STATE OF OHIO v. DANAN SIMMONS, JR.
No. 109476
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 25, 2021
[Cite as State v. Simmons, 2021-Ohio-939.]
MICHELLE J. SHEEHAN, J.
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 25, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-638591-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, for appellee.
MICHELLE J. SHEEHAN, J.:
{¶ 1} The trial court did not impose an indefinite sentence per Am.Sub.S.B. 201, the Reagan Tokes Law and the state of Ohio appeals. Because the provisions requiring a sentencing court to impose an indefinite sentence under the Reagan
I. PROCEDURAL HISTORY AND FACTS
{¶ 2} Danan Simmons, Jr., appellee, was indicted on March 27, 2019, for the offenses of having weapons while under disability, drug trafficking, two counts of drug possession, and possession of criminal tools. The charges included various firearm and forfeiture specifications. On December 17, 2019, Simmons entered guilty pleas to one count of having weapons while under disability in violation of
{¶ 3} On January 30, 2020, at the sentencing hearing, the trial court found the Reagan Tokes Law, Am.Sub. S.B. 201, 2018 Ohio Laws 157, unconstitutional. Specifically, by adopting an opinion from the Hamilton County Court of Common Pleas, State v. Oneal, Hamilton C.P. No. B 1903562, 2019 WL 7670061 (Nov. 20, 2019), the trial court held that the indefinite sentencing scheme enacted under the Reagan Tokes Law violated the constitutional doctrine providing for the separation of powers. The opinion further holds that the administrative process that allows the Department of Rehabilitation and Correction (“DRC“) to keep an offender incarcerated past the stated minimum sentence deprives the offender of procedural due process.
{¶ 5} In this appeal, the state raises one assignment of error:
The trial court erred in finding the indefinite sentence required under S.B. 201 to be unconstitutional.
II. LAW AND ARGUMENT
A. THE APPEAL IS RIPE FOR REVIEW
{¶ 6} The Ohio Revised Code provides the state the right to appeal a sentence if it is contrary to law.
B. STANDARD OF REVIEW FOR CONSTITUTIONALITY OF A STATUTE
{¶ 7} In this case, by adopting the Oneal opinion, the trial court found the Reagan Tokes Law unconstitutional because it violates the doctrine of separation of powers and the constitutional requirements of due process. In reviewing a claim of unconstitutionality, this court is to give a presumption of constitutionality to the
C. THE REAGAN TOKES LAW IS CONSTITUTIONAL BASED ON ARGUMENTS RAISED ON APPEAL
1. RELEVANT PROVISIONS OF REAGAN TOKES LAW
{¶ 8} The Reagan Tokes Law, effective March 22, 2019, amended 50 sections of the revised code and adopted four new sections.
{¶ 9} Once an offender serves the required minimum term of incarceration, the law provides that the offender is presumed to be released.
(1) (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, [and]
(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.
2. REAGAN TOKES LAW DOES NOT VIOLATE THE DOCTRINE OF SEPARATION OF POWERS
{¶ 10} In adopting the Oneal opinion, the trial court implicitly determined that the Reagan Tokes Law violates the separation of powers. Simmons argues that a separation of powers violation occurs because the Reagan Tokes Law creates a
{¶ 11} Under our form of government, the separation-of-powers doctrine “recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others.” State v. Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001). As to the separation-of-powers doctrine, the legislature has the preeminent role in determining sentencing schemes. “[I]t is among the admitted legislative powers to define crimes; to prescribe the mode of procedure for their punishment; to fix by law the kind and manner of punishment, and to provide such disciplinary regulations for prisoners, not in conflict with the fundamental law, as the legislature deems best.” State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 647, 4 N.E. 81 (1885).
{¶ 12} The Reagan Tokes Law prescribes that a sentencing court decides a minimum and maximum term of incarceration for offenders committing qualifying
{¶ 13} The Oneal decision adopted by the trial court relied heavily on State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), to find the Reagan Tokes Law unconstitutional. In Bray, the Ohio Supreme Court found that former
{¶ 15} Because the Reagan Tokes Law provides that a court impose an indefinite sentence and does not allow the DRC to increase that sentence past the maximum imposed sentence, the trial court erred by finding that it violates the separation of powers, thus unconstitutional.
3. THE REAGAN TOKES LAW DOES NOT VIOLATE AN OFFENDER‘S RIGHT TO DUE PROCESS
{¶ 16} The trial court, by adopting the Oneal opinion, found that the Reagan Tokes Law violates an offender‘s right to due process. Simmons argues that the trial court is correct because the Reagan Tokes Law does not provide adequate notice to him as to conduct that will trigger his incarceration past the presumptive release date, that DRC has unfettered discretion to continue and maintain custody of an offender after the presumed release date, and that the law as written does not guarantee a fair hearing.
{¶ 18} “When a state creates a liberty interest, the Due Process Clause requires fair procedures for its vindication — and courts will review the application of those constitutionally required procedures.” Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Assuming, without deciding, that Simmons has a cognizable liberty interest in a presumptive minimum term release date, the issue to be determined then is whether or not the Reagan Tokes Law impermissibly infringes on that interest.
{¶ 19} The Reagan Tokes Law provides for sentencing courts to impose an indefinite sentence on offenders committing qualifying offenses. There is no functional difference between these indefinite sentences and those indefinite sentences currently in place and that were common prior to the adoption of sentencing reforms pursuant to S.B. 2. “Requiring a defendant to remain in prison beyond the presumptive minimum term is akin to the decision to grant or deny parole[,]” which in Ohio is an executive function that does not involve the judiciary.
{¶ 20} In the context of parole proceedings, the United States Supreme Court has found that adequate due process is met for parole determinations when there is an opportunity to be heard and where an offender is provided a statement of the reasons why parole was denied. Swarthout, citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “The Constitution,” the court held, “does not require more.” Id. The Ohio Supreme Court has held that “the fundamental requisite of due process of law is the opportunity to be heard in a meaningful time and in a meaningful manner.” Woods, 89 Ohio St.3d at 513, citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
{¶ 21} The Reagan Tokes Law provides due process that comports with constitutional requirements. Wilburn at ¶ 36–37. Pursuant to
The [DRC] shall provide notices of hearings to be conducted under division (C) or (D) of this section in the same manner, and to the same persons, as specified in section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be conducted regarding the possible release on parole of an inmate.
Further, DRC is constrained in its ability to hold an offender past the minimum term.
{¶ 22} Contrary to Oneal, Hamilton C.P. No. B 1903562, 2019 WL 7670061, and to Simmons‘s arguments as to the discretion given to the DRC in determining whether an offender has met the criteria listed for continued custody, there is no due process requirement that the statutory scheme must give the decisionmaker a “hierarchy of misconduct” or a “guideline” as to “how each consideration shall be weighed” in determining whether an inmate‘s term can be continued beyond the minimum term of incarceration. The Ohio Supreme Court has observed that “for as long as parole has existed in Ohio, the executive branch (the APA and its predecessors) has had absolute discretion over that portion of an offender‘s sentence.” Woods at 512. We find no reason to distinguish between the exercise of its discretion in determining parole matters and the DRC‘s discretion in determining whether an offender‘s minimum term of incarceration should be extended.
III. CONCLUSION
{¶ 24} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR