STATE OF OHIO v. TERMEL GUYTON
APPEAL NO. C-190657; TRIAL NO. B-1902315
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 26, 2022
2022-Ohio-2962
WINKLER, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.
{¶1} Defendant-appellant Termel Guyton appeals the judgment of the Hamilton County Court of Common Pleas sentencing him to an indefinite prison term after he pled guilty to trafficking in cocaine. In his sole assignment of error, he argues that the indefinite sentencing scheme established under 2018 Am.Sub.S.B. 201, identified under
{¶2} Upon review, we join our sister appellate districts that have deemed the sentencing scheme embodied in the Reagan Tokes Law to be constitutional. Accordingly, we overrule the assignment of error and affirm the trial court‘s judgment.
I. Facts and Procedure
{¶3} In May 2019, Guyton was indicted on one count of trafficking in cocaine and one count of possession of cocaine, both with major-drug-offender specifications and charged as first-degree felonies. The charges related to conduct occurring after March 22, 2019, the effective date of the Reagan Tokes Law. The offenses are qualifying offenses under the indefinite sentencing provisions set forth in that law.
{¶4} In November 2019, the state and Guyton entered into a plea bargain. Guyton pled guilty to the trafficking count in exchange for dismissal of the possession count and both specifications. The trial court accepted Guyton‘s guilty plea. At the sentencing hearing that immediately followed, Guyton complained about the indefinite sentence and advocated for a three-year definite term.
{¶5} The trial court sentenced Guyton to an indefinite term of three-to-four-
II. Preliminary Issues
{¶6} Guyton argues the trial erred as a matter of law by imposing an indefinite sentence pursuant to the Reagan Tokes Law because the Reagan Tokes Law violates the state and federal constitutional provisions for separation of powers, due process, and equal protection.
A. Waiver
{¶7} Initially, we address the state‘s argument that Guyton failed to preserve the constitutional challenges he now raises. Typically, a constitutional argument not meaningfully raised in the trial court cannot be raised for the first time on appeal. See State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986); State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 37 (holding appellant waived his right to challenge the constitutionality of the Reagan Tokes Law where he failed to raise the challenge in the trial court).
{¶8} Appellate courts, however, retain the ability to consider constitutional challenges to the application of statutes in specific cases of “plain error or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus, cited in Barnes at ¶ 31; State v. Warner, 55 Ohio St.3d 31, 42, 564 N.E.2d 18 (1990); State v. Zuern, 32 Ohio St.3d 56, 63, 512 N.E.2d 585 (1987) (“The acceptable procedure is to raise any constitutional challenges to the death penalty statute by way of specific motions, with opportunity for the state to respond
{¶9} Guyton does not assert a claim of plain error in this appeal, but contends that if this court concludes he failed to sufficiently preserve his challenge, the rights and interests at stake are sufficient for this court to exercise discretion to fully consider a constitutional challenge. The state also recognizes the important issues raised in this appeal. Against this backdrop, we proceed with our review of Guyton‘s constitutional challenge.
B. Ripeness
{¶10} A constitutional challenge to the Reagan Tokes Law that does not require further factual development is ripe for review on direct appeal by a defendant sentenced to an indefinite prison term under the Reagan Tokes Law. See State v. Maddox, Slip Opinion No. 2022-Ohio-764, ¶¶ 11 and 21. Guyton argues the Reagan Tokes Law is facially unconstitutional. This challenge is ripe for review, even though Guyton may later bring an as-applied challenge that depends upon future factual development.
III. The Reagan Tokes Law
{¶11} Effective March 22, 2019, the Reagan Tokes Law restored indefinite sentencing in Ohio for persons convicted of non-life-sentence felony offenses of the first or second degree. See Maddox at ¶ 4; State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 1 (8th Dist.). The Reagan Tokes Law has been characterized as an “incentive-laden approach to criminal justice” that replaced a definite sentencing scheme for certain serious offenders. Delvallie at ¶ 13. It appears the legislature
{¶12} Under the Reagan Tokes Law, the indefinite terms consist of a minimum term selected by the sentencing court from an established statutory range, see
{¶13} The Reagan Tokes Law establishes a presumptive release date at the end of the minimum term.
{¶14} To rebut the presumption that an offender will be released when the minimum term expires, the ODRC must conduct a hearing and determine if one or more factors apply. Specifically, the statute provides:
The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies:
(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: (a) During the offender‘s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.
(b) The offender‘s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in 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.
{¶15} In addition to affording the ODRC a role in determining if an offender should be imprisoned beyond the minimum term imposed, the Reagan Tokes Law also
{¶16} The ODRC is an agency under the executive branch of government, the branch the legislature has delegated authority to execute judicially-imposed sentences. That branch also oversees the complicated environment of Ohio‘s prisons and inmates. See, e.g.,
{¶17} Guyton‘s constitutional arguments focus on the provisions in
IV. Analysis
{¶18} We begin our analysis with the presumption that the Reagan Tokes Law is constitutional. When addressing constitutional challenges, we are mindful of the rule that all statutes have a strong presumption of constitutionality. See Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25; State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991).
A. Separation-of-Powers Doctrine
{¶20} Guyton argues the indefinite sentencing scheme of the Reagan Tokes Law violates the separation-of-powers doctrine. This doctrine, recognizing the importance of maintaining three distinct and co-equal branches of government, is not explicitly set forth in the United States or Ohio Constitutions. See Eaton at ¶ 28. Courts have long held, however, that the separation-of-powers doctrine is implicit in these constitutions and that the doctrine limits statutory sentencing schemes. See id., citing Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
{¶21} The Sixth Appellate District has aptly summarized the parameters of the separation-of-powers doctrine:
[T]he “three-way sharing” among the legislative, judicial, and executive branches in the realm of indeterminate sentencing does not violate the separation-of-powers doctrine when the legislature establishes the prison terms that may be imposed, the judiciary imposes a sentence in compliance with that statutory edict, and the executive branch is authorized to determine the portion of the sentence that the offender
will ultimately serve, up to the maximum imposed by the sentencing court.
Eaton at ¶ 29, quoting Mistretta at 364.
{¶22} Guyton argues the Reagan Tokes Law sentencing scheme violates the separation-of-powers doctrine in two ways. According to Guyton, the Reagan Tokes Law impermissibly allows the ODRC to “extend the sentence imposed by the sentencing judge,” resulting in an “amend[ment of] a final judgment of a trial court” and “impinging upon the judiciary‘s inherent authority to sentence and issue final judgments.” Additionally, Guyton characterizes the Reagan Tokes Law as allowing the ODRC to impermissibly “charge, judge, convict, and sentence for the commission of a new act,” resulting in “the executive branch perform[ing] the inherent judicial functions of trial, verdict, and sentence.” These complaints relate to the ODRC‘s responsibilities for determining the offender‘s release date under the indeterminate sentencing scheme.
{¶23} Guyton‘s arguments are based on a misreading of the governing provisions in the Reagan Tokes Law. The indefinite sentencing structure requires the trial court to impose both a minimum and maximum prison term at sentencing and include that sentence in the final judgment of conviction.
{¶24}
{¶26} After a comprehensive analysis of the Reagan Tokes Law, and a comparative analysis of other sentencing schemes, the Eaton court upheld the Reagan Tokes Law‘s sentencing structure against a separation-of-powers doctrine challenge. Ultimately, the appellant in Eaton failed to demonstrate that the authority granted to ODRC to determine whether he would serve the indeterminate portion of the sentence imposed by the trial court “actually usurps powers granted solely to the judiciary” and therefore “exceeds the [constitutionally required] three-way sharing model” embodied in the separation-of-powers doctrine. Eaton at ¶¶ 29 and 60.
{¶27} All our sister appellate districts that have considered the issue have rejected a separation-of-powers constitutional challenge because under the Reagan Tokes Law the judiciary imposes that sentence that is enforced by the ODRC. See, e.g., State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 23; State v.
{¶28} This analysis recognizes that “the indefinite prison sentence with the executive branch‘s review has been a mainstay of Ohio law since time immemorial.” Delvallie at ¶ 15. We concur with this analysis and reject Guyton‘s claim that the indefinite sentencing scheme set forth in the Reagan Tokes Law violates the separation-of-powers doctrine.
