THE STATE OF OHIO, APPELLEE, v. HACKER, APPELLANT. THE STATE OF OHIO, APPELLEE, v. SIMMONS, APPELLANT.
Nos. 2020-1496 and 2021-0532
Supreme Court of Ohio
July 26, 2023
173 Ohio St.3d 219, 2023-Ohio-2535
DETERS, J.
Submitted January 11, 2023
APPEALS from the Court of Appeals for Logan County, No. 8-20-01, 2020-Ohio-5048, and the Court of Appeals for Cuyahoga County, No. 109476, 2021-Ohio-939.
DETERS, J.
{¶ 1} The “Reagan Tokes Law,” which became effective in March 2019, requires that for certain first- and second-degree felony offenses, a sentencing court
I. The Underlying Cases
A. State v. Hacker
{¶ 2} In December 2019, Hacker pled guilty to one count of aggravated robbery with a one-year firearm specification. Because aggravated robbery is a first-degree felony offense, Hacker was subject to sentencing under the Reagan Tokes Law. See 2018 Am.Sub.S.B. No. 201, effective Mar. 22, 2019. Prior to sentencing, Hacker filed an objection to the imposition of an indefinite sentence and attached as support the decision of the Hamilton County Court of Common Pleas in State v. O’Neal, Hamilton C.P. No. B-1903562, 2019 WL 7670061 (Nov. 20, 2019). In O’Neal, the common pleas court declared the Reagan Tokes Law to be unconstitutional on the grounds that it violated the separation-of-powers doctrine and procedural due process. The First District Court of Appeals subsequently reversed the trial court‘s judgment. State v. O’Neal, 1st Dist. Hamilton No. C-190736, 2022-Ohio-3017.1
{¶ 4} Hacker appealed to the Third District, which affirmed the trial court‘s decision on separation-of-powers and due-process grounds. 2020-Ohio-5048, 161 N.E.3d 112, ¶ 18, 23. The court of appeals declined to consider Hacker‘s contention that the Reagan Tokes Law violated his right to a jury trial, finding that he had waived that argument by not raising it in the trial court. Id. at ¶ 17.
B. State v. Simmons
{¶ 5} In December 2019, Simmons pled guilty to one count of having weapons while under a disability, one count of drug trafficking with a one-year firearm specification, and one count of drug possession. Because the drug-trafficking offense to which he pled guilty is a second-degree felony offense, Simmons was subject to sentencing under the Reagan Tokes Law. At the sentencing hearing, however, the trial court noted that it had previously held the Reagan Tokes Law to be unconstitutional on the grounds cited by the Hamilton County Court of Common Pleas in O’Neal, Hamilton C.P. No. B-1903562, 2019 WL 7670061. The court therefore imposed a definite sentence of four years for Simmons‘s drug-trafficking offense.
{¶ 6} The state appealed to the Eighth District. That court concluded that the Reagan Tokes Law is constitutional, reversed the lower court‘s sentencing judgment, and remanded the case for resentencing. 2021-Ohio-939, 169 N.E.3d 728, ¶ 23.
II. The Reagan Tokes Law
{¶ 7} The Reagan Tokes Law provides for indefinite sentencing for offenders convicted of first- or second-degree felonies for which life imprisonment
{¶ 8}
{¶ 9} The presumption of release may be rebutted by the 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 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.
{¶ 10} If the presumption of release is rebutted, the DRC may maintain the offender‘s incarceration beyond the minimum prison term or, if applicable, the presumptive earned-early-release date for a “reasonable period * * * specified by the department” not to exceed the maximum prison term established under
III. Legal Analysis
{¶ 11} Legislation is entitled to a strong presumption of constitutionality. Ohio Pub. Interest Action Group, Inc. v. Pub. Util. Comm., 43 Ohio St.2d 175, 331 N.E.2d 730 (1975), paragraph four of the syllabus. Because Hacker and Simmons raise facial challenges to the Reagan Tokes Law, the presumption of
{¶ 12} Despite seeking to have the entire Reagan Tokes Law declared unconstitutional, Hacker and Simmons do not suggest that
A. Separation of Powers
{¶ 13} Hacker and Simmons each maintain that the Reagan Tokes Law violates the separation-of-powers doctrine because the DRC—part of the executive branch—has been given the authority to maintain an offender‘s incarceration beyond the minimum prison term imposed by a trial court. Hacker and Simmons reason that the power given to the DRC infringes on the authority of the judicial branch. We disagree. While the Reagan Tokes Law certainly demonstrates the interplay among the three branches of government, the authority given to the DRC—which is to be exercised within the bounds of the sentence imposed by the trial court—does not infringe on the power of the courts.
