STATE OF OHIO v. ADOLPH N. GAMBLE
No. 109613
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 27, 2021
[Cite as State v. Gamble, 2021-Ohio-1810.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 27, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-639438-A and CR-19-644752-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.
{¶ 1} Adolph Gamble appeals from his indefinite, non-life felony sentence imposed
{¶ 2} Gamble was indicted on seven counts, including trafficking, drug possession, having weapons while under a disability, and possessing criminal tools. He ultimately pleaded guilty to one count of trafficking, a second-degree felony qualifying offense under
{¶ 3} In this appeal, Gamble presents a single assignment of error in which he broadly claims that the Reagan Tokes Law violates the Constitutions of the United States and the state of Ohio. Since our review of the constitutional validity of laws is limited to the codified statutes, we must review the statutory language as enacted. Thus, according to Gamble,
{¶ 4} 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. Gamble‘s claims depend solely on his belief that the ODRC “extends” his prison term under
Ripeness
{¶ 6} The state claims that Gamble‘s constitutional challenge of the statutory scheme codified under the Reagan Tokes Law is not ripe for review in a direct appeal from the final entry of conviction. However, if a defendant cannot challenge the constitutional validity of the sentence imposed in the final sentencing entry in his direct appeal, the question becomes when and how could the defendant advance that claim. In State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, ¶ 18, it was recently concluded that the record in cases such as Gamble‘s is sufficiently developed to allow courts to fairly adjudicate the facial challenges questioning the constitutional validity of the Reagan Tokes Law in general. We need not stray from that conclusion, but we also need not rest on Wilburn alone.
{¶ 7} First and foremost is the aforementioned misconception with respect to the newly enacted sentencing scheme in the Reagan Tokes Law that weighs on the ripeness issue. The ODRC does not extend or impose an additional sentence on the offender — under
{¶ 8} The parallels between the indefinite non-life felony sentencing structure imposed under
{¶ 9}
{¶ 10} Within this framework, the question becomes how an offender would challenge the constitutional validity, a facial challenge of the sentencing structure, outside of the direct appeal. The state does not hazard a guess as to how an offender could appeal the ODRC‘s decision to invoke the remaining portion of the offender‘s maximum term under
{¶ 11} Traditionally in Ohio, there is no right to appeal release determinations by the ODRC under
{¶ 12} Since determinations of release are not directly appealable and the constitutional validity of a sentence cannot be raised in a writ, the only option is to file a motion with the sentencing court. If relief is sought in the original trial court, this particular inquiry will not be about the constitutionality of any provision of the Reagan Tokes Law or the apparent error in imposing a sentence beyond the maximum permitted by law; it will end up being about whether a trial court possesses or lacks continuing jurisdiction after entering the final entry of conviction in a criminal case. See, e.g., State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶¶ 38-39 (trial court lacked jurisdiction to consider the defendant‘s claim as being either a petition for postconviction relief or a motion for a new trial under Crim.R. 33, and without another basis to secure the trial court‘s jurisdiction, the motion must be denied).
{¶ 14} A defendant can invoke the trial court‘s continuing jurisdiction following the issuance of a final sentencing entry in several ways, for example, through (1) filing a motion to correct a void judgment under Zaleski; (2) filing a timely or successive petition for postconviction relief under
{¶ 15} It is entirely unclear how the offender could challenge the constitutional basis of the Reagan Tokes sentencing provisions while he is serving the imposed term of imprisonment. The trial court does not maintain continuing jurisdiction over the final entry of conviction in general terms, and there are limited options to collaterally challenge a sentence during the continued term of incarceration.
{¶ 16} If the trial court lacks continuing jurisdiction to consider the constitutional validity of the sentence imposed in the final entry of conviction, the appellate court will be unable to address the merits of the constitutional question asked because appellate review is limited to reviewing whether the trial court properly assessed its jurisdiction. Id. A court cannot create its own jurisdiction because it has only “such jurisdiction as may be provided by law.”
{¶ 17} We acknowledge that other districts have concluded that this issue will not be ripe for review until the ODRC actually overcomes the presumption against serving the maximum sentence. In State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227, for example, the Fifth District analogized the indefinite, non-life sentencing scheme to Ohio‘s “bad time” law under former
{¶ 18} Any application of Bray to the indefinite, non-life felony sentencing scheme under the Reagan Tokes Law is misplaced. Under
{¶ 19} Under the Reagan Tokes Law sentencing scheme, the trial court sentences the offender to the minimum and maximum terms, and that sentence must be included in the final entry of conviction.
