 12th Dist. Fayette Nos. CA2018-09-018, CA2018-
09-019, and CA2018-11-022,
the concept of “imposing” or “extending” a sentence. Thus, the defendants’ beliefs as to the structure of the maximum sentence are contrary to the plain language of R.C. 2929.144 and 2967.271(D). ODRC does not “extend” or “impose” a sentence, much less one that exceeds or extends the maximum term imposed by the trial court. *16 ODRC simply “maintains” or continues the incarceration of the inmate under the term of imprisonment imposed by the trial court. This is not meaningfully distinct from Ohio’s current parole system, in which offenders may be kept in prison following service of the minimum term for parole eligibility.
Under the sentencing structure codified in R.C. 2929.144 and 2929.14, the trial court imposes the minimum and maximum terms of imprisonment. ODRC, as an agency under the executive branch of government, simply enforces the
judicially imposed sentence and has been delegated the responsibility over the release determinations under R.C. 2967.271(C)-(F). This is similar, if not identical, to the executive branch’s authority to release offenders from sentences under Ohio’s parole system for indefinite life sentences. R.C. 2967.12; 2967.16. The question, therefore, is not whether there is a perception that the maximum-term hearing infringes on a defendant’s constitutional rights, but whether the sentencing law as enacted does.
The Reagan Tokes Law provisions under R.C. 2929.144 and 2967.271, as previously discussed, mirror those from R.C. 2929.02 and 2967.12 through 2967.16. Both create a system of releasing offenders serving indefinite terms of
imprisonment. The Reagan Tokes Law, unlike the indefinite life sentencing structure under R.C. 2967.16 (final release from indefinite sentence statutory section, which requires the executive agency to determine the release on parole and then the final release from the prison sentence imposed by the trial court in separate stages), creates a presumption of a final release after the minimum term, subject to *17 any applicable term of postrelease control. R.C. 2967.271(B). Under the indefinite life sentencing structure, ODRC makes the final determination of an inmate’s final release from prison. R.C. 2967.16. The Reagan Tokes Law removes that discretion and creates a presumption favoring release from the final sentence at the completion
of the minimum term. R.C. 2967.271(B). That distinction does not alter the core sentencing approach of tasking ODRC with reviewing an inmate’s prison status while the inmate is serving a judicially imposed prison sentence or tasking ODRC with authority over maintaining a prisoner within the indefinite sentence.
Therefore, the defendants’ request for us to declare the Reagan Tokes Law unconstitutional in its entirety, including the indefinite sentencing scheme codified under R.C. 2967.271, 2929.144, and 2929.14(A)(1)-(2), necessarily presents constitutional implications for indefinite life sentences under Ohio law that cannot be ignored. The executive branch makes parole decisions affecting the judicially
imposed sentences under Ohio sentencing law in general. In light of the legislature’s use of the similar procedures as applied to both indefinite life and nonlife sentences, declaring the Reagan Tokes Law unconstitutional poses ramifications far beyond S.B. 201.
The legislature has the sole authority to define crimes and establish
the punishment in Ohio.
State v. Bates
,
represents the bedrock of the Ohio criminal justice system and is analogous to Ohio’s current parole revocation system that is entirely managed by ODRC.
With this background in mind, we can focus on the defendants’ three arguments in support of their claims that the Reagan Tokes Law is unconstitutional in its entirety.
b. Defendants’ claims that the indefinite, nonlife sentences are analogous to the now-defunct “bad time” law are misplaced
“A fundamental principle of the constitutional separation of powers
among the three branches of government is that the legislative branch is ‘the
ultimate arbiter of public policy.’”
State v. Blankenship
,
Mason
,
Under the Reagan Tokes Law, the trial court sentences the offender to the minimum and maximum term, and that sentence must be included in the final entry of conviction. R.C. 2929.14; 2929.144. Thus, it is the judicial branch that imposes the statutorily required sentence and the only sentencing discretion provided to the trial court lies with the length of the minimum term under R.C.
2929.14(A)(1)(a) and (A)(2)(a). Neither the trial court nor ODRC has authority to increase any sentence beyond the maximum term set forth under R.C. 2929.144.
R.C. 2967.271(B) establishes a presumptive release date at the end of the minimum term, and under subdivision (D), the legislature provides ODRC the framework required to enforce or “maintain” the maximum sentence imposed by the trial court in the final entry of conviction. ODRC may review the offender’s prison conduct, which is dependent on the institutional rule infraction system under Ohio law unrelated to the Reagan Tokes Law, and rebut that presumption of release to enforce, or “maintain” the remaining portion of the offender’s prison term (the *20 maximum term) already imposed by the trial court. R.C. 2967.271(D)(1). This is similar to a sentencing court’s imposition of an indefinite life sentence that delegates authority to the executive branch to make any and all parole determinations and to release offenders from their judicially imposed sentences after the minimum period is served. R.C. 2967.12; 2967.16. Tellingly, the defendants are unable to demonstrate how ODRC imposes a new sentence by exercising its statutorily mandated power to review an inmate’s prison status following the imposition of the maximum term by the sentencing court.
It is important to remember that the separation-of-powers doctrine,
as derived from the federal Constitution, “has no express provision which prohibits
the officials of one branch of government from exercising functions of the other
branches.”
Geraghty v. United States Parole Comm
., 719 F.2d 1199, 1210 (3d
Cir.1983), citing
Springer v. Philippine Islands
,
L.Ed. 845 (1928) (upholding parole determinations by the executive branch). “The
Constitution does not require three airtight departments of government.”
Id.
, citing
Nixon v. Admr. of Gen. Servs.
, 433 U.S. 425, 443,
The defendants’ argument with respect to the separation of powers analogizes the Reagan Tokes Law’s indefinite, nonlife sentencing scheme to Ohio’s “bad time” law under former R.C. 2967.11, which provided the executive branch the power to keep a prisoner in jail beyond the sentence imposed by the trial court. State
ex rel. Bray v. Russell , 89 Ohio St.3d 132, 729 N.E.2d 359 (2000). In Bray’s situation, the trial court sentenced him to serve eight months in prison in the final entry of conviction. Id. at 133. During Bray’s incarceration, he assaulted a prison guard and the Ohio Parole Board imposed an additional 90-day term to be served following the conclusion of the judicially imposed, eight-month sentence. Id. It was the additional 90-day term that violated the separation-of-powers doctrine because only the judiciary has the power to impose a sentence. Id.
It has long been understood 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.’”
State v.
Ferguson
, 2d Dist. Montgomery No. 28644,
Kelly
, 108 Ohio St.3d 395,
doctrine. Again, at the risk of belaboring the point, the defendants are unable to
identify any statutory section that permits ODRC to “impose” a sentence beyond that
which is imposed by the trial court.
Simmons
,
The defendants’ claims blur the distinction between imposing a sentence and executing or, in statutory parlance, “maintaining,” the judicially imposed sentence. Understandably, the “bad time” law was deemed to violate the separation-of-powers doctrine because it divested the sentencing court of its authority to impose the final sentence. The executive branch was tasked with imposing a sentence beyond that which was imposed by the trial court. Simmons, Wilburn. R.C. 2929.144 shares nothing in common with the “bad time” law at issue in Bray. Any application of Bray to the indefinite, nonlife felony sentencing scheme is misplaced. Under R.C. 2929.144, the trial court imposes the maximum term in the final entry of conviction such that ODRC is merely tasked with implementation of the imposed sentence. This complies with constitutional mandates. “The
determination of guilt in a criminal matter
and the sentencing of a defendant
convicted of a crime
are solely the province of the judiciary.” (Emphasis added.)
Bray
, at 136, citing
Peters
,
The Reagan Tokes Law does not violate any separation-of-powers safeguard because the executive branch has always possessed the authority to *23 determine parole, parole revocation, or sentencing-release matters under an
indefinite sentencing scheme after the trial court imposes the minimum and maximum terms. See R.C. 2967.12 and 2967.16 (executive branch authorized to grant final release of the offender following adherence to the terms of parole). R.C. 2929.144, 2929.14(A)(1)(a) and (A)(2)(a), and R.C. 2967.271 do not stray from the sentencing structure already in place under Ohio law.
Keeping an offender in prison under R.C. 2929.144 past the minimum
term is no different than keeping an offender in prison under an indefinite life
sentence after the offender becomes eligible for parole. The executive branch’s
decision releasing an offender from, or maintaining an offender in, an indefinite
sentence has been part of the Ohio criminal justice system from time immemorial.
McDougle v. Maxwell
,
Woods,
c. Release determinations by the executive branch do not violate the right to a jury trial
Further, R.C. 2967.271(C) and (D) do not violate the right to a jury
trial under
Apprendi v. New Jersey
,
at ¶ 32.
The trial court, under R.C. 2929.144 and 2929.14, is statutorily required to impose the minimum and maximum terms upon the offender being found guilty of the qualifying felony offense — similar to an offender being sentenced to life with the possibility of parole under the indefinite life sentencing structure. The trial court lacks discretion to impose any term beyond the maximum under any provision of the Reagan Tokes Law. In Apprendi , the Supreme Court held that, in order to sentence a defendant to a term of imprisonment in excess of the statutory maximum , the factual circumstances justifying the enhanced sentence must be found by the jury beyond a reasonable doubt. Id. ; see also Alleyne v. United States ,
In Alleyne , the Supreme Court concluded that the element of the offense included brandishing a firearm that raised the level of the offense from one subject to a 5-year term to one subject to a 7-year term, and therefore, brandishing a firearm was an element of the offense that must be determined by the trier of fact. Id. at 114. That conclusion is simply irrelevant to the Reagan Tokes Law. No provision under the Reagan Tokes Law authorizes a sentencing court, or ODRC for *25 that matter, to impose a sentence beyond the maximum set forth in the sentencing statutes or to elevate the minimum term beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a). R.C. 2929.144 and 2929.14(A)(1)(a)-(A)(2)(a) provide no discretion to the trial court in imposing the maximum term based on the offender having pleaded or been found guilty of the underlying qualifying felony offense. The only discretion lies with the imposition of the minimum term, which is no different than the discretion to sentence within the definite sentencing range for nonqualifying felony offenses.
In declaring R.C. 2967.271(C) and (D) to be unconstitutional, the
defendants heavily rely on
Foster
, 109 Ohio St.3d 1,
a term of imprisonment beyond the minimum based on the issuance of findings
violated
Blakely v. Washington
, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004).
Foster
was superseded by
Oregon v. Ice
,
in effect lengthen the offender’s sentence. Id. at 168. The rationale underlying Foster’s decision to declare the finding requirement for consecutive sentencing to be unconstitutional, which was based on the notion that the consecutive sentence increased the offender’s minimum prison time, did not stand the test of time.
Any reliance on Foster seems to focus on the claim that any consideration of facts not determined by the trier of fact violates Apprendi per se. There is no basis for that conclusion under Ohio or federal law. In fact, Ohio’s sentencing structure in general depends on judicial consideration of facts beyond that which is considered by the trier of fact. R.C. 2929.11; 2929.12; 2929.14 (providing for a sentencing range upon nonqualifying felony offenses). Under the defendants’ broadly stated rationale, therefore, Ohio would be returned to the pre-
Oregon v. Ice days in which any and all sentencing considerations violate the offender’s constitutional rights, and such a conclusion would necessarily impact Ohio’s complete sentencing structure that relies on judicial determinations to sentence within ranges.
Again, the trial court must impose a minimum and a maximum indefinite term under R.C. 2929.14 and 2929.144. The only discretion lies with the length of the minimum term, and therefore, the trial court is not imposing a sentence “in excess of the maximum” term as expressly prohibited under Apprendi . *27 And the trial court is also not imposing a sentence beyond the minimum term prescribed by statute based on any findings of facts. Any discussion of sentencing discretion to impose a term that exceeds the minimum term can only be based on the overturned rationale espoused in Foster . Accordingly, that argument is misplaced.
Neither R.C. 2929.144 nor 2929.14(A)(1)(a) and (A)(2)(a) run afoul of Apprendi or its progeny. Despite this, it has been suggested that the plurality decision in United States v. Haymond , 588 U.S.___, 139 S.Ct. 2369, 2373, 204 L.Ed.2d 897 (2019), supports application of Apprendi to R.C. 2967.271(C) and (D). In Haymond , however, the defendant was convicted of possessing child pornography, for which the district judge imposed an indefinite prison term of zero to 10 years under 18 U.S.C. 2252(b)(2) and a period of supervised release of between 5 years and life under 18 U.S.C. 3583(k). Id. at 2373. During the period of supervised release, the defendant was found in possession of child pornography. Id. In addition to returning the offender to serve the original sentence, the trial court imposed a new mandatory minimum term of 5 years under 18 U.S.C. 3583(k) —
making the sentence 5 to 10 years instead of the zero to 10 years originally imposed. It was the resentencing under the aggravating factor that the Supreme Court declared unconstitutional in violation of Apprendi principles since a jury did not make the additional finding of fact to authorize an enhanced minimum term. Id. at 2378. Importantly, the Supreme Court did not declare that retaining the inmate in prison during the zero to 10-year indefinite term originally imposed implicated *28 constitutional concerns but, instead, relied on the fact that the minimum term of
imprisonment was increased based on a finding of fact that occurred in the postconviction process. Id.