{¶ 15} “What are legislative powers, or what executive or judicial powers [are], is not defined or expressed in the constitution, except in general terms. The boundary line between them is undefined, and often difficult to determine.” State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 647, 4 N.E. 81 (1885). But the boundaries of each branch‘s power have been described in cases throughout the years. Relevant here is the principle that the legislative branch “define[s] crimes,” “fixes the penalty,” and “provide[s] such discipline and regulations for prisoners, not in conflict with the fundamental law, as the legislature deems best.”
{¶ 17} Hacker and Simmons ground their separation-of-powers arguments in this court‘s decision in Bray. In that case, the court considered petitions for writs of habeas corpus filed by three offenders whose stated prison terms had been extended by the addition of “bad time” under former
{¶ 18} Hacker and Simmons argue that
{¶ 20} Under former
{¶ 21} The Sixth District concluded that
{¶ 22} In arriving at this conclusion, this court distinguished Bray:
While we acknowledged [in Bray] that prison discipline is a proper exercise of executive power, we concluded that trying, convicting, and sentencing inmates for crimes committed while in prison is not an appropriate exercise of executive power. The commission of the “crime” actually resulted in an additional sentence being imposed by an administrator. If an offense was serious enough to constitute an additional crime, and the prison authorities did not feel that administrative sanctions were sufficient (i.e., isolation, loss of privileges), the prison authorities should bring additional charges in a court of law, as they did before [Am.Sub.S.B. No. 2]. Accordingly, we held that
R.C. 2967.11 violated the doctrine of separation of powers and is therefore unconstitutional.
(Citation omitted.) Woods, 89 Ohio St.3d at 512, 733 N.E.2d 1103. The court further explained that “in contrast to the bad-time statute, post-release control is part of the original judicially imposed sentence” and that the power to determine the duration of postrelease control and the sanctions for an offender‘s violation of postrelease-control conditions was consistent with the authority that had been delegated to the APA in the past under a prior system of parole. Id. Moreover, the court noted that the authority of the judiciary was not impeded by the APA‘s performance of its disciplinary function. Id.
{¶ 23} The statutory scheme established in the Reagan Tokes Law is analogous to that in
{¶ 24} Hacker‘s separation-of-powers argument is not limited to his challenge to the DRC‘s authority to hold an offender beyond his presumptive minimum prison term. He also maintains that the authority granted to the DRC director under
{¶ 25} We conclude that allowing the DRC to rebut the presumption of release for disciplinary reasons does not exceed the power given to the executive branch and does not interfere with the trial court‘s discretion when sentencing an offender. Therefore, we hold that the Reagan Tokes Law does not violate the separation-of-powers doctrine.
B. The Right to a Jury Trial
{¶ 26} Simmons protests that
{¶ 27} In support of his argument, Simmons directs us to a line of cases from the United States Supreme Court, beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In that case, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Thus, the Supreme Court determined that a statute that permitted the increase of the maximum term of imprisonment from 10 to 20 years when the trial judge—not a jury—found that the defendant had committed a crime with a racial bias violated the constitutional right to a jury trial. Id. at 491-495. “ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” (Brackets added in Apprendi.) Id., quoting Jones v. United States, 526 U.S. 227, 252-253, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring).
{¶ 28} But here, the “prescribed range of penalties” is determined upon the return of a guilty verdict—or, as in the cases before us, when the offender pleads guilty to the charged offenses. Once an offender is found guilty of an eligible offense, the trial court has the discretion to sentence him to any minimum sentence within the appropriate range.
{¶ 29} Both Hacker and Simmons contend that the Reagan Tokes Law violates offenders’ due-process rights.3 Their due-process challenges have two bases. First, they claim that the law is unconstitutionally vague. Second, they argue that the procedure provided by the law is insufficient to protect their rights. The problem with their arguments, however, is that they each raise a facial challenge. As such, they must show that in all circumstances, offenders are denied notice and a hearing. They have not made any such demonstration.