{¶ 20} 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.” Stewart v. Stewart, 134 Ohio App.3d 556, 558, 731 N.E.2d 743 (4th Dist.1999), citing Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921, (1998). In consideration of those factors, the only one that arguably weighs
{¶ 21} McCann, however, has no bearing on this ripeness determination. In McCann, similar to Bray, the defendant argued that the parole board‘s exercise of discretion to impose a period of postrelease control, following the defendant‘s having served his sentence, violated the separation-of-powers doctrine. Id. In that case, it was concluded that the constitutionality of the period of postrelease control was not ripe for review because the discretionary period of postrelease control was not imposed at the time of the defendant‘s appeal. Id. at ¶ 6. McCann is, quite simply, inapplicable — similar to the issues presented in Bray that was only reviewed in separate writ action after the “bad time” statutory provision was invoked by the executive agency. Thus, under McCann and Bray, an offender cannot appeal that which has yet to be imposed. In this case, the maximum sentence that Gamble is challenging was actually imposed by the trial court in the final entry of conviction. Gamble has already been impacted through the imposition of the sеntence he challenges.
{¶ 22} Further, and as it has been recognized, if the period of postrelease control is imposed in the final entry of conviction, it must be challenged in the direct appeal or is forever barred. State v. Shepherd, 8th Dist. Cuyahoga No. 109496, 2021-Ohio-507, ¶ 3. In that case, it was concluded the offender must appeal the imposition of postrelease control in the direct appeal or is forever barred under Ohio‘s return to the traditional distinction between void and voidable. Id., citing State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42. In Harper and Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, the Ohio Supreme Court held that “sentences based on an error, including sentences in which a trial court fails to impose a statutorily mandated term, are voidable if the court imposing the sentence has jurisdiction over the case and the defendant.” Henderson at ¶ 1. If the sentencing error rendered the defendant‘s sentence voidable, the error cannot be corrected through a postconviction proceeding or through another form of collateral attack. Henderson at ¶ 43. Before the combination of Harper and Henderson, a sentence imposed in violation of law was considered void and subject to collateral attack in рostconviction proceedings.
{¶ 23} In this case, Gamble is challenging the constitutional validity of the statutory structure under which his final sentence was imposed. McCann is necessarily limited to the facts of that case, in which the postrelease control was not imposed in the final entry of conviction and thus could not be challenged until the period was actually imposed. Further, the procedural mechanism in McCann and Bray are limited to challenging the imposition of sanctions beyond that which is imposed in the final entry of conviction. In Shepherd this
{¶ 24} This is not to say, however, that all aspects of the Reagan Tokes Law sentencing provisions are capable of being challenged in the direct appeal. The above analysis is limited to the fact that Gamble is challenging the statutory law that resulted in the imposition of a non-life, indefinite sentence in the final entry of conviction. We must be careful to distinguish the cоnstitutional challenges to the judicial imposition of a given sentence, which must be raised in the direct appeal, with constitutional challenges to the execution of the sentence as carried out by the ODRC. The latter scenario is akin to McCann and Bray, and we agree with the dissent that any challenges as to the executive branch‘s enforcement of the judicially imposed sentence are not ripe for review in a direct appeal.
{¶ 25} Recently, the ODRC has published its policy governing the maximum term hearing established by
{¶ 26} On this point, the state appears to be confusing the general challenges to the imposition of a sentence with the ripeness of the due process claims based on the executive branch‘s execution of the judicially imposed sentence. Kepling (noting the state‘s ripeness claim is “in effect” targeting a declaratory judgment action under
{¶ 27} In this case, however, the trial court imposed a maximum term of three years and a minimum term of two years — it is not relevant that an offender may be released at the end of the minimum term, no more than would we consider the possibility of judicial release under
{¶ 28} We continue to adhere to the conclusion reached in Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578 (finding the constitutional challenges to the sentences imposed under
The Reagan Tokes Law Is Not Unconstitutional
{¶ 29} In this appeal, Gamble asks us to conclude that the “Reagan Tokes Act is unconstitutional,” premised on the belief that
{¶ 30} The Reagan Tokes Law provisions under
{¶ 31} The legislature has the sole authority to define crimes and establish the punishment in Ohio. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 13, quoting Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888 (1963); Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 2. If the legislature returns Ohio to indefinite sentencing for certain felony offenses, or even increases sentencing ranges, that is well within its legislative prerogative, for only the Ohio electorate can decide the General Assembly‘s fate for such a policy decision. The General Assembly has determined that for
{¶ 32} Gamble‘s conclusion that the Reagan Tokes Law is unconstitutional appears to be entirely based on his perception of the impact of the legislative determination, not any specific provision of the law that violates a constitutional principle. In other words, according to Gamble, the Reagan Tokes Law permits the ODRC to make unilateral sentencing decisions in violation of the separation-of-powers doctrine and in violation of his right to a jury trial under the Sixth Amendment because the ODRC controls the release determination under
{¶ 33} Gamble first anаlogizes the Reagan Tokes indefinite, non-life sentencing scheme to Ohio‘s “bad time” law under former
{¶ 34} “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 рolicy.‘” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. It is the legislature, not the judiciary, that possesses “the power to continually create and refine the laws to meet the needs of the citizens of Ohio.” Id. “All statutes have a strong presumption of constitutionality.” Id. at ¶ 25. In order to find that a statute is unconstitutional, courts must determine “beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” Id., quoting State ex rel.
Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Further, all doubts regarding the constitutionality of any given statute are resolved in favor of the statute. State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 5, quoting State v. Gill, 63 Ohio St.3d 53, 55, 548 N.E.2d 1200 (1992).
{¶ 35} Under the Reagan Tokes Law, enacted through the codification of various statutes throughout Title 29, the trial court sentences the offender to the minimum and maximum term, and that sentence must be included in the final entry of conviction.
{¶ 36} 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, 277 U.S. 189, 201, 48 S.Ct. 480, 72 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, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). “Ohio, unlike other jurisdictions, [also lacks] a constitutiоnal provision specifying the concept of separation of powers.” State v. Warner, 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18 (1990), citing State v. Harmon, 31 Ohio St. 250 (1877), and State, ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464 (1929). Similar to the federal Constitution, Ohio‘s separation-of-powers doctrine “is implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.” Id. There is no explicit rule prohibiting the delegation of authority as between the co-equal branches of government. Id.
{¶ 37} Thus, Gamble‘s claims are premised on the common misconception that the ODRC is “extending” the prison sentence when, in fact, the final sentence imposed by the trial court includes both the maximum term, in this case three years, and the presumptive possibility of release after two years.
{¶ 38} Further, it has long been held 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, 2020-Ohio-4153, ¶ 23; Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19; Woods v. Telb, 89 Ohio St.3d 504, 512-513, 2000-Ohio-171, 733 N.E.2d 1103; Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578. As has been recognized,
A court imposes both the minimum and maximum prison terms, including both in its sentence. The [O]DRC then determines whether the offender merits more than the minimum and up to the maximum imposed. In terms of the separation of powers, the delegation of power to the [O]DRC is like the system of post-release control: “Those terms are part of the actual sentence, unlike bad time, where a crime committed while incarcerated resulted in an additional sentence not imposed by the court. In other words, the court imposes the full sentence and the [ODRC] determines whether violations merit its imposition.”
Wilburn at ¶ 26, quoting Ferguson at ¶ 23 and Woods at 511.
{¶ 39} The Reagan Tokes Law does not violate any constitutional safeguard because the executive branch has always possessed the authority to determine parole or sentencing release matters under an indefinite sentencing scheme after the trial court imposes the minimum and maximum terms. See
{¶ 40} Keeping an offender in prison under
{¶ 41} Further, there can be no violation of the right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because the trial court is statutorily required to impose the minimum and maximum terms under
{¶ 42} Gamble also cites State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, in which it was concluded that Ohio‘s sentencing structure of permitting the trial court to impose a sentence 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, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), as recognized in State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 35. In Ice, the Supreme Court concluded that a state court‘s discretion to impose consecutive sentences did not violate the right to a jury trial under the Sixth Amendment because throughout history the jury played no role in that sentencing decision. Ice at 167-168. The sole limitation was that a trial court cannot impose a sentence “beyond the maximum” provided by law based on consideration and determination of facts not considered by the jury. Id. at 167. “Instead, specification of the regime for administering multiple sentences has long been considered the prerogativе of state legislatures[,]” even those prerogatives that in effect lengthen the offender‘s sentence. Id. at 168.
{¶ 43} Gamble seems to claim that any consideration of facts not determined by the trier of fact violates Apprendi. 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 in rendering a decision of guilt.
{¶ 44} Nevertheless, under
{¶ 45} The only discretion lies with imposition of the minimum term of imprisonment under
{¶ 46} We cannot help but note that offenders should tread lightly in this area. Gamble‘s claim that
{¶ 47} Solely for the sake of discussion, if Gamble is correct and
{¶ 48} And even if we declared the whole of the act unconstitutional, nothing stops the legislature from reinstating the minimum and maximum terms without providing for the presumption of release. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, at ¶ 13, quoting Maxwell, 174 Ohio St. at 181, 187 N.E.2d 888 (it is solely in the province of the legislature to define punishments for crimes). Thus, the judicial intervention being requested here could very well lead to increased sentences for all offenders. It is for this reason that any policy considerations of the length of sentences is best left for the legislature and any judicial intervention should not be taken lightly. Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 21 (all statutes are presumed to be constitutional).