Haymond does not stand for the proposition that a state court cannot impose an indefinite sentence based on the executive branch’s parole or release determinations. Any offender sentenced upon a qualifying felony must receive a minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a), and a maximum term
under R.C. 2929.144. To place that in perspective, such a sentence is equivalent to the original sentence imposed in the Haymond case, a sentence that was not questioned by the Supreme Court or by any party to the case. Any reliance on
Haymond is misplaced.
R.C. 2967.271(C) and (D) do not violate Apprendi or its progeny. d. Defendants’ final claim that R.C. 2967.271 fails to provide the full panoply of trial rights is contrary to black-letter law
The defendants’ last claim deals with R.C. 2967.271(C) and (D). According to the defendants, R.C. 2967.271(C) and (D), which provide offenders with the right to a hearing before imposition of the maximum term imposed under R.C. 2929.144, has not provided the full panoply of constitutional rights afforded to
a defendant in the criminal process, an issue left unaddressed in both Simmons and Wilburn and first arising in the conflict created by Gamble and Delvallie .
In support of that claim, the defendants in Gamble , Delvallie , and Daniel in particular, provide a single paragraph of analysis:
Finally, while R.C. 2967.271 provides for a hearing before the additional prison time is imposed, the statute provides no structure as to how the hearing will be conducted or what rights the defendant will have at a hearing. Fourteenth Amendment due process as well as the Sixth Amendment and Article I, Section 10 of the Ohio Constitution recognize certain core rights as fundamental to the trial process. In addition to the right to trial by jury (discussed in Part II, and incorporated herein), these trial rights include:
• The presumption of innocence and the requirement that proof by the prosecution rise to the level of proof beyond a reasonable doubt. In re Winship ,397 U.S. 358 ,90 S.Ct. 106 , 825 L.Ed.2d 368 (1970).
• The right to counsel and to the appointment of counsel if indigent. Gideon v. Wainwright ,372 U.S. 335 ,83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).
• The right to confront witnesses. Crawford v. Washington , 541 U.S. 36, 52,124 S.Ct. 1354 ,158 L.Ed.2d 177 (2004).
• The right to call witnesses and require their presence via subpoena. Washington v. Texas , 388 U.S.14,87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967).
• The right to offer testimony. In re Oliver ,333 U.S. 257 , 68 S.Ct. 499,92 L.Ed. 682 (1948).
Nowhere in the statute are these rights enunciated. Nor is there an applicable provision in the Ohio Administrative Code that the defense has been able to locate that expressly applies to these proceedings. The premise of the defendants’ due process claim is misplaced.
It has never been concluded that inmates are due preconviction
constitutional rights during enforcement of judicially imposed sentences.
Morrissey v. Brewer
, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)
(hereinafter “
Morrissey
”) (“We begin with the proposition that the revocation of
parole is not part of a criminal prosecution and thus the full panoply of rights due a
*30
defendant in such a proceeding does not apply”);
Rose v. Haskins
,
III. The dissents’ conclusions do not provide a basis to declare the Reagan Tokes Law unconstitutional in its entirety Having addressed the merits of the arguments presented by the defendants, our analysis generally would be complete. The dissents build upon the panel discussions in Delvallie , Sealey , and Daniel to essentially claim that R.C. 2967.271(C) and (D) must either enumerate the rights afforded to an inmate during the maximum-term hearing or include an express delegation of authority to the executive branch to promulgate the rules. In the absence of either, according to the dissents, the statute is unconstitutional and any sentencing under R.C 2929.144 (maximum term) and R.C. 2929.14(A)(1)(a) and (A)(2)(a) (minimum term) must be declared void. Neither the Ohio nor federal Constitution mandates such a requirement. This issue, solely based on Morrissey , was raised in Delvallie , Daniel , *31 and Sealey and, therefore, should be addressed inasmuch as the en banc’s resolution in favor of the constitutional validity of the Reagan Tokes Law overrules those decisions. Since appellate courts are required to provide reasons in support of a decision under App.R. 12(A)(1)(c), an explanation behind vacating Delvallie , Daniel , and Sealey is required.
In
Morrissey
, the Supreme Court set forth the minimum
requirements required at a parole revocation hearing, again the existing sentencing
structure the defendants claimed to be applicable to the Reagan Tokes Law.
Although
Delvallie
,
Daniel
, and
Sealey
present a thorough discussion of the creation
of a liberty interest, we need not entertain that discussion.
See, e.g., Sealey
, 8th Dist.
Cuyahoga No. 109670,
release from a prison term, 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.
Morrissey
,
Any reliance on Morrissey to declare the Reagan Tokes Law unconstitutional and to preclude sentencing under R.C. 2929.144 and 2929.14(A)(1)(a) and (A)(2)(a) is misplaced, and as discussed in further detail below, is premature since the remedy for a Morrissey violation is to remand for a hearing in compliance with the Supreme Court’s guidance, not to vacate the sentence or to declare the entire law unconstitutional. Sloan at ¶ 6.
The issue must be addressed in terms of the delegation of authority to
ODRC to provide the procedural rules and safeguards as required under R.C.
2967.271 and 5120.01. In other words, inasmuch as the panels in
Sealey
and
Daniel
argued that R.C. 2967.271(C) and (D) are silent as to the
Morrissey
procedural
requirements of the maximum-term hearing, the question that poses is whether the
legislature has properly delegated its authority to craft the procedural safeguards to
ODRC rendering R.C. 2967.271 facially constitutional.
See O’Neal v. State
, 2020-
Ohio-506,
Opinion No.
a. Neither the Reagan Tokes Law nor R.C. 2967.271 violates a prisoner’s due process rights because the legislature has delegated authority to ODRC to provide the Morrissey safeguards
By and large, S.B. 201 was not created out of whole cloth. The legislature borrowed from other aspects of the Ohio Revised Code to craft the indefinite sentences and the release determinations. In the broad push to declare the Reagan Tokes Law unconstitutional or unenforceable, it is easy to lose sight of the havoc that such a conclusion would bring to every other aspect of the sentencing and sentencing enforcement laws and regulations, which rely on the same process
and procedures codified as part of the Reagan Tokes Law. In light of the Sealey and Daniel conclusions that R.C. 2967.271 violates Morrissey , the first question in need of resolution is whether the legislature can delegate authority to ODRC through R.C. 2967.271 to draft the procedural safeguards mandated under Morrissey .
The short answer is it can, and ODRC complied. R.C. 5120.01; ODRC Policy 105-PBD-15, Section F, available at https://drc.ohio.gov/policies/parole- board (last visited Nov. 11, 2021). Under that delegation of authority, ODRC may be authorized to establish rules and policies given the agency’s experience and on-the- ground presence. Nix The “Fix”: An Analysis On Ohio’s Criminal Sentencing Law And Its Effect On Prison Population , 47 Cap.U.L.Rev. 755, 786 (2019); Cleveland
Metro. Bar Assn. v. Davie
,
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.
AMOCO v. Petroleum Underground Storage Tank
Release Comp. Bd
.,
boards and agencies”), citing
Princeton City School Dist. Bd. of Edn. v. Ohio State
Bd. of Edn
.,
In
Sealey
, for example, the panel relied on
Wilkinson v. Austin
, 545
U.S. 209, 226,
procedures of an executive agency for constitutional compliance. In
Wilkinson
, in
*36
the habeas corpus petitions brought by several inmates, the Supreme Court
reviewed two versions of ODRC Policy 111-07 (Aug. 31, 1998).
Wilkinson
at 215. In
Wolff
, on behalf of himself and other inmates of the Nebraska Penal and
Correctional Complex, Lincoln, Nebraska, an inmate filed a complaint under 42
U.S.C. 1983 challenging several of the practices, rules, and regulations of the
complex.
Wolff
at 542. As both of those cases teach, the 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 its own rules or procedures to safeguard
constitutional concerns, which must be challenged through the appropriate
mechanisms.
Although R.C. 2967.271 omits language authorizing ODRC to draft
rules and procedures for the maximum-term hearings, the drafters are presumed to
understand the entirety of the Revised Code. Under R.C. 5120.01, “all duties”
conferred upon ODRC by the legislature “shall be performed under the rules and
regulations that the director prescribes.” The use of the term “policy” by ODRC will
be discussed in greater detail below. That said, 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.”
Bibler v. Stevenson
, 150 Ohio
St.3d 144,
But such an approach is unnecessary. The Revised Code contains other sections that provide neither the express procedures for conducting a hearing nor an express delegation of authority for the executive branch to promulgate those policies, rules, or procedures. For example, under R.C. 2971.04, the legislature has tasked the parole board to conduct a hearing to determine whether to terminate control over the offender after the offender has served the minimum term under R.C. 2971.03 (sentencing of sexually violent offender with predator specification). R.C. 2971.04. Contrary to the dissent’s assertion otherwise, R.C. 2971.04 is silent as to any delegation of authority to promulgate rules, regulations, or policies detailing the procedures or means of carrying out the hearing, similar to R.C. 2967.271. The only express delegation of authority within R.C. 2971.04(A) is found in the
declaration that the parole board may follow ODRC’s guidelines as established under R.C. 5120.49 for the purposes of the parole board making its determination following the hearing. Under R.C. 5120.49, ODRC “by rule adopted under Chapter 119. of the Revised Code, shall prescribe standards and guidelines to be used by the parole board in determining * * *” whether to terminate the parole board’s control over the indefinite term. As far as establishing the hearing procedures themselves *38 with the plain language of the statute, R.C. 2971.04(A) does not include all due process procedural requirements; only the inmate’s right to present evidence before the parole board is statutorily established. [6] No other Morrissey requirement was mandated, such as the written conclusions in support of the denial of release and the disclosure of the contents of the risk assessment report submitted directly to the parole board.
Despite the lack of express delegation of policy-making authority under R.C. 2971.04 to establish all missing procedural requirements for the hearing itself, ODRC has promulgated ODRC Policy 105-PBD-11, for the express purpose of “establish[ing] a standard procedure for the parole board to efficiently and consistently carry out its duties pursuant to Ohio Revised Code (ORC) section 2971.04.” As part of that policy, the ODRC has promulgated the specific hearing procedures, beyond simply permitting the inmate to present evidence, controlling the means and manner in which the hearing occurs. This includes a provision that permits the inmate’s counsel to be present during the hearing, among other
*39 procedures not covered under the express language of the statute, a provision not expressly required under R.C. 2971.04. ODRC Policy 105-PBD-11 VI. E.
This is similar to the legislature’s decision in drafting R.C. 2967.271 to permit ODRC to draft the Morrissey procedures under the general grant of authority under R.C. 5120.01 required to implement R.C. 2967.271(C) and (D), as contrasted against the legislature’s specific requirement that ODRC promulgate rules under
R.C. 2967.271(F) (the director of ODRC “by rule shall specify both of the following
for offenders serving a non-life felony indefinite prison term * * *.”). Both R.C.
2967.271 and 2971.04 follow the same pattern. The legislature is presumed to
understand the law, and under
Morrissey
, there is no requirement for the legislature
or the executive branch to codify statutory or administrative rules in enacting
procedures compliant with the
Morrissey
guidelines.
Wilkinson
,
Since R.C. 2971.04 is similar to R.C. 2967.271 in that there are no express guidelines provided by the legislature and no express delegation of policy- making authority to establish the hearing procedures, R.C. 2971.04 is potentially impacted under the dissents’ stated rationale for declaring R.C. 2967.271 to be
unconstitutional and contrary to the unanimous conclusions reached by the Supreme Court in Wilkinson . It is for this reason that constitutional challenges must be narrow and precise. The damage caused by broad theories as advanced in *40 Delvallie, Sealey , and Daniel could be devastating as more statutes must fall prey to the overly broad constitutional analysis.