1. Void-for-Vagueness Doctrine
{¶ 30} The vagueness claims challenge the adequacy of the notice given by the Reagan Tokes Law as to what conduct will trigger maintenance of an offender‘s incarceration. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Thus, the adequacy of notice is evaluated from two perspectives: whether a person subject to the law can understand what is prohibited and whether those prohibitions are clear enough to prevent arbitrary enforcement.
{¶ 31} Hacker and Simmons argue that
{¶ 32} The phrases in the law highlighted by Hacker and Simmons must not be read in isolation. The infractions or violations that may “demonstrate that the offender has not been rehabilitated” are those “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 * * * a violation of law that was not prosecuted.”
{¶ 33} Simmons further protests that the DRC is given “unfettered discretion” to determine whether certain infractions warrant maintaining an offender‘s incarceration. Similarly, Hacker quotes the Hamilton County Common Pleas Court‘s decision in O’Neal in support of his argument that the law “ ‘fails to provide a guideline as to how each consideration shall be weighed,’ ” Hamilton C.P. No. B-1903562, 2019 WL 7670061, at *7. But the DRC is authorized to make similar determinations in other contexts. See, e.g.,
2. Procedural Due Process
{¶ 35} In their procedural-due-process claims, Hacker and Simmons protest that the Reagan Tokes Law provides insufficient procedure to protect offenders’ rights. “Due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest.” State v. Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996).
{¶ 36} As an initial matter, the state argues that offenders do not have a liberty interest in not being held beyond the minimum prison term imposed by a trial court. To be sure, this court has held that when the APA is vested with discretion whether to grant parole to an offender, the offender has “no expectancy of parole or a constitutional liberty interest sufficient to establish a right of procedural due process.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994). But here, the DRC‘s discretion to maintain an offender‘s incarceration beyond the minimum prison term imposed by the trial court is curtailed by
{¶ 37} Because a liberty interest is at stake in these cases, due process requires a hearing before offenders are deprived of that interest.
{¶ 38} But recall that Hacker and Simmons each present a facial challenge to the Reagan Tokes Law. Their challenges are to the law itself, not to the policies used by the DRC in furtherance of the law. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. The fact that the law “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” Id.
{¶ 40} The Reagan Tokes Law is not void for vagueness. And we also hold that it is not facially unconstitutional, because it provides that offenders receive a hearing before they may be deprived of their liberty interest.
IV. Conclusion
{¶ 41} The Reagan Tokes Law carries a presumption of constitutionality, and to rebut that presumption in a facial challenge, Hacker and Simmons were required to demonstrate that “no set of circumstances exists under which the [law] would be valid,” Salerno, 481 U.S. at 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. They have not done so. We therefore affirm the judgments of the Third and Eighth District Courts of Appeals and hold that the Reagan Tokes Law is constitutional.
Judgments affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, and STEWART, JJ., concur.
BRUNNER, J., dissenting.
I. INTRODUCTION
{¶ 42} In both of these cases, we were asked to consider the facial constitutionality of the Reagan Tokes Law (“RTL”). I agree with several of the majority‘s determinations in its analysis. Because the RTL is, in my view, akin to Ohio‘s former indefinite-sentencing scheme, I agree that the law does not violate the separation-of-powers doctrine. I also agree that appellants, Christopher P. Hacker and Danan Simmons Jr., lack standing to challenge the Adult Parole Authority‘s (“APA”) exercise of its discretion to recommend a person‘s release from prison before the presumptive minimum sentence has been served, because they are not aggrieved by that provision of the RTL. I share the majority‘s view that the RTL does not violate the right to a jury trial, because nothing about the law permits a fact-finder other than a jury to find facts that increase the range of sentencing exposure of the defendant. With respect to the majority‘s overall due-process analysis, I agree that appellants do have a protectable interest in their freedom after their presumptive minimum sentence has expired, and thus, I disagree with the contrary argument of appellee, the state of Ohio. Similarly, I agree with the majority that a facial constitutional analysis involves a review of the law that is challenged, not the policies that may be adopted to enforce the law.