B. Due Process and Due Course of Law
{¶29} Guyton next contends that the Reagan Tokes Law violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Course of Law Clause of the Ohio Constitution. The federal and state constitutional provisions are treated as equivalent in the protections they afford. Stolz v. J. & B Steel Erectors, Inc., 155 Ohio St.3d 567, 2018-Ohio-5088, 122 N.E.3d 1228, ¶ 12; State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15.
{¶30} Guyton first argues that individuals sentenced under the Reagan Tokes Law have a substantive-due-process right to be free from illegal bodily restraint, which is violated because the Reagan Tokes Law allows for individuals “to be held beyond their lawful sentence” without affording the full panoply of rights due a defendant in
{¶31} We address each argument in turn. Like our sister districts, we find the arguments lacking merit. See, e.g., Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, at ¶ 25; Hacker, 2020-Ohio-5048, 161 N.E.3d 112, at ¶ 23; Bontrager, 2022-Ohio-1367, 188 N.E.3d 607, at ¶ 48; Ratliff, 2022-Ohio-1372, 190 N.E.3d 684, at ¶ 51; Maddox, 2022-Ohio-1350, 188 N.E.3d 682, at ¶ 7; Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 143; Delvallie, 2022-Ohio-470, 185 N.E.3d 536, at ¶ 50-51; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 17.
1. Substantive Due Process
{¶32} Guyton begins this argument by reciting the well-accepted rule that the federal Due Process Clause and its Ohio counterpart afford heightened protection against government interference with certain fundamental rights and liberty interests. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Substantive due process forbids infringing upon fundamental liberty interests except where narrowly tailored to serve a compelling state interest. Id.
{¶33} Guyton claims the Reagan Tokes Law manifests a violation of an individual‘s substantive right to be free from illegal bodily restraint, citing Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). He contends the Reagan Tokes Law is constitutionally offensive because it extinguishes the freedom from
{¶34} Generally, the first issue in a substantive-due-process challenge is how to characterize the individual‘s asserted right. Stolz, 155 Ohio St.3d 567, 2018-Ohio-5088, 122 N.E.3d 1228, at ¶ 14. Here, Guyton‘s entire substantive-due-process argument is based upon a faulty characterization of the indefinite sentencing scheme adopted in the Reagan Tokes Law. As previously explained, those sentenced under the Reagan Tokes Law are merely required to serve a sentence within the range imposed by the trial court. The Reagan Tokes Law does not allow the ODRC to extend the maximum term imposed by the sentencing court.
{¶35} When ODRC‘s responsibilities under the Reagan Tokes Law are triggered, the offender stands convicted. “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. * * * [T]he conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[Given] a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’ ” Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), cited in Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011).
{¶36} The administrative proceedings contemplated in the Reagan Tokes Law fall under the category of prison disciplinary proceedings. “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
2. Procedural Due Process
{¶38} Next we address Guyton‘s arguments implicating the guarantee of procedural due process. Under the United States and Ohio Constitutions, procedural due process demands that, where the state infringes on protected liberty or property interests, the offender has a right to notice and an opportunity to be heard in a meaningful and timely manner. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000). The constitutional due-process requirements protect against the “mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).
{¶39} As previously noted, there is no constitutional right to early release from confinement for a valid criminal conviction. See Swarthout, 562 U.S. at 219-220. But a state may create a liberty interest in an early release from confinement. See id.
{¶41} At the time of sentencing, the trial court must inform the defendant that “the department of rehabilitation and correction may rebut the presumption * * * if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender‘s conduct while confined, the offender‘s rehabilitation, the offender‘s threat to society, the offender‘s restrictive housing, if any, while confined, and the offender‘s security classification“; that “if the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender‘s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code“; that “the department may make the specified determinations and maintain the offender‘s incarceration * * * more than one time“; and that at the “expiration of the offender‘s maximum prison term imposed as part of the sentence,” the offender must be released.
{¶42} The statutory provisions at issue give a prisoner far more than a unilateral hope of early release. Instead, these Ohio laws create a right to early release for the prisoners unless the ODRC after a hearing makes specific determinations that are based on misconduct. Some determinations are subjective, some are objective.