Furthermore, the net effect of the conclusions reached in the dissenting opinions, if those were to be adopted by this court, is a declaration that the Ohio legislature may not delegate authority to the executive agency through separate provisions of the Ohio Revised Code, but must instead provide detailed rules and policies within the statutory section that creates the particular process, otherwise that statutory provision is unconstitutional. Beyond the damage to other statutory sections, such a broad declaration is in essence declaring that R.C. 5120.01 is a nullity, invalidating other policies that guide the ODRC’s substantive responsibilities over tasks mandated by law: Clemency Procedure: Death Penalty Cases (105-PBD-01) (“The purpose of this policy is to establish a standard procedure for considering clemency in death penalty cases.”); Kellogg Hearings (105-PBD-02) (“The purpose of this policy is to establish a standard procedure for providing mitigation hearings to those recommissioned offenders affected by the consent decree in Kellogg, et al. v. Shoemaker , et al. , (1996), 927 F. Supp 244.”); Parole Board Release Consideration Hearings (105-PBD-03) (“The purpose of this policy is to foster consistent parole board hearing procedures designed to promote public confidence and safety, as well as fair and objective decision-making, and to establish
procedures for transferring eligible inmates to transitional control.”); Request for Reconsideration and Amendments to Parole Board Actions (105-PBD-04) (“The purpose of this policy is to institute a fair and equitable process for the *41 reconsideration of Parole Board decisions and the amendment of Parole Board actions.”); Clemency Procedure: Non-Death Penalty Cases (105-PBD-05) (“The purpose of this policy is to establish a standard procedure for the application, processing, review, hearing and decision-making steps of the clemency process in non-death penalty cases.”); Full Board Hearing (105-PBD-06); Post Release Control Screening and Assessment (105-PBD-08) (“The purpose of this policy is to establish uniform guidelines and procedures for assessing offenders for post release control (PRC); imposing conditions of PRC supervision; and reducing the duration of supervision.”); Violation Hearing Process (105-PBD-09); Sexually Violent Predators
(105-PBD-11); Statutory Notice (105-PBD-13); 80% Court Release (105-PBD-14); Additional Term Hearing (105-PBD-15) — all of which are solely promulgated under R.C. 5120.01. Available at https://drc.ohio.gov/policies/parole-board.
On this latter point, much emphasis is placed on Morrissey , 408 U.S. at 489, as it pertains to Ohio’s parole revocation statute, R.C. 2967.15, and that section’s compliance with the Morrissey requirements. Morrissey itself does not even require the legislature to codify the procedural details, nor does it require the executive agency to formally draft rules in compliance with Morrissey . See, e.g., Wilkinson , 545 U.S. at 224, 125 S.Ct. 2384, quoting Morrissey (“Because the requirements of due process are ‘flexible and cal[l] for such procedural protections as the particular situation demands,’ we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures.”). After opining that a state’s statutory standards may *42 provide the constitutional compliance with the Morrissey decision, the Supreme Court also concluded that “if the procedures followed by the Parole Board are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases.” (Emphasis added.) Morrissey, 408 U.S. at 490. Thus, the Supreme Court acknowledges that the executive agency’s policies or procedures may satisfy due process concerns in addition to the statutory procedures, and those types of policy in Ohio arise from the legislature’s delegation of authority to the executive branch.
Morrissey does not stand for the proposition that the legislature needs to codify the procedural protections into an unmalleable statutory scheme. On the contrary, “once it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ The answer to that question is not to be found in the Ohio statute.” Cleveland Bd. of Edn. v. Loudermill , 470 U.S. 532, 541, 105 S.Ct.
1487, L.Ed.2d 494 (1985), quoting
Morrissey
. This is because
Morrissey
speaks of
the procedural requirements in general terms and not to any specific state statutory
requirements.
Witzke v. Pullins-Govantes
, 397 F.Supp.3d 975, 980
(E.D.Mich.2019);
Gonzalez v. Fife
, W.D.Wash. No. C07-5278, 2008 U.S. Dist.
LEXIS 46956, at 23-24 (June 17, 2008), citing
Morrissey
(finding statutory
procedures inadequate is not a finding that the statute is invalid based on
Morrissey
). Although the constitutional protections can be enacted through
statutory language, there is no requirement to do so.
See, e.g., Kell v. United States
Parole Comm
.,
We do not and cannot review the constitutional validity of statutes in a vacuum, especially when the challenged provisions rely on statutory language and procedures codified throughout the Revised Code. R.C. 2967.271(C) and (D) do not contain the policies and procedures under which the maximum-term hearings will
be conducted. As discussed above, nothing requires the legislature to provide this detail. See R.C. 2967.15. In deeming R.C. 2967.271(C) and (D) constitutionally infirm, the panels in Delvallie , Sealey , and Daniel have tacitly declared that the legislature cannot delegate authority to an executive agency or that the legislature is required to codify the details of any statutorily created hearing process.
Since Morrissey does not preclude the legislature from delegating authority to ODRC to promulgate the Morrissey procedural safeguards in lieu of codifying the procedures within the statutory text or through a formal administrative rulemaking or policy-making process, the next question involves the
impact of ODRC Policy 105-PBD-15 on R.C. 2967.271(C) and (D) on Delvallie , Sealey , and Daniel’s conclusions.
b. Administrative rules or policies, like statutes and ordinances, have the force of law and must be independently challenged
ODRC Policy 105-PBD-15 was expressly promulgated under R.C.
5120.01 and, therefore, must be considered as filling in the legislative gaps left by
R.C. 2967.271.
Rodriguez v. United States Parole Comm.
,
repealed 18 U.S.C. 4203(a)(1), which was similar to R.C. 5120.01 in that the *45 legislature authorized the administrative body “to adopt ‘rules and regulations’ as are necessary to carry out a national parole policy.” Id.
R.C. 5120.01 authorizes ODRC Policy 105-PBD-15 under ODRC’s authority to promulgate “rules and regulations.” Although ODRC Policy 105-PBD-
15 is self-described as a policy, the Ohio Supreme Court does not draw a distinction
between an administrative rule and a policy enacted through R.C. 5120.01 for the
purposes of reviewing the policy. In
Davie
,
We cannot draw any conclusions from ODRC’s chosen nomenclature, especially since R.C. 5120.01 expressly authorizes ODRC to draft “rules or
regulations” governing “all duties” conferred upon ODRC by the legislature. For our purposes, the use of the term “administrative policy” is synonymous with “administrative rule” for the purposes of Morrissey , although there are different *46 requirements for enactment of rules or policies. To conclude otherwise simply elevates form over substance at the expense of Supreme Court precedent. See Wilkinson , 545 U.S. at 228, 125 S.Ct. 2384, 162 L.Ed.2d 174 (holding that Ohio’s “new policy” promulgated under ODRC Policy 111-07 provided constitutionally valid procedures ensuring the protection of the inmate’s liberty interest despite the lack of a statutorily codified procedure). Since Sealey and Daniel , in particular, both rely on Morrissey , the sole concern is whether ODRC promulgated the procedures satisfying the guidelines set forth therein. Morrissey does not require a statutory procedure or one promulgated through formal agency rulemaking.
Accordingly, as the Tenth District has concluded, “[
a
]
dministrative
policies
are a means of accomplishing a legislative end.” (Emphasis added.)
O’Neal
,
of Job & Family Servs.
, 10th Dist. Franklin No. 11AP-832,
When agencies promulgate policies and regulations to fill legislative gaps, “courts * * * must give due deference to an administrative interpretation formulated by an agency that has accumulated substantial expertise, and to which the General Assembly has delegated the responsibility of implementing the legislative command.” *47 (Emphasis added.) Id. , quoting Northwestern Ohio Bldg. & Constr. Trades Council ,92 Ohio St.3d at 287 , and Swallow v. Indus. Comm. of Ohio ,36 Ohio St.3d 55 , 57,521 N.E.2d 778 (1988).
ODRC Policy 105-PBD-15 need not be formally adopted as a “rule” in
order to fill the gaps left by R.C. 2971.271(C)-(D).
O’Neal
at ¶ 33
.
As was expressly
concluded in
O’Neal,
“
[p]olicies
promulgated by administrative agencies are valid
and enforceable * * *” under the executive agency’s rulemaking authority.
(Emphasis added.)
O’Neal
, at ¶ 34, 51, citing
Williams v. Spitzer Autoworld Canton
,
L.L.C.
,
by an agency that has accumulated substantial expertise, and to which the General
Assembly has delegated the responsibility of implementing the legislative
command.’”
Id.
, quoting
Northwestern
at 289 and
Swallow
,
The Tenth District’s conclusions in O’Neal were affirmed by the Ohio Supreme Court . “‘As the United States Supreme Court has noted, “[t]he power of an administrative agency to administer a * * * program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or
explicitly,” by the legislature.’” (Emphasis added.)
O’Neal
, Slip Opinion No. 2021-
Ohio-3663, at ¶ 57, quoting
Northwestern
at 289, and
Morton v. Ruiz
,
Contrary to the black-letter law discussed in O’Neal , it has been suggested that ODRC policy is not akin to a rule or a regulation and, therefore, cannot be enforced or even discussed. As previously discussed, any difference between describing ODRC Policy 105-PBD-15 as a “policy” or a “rule” is not one of
distinction for the purposes of applying
Morrissey
, which only requires the
*49
executive branch to implement procedures under the
Morrissey
guidelines. In
order to avoid the implications of the delegation of authority and the effect of ODRC
Policy 105-PBD-15, the dissent claims that “an administrative policy” is not to be
enforced as an extension of the statute, citing
Oko v. Mohr
, 11th Dist. Ashtabula No.
2011-A-0045,
In Oko , the panel opined that the policy being discussed was promulgated under R.C. 5120.01 and constituted a policy, to be differentiated from an “administrative rule.” Id. at ¶ 16. First and foremost, R.C. 5120.01 authorizes ODRC to promulgate “rules and regulations,” not “policies.” Thus, any “policy” promulgated under R.C. 5120.01 is statutorily considered a “rule” or “regulation.” Regardless, the relator in Oko referred to the policy as an “Administrative Rule.” The court disagreed with that characterization, but that difference did not impact the conclusion that the policy in question did not require ODRC to issue the prisoner a second prison identification number. Id. In other words, the court reviewed the
particular policy and determined that it did not provide for the relief the relator requested. If the policy was not enforceable, the court could have merely declared that as a policy, it was to be disregarded in its entirety. Id. Instead, it reviewed the policy on its merits and concluded the policy did not afford the relator his requested relief. Oko’s offhand statement in dicta does not support a conclusion that ODRC Policy 105-PBD-15 can be ignored.
Similarly, in Sziraki , the panel adopted a magistrate’s decision in which it was concluded that an isolated statement on the Bureau of Workers’ Compensation’s website did not constitute a “rule” and in making that declaration,
the magistrate referred to the statement as a “policy.” Id. at Appendix. The relator in that writ action was attempting to argue that a statement on the Bureau of Workers’ Compensation’s website should be enforced as a legal requirement. Id. The magistrate’s decision, as adopted by the panel, declined to enforce the statement from the website as a controlling policy or procedure that the legislature authorized the agency to promulgate under its rulemaking authority. Id. Thus, the Sziraki Court, at most, concluded that the statement on the website did not carry the force
of law.
There is no dispute that ODRC Policy 105-PBD-15 was established under R.C. 5120.01 and is not simply a statement on ODRC’s website like the “policy” at issue in Sziraki that was not promulgated under R.C. 5120.01. It should go without saying that an isolated statement on a website from an unknown author is distinguishable from the Ohio legislature’s delegation of authority under R.C. 5120.01 to the director of ODRC to promulgate binding “rules and regulations” to govern “all duties” the legislature tasks ODRC to undertake. Id.
Neither Oko nor Sziraki is applicable. Nothing within those two case decisions stands for the proposition that a “policy” duly enacted through ODRC’s authority under R.C. 5120.01 is to be disregarded or is otherwise unenforceable for
the purposes of applying
Morrissey
when considering statutory text. Any overly
*51
broad declaration that a “policy” enacted under R.C. 5120.01 fails to carry the weight
of law has far-ranging implications for ODRC’s delegated authority to act, impacting
ODRC’s ability to function.
O’Neal
,
At this juncture of the proceedings, it should be enough to
acknowledge that
Sealey’s
and
Daniel’s
due process analysis, regarding the omission
of codified procedures in reliance on
Morrissey
, fail due to the existence of ODRC
Policy 105-PBD-15 that must be considered as part of R.C. 2967.271(C) and (D),
filling the legislative procedural gaps.
See, e.g., Wilkinson,
must at least acknowledge that the silence is based on the legislature’s delegation of authority to ODRC to craft the policies and procedures under which the maximum- term hearings are conducted. The legislature may delegate authority to the executive branch to promulgate those procedural safeguards under prevailing constitutional analysis, so the omission of the Morrissey requirements in R.C. 2967.271 cannot be the basis of declaring the Reagan Tokes Law unconstitutional.
c. The dissents’ conclusions challenge statutory provisions that extend beyond the Reagan Tokes Law The Morrissey minimum parole revocation hearing requirements, specifically identified in the dissenting opinions, are not enumerated in Ohio’s parole revocation statute, R.C. 2967.15. Instead, those requirements are enacted or enforced under the executive agency’s authority to establish policies, rules, or regulations separate from the Ohio Revised Code. Under R.C. 2967.15(B), “the adult
parole authority shall grant the person a hearing in accordance with rules adopted
by the department of rehabilitation and correction under Chapter 119 of the Revised
Code.” Certainly, there cannot be any suggestion that Ohio’s parole revocation
statute is unconstitutional since R.C. 2967.15 is silent as to the
Morrissey
minimum
requirements and solely relies on ODRC’s policy-making authority.