{¶ 49} And finally, Gamble claims that
{¶ 50} When a state “creates a liberty interest, the Due Process Clause requires fair procedures for its vindication” so only then “courts will review the application of those constitutionally required procedures.” Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). “Requiring a defendant to remain in prison beyond the presumptive minimum term is akin to the decision to grant or deny parole.” Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, at ¶ 30, quoting State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17. As has been long held, “the required due process procedures [for parole proceedings] are minimal. Specifically, the court has found that a prisoner subject to parole receives adequate due process when he is allowed an opportunity to be heard and is provided a statement of the reasons why parole was denied.” Id., citing Swarthout at 220, and Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Constitutional safeguards require nothing further. Id.
{¶ 51}
- 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 tо the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.
- The offender‘s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.
{¶ 52} It suffices that Gamble‘s arguments as to the constitutional validity of “the Reagan Tokes Act” are without merit. Although the facial constitutional challenges are ripe for review, we overrule Gamble‘s argument that the Reagan Tokes Law is unconstitutional. We affirm.
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 conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandatе pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
MARY J. BOYLE, A.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, A.J., DISSENTING:
{¶ 53} Respectfully, I must dissent because I believe the state is correct that the issues raised by Gamble are not yet ripe.
{¶ 54} In concluding that the constitutional challenges raised by Gamble are ripe, the majority states that it “continue[s] to adhere to Wilburn“; however, Wilburn did not address McCann. The majority asserts that McCann has no bearing on the ripeness determination because McCann involved a discretionary period of postrelease control which had not yet been imposed whereas the instant appeal involves a maximum sentence that has already been imposed. However, the majority is conflating the imposition of the maximum sentence by the court and the actual execution thereof.
{¶ 56} In McCann, the defendant argued that because the parole board had the power under
{¶ 57} The cases cited by the majority in support of a finding of ripeness, Shepherd, Harper, and Henderson, involve issues with the sentence imposed and the obligation to raise any errors in such imposition at the direct appeal. But Gamble‘s claimed constitutional violations do not arise from the imposition of the sentence in this matter. As acknowledged by the majority, Gamble was properly sentenced to both a minimum and maximum term under the statute. Gamble‘s claimed constitutional violations relate solely to the process by which the ODRC may make the determination of whether to keep him beyond the minimum sentence and trigger the maximum sentence.
{¶ 58} The majority readily admits that the ODRC “simply enforces the sentence imposed and has been delegated the responsibility over the release determinations under
{¶ 59} Both Gamble and the defendant in McCann raised issues with the process that extended, or would extend, their sentence. In McCann, it was argued that the postrelease control statute violated his right to a jury trial by allowing the parole board to extend his sentence. Gamble‘s argument is in the same vein — it is the ODRC that will decide whether Gamble 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 he claims is unconstitutional.
{¶ 60} The ODRC is permitted to rebut the presumption of his minimum sentence and keep Gamble in prison for an additional period not to exceed the maximum term imposed by the sentencing judge.
- Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:
- During the offender‘s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, cоmpromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.
- The offender‘s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.
- Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.
- At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.
{¶ 61} At this stage, it is impossible for us to know whether any of the above conditions will occur and rebut the presumption of the minimum sеntence. Thus, Gamble is not currently subject to any action by the ODRC related to extending his sentence, and he may very well never be. This is the very epitome of a failure to demonstrate ripeness.
{¶ 62} “[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). While the majority posits that criminal defendants will have no other way to challenge the provisions raised herein and assert that a habeas corpus petition is not a viable option, it is unclear why the majority believes this to be the case. As noted by the Fourth District:
[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 becauseR.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 grоunds that it violated the separation of powers doctrine and due process. Woods was sentenced to ten months 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 notspecifically 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, 2020-Ohio-6733, ¶ 21.
{¶ 63} Thus, contrary to the majority‘s assertion, none of the three factors used to determine ripeness weighs in favor of Gamble‘s claims. First, the likelihood of harm occurring is completely unknown at this time. It is possible that none of the conditions in
{¶ 64} In addition, the factual record is not sufficiently developed for us to provide fair adjudication. Because Gamble has 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 his constitutional rights. Finally, as noted above, Gamble has a vehicle within which to challenge the ODRC‘s determination process should it actually оccur — a petition for habeas corpus.
{¶ 65} Accordingly, I believe this matter is not ripe, and it would be premature for us to address the constitutional challenges raised in Gamble‘s appeal. I respectfully dissent.