{¶43} Guyton faults the Reagan Tokes Law for not expressly affording “fair” procedures before depriving an offender of the statutorily created liberty interest. The question in this facial challenge, however, is whether the law is capable of being enforced in a manner that would not violate an offender‘s right to due process. The specific procedural requirements to protect the liberty interest here, involving a conditional right of early release from a lawfully imposed sentence, “need not be set forth in the legislation itself.” Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 168 (Mayle, J., concurring in judgment only with respect to the procedural-due-process issue and writing separately, joined by Duhart, P.J.).
{¶44} A statute directing an administrative action that affects the deprivation of a liberty interest must be read as one with the constitutional concept of due process, unless the express terms of the statute preclude such a reading. See, e.g., Am. Power & Light Co. v. SEC, 329 U.S. 90, 107-108, 67 S.Ct. 133, 91 L.Ed. 103 (1946); The Japanese Immigrant Case, 189 U.S. 86, 100-101, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (“[T]his court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law[.]’ * * * In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution. An act of Congress must be taken to be constitutional
{¶45} We do not discern any provision in the Reagan Tokes Law that overcomes the strong presumption an offender will be afforded the requisite process due at all stages of the indeterminate sentencing scheme, including during any administrative proceedings.
{¶46} As previously noted, the Reagan Tokes Law requires the trial court to personally inform the offender at the time of sentencing of the rules of indeterminate sentencing, including that the ODRC can make determinations regarding the offender‘s conduct while confined that impact the offender‘s release date. Further, the Reagan Tokes Law on its face guards against arbitrary action by requiring the ODRC to hold a hearing and make specific determinations that, in the legislature‘s point of view, warrant maintaining incarceration. The Reagan Tokes Law also limits the ODRC‘s discretion in maintaining an offender‘s incarceration in another important way: allowing only a “reasonable” period that cannot exceed the maximum term.
{¶47} Guyton specifically criticizes the process in
{¶48} The United States Supreme Court has specified that the minimum requirements of due process pertaining to parole revocation include:
(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.
(Emphasis added.) Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
{¶49} Even under the Morrissey standard for parole revocation, the “neutral and detached” decision maker need not be from the judicial branch. The Twelfth District Court of Appeals emphasized this when it rejected Guyton‘s due-process challenge to the Reagan Tokes Law in that court. See Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, at ¶ 17 (“[B]ecause due process does not require the sentencing court to conduct parole revocation proceedings, probation revocation proceedings, or postrelease control violation hearings, we likewise conclude that due process does not require the sentencing court to conduct a hearing under
{¶50} Guyton also specifically criticizes the Reagan Tokes Law for allowing the ODRC to evaluate an offender‘s conduct in prison, and to make a decision based on the conduct, without affording the offender the right to notice of the proceeding or the right to be heard in opposition to any proposed action by the ODRC in its progress. This argument relates specifically to
{¶51} Guyton reads the constitution out of the statute. Given the presumption of constitutionality, and the absence of an intent to exclude these proceedings from the due-process protections afforded administrative decision making, we must construe the statute and the constitution together as one law. See Am. Power & Light Co., 329 U.S. at 107-108; The Japanese Immigrant Case, 189 U.S. at 101; Collier, 62 Ohio St.3d at 269. As related to this case, the constitutional requirement of due process demands the offender receive notice and an opportunity to be heard in a timely and meaningful manner regarding decisions involving a deprivation of the offender‘s liberty interest.
{¶52} Even if the notice provision in
{¶53} When reviewing the challenged notice provision, we recognize that the process due the offender whose liberty interest is affected does not require notice to other groups including the sentencing court, the prosecutor, or the victim. The statute speaks on that issue by affording a statutory right to notice to the sentencing court, the prosecutor, the victim, and others, groups with distinct interests in the hearings conducted under
{¶54} As articulated in Eaton, “the Reagan Tokes Law may not be found to be unconstitutional, on its face, as violating due process merely because the specific procedures for invoking an additional period of incarceration are not set forth in the law itself. So long as the ODRC ultimately enforces the law in a manner consistent with the process due an offender, an offender‘s constitutional rights will not be violated.” Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 168 (Mayle, J., concurring in judgment only with respect to procedural-due-process issue and writing
{¶55} Ultimately, we must presume that the ODRC will fill in the “gaps” to execute the law such that offenders are afforded due process before depriving an offender of the statutory liberty interest created by the Reagan Tokes Law.