See, e.g
.,
Wilson
v. State
,
But that is exactly the conclusion that must be reached based on the dissents’ analysis declaring R.C. 2967.271(C) and (D) unconstitutional based on the failure to enumerate the Morrissey procedural requirements in the statutory section instead of relying on the delegation of authority to ODRC to promulgate the procedural rules or policies. In declaring R.C. 2967.271(C) and (D) unconstitutional,
the dissents rely on an argument that would similarly impact R.C. 2967.15, which also fails to delineate the policies and procedures to be used at the parole revocation *53 hearing, among other provisions of the Ohio Revised Code. This is not the only administrative rule, regulation, policy, or procedure that is impacted by such a broad declaration.
In
Delvallie
, 8th Dist. Cuyahoga No. 109315,
public media is replete with reports of attacks by inmates against inmates, inmates against corrections officers, and corrections officers against inmates. Does the statute advise, for example, that if attacked by a definite term inmate with nothing to lose, the offender best run like the wind because involvement in an altercation, assuming he survives, could cost him his release?
Id. at ¶ 68. Delvallie then claimed that R.C. 2967.271(C) and (D) are unconstitutional because of the lack of due process concerning the prison rule infraction system.
The challenge to the prison rule infraction system as a reason to invalidate the Reagan Tokes Law cannot be viewed in isolation. No provision of the Reagan Tokes Law creates a new prison rule infraction system permitting ODRC to unilaterally act without recourse or procedural guidance. Ohio Adm.Code
5120-9-08 sets forth an inmate’s rights and the procedures the Rules Infraction
Board are to follow in imposing any and all institutional infractions upon the
inmates.
See, e.g., Oko v. Lake Erie Corr. Inst
., 11th Dist. Ashtabula No. 2010-A-
*54
0002,
the Rules Infraction Board).
R.C. 2967.271(C) and (D) simply rely on the results of those
proceedings, which are conducted under an Ohio Administrative Code section that
has not been challenged and, importantly, is not part of the Reagan Tokes Law itself.
The maximum-term hearing simply borrows from the results of that rules infraction
proceeding, and
Delvallie’s
claim that the infraction system is constitutionally
infirm impacts the current provisions of the Ohio Revised Code well beyond our
current review. R.C. 2967.271(C) (relying on the results of the rules infraction
board); ODRC Policy 105-PBD-15, Section VI. B. 1-3. Any challenges to the
infraction system must be advanced through a separate writ action when the
infraction has been declared and impacts the duration of confinement.
State ex rel.
Larkins v. Wilkinson
, 79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997) (writ of
mandamus will not lie “absent evidence that the challenged institutional action
would affect the inmate’s duration of confinement”), citing
Samuels v. Mockry
, 77
F.3d 34, 37 (2d Cir.1996);
Lane v. Russell
,
unconstitutional since that creates the framework Delvallie questions.
Any conclusion that R.C. 2967.271(C) and (D) deprive offenders of their due process rights is solely based on reviewing R.C. 2967.271 to the exclusion *55 of ODRC rules, policies, or procedures established under R.C. 5120.01. ODRC Policy 105-PBD-15. Through R.C. 2967.271(C) and (D), the legislature tasked ODRC with conducting hearings to determine enforcement of the maximum term imposed
under R.C. 2929.144, the notice for which occurs under R.C. 2967.12, the notice statute for parole hearings. The legislature further authorized the director of ODRC to establish policies, rules, and procedures in compliance with its statutory duties based on the legislature’s delegation of authority to the executive agency. R.C. 5120.01; ODRC Policy 105-PBD-15, Section I. R.C. 2967.271 is not unconstitutional based on a Morrissey violation. IV. The State’s Claim as to the Ripeness of Reviewing the Validity of the Imposed Sentences is Overruled And finally, there is a distinction that must be addressed between challenging the imposition of a sentence by claiming the statute authorizing the sentence is constitutionally infirm and appealing the lack of due process for the specific manner in which the sentence for a particular inmate is later carried out. These appeals, being considered en banc, deal with the first question, and that is the only question at this stage that is ripe for our review.
a. Distinguishing the claims that are ripe for review from the
claims implicating ODRC’s rulemaking authority
We are tasked with determining whether the sentence as constructed
under the Reagan Tokes Law is valid, and that question can only be raised in a direct
appeal. 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
*56
subjected to when the sentence is actually carried out by the executive branch. The
remedy to a second claim, when it becomes ripe, will not be to invalidate the
sentence or conviction, but instead the remedy will be only to require a
constitutionally sound proceeding through which the defendant’s sentence can be
completed.
Sloan
,
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.
See, e.g., O’Neal
,
On this point, the state, in its general claim that these issues are not ripe for review, appears to be confusing challenges to the imposition of a sentence,
State v. Patrick
,
In Patrick , for example, the Ohio Supreme Court concluded that an appeal of an indefinite sentence imposed for aggravated murder or murder based on
constitutional challenges to the imposed sentence may be considered in the direct
appeal despite statutory limitations.
Patrick
at ¶ 22. Although not directly on point,
Patrick
is instructive. In essence,
Patrick
maintains that an offender sentenced to
serve an indefinite term of imprisonment may challenge the constitutional validity
*58
of the sentence itself, including challenges to the sentencing structure upon which
the sentence is based, in the direct appeal. This is no different from the conclusion
reached in
Wilburn,
8th Dist. Cuyahoga No. 109507,
However, there are limits to the type of arguments that can be
addressed within the scope of a direct appeal. The general ripeness paradigm as
recognized in
Wilburn
and other cases from this district dealing with the issue in the
Reagan Tokes Law context, is necessarily limited to constitutional challenges
against the sentence imposed or the validity of the statute authorizing the sentence.
Our view here is not in conflict with
Wilburn
or with
Gamble
where we exhaustingly
discussed ripeness of the imposition of a nonlife indefinite sentence.
See, e.g.,
Wilburn
at ¶ 10-18
; Gamble
, 8th Dist. Cuyahoga No. 109613,
the sentencing structure underlying the final sentence imposed — hypothetically speaking, if the defendants’ arguments were accepted, the result would be a remand for a new sentencing in which a “valid” sentence is imposed after the unconstitutional sentencing provision was severed from the Revised Code. It is that remedy that defines the boundaries of what claims are acceptable to bring in a direct appeal.
The remedy to correct
Morrissey
problems is not to invalidate the
sentence or declare the law to be unconstitutional, but instead the remedy is to
require a constitutionally sound proceeding through which the defendant’s sentence
can be completed, whether by statute, rule, regulation, or a policy of the executive
agency.
See Sloan
,
the claims advanced against the sentence was addressed, but no defendant attempted to challenge the procedures that ODRC uses in carrying out the sentence.
For our en banc purposes, a defendant cannot extend the scope of the
permissible argument challenging the sentence itself into one attacking the
administrative rules or regulations, under R.C. 5120.01 parlance, establishing the
procedures to maintain the offenders within the prison system — a proposition that
was first implicated by the sua sponte discussion of the
Morrissey
requirements
from
Delvallie
,
Sealey
, and
Daniel
, which necessarily implicates the legislature’s
authority to delegate rulemaking authority to ODRC to promulgate ODRC Policy
105-PBD-15.
[8]
See Wilkinson
, 545 U.S. at 220, 125 S.Ct. 2384, 162 L.Ed.2d 174.
Those
Morrissey
claims solely depend on reviewing the administrative rules,
policies, procedures, or protocols enacted by the executive branch, and are only
cognizable through separate action, such as one for declaratory or habeas relief,
since the claims depend on conditions or arguments that may or may not occur
during the offender’s prison service.
Kepling
, 3d Dist. Hancock No. 5-20-23, 2020-
Ohio-6888, at ¶ 15, fn. 3;
O’Neal
,
In O’Neal , two inmates filed complaints seeking declaratory and injunctive relief to determine the validity of execution procedures ODRC drafted to
enforce a sentence of death imposed by the trial court. Id. at ¶ 3. ODRC maintains an execution protocol setting forth comprehensive and detailed procedures to be utilized in carrying out court-ordered executions in Ohio. In other words, ODRC established procedural rules or policies governing its enforcement of a judicially imposed sentence. Id. at ¶ 2. Although O’Neal is not directly on point, the case illustrates the compartmentalization of the challenges against the imposition of the sentence (the defendants’ claims in this en banc proceeding) from challenges advanced against the procedures the executive branch uses to enforce those sentences (the dissents’ reliance on Morrissey ). A defendant cannot challenge ODRC’s enforcement of its rules, policies, procedures, or protocols, which are necessary to ODRC’s enforcing a judicially imposed sentence, in a direct appeal of the criminal action. See generally id. Any such claims are not cognizable in the direct criminal appeal because those claims cannot arise until ODRC attempts to enforce its rules, policies, procedures, or protocols against the inmate. Id. Thus, the inmate’s claims against the enforcement of ODRC rules, policies, procedures, or protocols are only cognizable in a separate action and are outside the scope of a direct appeal. Id.
It is for this reason that we can summarily reject any claim that the direct appeals of the imposed nonlife, indefinite sentence are not ripe for review. A
defendant has the right to appeal the constitutional validity of the imposed sentence
*62
in a direct appeal.
Patrick
,
In other words, the lack of expressly delineated procedures within R.C. 2967.271 is not a basis to declare the statutory section unconstitutional because the legislature delegated authority for ODRC to promulgate a rule and regulation expressly detailing the procedural requirements of the hearing through R.C. 5120.01. Whether those rules comply with Morrissey is an issue left for another day
when properly advanced by the defendants.
Further, and in light of
Delvallie
, 8th Dist. Cuyahoga No. 109315,
sentence imposed but without merit), we can reject the state’s claim that a
defendant’s challenge as to the validity of the imposed sentence is not ripe for
review. The constitutional implications of the defendants serving sentences
imposed under the Reagan Tokes Law have been decided and further have been
addressed by the state’s appeal of the trial court’s failure to impose an indefinite
sentence in
Simmons
, 8th Dist. Cuyahoga No. 109476,
It suffices that seeking to invalidate a sentence that was imposed as being in violation of the Constitution differs from seeking to challenge the procedural rules for release determination under R.C. 2967.271. Id. Only the former may be challenged in the direct appeal. Id. The latter is not ripe for review until properly challenged in a writ or declaratory judgment action. Id.
V. Conclusion
Based on the foregoing, the defendants, including Delvallie, have not sufficiently met their burden to prove the whole of the Reagan Tokes Law to be unconstitutional beyond a reasonable doubt. The panel decisions Delvallie, Daniel, and Sealey are hereby vacated. The opinion issued in Gamble is not in conflict with the foregoing and, therefore, remains the decision in that case. As a result of the
foregoing, Delvallie’s sole assignment of error is overruled and his conviction is affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s *64 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., and CORNELIUS J. O’SULLIVAN, JR., JJ., CONCUR;
EILEEN A. GALLAGHER, KATHLEEN ANN KEOUGH, and MICHELLE J. SHEEHAN, JJ., CONCUR WITH SECTIONS II. AND V. OF THE MAJORITY OPINION AND CONCUR IN JUDGMENT ONLY WITH THE REMAINDER; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION);
LISA B. FORBES, J., DISSENTS (WITH SEPARATE OPINION); EILEEN T. GALLAGHER, EMANUELLA D. GROVES, MARY EILEEN KILBANE, and ANITA LASTER MAYS, JJ., CONCUR;
ANITA LASTER MAYS, J., DISSENTS IN PART AND CONCURS IN PART (WITH SEPARATE OPINION); EMANUELLA D. GROVES and MARY EILEEN KILBANE, JJ., CONCUR.
MARY J. BOYLE, J., CONCURRING IN JUDGMENT ONLY:
Consistent with my dissenting opinion in the original panel decision
in
State v. Gamble,
“[C]onstitutional questions are not ripe for review until the necessity for a decision arises on the record before the court.” State v. Spikes , 129 Ohio App.3d 142, 147, 717 N.E.2d 386 (11th Dist.1998), citing Christensen v. Bd. of Commrs. on Grievances & Discipline , 61 Ohio St.3d 534, 535, 575 N.E.2d 790 (1991). In order to determine whether an issue is ripe for judicial review, “‘the court must weigh (1) the likelihood that the alleged future harm will ever occur, (2) the
likelihood that delayed review will cause hardship to the parties, and (3) whether the
factual record is sufficiently developed to provide fair adjudication.’”