{¶ 43} But I part ways with the majority in that I do not agree with its conclusions about procedural due process. The procedures created by the RTL are insufficient in light of the gravity of the decision being made—whether to release a person from prison on his or her presumptive release date. This imbalance facially violates offenders’ right to due process and is unconstitutional. And because the unconstitutional portions of the RTL cannot be severed from the law without
II. ANALYSIS
A. Standard of Review on Facial Challenges
{¶ 44} We have previously stated that “a facial constitutional challenge requires proof beyond a reasonable doubt.” Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 20, citing State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21. But the beyond-a-reasonable-doubt standard “is an evidentiary standard that is poorly suited to the legal question whether a legislative enactment comports with the Constitution.” State v. Grevious, 172 Ohio St.3d 171, 2022-Ohio-4361, 223 N.E.3d 323, ¶ 48 (DeWine, J., concurring in judgment only). And “while the beyond-reasonable-doubt standard is something that we have rotely pasted into constitutional opinions, there is no indication that we actually use it.” Id. at ¶ 63 (DeWine, J., concurring in judgment only). I would steer parties—and courts—away from reciting the inaccurate beyond-a-reasonable-doubt standard when discussing constitutional challenges such as the RTL challenge and would instead adhere to the standard that reflects the reality of our review:
The question of the constitutionality of every law being first determined by the General Assembly, every presumption is in favor of its constitutionality, and it must clearly appear that the law is in direct conflict with inhibitions of the Constitution before a court will declare it unconstitutional.
[f]acial challenges to the constitutionality of a statute are the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). If a statute is unconstitutional on its face, the statute may not be enforced under any circumstances. When determining whether a law is facially invalid, a court must be careful not to exceed the statute‘s actual language and speculate about hypothetical or imaginary cases. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Reference to extrinsic facts is not required to resolve a facial challenge. Reading [v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181, 846 N.E.2d 840,] ¶ 15.
Wymsylo at ¶ 21. As always, “ ‘[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.’ ” State v. Turner, 163 Ohio St.3d 421, 2020-Ohio-6773, 170 N.E.3d 842, ¶ 18, quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). Questions of statutory interpretation are reviewed de novo. State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 20.
B. The Reagan Tokes Law
{¶ 46} The General Assembly enacted 2018 Am.Sub.S.B. No. 201 (“S.B. 201”) to
To support these goals, S.B. 201 amended numerous provisions of the Revised Code in minor ways and made three major changes to the Revised Code that are relevant to the cases before us.
{¶ 47} S.B. 201 inserted language into
For a felony of the first degree committed on or after March 22, 2019, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to
section 2929.144 of the Revised Code ,except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division.
As for second-degree felonies, the provision is identical except as to penalties:
For a felony of the second degree committed on or after March 22, 2019, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to
section 2929.144 of the Revised Code * * *.
{¶ 48} The RTL also placed a new section,
(A) As used in this section, “qualifying felony of the first or second degree” means a felony of the first or second degree committed on or after [March 22, 2019].
(B) The court imposing a prison term on an offender under division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code for a qualifying felony of the first or second degree shall determine the maximum prison term that is part of the sentence in accordance with the following: (1) If the offender is being sentenced for one felony and the felony is a qualifying felony of the first or second degree, the maximum prison term shall be equal to the minimum term imposed on the offender under division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code plus fifty per cent of that term.(2) If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.(3) If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that all of the prison terms imposed are to run concurrently, the maximum term shall be equal to the longest of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code for a qualifying felony of the first or second degree for whichthe sentence is being imposed plus fifty per cent of the longest minimum term for the most serious qualifying felony being sentenced. (4) Any mandatory prison term, or portion of a mandatory prison term, that is imposed or to be imposed on the offender under division (B), (G), or (H) of
section 2929.14 of the Revised Code or under any other provision of the Revised Code, with respect to a conviction of or plea of guilty to a specification, and that is in addition to the sentence imposed for the underlying offense is separate from the sentence being imposed for the qualifying first or second degree felony committed on or after the effective date of this section and shall not be considered or included in determining a maximum prison term for the offender under divisions (B)(1) to (3) of this section.(C) The court imposing a prison term on an offender pursuant to division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code for a qualifying felony of the first or second degree shall sentence the offender, as part of the sentence, to the maximum prison term determined under division (B) of this section. The court shall impose this maximum term at sentencing as part of the sentence it imposes undersection 2929.14 of the Revised Code , and shall state the minimum term it imposes under division (A)(1)(a) or (2)(a) of that section, and this maximum term, in the sentencing entry.(D) If a court imposes a prison term on an offender pursuant to division (A)(1)(a) or (2)(a) of
section 2929.14 of the Revised Code for a qualifying felony of the first or second degree, section2967.271 of the Revised Code applies with respect to the offender’s service of the prison term.