{¶56} Our holding today does not preclude Guyton from challenging the Reagan Tokes Law as applied to him, a challenge that will allow for a fact-based review of the process afforded to him by the ODRC. See Eaton at ¶ 169. “But given this is a facial challenge to the law, it cannot be said at this juncture that the law ‘cannot be applied constitutionally in any circumstances.‘” State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, ¶ 33.
{¶57} In sum,
C. Equal Protection Clause
{¶58} Finally, Guyton argues the Reagan Tokes Law denies equal-protection guarantees set forth in the Ohio and United States Constitutions.
{¶59} Guyton specifies that the class of individuals subjected to disparate treatment under the Reagan Tokes Law is comprised of first- and second-degree-felony offenders sentenced to a term other than life imprisonment. Guyton asserts, and it is not disputed, these inmates are treated differently from inmates serving time for third-, fourth-, and fifth-degree-felony convictions, whose sentences are not subject to the indeterminate sentencing scheme.
{¶60} “Under a traditional equal protection analysis, class distinctions in legislation are permissible if they bear some rational relationship to a legitimate governmental objective. Departures from traditional equal protection principles are permitted only when burdens upon suspect classifications or abridgments of fundamental rights are involved.” State ex rel. Vana v. Maple Hts. City Council, 54 Ohio St.3d 91, 92, 561 N.E.2d 909 (1990), citing Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).
{¶61} Guyton‘s primary argument, as we understand it, is that the Reagan Tokes Law creates a classification that burdens a fundamental right. In support of his equal-protection argument, Guyton cites to State v. Lane. In Lane, the Ohio Supreme Court held that the jury trials of three inmates prosecuted for escape violated the equal-protection rights of those inmates where the trials were held within the prison administrative building for security and convenience. State v. Lane, 60 Ohio St.2d 112, 397 N.E.2d 1338 (1979).
{¶62} Guyton contends that like the defendants in Lane, first- and second-degree-felony offenders sentenced under the Reagan Tokes Law and subject to the ODRC‘s “extension of their sentences” will be deprived of their fundamental rights attendant in criminal prosecutions such as the right to a public jury trial.
{¶63} “‘When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.‘” Bd. of Edn. of City School Dist. of City of Cincinnati v. Walter, 58 Ohio St.2d 368, 373, 30 N.E.2d 813 (1979), quoting Zablocki v. Redhail, 434 U.S. 372, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).
{¶64} The circumstances that resulted in an equal-protection violation in Lane are not present in this case. The ODRC‘s proceedings are not criminal prosecutions that trigger the full panoply of rights inherent in a criminal prosecution. Thus, Guyton has not demonstrated that the Reagan Tokes Law burdens a
{¶65} Guyton‘s primary Equal Protection Clause argument collapses because he cannot demonstrate that similarly situation individuals are treated disparately with respect to a fundamental right. At issue is simply a state sentencing scheme. The legislature has enacted an indeterminate sentencing structure for certain serious felony offenders that does not apply to less serious felony offenders. We apply a rational-basis review to Guyton‘s claim. See McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973) (applying rational-basis review to state sentencing schemes), cited in State v. Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, ¶ 31; State v. Thompkins, 75 Ohio St.3d 558, 560-561, 664 N.E.2d 926 (1996).
{¶66} Under rational-basis review, we can hold the legislative distinctions invalid “only if they bear no relation to the state‘s goals and no ground can be conceived to justify them.” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 353, 639 N.E.2d 31 (1994); Thompkins at 561. The legislature undoubtedly has a goal of rehabilitating offenders so that when those offenders are released they do not create “an unsafe condition for an unsuspecting public.” See Delvallie, 2022-Ohio-470, 185 N.E.3d 536, at ¶ 1. The legislature‘s “incentive-laden approach” that involves the ODRC in release decisions bears a logical and reasonable relationship to the state‘s goal. See id. at ¶ 11 and 12. We are not alone in our determination.