Gamble
at
¶ 20, quoting
Stewart v. Stewart
,
In
State v. McCann
, 8th Dist. Cuyahoga No. 85657,
*66
Several of our sister districts have relied upon our decision in
McCann,
in determining that challenges to sentencing under the Reagan Tokes Act
are not ripe for review until a defendant has been held past his or her minimum
sentence.
See, e.g., State v. Halfhill
, 4th Dist. Meigs No. 20CA7,
Other districts have not addressed the ripeness issue, but have
implicitly determined that the matter was ripe by proceeding to the merits of the
appeal.
See, e.g., State v. Henderson
, 12th Dist. Warren No. CA2020-11-072, 2021-
Ohio-3564;
State v. Hacker,
The Supreme Court of Ohio has certified a conflict among the districts on the following question:
Is the constitutionality of the provisions of the Reagan Tokes Law, which allow the Department of Rehabilitation and Correctio[n] to administratively extend a criminal defendant’s prison term beyond the presumptive minimum term, ripe for review on direct appeal from sentencing, or only after the defendant has served the minimum term and been subject to extension by application of the Act?
See State v. Maddox
,
Returning to the conflict cases before us, none of the three factors used to determine ripeness weighs in favor of the claims of a defendant who has not yet been subject to the provisions of Reagan Tokes. First, the likelihood of harm occurring is completely unknown at this time. It is possible that none of the conditions in R.C. 2967.271(C) will occur, and there may never be a question as to
whether the sentence would be extended beyond the minimum term. At the time of
a defendant’s direct appeal of sentencing, there is only the potential for a defendant
to be subjected to the maximum prison term. “Generally, a claim is not ripe if the
claim rests upon ‘future events that may not occur as anticipated, or may not occur
at all.’”
McLaughlin v. McLaughlin
, 4th Dist. Athens No. 06CA14,
Moreover, while a party is not required to await the consummation
of threatened injury to obtain preventive relief, the injury must be ‘“certainly
impending.’”
Thomas v. Union Carbide Agricultural Prods. Co.
,
Pennsylvania v. West Virginia
,
Like the defendant in McCann , supra, criminal defendants challenging the provisions of Reagan Tokes raise issues with the process that may extend their sentence. In McCann , the defendant argued that the postrelease control statute violated his right to a jury trial by allowing the parole board to extend his sentence. A challenge to Reagan Tokes is in the same vein — it is the ODRC that
will decide whether the defendant must serve the maximum sentence rather than only the minimum sentence, and it is the process through which this determination is made by the ODRC that defendants claim is unconstitutional.
The ODRC is permitted to rebut the presumption of a defendant’s minimum sentence and keep a defendant in prison for an additional period not to exceed the maximum term imposed by the sentencing judge. R.C. 2967.271(C). The statute provides that the presumption may be rebutted if the ODRC determines at a hearing any of the following:
(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 *70 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.
When reviewing appeals from sentencing, it is impossible for us to know whether any of the above conditions will occur and rebut the presumption of the minimum sentence. Thus, a criminal defendant raising challenges to Reagan Tokes in his or her direct appeal is not currently subject to any action by the ODRC
related to extending his or her sentence, and he or she may very well never be. This is the very epitome of a failure to demonstrate ripeness.
The Third District has come to a similar conclusion regarding due process challenges to Reagan Tokes:
[A]t this point, we cannot even determine whether the ODRC will ever have occasion to hold a hearing to determine whether Kepling should be held beyond his presumptive release date. Similarly, we cannot now determine whether the ODRC will provide Kepling with adequate notice and an opportunity to be heard if a hearing to hold Kepling beyond his presumptive release date is ever held. Further, as the appellant notes in his brief, we also cannot now know what administrative protections will be in place in the future to guide the ODRC.
[This argument] “rests on contingent future events that may not occur as anticipated or may never occur at all.” [ State v. ] Loving, [180 Ohio App.3d 424,2009-Ohio-15 ,905 N.E.2d 1234 , ¶ 4 (10th Dist.)]. For this reason, we conclude that the arguments that Kepling raises on appeal that do not raise a facial challenge to the Reagan Tokes Law are not yet ripe for consideration. * * *
State v. Kepling
, 3d Dist. Hancock No. 5-20-23,
The Eleventh District has also determined that challenges to Reagan Tokes were not ripe for review, likening them to challenges to Ohio’s former “bad
time” laws and to optional postrelease control. On appeal from sentencing, these
challenges were held not to be ripe, because the offender only had the “‘
potential
to
be subjected to extended prison time or postrelease control.’” (Emphasis sic.)
State
v. Lavean
, 11th Dist. Lake No. 2020-L-045,
This court has recently decided the case of
State v. Sealey,
2021-
Ohio-1949,
While Sealey did not specifically address the question of ripeness, Sealey did present a ripe issue. Because the trial court did not sentence the defendant to the minimum and maximum sentence provided for by Reagan Tokes, the issue was already present and justiciable, and there were no contingent events that had to occur prior to review. Sealey can therefore be distinguished from the instant cases where defendants were properly sentenced to minimum and maximum sentences under Reagan Tokes and raise issues with the process that triggers the maximum sentence — a process that is contingent upon certain factors
and may never occur in many cases.
The second factor in analyzing ripeness asks whether delayed review will cause hardship to the parties. This question may also be answered in the negative because, as noted by the Fourth District, a defendant subject to the provisions of Reagan Tokes may have his or her claims addressed via a writ for habeas corpus:
[A] petition for a writ of habeas corpus was the procedure by which the defendants in Bray challenged the constitutionality of the “bad time” statute, R.C. 2967.11. The defendants were sentenced, served their prison terms, and then were sanctioned with bad time penalties that were added to the maximum sentence imposed by the trial court. Each
defendant filed a petition for a writ of habeas corpus, alleging that they were unlawfully restrained because R.C. 2967.11 was unconstitutional. Similarly, in Woods v. Telb , 89 Ohio St.3d 504,2000-Ohio-171 , 733 N.E.2d 1103, an inmate, Woods, challenged the post-release control statute, R.C. 2967.28, on the grounds that it violated the separation of powers doctrine and due process. Woods was sentenced to ten months *73 in prison and then placed on post-release control for three years. After a number of violations, Woods was sanctioned to serve one hundred and eighty days in a community based correctional facility. Woods filed a petition for a writ of habeas corpus arguing that the post-release control statute was unconstitutional. The Supreme Court of Ohio held that the post-release control statute was constitutional. As in Bray , the Court did not specifically discuss the necessity of the use of a petition for a writ of habeas corpus to challenge the constitutionality of the post- release control statute, the Court ruled on the merits, finding the statute constitutional. Thus, as with Bray and as recognized by the Fifth District in Downard and Minion , we find that a habeas corpus petition is the appropriate method for Ramey to challenge the constitutionality of the Reagan Tokes Law when — if ever — the ODRC holds him beyond the minimum sentence.
State v. Ramey
, 4th Dist. Washington Nos. 20CA1 and 20CA2,
With regard to the third ripeness factor, the factual record in direct appeals raising Reagan Tokes constitutional challenges is not sufficiently developed
for us to provide fair adjudication. Because the defendants in the conflict cases have not been subject to any determination by the ODRC, there is nothing in the record that would allow us to assess whether the process of such determination violates a defendant’s constitutional rights.
Finally, while Delvallie argues that the ripeness argument cannot
survive the Supreme Court of Ohio decisions in
Harper, Henderson,
and
Hudson
,
these decisions, along with this court’s recent en banc opinion in
State v. Stansell
, 8th Dist. Cuyahoga No. 109023,
the determination of whether to keep him beyond the minimum sentence and trigger the maximum sentence. A defendant may raise issues with the ODRC process of triggering the maximum sentence at the time such actions actually occur and not before, when the challenges are not yet ripe.
Thus, in accordance with the law of several of our sister districts, I maintain that this issue is not ripe for judicial review. However, because the Reagan Tokes Act decisions accepted by this court for en banc review present a clear conflict,
I am duty-bound under App.R. 26(A)(2) to consider the issues presented. I resolve that conflict in favor of finding the Reagan Tokes Act to be constitutional and concur in judgment only.
LISA B. FORBES, J., DISSENTING WITH SEPARATE OPINION:
I dissent from the majority because the presumption of release established in R.C. 2967.271(B) and (C) creates a liberty interest of which inmates may not be deprived without due process of law, but R.C. 2967.271 does not contain *75 any due process safeguards. Consequently, I would find R.C. 2967.271(C) and (D) unconstitutional.
I. Standard of Review
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
,
In the instant case, the defendant brings a facial challenge to the Reagan Tokes Law and the trial court’s imposition of his prison sentence under it. 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
,
II. Constitutionality of the Reagan Tokes Law
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. R.C. 2967.271. Under this scheme, courts sentence a defendant to a minimum and maximum prison term, with a presumption that the defendant “shall be released from service of the sentence on the expiration of the offender’s minimum prison term * * *.” R.C. 2967.271(B). This presumption that the “offender shall be released” may be rebutted by the Ohio Department of Rehabilitation and Correction (“DRC”) “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 *77 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.
R.C. 2967.271(C).
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.
A. Due Process
Under the Fourteenth Amendment to the United States Constitution, the states shall not “deprive any person of life, liberty, or property, without due process of law.” See also Fifth Amendment to the United States Constitution; Ohio Constitution Article I, Section 16. The United States Supreme Court has recognized that “the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a
variety of important rights that the courts must be alert to protect.”
Meachum v.
Fano
,
* * * and * * * certain protections of the First Amendment * * *.”
Shaw v. Murphy
,
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
,
It is with that context in mind that I 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,
B. Is There a Liberty Interest in the Reagan Tokes Law?
I recognize that the lead opinion assumes that R.C. 2967.271(B) creates a liberty interest. Because of the significance of the implications that flow from the liberty interest, I fully analyze the issue and conclude that R.C. 2967.271(B)
does create a liberty interest.
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,
2963,
to Ohio law for guidance.
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 misbehavior.” Id . at 557. Therefore, the court held, “the prisoner’s interest has real substance and is sufficiently embraced within the Fourteenth Amendment ‘liberty’
to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Id .
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
,
Swarthout at 220.
Further guidance is found in Wilkinson . The United States Supreme Court made clear that inmates may have “a protected, state-created liberty interest *80 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, 125 S.Ct. 2384, 162 L.Ed.2d 174, quoting Sandin v.
Conner
,
As courts throughout Ohio have reviewed 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,
revocation proceedings, and postrelease control violation hearings * * *”) with
State
v. Leet,
2d Dist. Montgomery No. 28670,
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 Nebraska Penal & Corr.
*81
Complex,
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
,
group of factors, shall not create a presumption of release on parole * * *.” This court has held that a “prisoner who is denied parole is not thereby deprived of ‘liberty’ if state law makes the parole decision discretionary. Under R.C. 2967.03, the parole decision is discretionary.” State v. Ferguson , 8th Dist. Cuyahoga No. 82984, 2004- Ohio-487, ¶ 9-10. Compare Swarthout , 562 U.S. at 216-217, 131 S.Ct. 859, 178 L.Ed.2d 732, quoting Cal. Penal Code Ann. 3041(b) (the prison board ‘“shall set a *82 release date unless it determines that * * * consideration of the public safety requires a more lengthy period of incarceration.’”).
Unlike Ohio’s parole eligibility proceedings, the Reagan Tokes Law includes an express presumption of release: “When an offender is sentenced to a nonlife 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 * * *.” R.C. 2967.271(B). That presumption of release is repeated in R.C. 2967.271(C): “Unless the [DRC] rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the
offender’s minimum prison term* * *.” A liberty interest may arise “from an expectation or interest created by state laws or policies.” Wolff at 557. The plain language of the Reagan Tokes Law creates an expectation of release.
I would find that, like the Nebraska statute in
Wolff
and the
California statute in
Swarthout
, the Reagan Tokes Law creates a liberty interest. I
would 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. I agree
with the Twelfth District Court of Appeals’ opinion in
Guyton
, 12th Dist. Butler No.
CA2019-12-203,
more akin to parole revocation proceedings than parole eligibility proceedings. The liberty interest at stake here is the inmate’s freedom.
C. What Process is Due?
Concluding — not assuming — the creation of a liberty interest, I turn
my 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
,
accused is entitled to fair notice of what conduct is “punishable.”
State v. Philpotts
,
“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,
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, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of *84 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.
Wolff
,
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.
Mathews v. Eldridge
,
The Mathews 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.
Applying the Mathews factors to the Reagan Tokes Law, I would find that the private interest is an inmate’s freedom; the risk of erroneous deprivation is high, even taking into consideration the diminished protection afforded a prison *85 inmate; and the government’s interest in running prisons is strong and its resources are scarce.