{¶ 49} Finally, the RTL enacted
(A) As used in this section:
(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 or2967.193 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.(2) “Offender’s presumptive earned early release date” means the date that is determined under the procedures described in division (F) of this section by the reduction, if any, of an offender’s minimum prison term by the sentencing court and the crediting of that reduction toward the satisfaction of the minimum term.
(3) “Rehabilitative programs and activities” means education programs, vocational training, employment in prison industries, treatment for substance abuse, or other constructive programs developed by the department of rehabilitation and correction with specific standards for performance by prisoners.
(4) “Security level” means the security level in which an offender is classified under the inmate classification level system of the department of rehabilitation and correction that then is in effect.
(5) “Sexually oriented offense” has the same meaning as in section 2950.01 of the Revised Code .(B) When an offender is sentenced to a non-life felony indefinite prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier.
(C) The presumption established under division (B) of this section is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. 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.
(D)(1) If the department of rehabilitation and correction, pursuant to division (C) of this section, rebuts the presumption established under division (B) of this section, 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 or, for offenders who have a presumptive earned early release date, after the offender’s presumptive earned early release date. The department may maintain the offender’s incarceration under this division for an additional period of incarceration determined by the department. The additional period of incarceration shall be a reasonable period determined by the department, shall be specified by the department, and shall not exceed the offender’s maximum prison term.
(2) If the department maintains an offender’s incarceration for an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expiration of the offender’s minimum prison term plus the additional period of incarceration specified by the department as provided under that division or, for offenders who have a
presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender’s presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttable presumption that the department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the offender’s incarceration in a state correctional institution for an additional period determined as specified in division (D)(1) of this section. Unless the department rebuts the presumption at the hearing, the offender shall be released from service of the sentence on the expiration of the offender’s minimum prison term plus the additional period of incarceration specified by the department or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender’s presumptive earned early release date as specified by the department.
The provisions of this division regarding the establishment of a rebuttable presumption, the department’s rebuttal of the presumption, and the department’s maintenance of an offender’s incarceration for an additional period of incarceration apply, and may be utilized more than one time, during the remainder of the offender’s incarceration. If the offender has not been released under division (C) of this section or this division prior to the expiration of the offender’s maximum prison term imposed as part of the offender’s non-life felony indefinite prison term, the offender shall be released upon the expiration of that maximum term.
(E) The department 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 andChapter 2930. of the Revised Code with respect to hearings to be conducted regarding the possible release on parole of an inmate.
C. The Reagan Tokes Law Does Not Violate an Offender’s Right to a Jury Trial
{¶ 50} Both the United States Supreme Court and this court have explained that the historical role of the jury in finding facts necessary to convict or to increase a sentence range is protected by the
{¶ 52} It could be argued that
D. The Reagan Tokes Law Does Not Violate Separation of Powers
{¶ 53} This court discussed the basis of the separation-of-powers doctrine in a similar case more than 20 years ago:
This court has repeatedly affirmed that the doctrine of separation of powers is “implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government.” S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136, 138 (1986); State v. Warner, 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31 (1990). See State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 475, 715 N.E.2d 1062, 1085 (1999); State v. Hochhausler, 76 Ohio St.3d 455, 463, 668 N.E.2d 457, 465-466 (1996).
“The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.” State ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473, 166 N.E. 407, 410 (1929). See also Knapp v. Thomas, 39 Ohio St. 377, 391-392 (1883); State ex rel. Finley v. Pfeiffer, 163 Ohio St. 149, 126 N.E.2d 57, paragraph one of the syllabus.
State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 134, 729 N.E.2d 359 (2000). The separation-of-powers doctrine exists not to protect the powers of each branch of the government for the benefit of that branch but for the benefit of the people who rely on a government of checks and balances as a shield against the arbitrary use of power. Id. at 135. In Bray, we also discussed the role of the judiciary:
In our constitutional scheme, the judicial power resides in the judicial branch.
Section 1, Article IV of the Ohio Constitution . 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. See State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 648, 4 N.E. 81, 86 (1885). See also Stanton v. Tax Comm., 114 Ohio St. 658, 672, 151 N.E. 760, 764 (1926) (“the primary functions of the judiciary are to declare what the law is and to determine therights of parties conformably thereto”); Fairview v. Giffee, 73 Ohio St. 183, 190, 76 N.E. 865, 867 (1905) (“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”).