{¶67} Judge Sean C. Gallagher, writing for the majority in the Eighth District Court of Appeals’ en banc decision rejecting a constitutional challenge to the Reagan Tokes Law, commented, “The Reagan Tokes Law appears to be an effort to return Ohio to its core sentencing approach, implementing the reformative incentive for offenders
{¶68} The legislature‘s focus on Ohio‘s most serious felony offenders is not surprising considering the significant resources that are required to administer the indeterminate sentencing scheme. Moreover, the legislature‘s connection between recidivism upon release and an offender‘s placement in restrictive housing, security risk classification, and dangerous, antisocial conduct while in prison makes logical sense. The state has a great interest in the success of the Reagan Tokes Law, which departs from a “purely punitive prison policy,” and the use of the prison-rule-infraction system as a model and vehicle to attain that goal passes constitutional muster under a rational-basis standard of review.
V. Conclusion
{¶69} Guyton has failed to demonstrate the indefinite sentencing scheme enacted under the Reagan Tokes Law is unconstitutional on its face because it violates the separation-of-powers doctrine, infringes upon his due-process rights, and denies him the equal protection of the law. Accordingly, we overrule the assignment of error and affirm the trial court‘s judgment.
Judgment affirmed.
MYERS, P.J., concurs.
BERGERON, J., concurs in part and dissents in part.
BERGERON, J., concurring in part and dissenting in part.
{¶70} I agree with the majority that the Reagan Tokes Law does not facially violate separation of powers, equal protection, or substantive due process, but I respectfully disagree with the majority‘s conclusion regarding procedural due process.
I.
{¶71} 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. City of Cincinnati, 153 Ohio App.3d 108, 112, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.). In conducting this review, I recognize that statutes “enjoy a strong presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7.
{¶72} To establish that the Reagan Tokes Law facially violates procedural due process, defendants must prove beyond a reasonable doubt that there are no set of circumstances under which the statutory scheme would be valid. Ohio Renal Assn. v. Kidney Dialysis Patient Protection Amendment Commt., 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 26 (“A party asserting a facial challenge to a statute must prove beyond a reasonable doubt ‘that no set of circumstances exists under which the act would be valid.’ “), quoting Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21.
{¶73} We follow a two-step analysis when reviewing procedural due process challenges: “We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011).
{¶74} Turning first to the issue of whether the Reagan Tokes Law creates a liberty interest that triggers due process concerns, like the majority, I have no hesitation in answering yes to that question. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Liberty interests “may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty’ ” or “from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), citing Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in avoiding involuntary psychiatric treatment), and Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding the withdrawal of state-created system of good-time credits).
{¶75}
III.
{¶76} The Reagan Tokes Law forged a novel statutory regime in which the presumptive release date can only be extended in certain limited circumstances. As our sister courts have evaluated this, they have attempted to place the square peg of this statute in the round hole of existing procedural due process caselaw. With imperfect analogies available, the results have been mixed thus far. But as I look at the more recent caselaw, a growing consensus seems to be emerging that the parole revocation standard set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), governs. I also agree that the Morrissey framework provides the best mechanism for evaluating the constitutionality of the Reagan Tokes Law rather than parole eligibility.
{¶77} Morrissey considered whether the requirements of due process apply to parole revocation determinations. Id. at 480. The United States Supreme Court began by analyzing the nature of the liberty interest at stake in parole revocation decisions.
(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.
Id. at 488-489.
{¶78} In the Eighth District‘s en banc decision in Delvallie, while the Eighth District held that the Reagan Tokes Law delegated authority to the Department of Rehabilitation and Correction (“DRC“) to promulgate due process safeguards by administrative action, the lead opinion repeatedly measured those actions against the Morrissey standard. See State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 72 (8th
{¶79} In Judge Forbes‘s dissent in Delvallie, she likewise eschewed the standard question, but rejected any comparison with parole eligibility. See id. at ¶ 140-141 (Forbes, J., dissenting) (“[T]here is no presumption of release on parole in Ohio, thus there is no liberty interest at stake in parole eligibility proceedings. * * * Unlike Ohio‘s parole eligibility proceedings, the Reagan Tokes Law includes an express presumption of release.“). In other words, parole eligibility proceedings invoke a mere “hope or anticipation of freedom,” whereas the presumption contained in the Reagan Tokes Law creates an “expectation of release.” Id. at ¶ 139, 141. For that reason, she concluded that “[t]he Morrissey and Wolff requirements should serve as guidelines for Reagan Tokes Law proceedings.” Id. at ¶ 161.