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.
Morrissey
, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484. The
Morrissey
due
process safeguards have been applied to proceedings other than parole revocation.
Gagnon v. Scarpelli
,
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,
should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id . at 566. The Wolff Court concluded that “some, but not all, of the procedures specified in Morrissey * * * must accompany the deprivation of
good time by state prison authorities,” although the procedures are “not graven in stone.” Id . at 571-572.
In the context of a statutorily created liberty interest in parole, the
Swarthout
Court found the due process “procedures required are minimal.”
Swarthout
,
D. Does the Reagan Tokes Law Satisfy the Requirements of Due Process?
Next, I turn to whether the procedures identified in R.C. 2967.271 for rebutting the presumptive release date and extending the prison term are sufficient to protect inmates’ due process rights in light of the guidance as discussed in this opinion.
For the reasons that follow, I disagree with the holdings in both
Wilburn
and
Simmons
, where this court determined that the Reagan Tokes Law
provides adequate due process safeguards, including “notice and an opportunity to
*87
be heard.”
Simmons
, 8th Dist. Cuyahoga No. 109476,
(2), and (3); R.C. 2967.271(E); and various provisions of the Ohio Administrative
Code, none of which provide any due process protections to defendants in the
rebuttable presumption hearings.
See Wilburn
at ¶ 31-36, and
Simmons
at ¶ 21. The
lead opinion relies on an internal policy that became effective approximately 16
months after Delvallie’s sentencing. This policy is similarly insufficient to save
R.C. 2967.271(C) and (D) in this facial challenge to the statute, as will be discussed
in response to the lead opinion.
R.C. 2967.271(C) does not set forth any procedures for the rebuttable
presumption hearing, and most importantly, it does not require that the hearing be
meaningful. The only guidance the statute gives is (a) the DRC may rebut the
presumption of release, and (b) the DRC decides whether it has done so.
See
generally Columbus-Suburban Coach Lines v. Pub. Utils. Comm
., 20 Ohio St.2d
125, 127,
Subsections (1), (2), and (3) of R.C. 2967.271(C) set forth behavior and circumstances that may serve as the basis for the DRC to rebut the presumption of release. For example, the DRC may rely on certain prison rule infractions committed by the offender while incarcerated as part of the rebuttable presumption *88 hearing. Ohio Adm.Code 5120-9-06 defines DRC “disciplinary violations * * * of institutional or departmental rules and regulations,” and Ohio Adm.Code 5120-9- 08 and 5120-9-10 set forth disciplinary procedures for adjudicating prison rule infractions and restrictive housing assignments. However, how — if at all — those administrative rules overlap with or apply to the Reagan Tokes Law rebuttable
presumption hearing is wholly unexplained by the Reagan Tokes Law. See R.C. 2967.271(C)(1)(a). Importantly, nothing in R.C. 2967.271(C) limits the DRC’s consideration of an inmate’s prison rule infractions to infractions that have gone through the administrative process outlined in the Ohio Administrative Code.
Moreover, the DRC may rebut the presumption of release based on the inmate having “committed a violation of law that was not prosecuted.” R.C. 2967.271(C)(1)(a). The statute does not provide that the inmate be notified that
he or she is being accused of committing a violation of law that has not been prosecuted or be present at the rebuttable presumption hearing, much less that he or she be given an opportunity to defend against the allegation of such unprosecuted crime.
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.” R.C. 2967.271(C)(1)(a) and (b). Again, the statute is silent on whether the offender will be provided information about the factual basis the DRC intends to rely on to establish either of these necessary elements for rebuttal, and *89 the statute makes no provision for the offender to be given an opportunity to rebut the DRC’s assertions.
If the DRC determines that the DRC has rebutted the presumption of release pursuant to R.C. 2967.271(C), the DRC “may maintain the offender’s incarceration * * * after the expiration of the offender’s minimum prison term * * * for an additional period of incarceration determined by the [DRC] and shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D). There are no guidelines whatsoever concerning how the DRC makes its decisions under subsection (D). Additionally, R.C. 2967.271(D) does not provide for a hearing separate from the rebuttable presumption hearing required under subsection (C). R.C. 2967.271(E) does not protect prison inmates’ due process rights. Subsection (E) states that the DRC “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 specified in section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be conducted regarding the possible release on parole of an inmate.” [12] R.C. 2967.12 addresses individuals and entities to whom notice shall be given in the event the adult parole authority recommends a pardon or commutation, or grants parole. R.C. Chapter 2930 outlines victims’ rights. Specifically, subsection (E) provides for notice of the Reagan Tokes Law rebuttable presumption hearings
*90 to be given to the prosecuting attorney from the inmate’s case; the judge or presiding judge of the court in which the inmate was indicted; the victims or victims’ representatives of the crimes of which the inmate was convicted; and certain law enforcement agencies. Nothing in subsection (E) provides notice of the rebuttable presumption hearing to the inmate.
In
Wilburn
, this court held that the Reagan Tokes Law provides a
“hearing at which an inmate can appear and present statements on his behalf.”
Wilburn
, 8th Dist. Cuyahoga No. 109507,
Cuyahoga No. 109476,
While R.C. 2967.271 provides for a rebuttable presumption hearing, nothing in the statute requires that this hearing be meaningful. There is no provision in the Reagan Tokes Law that the inmate be made aware of the evidence the DRC intends to use to rebut the presumption, “be heard in person,” be allowed
“to present witnesses and documentary evidence,” or be allowed “to confront and
cross-examine” witnesses.
Morrissey
,
does not provide the due process safeguards set forth in Morrissey , Wolff , and their progeny.
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. I am 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, I 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.
The Ohio legislature knows how to include due process safeguards in statutes. For example, in R.C. 2967.28(E)(5)(d), the legislature authorized the DRC to adopt rules in accordance with Chapter 119 of the Revised Code that “[e]stablish *92 standards to be used by the adult parole authority in imposing further sanctions” for postrelease control violations, “including standards that * * * [e]nsure procedural due process to an alleged violator * * *.” As another example, the legislature expressly specified due process protections in R.C. 2971.04, [13] which addresses parole board termination of its control over certain offenders’ service of their prison terms. That statute itself provides “The offender has the right to be present at any hearing held under this section. At the hearing, the offender and the prosecuting attorney may make a statement and present evidence as to whether the parole board should terminate its control over the offender’s service of the prison term * * *.”
I conclude in this dissent that subsections (C) and (D) are unconstitutional. However, I stop short of delineating the procedural safeguards necessary to align the statute’s proceedings with the Fourteenth Amendment to the
United States Constitution and Article I, Section 16, of the Ohio Constitution.
See
generally Sandin
, 515 U.S. at 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (noting the
negative effects of involving the “courts in the day-to-day management of prisons,
often squandering judicial resources with little offsetting benefit to anyone. In doing
so, it has run counter to the view expressed in several of our cases that federal courts
*93
ought to afford appropriate deference and flexibility to state officials trying to
manage a volatile environment”). What process is due is a malleable concept, and
one I think better left to the legislature to sort out. Courts cannot simply rewrite a
statute to make it constitutional.
Pratte v. Stewart
,
Finally, a few words in response to the lead opinion. In the case at
hand, Delvallie disputes the constitutionality of the Reagan Tokes Law in this facial
challenge. When reviewing a facial challenge, courts “must be careful not to exceed
the statute’s actual language * * *.”
Wymsylo
,
The lead opinion repeatedly mischaracterizes this dissenting opinion as attempting to declare the entire Reagan Tokes Law unconstitutional and 53 statutory sections unenforceable “with no analysis.” This is simply not accurate.
Rather, this dissent cites the specific offending statutory provisions, concludes that subsections (C) and (D) of R.C. 2967.271 are unconstitutional, and analyzes due process in general, what constitutes a liberty interest, what process is due, and whether the Reagan Tokes Law’s procedures for denying inmates their *94 liberty interest in being released from prison on their presumptive release date satisfy due process requirements.
A reviewing court need not declare an entire statutory scheme unconstitutional to conclude that a particular statute is unenforceable. A digression to introduce an analogy is apropos at this time. If a car’s transmission or engine fails, this car may be undriveable. Does this mean that the entire car is broken? Not necessarily. A faulty engine or transmission, by itself, is nothing more than a faulty engine or transmission. However, this faulty component is integral enough to the whole that its failure may render the car unusable. Just like the statute at issue in
the case at hand, the unconstitutionality of R.C. 2967.271(C) and (D), which cannot be severed, render the indefinite sentences imposed under the Reagan Tokes Law “unusable” — not unconstitutional, but inoperable.
The lead opinion further assumes that because Sealey affirmed the trial court’s holding that the Reagan Tokes Law is unconstitutional, the Sealey panel necessarily did so using the same reasoning that the trial court used. Specifically, the lead opinion states as follows: “While it may have been the panel’s intent to only find subsections (C) and (D) of R.C. 2967.271 unconstitutional, the net effect of the panel’s ruling affirmed the trial court’s holding that the ‘Reagan Tokes Law’ is unconstitutional in its entirety.” Ante at ¶ 3. This is simply not accurate. Sealey’s
clear, autonomous, and precise reasoning declared R.C. 2967.271(C) and (D)
unconstitutional. It is well-established that “[i]t is the duty of the reviewing court to
affirm the judgment if it can be supported on any theory, although a different theory
*95
from that of the trial court.”
Newcomb v. Dredge
, 105 Ohio App. 417, 424, 152
N.E.2d 801 (2d Dist.1957). “This is so because reviewing courts affirm and reverse
judgments, not the reasons for the judgments.”
Geneva v. Fende
, 11th Dist.
Ashtabula No. 2009-A-0023,
The lead opinion posits that the Reagan Tokes Law is constitutional because DRC Policy 105-PBD-15 rescues the statute by providing due process protections. This argument fails.
First, DRC Policy 105-PBD-15 is not being appealed in this case. That policy was not in effect at the time the parties brought this appeal, it was not in effect at the time the parties submitted their briefs, and it was not in effect at the time the parties participated in oral argument in this case. It is not before this court to
consider whether the DRC policy provides due process protections that are absent
from the statute.
See State v. Tate
,
Second, a policy is not a rule. The lead opinion repeatedly mischaracterizes DRC Policy 105-PBD-15 as an administrative “rule,” which has the force of law, when, in fact, it is a policy, which does not have the force of law. Importantly, the legislature did not delegate, or even attempt to delegate, any rulemaking authority in R.C. 2967.271.
The Ohio Supreme Court has held that an administrative rule “issued pursuant to statutory authority has the force and effect of law * * *.” Kroger Grocery *96 & Baking Co. v. Glander , 149 Ohio St. 120, 125, 77 N.E.2d 921 (1948). An administrative rule, promulgated pursuant to R.C. Chapter 119, goes through
extensive review and comment prior to being afforded the authority of law.
Administrative rulemaking is subject to the conditions set out in
R.C. 119.01 to 119.13. Generally, these conditions require that notice be
given of a public hearing to be held on a proposed rule, where persons
affected thereby may comment and present evidence pertaining to the
unreasonable or unlawful effect of the rule. R.C. 119.03(A). The rule is
then reviewed by the Joint Committee on Agency Rule Review, which
may, under certain circumstances, recommend that the General
Assembly adopt a resolution invalidating the rule. R.C. 119.03(I).
Assuming that the rule is not invalidated at this point, it is still subject
to invalidation at the next regular session of the General Assembly.
R.C. 119.03(I)(2)(b). If the rule is not invalidated at that session, then
the agency may issue an order adopting the rule. R.C. 119.03(D).
Chambers v. St. Mary’s School
,
An example of a legislative delegation of rulemaking authority can be found in R.C. 2967.15(B), which governs parole revocation hearings:
Except as otherwise provided in this division, prior to the revocation by the adult parole authority of a person’s pardon, parole, or other release and prior to the imposition by the parole board or adult parole authority of a new prison term as a post-release control sanction for a person, the adult parole authority shall grant the person a hearing in accordance with rules adopted by the department of rehabilitation and correction under Chapter 119. of the Revised Code .
(Emphasis added.)
Unlike the parole revocation statute, the Reagan Tokes Law’s provisions at R.C. 2967.271 do not contain an R.C. Chapter 119 — or any — express delegation of rulemaking authority.
Agency policies,
[14]
on the other hand, do not have the same force and
effect as laws.
See Oko v. Mohr
, 11th Dist. Ashtabula No. 2011-A-0045, 2012-Ohio-
1450, ¶ 16 (“Relator * * * cites to the [DRC’s] “Reception Admission Procedure” as
an Administrative Rule. It is not such a rule but instead is a policy issued by the
[DRC] pursuant to R.C. 5120.01 * * *”);
State ex rel. Estate of Sziraki v. Admr., Bur.
of Workers’ Comp.