{¶ 54} In Bray, we confronted a facial challenge to the following statutory provision:
“As part of a prisoner’s sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. * * * If a prisoner’s stated prison term is extended under this section, the time by which it is so extended shall be referred to as ‘bad time.’ ”
Id. at 135, quoting former
{¶ 56} In this respect, the RTL is more analogous to the indefinite sentencing scheme that existed in Ohio before Senate Bill 2 (“S.B. 2”) took effect on July 1, 1996, and significantly changed Ohio’s criminal code. See Am.Sub.S.B. No. 2, Sections 1 through 6, 146 Ohio Laws, Part IV, 7136. In the sentencing scheme that existed before S.B. 2, many sentences were indefinite, composed of a minimum prison term (determined by the trial court based on statutory criteria) and a maximum prison term (set by statute based on the degree of the offense). See former
Ohio Parole Board had the authority to continue an offender’s term of imprisonment or to release the offender depending on a variety of factors, including the offender’s conduct while incarcerated. See former
{¶ 57} Thus, while the RTL shares certain features with the former “bad time” statute that we concluded in Bray violated the separation-of-powers doctrine, the RTL lacks the critical feature of delegating the judicial guilt-finding and
E. The Reagan Tokes Law Violates Procedural Due Process
{¶ 58} Both the Ohio and United States Constitutions guarantee procedural due process.
While the Ohio Constitution is a document of independent force, Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus, the Due Course of Law Clause of
Article I, Section 16 of the Ohio Constitution is more often than not considered the functional equivalent of the Due Process Clause of theFourteenth Amendment to the United States Constitution , State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15. But see Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 34 (lead opinion) (noting that this court departed from the general rulein State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 23-24).
State v. Ireland, 155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, ¶ 37 (lead opinion). It is therefore reasonable to rely on federal caselaw to establish a floor for what is fair, even while acknowledging that the Ohio Constitution may well require an elevated floor of due-process protection in some cases.
{¶ 59} Due process can seem an imprecise concept at times, but it “requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right,” and that “opportunity to be heard must occur at a meaningful time and in a meaningful manner.” State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, ¶ 8, citing Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and Hochhausler, 76 Ohio St.3d at 459. “[F]reedom ‘from bodily restraint,’ lies ‘at the core of the liberty protected by the Due Process Clause.’ ” Turner v. Rogers, 564 U.S. 431, 445, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011), quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). The state has argued that the RTL sentencing scheme is like release on parole under Ohio’s former indefinite sentencing scheme and that no liberty interest is therefore implicated. It is true that “[t]here is a crucial distinction between being deprived of a liberty one has, as in [revocation of] parole, and being denied a conditional liberty that one desires,” as in “discretionary parole release from confinement” or parole eligibility. (Emphasis deleted.) Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). However, the United States Supreme Court has made clear that drawing that distinction must be done with caution, for freedom from restraint is a protectable interest for prisoners insofar as it may be violated by infringements that impose atypical and significant hardship or that
{¶ 60} In evaluating procedural-due-process claims, both this court and the United States Supreme Court have generally applied the Mathews balancing test. See Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 28; Mathews at 335. “Under the Mathews balancing test, a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake.” Nelson v. Colorado, 581 U.S. 128, 135, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017).
{¶ 61} Freedom from imprisonment is perhaps the most basic and essential private interest and lies at the core of the liberty protected by the Due Process Clause. Turner at 445. Counterbalancing that, however, the government’s interest in protecting society from the depredations of criminals who are not yet rehabilitated is self-evident and strong. With those considerations arguably balanced, the due-process issue in these cases collapses into a single question: Under the procedures established by the RTL, is there a risk of erroneously overcoming the presumption of release and unjustifiably depriving an offender of his or her liberty beyond the presumptive release date?
{¶ 64} Moreover, the three possibilities for rebutting an offender‘s presumptive release date (i.e., demonstration of a lack of rehabilitation and continued threat to society, placement in extended restrictive housing, or high security level) are matters determined under other, separate hearing processes. I proceed to determine whether those processes at all compensate for the absence of due-process provisions in
{¶ 65} First, an inmate‘s security level is initially determined by reception-center institutions that collect information for the Bureau of Classification.