{¶80} The Sixth District recently squarely held that additional term hearings are analogous to parole revocation proceedings for procedural due process purposes. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072. The Stenson court explained that, like parole revocation proceedings, “an offender is threatened with the deprivation of the liberty he has” rather than the deprivation of liberty that he “merely
{¶81} Shortly after Stenson, another panel of the Sixth District evaluated the Reagan Tokes Law and the lead opinion determined the Morrissey standard does not apply to additional term hearings because “what is at issue here is the initial release of appellant from confinement, not the revocation of his freedom and placement back into confinement.” (Emphasis sic.) State v. Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, ¶ 136. But Judge Mayle‘s concurrence (which also was joined by the third judge on the panel) reiterated that Morrissey should control, echoing the analysis from Stenson. Id. at ¶ 156 (Mayle, J., concurring in judgment only). That is, she reasoned, like parole revocation, the inmate‘s presumptive release date “may not be rebutted based only on a discretionary, ‘purely subjective appraisal.‘” Id. at ¶ 154. Rather, “an Ohio offender must be released after service of the minimum sentence unless ODRC makes the purely factual finding” that one of the few exceptions under
{¶83} The Twelfth District has similarly held that “[the] hearings conducted by the ODRC under
IV.
{¶85} Having concluded that inmates sentenced under the Reagan Tokes Law must receive Morrissey protections at the additional term hearing, the remaining question becomes whether the Reagan Tokes Law facially satisfies the requirements of procedural due process.
{¶86} “Our courts have long recognized that due process requires both notice and an opportunity to be heard.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13. “[T]he fundamental requisite of due process of law is the opportunity to be heard in a meaningful time and in a meaningful manner.” Woods v. Telb, 89 Ohio St.3d 504, 514, 733 N.E.2d 1103 (2000). “It is axiomatic that due process ‘is flexible and calls for such procedural protections as the particular situation demands.‘” Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), quoting Morrissey, 408 U.S. at 481.
{¶87} It doesn‘t take much analysis of the Reagan Tokes Law to appreciate the lack of procedural due process protections. Let‘s start with notice—a requirement so foundational to due process that one can scarcely find a case about procedural due
{¶88} Some of our sister districts have nevertheless found that
{¶89} To the contrary, the statute provides for notice to some but excludes the inmate. To me, that creates an almost insurmountable problem from a due process standpoint. Imagine being plucked from your home or job, without a word as to why, and then told you would have to defend yourself at a hearing today to determine the fate of your liberty. How do you expect you would fare in such a proceeding? No hearing can be meaningful, consistent with due process norms, without adequate
{¶90} Nor are my fears allayed by considering the hearing requirement in the statute, as
{¶92} Second, DRC policy No. 105-PBD-15 lacks the force of law because it was not promulgated pursuant to
{¶93} Finally, the policy falls well short of providing incarcerated individuals with Morrissey protections, a problem exacerbated by the Reagan Tokes Law‘s neglect to include any parameters on the nature of the hearing. In other words, if the Reagan
{¶95} Relatedly, while policy No. 105-PBD-15(F)(12) indicates that the hearing officer “will review the Additional Term Hearing Decision and Minutes * * * with the incarcerated adult,” the policy includes no provision ensuring that the inmate receive a written statement of the basis for the decision, or even any explanation.
{¶96} The policy allows an inmate to be hailed before the board without knowing why, without any opportunity to gather information to defend himself or to cross-examine witnesses, and he doesn‘t even have to be told why he‘s going to sit in jail longer than he thought he would. Given the structure implemented by the policy, DRC will prevail at every one of these “hearings,” with a perfect batting average. All of this offends basic notions of due process that our democracy is founded upon. Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, at fn. 13 (Mayle, J., concurring
{¶97} My colleagues in the majority tell me not to worry, that my parade of horribles is unlikely to materialize, and that we can effectively presume that a constitutional process will unfold. I wish I could take comfort in that. But the reason that we have a DRC policy so inimical to due process is precisely because the General Assembly failed to embed due process protections in the Reagan Tokes Law, or at least delegate the matter for appropriate administrative rule making. A presumption is one thing, but we can‘t ignore reality.