, 10th Dist. Franklin No. 10AP-267,
The proposition that not every agency directive has the force and
effect of law is further supported by the Ohio Supreme Court’s recent decision in
O’Neal v. State
, Slip Opinion No.
is 01-COM 11, which is “a written execution protocol * * * that sets forth the specific process by which DRC personnel are to carry out death sentences by lethal injection.” Id . at ¶ 1. The O’Neal Court found that, “[i]n adopting 01-COM-11, DRC did not follow Ohio’s procedures for formal rulemaking set forth in R.C. 111.15.” [15] *98 " Id . at ¶ 4. In O’Neal , the Ohio Supreme Court reviewed whether 01-COM-11 is a rule subject to statutory rule-making requirements. Id . at ¶ 6-7. Put another way,
“the dispositive issue is whether the execution protocol constitutes a ‘rule’ as defined in R.C. 111.15(A)(1).” Id . at ¶ 23. The O’Neal Court held that “o1-COM-11 is neither a rule having general and uniform application nor an internal-management rule and that it is an order dealing with the duties of DRC’s employees. Therefore, DRC was not required to file 01-COM-11 pursuant to R.C. 111.15.” Id . at ¶ 62. Thus, the court, as a matter of law, drew a clear distinction between a rule and something that is not a rule.
To further explain this distinction, the court continued: “An action that establishes a new policy or standard is a rule under R.C. 119.01(C); one that implements or interprets a pre-existing rule or statute is not.” Id . at¶ 27.
Furthermore, the O’Neal decision concluded that an agency action is not a rule just because it was adopted under the authority of R.C. 5120.01. “[W]e * * * reject the argument that R.C. 5120.01 requires that all of DRC’s duties be carried out pursuant to formally promulgated rules.” Id . at ¶ 55. Nothing in O’Neal supports the lead opinion. Nothing in O’Neal has any bearing on the constitutionality of R.C. 2967.271(C) or (D) as enacted by the legislature.
The lead opinion’s conclusory statement that “[f]or our purposes, the use of the term ‘administrative policy’ is synonymous with ‘administrative rule’” is simply not an accurate statement of the law. In fact, the lead opinion correctly notes *99 that “there are different requirements for enactment of rules or policies.” The difference is substantive, material, and relevant to the discussion at hand. The policy that the lead opinion desperately clings to is not at issue or being challenged
in this case, and it has absolutely no bearing on whether R.C. 2967.271(C) and (D)
are constitutional. In fact, any substantive analysis of whether DRC Policy 105-PBD-
15 comports with due process safeguards is not ripe for review and is nothing more
than an advisory opinion at this point. “It is, of course, well settled that this court
will not indulge in advisory opinions.”
N. Canton v. Hutchinson
,
The lead opinion relies on Rodriguez v. United States Parole Comm ., 594 F.2d 170, 173 (7th Cir.1979), which holds as follows: “When Congress has delegated to an agency the authority to make a rule instead of making the rule itself,
the resulting administrative rule is an extension of the statute for purposes of the clause.” Id. at 173. This holding, of course, does not apply to the Reagan Tokes Law because, in relation to R.C. 2967.271(C), the legislature has not delegated rulemaking authority and the DRC has not made a rule.
C. R.C. 2967.271(C) and (D) Fail to Satisfy the Requirements of Due Process Either Expressly Within the Statute or by Delegation of Rulemaking Authority
I agree with the lead opinion that the legislature may expressly write constitutional safeguards into a statute, or the legislature may delegate rulemaking authority to an executive agency, who, in turn, must promulgate rules “to safeguard constitutional concerns.” Ante at ¶ 59. The lead opinion also correctly concludes *100 that “R.C. 2967.271(C) and (D) do not contain the policies and procedures under which the maximum-term hearings will be conducted.” Ante at ¶ 68. Furthermore, as the lead opinion aptly points out, “R.C. 2967.271 omits language authorizing [the
DRC] to draft rules and procedures for the maximum-term hearings * * *.” Ante at ¶ 60.
To put it another way, R.C. 2967.271(C) and (D) provide no due process safeguards and are, as a result, unconstitutional. The Ohio legislature knows how to include due process safeguards in statutes. See, e.g. , R.C. 2967.15 (governing parole revocation and expressly delegating Chapter 119 rule making authority to the DRC); R.C. 2971.04 (governing the parole board’s control over sexually violent offenders and providing express due process safeguards within the statute). The lead opinion mischaracterizes this dissenting opinion by stating that its
net effect * * * is a declaration that the Ohio legislature may not delegate authority to the executive agency through separate provisions of the Ohio Revised Code, but must instead provide detailed rules and policies within the statutory section that creates the particular process, otherwise that statutory provision is unconstitutional. Ante at ¶ 65. As explained, that is not the “net effect” of this dissenting opinion, which makes no such “declaration.”
Interestingly, the lead opinion suggests that R.C. 2967.271 passes constitutional muster because other Revised Code sections are also silent on due process issues. For example, according to the lead opinion, R.C. 2971.04 neither provides “the express procedures for conducting a hearing nor an express delegation *101 of authority for the executive branch to promulgate those policies, rules, or procedures.” Ante at ¶ 61. This is simply not accurate. Among the procedural safeguards expressly written into R.C. 2971.04 are the following:
The parole board shall not terminate its control over the offender’s service of the prison term unless it finds at a hearing that the offender does not represent a substantial risk of physical harm to others. * * * Prior to determining whether to terminate its control over the offender’s service of the prison term, the parole board shall request the department of rehabilitation and correction to prepare pursuant to section 5120.61 of the Revised Code an update of the most recent risk assessment and report relative to the offender. The offender has the right to be present at any hearing held under this section.
At the hearing, the offender and the prosecuting attorney may make a statement and present evidence as to whether the parole board should terminate its control over the offender’s service of the prison term. In making its determination as to whether to terminate its control over the offender’s service of the prison term, the parole board may follow the standards and guidelines adopted by the department of rehabilitation and correction under section 5120.49 of the Revised Code and shall consider the updated risk assessment and report relating to the offender prepared by the department pursuant to section 5120.61 of the Revised Code in response to the request made under this division and any statements or evidence submitted by the offender or the prosecuting attorney.
The lead opinion’s statement that “R.C. 2971.04 is silent as to any delegation of authority to promulgate rules * * *” ante at ¶ 61, is both correct and irrelevant given that the statute itself mandates due process protections required to be afforded to the offender. Delegation is not needed when you do it yourself.
D. Extending a Prison Term Beyond the Presumptive Release Date Does Not Extend the Prison Term Beyond the Maximum Sentence Imposed
The lead opinion states that “an overarching issue that appears to permeate every aspect” of a Reagan Tokes constitutionality challenge is “the belief *102 that the [DRC] ‘extends’ or ‘imposes’ a prison term under R.C. 2967.271(C) and (D) beyond the maximum sentence imposed by the sentencing court.” Ante at ¶ 23. This
statement is an overgeneralization. This author concludes that R.C. 2967.271(C) and (D) are unconstitutional, while recognizing that extending a prison term beyond the presumptive release date does not extend the prison term beyond the maximum sentence imposed. These two schools of thought can coexist.
E. Conclusion
The protected liberty interest created by Reagan Tokes Law 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,
In re Lamb
,
As written, the Reagan Tokes Law does not satisfy the requirements of due process and, as such, subsections (C) and (D) are unconstitutional. *103 ANITA LASTER MAYS, J., DISSENTS IN PART AND CONCURS IN PART WITH SEPARATE OPINION:
I respectfully dissent from the majority opinion’s finding that the
indefinite sentencing scheme under R.C. 2967.271 of the Reagan Tokes Law is
constitutional, but I concur that the question of constitutionality is ripe for review.
To that end, the issue has been argued and awaits an opinion is
State v. Maddox
,
Is the constitutionality of the provisions of the Reagan Tokes Law, which allow the Department of Rehabilitation and Correctio[n] to
administratively extend a criminal defendant’s prison term beyond the presumptive minimum term, ripe for review on direct appeal from sentencing, or only after the defendant has served the minimum term and been subject to extension by application of the Act?
Maddox at 1151.
I agree with the argument in Maddox that [it] makes no sense to “wait and see” if the Tokes law is unconstitutional until after an inmate is held-over because a Byzantine system that postpones adjudication until after someone is physically restrained under an extended sentence results in the worst legal harm — loss of liberty that cannot be retroactively remedied.
Maddox brief, p. 4.
I. Due Process
I concur in toto with the opinion of the dissent that the Reagan Tokes
Law at R.C. 2967.271 violates the right to due process of law as was previously
discussed at length by this author of the original opinion in
Delvallie
, 8th Dist.
Cuyahoga No. 109315,
II. Right to Trial by Jury
The right to trial by jury is protected by the Sixth Amendment of the
United States Constitution and Article I, Section 5, of the Ohio Constitution. The Ohio Supreme Court recently reiterated:
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” This entitles criminal defendants “to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring [ v. Arizona ], 536 U.S. [584,] 589,122 S.Ct. 2428 ,153 L.Ed.2d 556 [(2002)]. See also Hurst [v. Florida , 577] U.S. [92],136 S.Ct. 616 , 619,193 L.Ed.2d 504 [2016] (“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death”). Ohio’s death-sentence scheme satisfies this right.
State v. Mason
,
The Sixth Amendment applies to both “the factfinding necessary to increase a defendant’s sentence by two years” and “the factfinding necessary to put him [or her] to death.” Ring v. Arizona , 536 U.S. 584, 609. 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Delvallie relies on Blakely v. Washington , 542 U.S. 296, 124 S.Ct.
2531,
In the instant case, Delvallie’s presumptive minimum will be increase by
facts not determined by a jury but in fact by the executive branch. In
Alleyne v. United
States
,
of robbery with a firearm specification. The minimum mandatory term for the firearm increased by two years if it was demonstrated that Alleyne brandished the firearm during the act.
Renowned legal scholar Erwin Chemerinsky, currently Dean of the University of California at Berkeley School of Law, sagely suggests that “ Apprendi and its progeny should be seen as establishing a simple proposition: under the Sixth
Amendment, it is wrong to convict a person of one crime and sentence that person for another.” Erwin Chemerinsky, Making Sense of Apprendi and its Progeny , McGeorge Law Review , Vol. 37, p. 532 (2006). That is precisely the impact of the Reagan Tokes Law.
I find that the Reagan Tokes Law poses a wholly distinguishable
situation. “[A]ny increase in a defendant’s authorized punishment contingent on
the finding of a fact” requires a jury and proof beyond a reasonable doubt “no
*106
matter” what the government chooses to call the exercise.
United States v.
Haymond
, 588 U.S. ,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt.”
Alleyn
e,
The Reagan Tokes Law expressly provides for a minimum term that is presumed to be sufficient punishment for the crime committed. An offender will be sentenced to serve additional time based on unknown future violations of ODRC rules, acts that have yet to be committed, to be solely adjudicated by the ODRC. The facts are not submitted to a jury and determined beyond a reasonable doubt.
I would determine that the Reagan Tokes Law violates the Sixth Amendment right to trial by jury. The United States Supreme Court made it clear that a Sixth Amendment violation occurs when the facts considered in enhancing the minimum or maximum sentence have not been considered by the jury. The presumed minimum sentence is enhanced under Reagan Tokes.
I am reminded that “the Sixth Amendment by its terms is not a
limitation on judicial power, but a reservation of jury power.”
Blakely,
“[T]he relevant inquiry is one not of form, but of effect — does the
required finding expose the defendant to a greater punishment than that authorized
by the jury’s guilty verdict?” (Fn. omitted.)
Apprendi
, at
determine the term of punishment for acts that were committed and convicted prior to sentencing. That is not the case under the Reagan Tokes Law. Instead, the role of the jury is usurped not by the trial court, but by the ODRC based on conduct wholly unrelated to Delvallie’s convictions and prophetic punishment.
III. Separation of Powers
I would also find that the Reagan Tokes Law constitutes the legislative delegation of judicial powers to the executive branch of government. The Ohio Supreme Court explained:
“The people possessing all governmental power, adopted constitutions completely distributing it to appropriate departments.” Hale v. State , 55 Ohio St. 210, 214, 45 N.E. 199, 200 (1896). They vested the legislative power of the state in the General Assembly (Section 1, Article II, Ohio Constitution), the executive power in the Governor (Section 5, Article III, Ohio Constitution), and the judicial power in the courts (Section 1, Article IV, Ohio Constitution). They also specified that “the general assembly shall [not] * * * exercise any judicial power, not herein expressly conferred.” Section 32, Article II, Ohio Constitution.