- (1) Nature or seriousness of the offense for which the inmate was committed;
- (2) Length of sentence for which the inmate was committed;
- (3) Medical and mental health status;
- (4) Previous experience while on parole, furlough, probation, post release control, administrative release or while under any other form of correctional supervision[;]
- (5) Nature of prior criminal conduct as shown by the official record;
- (6) Age of inmate;
- (7) Potential for escape;
- (8) Potential of danger to the inmate, other inmates, staff, or the community through the inmate‘s actions or actions of others;
- (9) Availability of housing, work, and programming at the various institutions;
- (10) The physical facilities of an institution; [and]
- (11) Any other relevant information contained in the reports.
{¶ 67} Hearings on rule violations are held before the rules-infraction board (“RIB“), which consists of two ODRC staff members who have “completed RIB training” and who did not witness or investigate the alleged violation.
{¶ 68} Finally, one possible outcome of a rule violation is the inmate‘s placement in restrictive housing.
{¶ 69} These procedures, designed to process rules infractions and set security classifications within the ODRC, are likely sufficient for those purposes when the state‘s interest in institutional security is great and the inmate‘s interest in institutional privileges is comparatively less. But the RTL uses the outcomes of these procedures for a far more constitutionally significant purpose—whether to release an inmate on his or her presumptive release date. Thus, we must ask: Under these procedures, is there a risk of using this data to wrongly overcome the presumption of release and deprive an inmate of his or her liberty?
{¶ 70} While any human endeavor is fallible and has some risk of error, certain safeguards have been judicially shown to produce reliable results for a fair process before deprivation of certain basic rights—among which is liberty of person, including freedom from unlawful restraint. Important among these constitutional safeguards are notice, a meaningful hearing, the right to counsel, and the opportunity to confront and cross-examine adverse witnesses. United States v. Gonzalez-Lopez, 548 U.S. 140, 145-146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006);
In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Louisville & N.R. Co., 227 U.S. 88, 93-94, 33 S.Ct. 185, 187-188, 57 L.Ed. 431 (1913); Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104, 83 S.Ct. 1175, 1180-1181, 10 L.Ed.2d 224 (1963). What we said in Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), is particularly pertinent here: “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government‘s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment * * *. This Court has
been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative * * * actions were under scrutiny.”
(Ellipses sic.) Goldberg v. Kelly, 397 U.S. 254, 269-270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). In fact, in the somewhat analogous context of a parole revocation, the United States Supreme Court has declared “the minimum requirements of due process” as “includ[ing]“:
(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 v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
{¶ 71} Yet, in both of the RTL‘s statutory procedures as well as the other, administrative procedures on which the RTL relies, notice is minimal (measured in hours) or nonexistent, the rights to counsel and to confront witnesses are entirely absent, and the decision-making fact-finder and the prosecutor are one and the same (i.e., the ODRC). These shortcomings and shortcuts are perhaps permissible when the controversy at issue is merely the question of security level or restrictive housing—i.e., when the offender‘s interest is a relatively minor matter of different institutional privileges and the state‘s countervailing interest in maintaining
F. Severability
{¶ 72} The Revised Code instructs:
If any provisions of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.
Three questions are to be answered before severance is appropriate. ” ‘(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the
constitutional part from the unconstitutional part, and to give effect to the former only?’ ”
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 95, abrogated in part by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), quoting Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph 19 of the syllabus.
{¶ 73} Simmons takes the position that if any part of the RTL is unconstitutional, there is cause to invalidate the entire act; Hacker does not address this issue. The state argues that if portions of the RTL offend the Constitution, they may be severed.