{¶98} The majority concludes that procedural protections need not be articulated on the face of a statute, but I reject this conclusion for two main reasons. First, I have yet to see (in the existing caselaw assessing the constitutionality of a statutory scheme under procedural due process) a U.S. or Ohio Supreme Court case that says the General Assembly is excused from adding due process protections into a statute because we can just presume that they‘re there. Indeed, this flouts the approach normally taken in interpreting statutes that places a premium on the statute‘s text. More to the point, Ohio courts have sustained facial procedural due process challenges where the General Assembly omitted procedural safeguards from legislation, thus refuting the notion that the General Assembly has no duty to include
{¶99} Second, the legislature has shown, time and again, that it knows how to provide due process protections in the statutes it promulgates (or at least delegate rulemaking authority to an agency to do so). See Delvallie, 2022-Ohio-470, 185 N.E.3d 536, at ¶ 162 (Forbes, J., dissenting) (“The Ohio legislature knows how to include due process safeguards in statutes.“). My approach thus does not impose any real burden on the General Assembly.
{¶100} One example is
{¶101} Another example is Ohio‘s parole revocation statute, which expressly grants rulemaking authority to DRC under
{¶102} I believe that it is very dangerous to give the General Assembly a pass from including basic due process protections in the statutes it legislates. The majority here excuses the General Assembly from providing notice to the inmate, but what if the statute didn‘t include a hearing? By the same logic, should we just imagine that an extra-statutory hearing will occur? I don‘t think so. See Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, at ¶ 8. Overactive judicial imaginations should not radically transform and amend defective legislation. Such a regime will also precipitate more litigation, rather than less, and potentially lead to conflicting decisions and standards. All of this could be avoided if the General Assembly simply honored procedural due process in the statutes it passes.
V.
{¶103} Finally, I would be remiss if I didn‘t add a word about as-applied challenges to the Reagan Tokes Law, because the majority in this case and others have concluded that that represents the better forum to probe due process challenges to the statute. See, e.g., Eaton, 6th Dist. Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 169 (Mayle, J., concurring in judgment only) (“[G]iven that this is a facial challenge to the
{¶104} I fail to understand how courts will be able to adequately scrutinize proceedings before the DRC when no avenue for appeal exists. 105-PBD-15(F)(15) (“The decision is final and non-appealable.“). The answer, I suppose, is that an inmate could file a habeas action, but I have difficulty envisioning how this would constitute a viable path. Without the right to counsel, nearly all such petitions would be pro se. And even if the inmate lucked out and secured a lawyer, how is the lawyer supposed to analyze the due process claim when no record exists of the proceeding, nor any fact-finding or even explanation of the reasons for holding the inmate longer? Absent a record of the proceedings, courts may have no choice but to presume the regularity of the administrative proceedings and defer to the administrative conclusions. See Arnold v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 11AP-120, 2011-Ohio-4928, ¶ 14 (“Where nothing in the record indicates procedural irregularity, a presumption of regularity attaches to administrative agency proceedings.“), citing State ex rel. Ohio Bldg. Restoration, Inc. v. Indus. Comm. of Ohio, 64 Ohio St.3d 188, 189, 593 N.E.2d 1388 (1992) (“Given the presumption of regularity that attaches to commission proceedings, the commission‘s statement that it complied with [the law], absent evidence to the contrary, should be accepted.“). The DRC policy does not require any modicum of fact-finding or explanation to be provided to an inmate, and of course, it would not be in DRC‘s interest to provide such details (because then that might be used by an inmate to challenge its determination). I fear we will just assume away any due process concerns.
{¶106} The Eighth District lead opinion in Delvallie warned that it would “be devastating” if due process were applied in such a manner that would strike down the Reagan Tokes Law, with chaotic results. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, at ¶ 64. But I see a greater threat looming if we (as the court system) kick the proverbial can down the road and wait for as-applied challenges to land on our desks. This does a disservice to the public, DRC, the judicial system, and the inmates themselves.
{¶107} Of course, all of this represents a solvable problem. Modest measures by the General Assembly to ensure procedural due process could moot all of these concerns and eliminate the risk of prolonged litigation, and I would encourage such actions. In the meantime, I respectfully dissent in part and would hold that the notice and hearing provisions in the Reagan Tokes Law violate procedural due process on its face.
Please note:
The court has recorded its entry on the date of the release of this opinion.