State ex rel. Ohio Academy of Trial Lawyers v. Sheward
,
The courts “‘possess all powers necessary to secure and safeguard
the free and untrammeled exercise of their judicial functions and cannot be directed,
controlled or impeded therein by other branches of the government.’”
State v.
Thompson
,
16 Ohio St.2d 89, 242 N.E.2d 884 (1968), paragraph two of the syllabus. “‘It is
indisputable that it is a judicial function to hear and determine a controversy
between adverse parties, to ascertain the facts, and, applying the law to the facts, to
render a final judgment.’”
Id
., quoting
Fairview v. Giffee
,
The Ohio Supreme Court, in
State ex rel. Bray v. Russell
, 89 Ohio
St.3d 132,
convicting, and sentencing inmates for crimes committed while in prison is not an exercise of executive power.” Id .
Delvallie contends that both the bad-time provision addressed in
Bray
and the Reagan Tokes Law “provide for the executive branch prison system to
tell an inmate that the sentence imposed by the judge is not enough and that the
inmate will be serving a longer sentence as a result of an executive agency’s
determination.” Appellant’s brief, p. 9. The state counters that
Woods v. Telb
, 89
Ohio St.3d 504,
Ohio St. 629, 647,
Woods involved a challenge to former R.C. 2967.28 and the ODRC’s management of postrelease-control (“PRC”) violations. The court determined the PRC statute was constitutional and did not violate the separation of powers or due process clauses of the federal and state constitutions. Woods distinguished PRC from bad time on the ground that PRC is part of the “original judicially imposed sentence.” Id . at 512. The court explained that PRC “sanctions are sanctions aimed at behavior modification in the attempt to reintegrate the offender safely into the
community, not mere punishment for an additional crime, as in bad time.” Id .
Unlike Bray and the Reagan Tokes Law, PRC is not imposed based on behavior that took place during the offender’s incarceration. I do not find that Delvallie’s reliance on Bray is misplaced. In Bray , the prisoners were sentenced to additional terms of incarceration for acts committed in prison during their term of incarceration.
Under the Reagan Tokes Law, a defendant is sentenced to a “minimum prison term” that the court may choose from the listed term choices in the statute:
(1) “Offender’s minimum prison term” means the minimum prison term imposed on an offender under a non-life felony indefinite prison term, diminished as provided in section 2967.191 or 2967.193 of the Revised Code or in any other provision of the Revised Code, other than
division (F) of this section, that provides for diminution or reduction of an offender’s sentence.
R.C. 2967.271(A)(1). R.C. 2967.271(B) adds “there shall be a presumption” that the offender will be released “on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier.” Id .
The law also includes an early release mechanism at R.C. 2967.271(F). An offender may be granted early release that shall be for five to
fifteen percent of the offender’s presumptive minimum term “determined in accordance with rules adopted by the department under division (F)(7) of this section.” R.C. 2967.271(F)(1)(b). Early release is labeled the “[o]ffender’s presumptive earned early release date.” R.C. 2967.271(A)(2).
The ODRC develops the rules for what is required for a reduction recommendation, including offense levels. ODRC assembles supporting information and makes a recommendation to the sentencing court to receive approval for early release. A court hearing is conducted, and the prosecutor and victim, if any, may present information. Documents and reports may also be
submitted. If the court determines that the early release presumption has not been rebutted by the presence of the cited factors, the reduction will be granted.
Under R.C. 2967.271(F)(5), the court must provide the offender with notice of approval or denial of early release to the ODRC within 60 days. If the court denies the reduction, “[t]he court shall specify in the notification the reason or
reasons for which it found that the presumption was rebutted and disapproved the recommended reduction.” R.C. 2967.271(F)(5). Notably, the statute does not provide for notice to the offender, participation by the offender, submission of information by the offender, or appeal of the decision.
The Reagan Tokes Law specifies that the ODRC “shall” release the offender on the presumptive release date unless ODRC unilaterally determines that the offender is guilty of committing one of the acts cited in R.C. 2967.271(B) during
his or her incarceration. Clearly, the presumptive minimum term is deemed to be punishment commensurate with the crime committed. The sentencing court, based on the facts underlying the convictions that were authorized by the jury within the limits set forth by the legislature, imposed the presumed minimum date.
R.C. 2967.271(C) outlines the ODRC’s minimum-sentence- presumption-rebuttal process and includes an overview of the broad range of behaviors that may be employed to rebut an offender’s presumptive release date.
Under R.C. 2967.271(D), the ODRC promulgates the rules, has unfettered discretion to determine what charges to initiate against the offender, investigates the charges, serves as the adjudicator and factfinder and determines how far beyond the *112 presumed release date the offender shall remain in prison. The ODRC will set a reconsideration date for release and this process may occur multiple times but may not exceed the maximum sentence.
The R.C. 2971.271(F) early release provision is based on factors similar to those employed by the ODRC to rebut the presumptive minimum term release. This bolsters the conclusion proffered by Reagan Tokes Law opponents that
the maximum term is a sanction for acts that the ODRC determines violate the rules and regulations of the institution or other illegal acts.
As stated in
Bray,
“[p]rison discipline is an exercise of executive
power and nothing in this opinion should be interpreted to suggest otherwise.”
Bray
,
Law does not alter the fact that the ODRC executive branch is “trying, convicting, and sentencing inmates for crimes committed while in prison.” Id .
“The reason the legislative, executive, and judicial powers are separate and balanced is to protect the people, not to protect the various branches of government.” Bray at 135.
Recently recognized in State v. Hursey , Franklin C.P. No. 20 CR 004459, 2021 Ohio Misc. LEXIS 101 (Aug. 6, 2021), “[t]he separation of powers violation raised by S.B. 201’s indeterminate sentencing scheme is not prospectively cured by the court acknowledging its mechanics at sentencing.” Hursey at ¶ 11. *113 Hursey observed that courts that hold the separation-of-powers doctrine is not violated “appear to be predicating that conclusion by analogy to the somewhat different setting of post-release control, and the sentencing colloquy that trial courts caution defendants about PRC violations.” Id . at ¶ 12.
The court explained the salient fallacy of the position: That analogy from a different context is inapposite for several reasons. As an initial matter, when a defendant commits a new crime while on post release control, that new crime is prosecuted in the ordinary course, adjudicated by judge and jury, and then sentenced as a function of the court’s core judicial function. By contrast, when a defendant serving an indeterminate sentence under [the Reagan Tokes Law] is accused of committing a new crime while in prison, every aspect of the resulting prosecution, adjudication, and sentencing can remain with
ODRC, resulting in years of new incarceration for a wholly new crime, imposed by jailer without resort to judge.
Hursey at ¶ 12.
In addition, the Hursey court recognized that: the prophylactic caution that the sentencing court provides on the front end about [the Reagan Tokes Law’s] indeterminate sentencing mechanism in no way meaningfully involves a judge in the eventual subsequent imposition of a longer-than-minimum sentence. To begin with, the Court exercises no discretion about any part of the initial sentence aside from setting that original minimum sentence. The maximum sentence the court recites is determined solely as a function of mathematics, and under the current law, the court has no discretion
whether any part of that longer sentence might be imposed or avoided, in whole or in part, on the facts before it at sentencing of the original crime. Nor, obviously, is the Court able to give any meaningful consideration to whatever additional alleged violations or crimes might someday be used by the executive to add years of additional sentencing later on facts that have not yet transpired. All the Court is doing in that colloquy is acknowledging that under [the Reagan Tokes Law], some part of the executive branch might unilaterally intrude into a core judicial function on facts not yet known, and not then subject to judicial review.
Hursey
, Franklin C.P. No. 20 CR 004459,
“[T]he Court is merely apprising the defendant that under S.B. 201, a Separation of Powers violation may someday occur for any alleged violation or crime to which the Defendant is subsequently accused while incarcerated.” Hursey at ¶ 13. “Nothing about such a notice could possibly cure the violation when it later happens.” Id . at ¶ 14.
I find that the Reagan Tokes Law violates the separation-of-powers doctrine.
Notes
[1] Although R.C. 2901.011 delineates the 54 statutory sections comprising the Reagan Tokes Law, S.B. 201 resulted in the amendment to 57 statutory sections, in addition to the creation of five new sections. Any references throughout to the Reagan Tokes Law in this opinion are limited to the statutory definition as provided under R.C. 2901.011.
[2] The conflicts created by Sealey and Daniel will be resolved in each respective case based on the outcome herein.
[3] Since Delvallie relies on the blanket assertion that “the public media is replete with reports of attacks by inmates against inmates, inmates against corrections officers, and corrections officers against inmates” in declaring the Reagan Tokes Law unconstitutional, it only seems fair to review the legislature’s public commentary to understand the history of the law. Delvallie at ¶ 68.
[4] The author earned a law degree from Capital University Law School in 2019.
[5] The question left unanswered by this en banc proceeding in which this court is solely considering the constitutional validity of the sentences imposed under the Reagan Tokes Law, and not the procedures with which ODRC conducts its maximum term hearings in carrying out the sentence as imposed by the trial court, is whether ODRC Policy 105-PBD-15 provides the minimum procedural protections afforded under Morrissey . See Section IV. below. In light of the fact that the remedy provided by a Morrissey violation is limited to a remand for a constitutionally adequate hearing process, as opposed to vacating the sentence, we need not address the question of whether ODRC’s maximum term hearing policy is constitutionally sound. That answer does not impact the validity of the imposed sentence. The Morrissey question will be left for a later date when properly raised by the inmate in the proper jurisdiction. Id.
[6] Thus, if the dissent’s assertion that R.C. 2971.04 contains an express delegation
of authority based on the presence of one of the six
Morrissey
requirements, then R.C.
2967.271 should also pass constitutional muster according to the dissent’s theory. Under
R.C. 2967.271(C), the ODRC undertakes the hearing to decide the release question
through its parole board based on evidence presented to the inmate from the prison
infraction process.
Morrissey
, 408 U.S. at 489. ODRC and its parole board have
traditionally been considered a “neutral and detached” hearing body such that R.C.
2967.271(C) at least contains an express delegation of authority satisfying less than all of
the
Morrissey
requirements, similar to R.C. 2971.04 that contains the requirement of the
inmate’s presence to present evidence at the hearing.
Woods
,
[7] While concerns about enactments by rule, regulation, or policy may be relevant for a detailed procedure involving the imposition of capital punishment and the protocols surrounding it, any questions involving the enactment of ODRC Policy 105-PBD-15 ultimately go to what due process that policy affords inmates. No defendant to date has challenged the enactment of ODRC Policy 105-PBD-15 on any grounds, constitutional or otherwise.
[8] There has been much emphasis on the fact that the policy was not effective until March 2020, after the defendants filed their appeals. Since the Reagan Tokes Law became effective in March 2019, the earliest ODRC would have been required to conduct a maximum-term hearing was two years after the enactment of the Reagan Tokes Law, the shortest possible minimum term under R.C. 2929.14(A). This highlights the necessity of clarifying what is ripe for review in a direct appeal as contrasted against what must be raised through a postconviction proceeding challenging the executive agency’s enforcement of its policies.
[9] In its en banc brief, the state correctly notes that the constitutional challenge is more accurately framed as a challenge to R.C. 2967.21 rather than the entire Reagan Tokes Act.
[10] Throughout the appeals before this court, the state has maintained its position that issues under the Reagan Tokes Act are not ripe in a defendant’s direct appeal.
[11] As of November 4, 2021.
[12] A rebuttable presumption hearing is required under the Reagan Tokes Law only under subsection (C). Subsection (D) does not provide for a hearing, other than the potential for subsequent subsection (C) rebuttable presumption hearings should the DRC decide to extend the inmate’s stay in prison beyond the presumptive release date after the initial rebuttable presumption hearing.
[13] The lead opinion opines that because this dissent finds an express delegation of authority in R.C. 2971.04, “R.C. 2967.271 should also pass constitutional muster * * *.” This is a non sequitur. R.C. 2967.271 is different from R.C. 2971.04 precisely in that it does not include an express delegation of rulemaking authority. The lead opinion also claims that “[u]nder R.C. 2967.271(C), the [DRC] undertakes the hearing to decide the release question through its parole board based on evidence presented to the inmate from the prison infraction process.” However, the words “parole”; “board”; “based”; “evidence”; and “presented” are not in R.C. 2967.271(C). R.C. 2967.271(C) contains no procedural mandates.
[14] Executive policies may be made with or without delegation; they may be enforceable or unenforceable; they may be constitutional or unconstitutional. But they never have the force and effect of law. It remains, however, that no policy is being challenged in this en banc proceeding.
[15] “R.C. Chapter 119, the Ohio Administrative Procedure Act, applies to most state
administrative agencies, and R.C. 111.15 specifies the rulemaking procedure for most
agencies not covered by R.C. Chapter 119.”
State ex rel. Ryan v. State Teachers Ret. Syst
.,