{¶ 74} Neither Hacker nor Simmons has challenged the constitutionality of the indefinite-sentencing structure set forth in
{¶ 75} Clearly, the indefinite-sentencing provisions and the presumption of release at the expiration of the offender‘s minimum sentence each ” ’ “may be read and may stand by” ’ ” themselves, id., quoting Geiger, 117 Ohio St. at 466, quoting Bickford, 28 N.D. 36, at paragraph 19 of the syllabus. It is not necessary to insert words or terms to separate the constitutional part of a statute from the unconstitutional parts and to give effect to the former only. Id. Nothing about invalidating the language in
{¶ 76} The state suggests curing this problem by also striking the presumption of a minimum sentence. But neither Hacker nor Simmons has challenged that provision, and more importantly, there is nothing apparently unconstitutional about designating the minimum sentence as the presumptive release date. We may not arbitrarily strike a provision to make a statutory scheme work in the context of other stricken parts that violate offenders’ rights to procedural due process. The state alternatively suggests that this problem could be
{¶ 77} Because of the basic due-process infirmity in the RTL, there remains no mechanism to enforce the maximum sentence and the intention of the legislature is largely thwarted. The balance struck between flexibility on the maximum and flexibility on the minimum—as provided in
III. CONCLUSION
{¶ 78} The RTL is akin to Ohio‘s former indefinite-sentencing scheme and consequently does not violate the separation-of-powers doctrine. Hacker and Simmons lack standing to challenge the discretion granted to the APA to recommend their release before they have served their presumptive minimum sentences because they are not aggrieved by the RTL as to these circumstances. The RTL also does not violate the right to a jury trial, because nothing about the law permits a fact-finder other than a jury to find facts that increase the defendant‘s sentencing-range exposure.
{¶ 79} However, the RTL does facially violate offenders’ rights to procedural due process. The procedures created by the RTL are insufficient in relation to the gravity of the decision being undertaken—determining whether to release an offender on his or her presumptive release date, affecting the offender‘s personal liberty. For this reason, the RTL facially violates offenders’ rights to procedural due process, requiring severance of certain provisions, without which the remaining language collapses in its operation, leaving part of the RTL meaningless and without a mechanism to implement it. Therefore, the RTL is wholly unconstitutional. Accordingly, I respectfully dissent and would reverse the
DONNELLY, J., concurs in the foregoing opinion.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Samuel C. Peterson, Deputy Solicitor General; and Eric C. Stewart, Logan County Prosecuting Attorney, for appellee in case No. 2020-1496.
Triplett McFall Wolfe Law, L.L.C., Tina M. McFall, and Marc S. Triplett, for appellant in case No. 2020-1496.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Tasha L. Forchione, Assistant Prosecuting Attorneys, for appellee in case No. 2021-0532.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant in case No. 2021-0532.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Cuyahoga County Prosecutor‘s Office in case No. 2020-1496.
Steven L. Taylor, Legal Research and Staff Counsel, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association in case Nos. 2020-1496 and 2021-0532.
Timothy Young, Ohio Public Defender, Stephen P. Hardwick, Assistant Public Defender, and Daniel S. Marcus, Supervising Attorney, urging reversal for amicus curiae Ohio Public Defender in case No. 2020-1496.
Mayle, L.L.C., Andrew R. Mayle, Benjamin G. Padanilam, and Ronald J. Mayle, urging reversal for amicus curiae Edward Maddox in case No. 2020-1496.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Samuel C. Peterson,
Notes
(B) Except as provided in division (D) or (H) of this section, sections 2929.71 and 2929.72, and Chapter 2925. of the Revised Code, terms of imprisonment for felony shall be imposed as follows:
(1) For an aggravated felony of the first degree:
(a) If the offender has not previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term, which may be imposed as a term of actual incarceration, shall be five, six, seven, eight, nine, or ten years, and the maximum term shall be twenty-five years;
(b) If the offender has previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term shall be imposed as a term of actual incarceration of ten, eleven, twelve, thirteen, fourteen, or fifteen years, and the maximum term shall be twenty-five years;
(2) For an aggravated felony of the second degree:
(a) If the offender has not previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term, which may be imposed as a term of actual incarceration, shall be three, four, five, six, seven, or eight years, and the maximum term shall be fifteen years;
(b) If the offender has previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term shall be imposed as a term of actual incarceration of eight, nine, ten, eleven, or twelve years, and the maximum term shall be fifteen years;
(3) For an aggravated felony of the third degree:
(a) If the offender has not previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term, which may be imposed as a term of actual incarceration, shall be two, three, four, or five years, and the maximum term shall be ten years;
(b) If the offender has previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term shall be imposed as a term of actual incarceration of five, six, seven, or eight years, and the maximum term shall be ten years;
(4) For a felony of the first degree, the minimum term shall be four, five, six, or seven years, and the maximum term shall be twenty-five years;
(5) For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maximum term shall be fifteen years;
(6) For a felony of the third degree, the minimum term shall be two years, thirty months, three years, or four years, and the maximum term shall be ten years;
(7) For a felony of the fourth degree, the minimum term shall be eighteen months, two years, thirty months, or three years, and the maximum term shall be five years.