State v. Gamble

2021 Ohio 1810, 173 N.E.3d 132

• Court: Ohio Court of Appeals
• Decided: May 27, 2021
• Docket: 109613
• Status: Published

Opinion

[Cite as State v. Gamble, 2021-Ohio-1810.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109613 v. :

ADOLPH N. GAMBLE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 27, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-639438-A and CR-19-644752-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant. SEAN C. GALLAGHER, J.:

Adolph Gamble appeals from his indefinite, non-life felony sentence

imposed under R.C. 2929.144.1 For the following reasons, we affirm.

Gamble was indicted on seven counts, including trafficking, drug

possession, having weapons while under a disability, and possessing criminal tools.

He ultimately pleaded guilty to one count of trafficking, a second-degree felony

qualifying offense under R.C. 2929.144(A), with a one-year firearm specification,

and one count of having weapons while under a disability, a felony of the third

degree. The remaining counts were nolled by the state. Pursuant to S.B. 201, the

Reagan Tokes Law, Gamble was sentenced to serve an indefinite, non-life sentence

for a minimum of two years, and a maximum of three years — along with a

mandatory, one-year term on the firearm specification. The resulting aggregate

term of imprisonment is a minimum of three years and a maximum of four years.

In this appeal, Gamble presents a single assignment of error in which

he broadly claims that the Reagan Tokes Law violates the Constitutions of the

United States and the state of Ohio. Since our review of the constitutional validity

of laws is limited to the codified statutes, we must review the statutory language as

enacted. Thus, according to Gamble, R.C. 2929.14 and 2929.144, which authorize

an indefinite, minimum and maximum term of imprisonment for first- and second-

1 Although Gamble’s notice of appeal included two cases, CR-19-639438-A and CR-19- 644752-A, he only appeals the sentence imposed in the latter. None of Gamble’s arguments discussed any potential error in case No. CR-19-639438-A, and therefore, that conviction is affirmed. App.R. 16(A)(7). degree qualifying felonies, as amended under the Reagan Tokes Law, violate his

right to a jury trial because the Ohio Department of Rehabilitation and Correction

(“ODRC”) determines the length of his “extended” sentence based on its

independent consideration of factors. Gamble further claims that through R.C.

2967.271, which creates a presumption in favor of Gamble being released upon

serving the minimum part of the sentence unless the ODRC takes certain procedural

steps to enforce the maximum prison term imposed in the final entry of conviction,

the executive branch usurps the judicial authority to determine and impose

sentences in violation of the separation-of-powers doctrine.

There is an overarching issue that appears to permeate every aspect

of the constitutional challenge against the statutory sections codified as part of the

Reagan Tokes Law. Gamble’s claims depend solely on his belief that the ODRC

“extends” his prison term under R.C. 2967.271 by imposing an additional term of

imprisonment beyond that which was imposed by the sentencing court. As will be

discussed in further detail, R.C. 2929.144(B) provides that the sentencing court

must determine the maximum term of imprisonment based on a mathematical

formula as applied to the minimum term of imprisonment imposed under R.C.

2929.14(A)(1)(a) and (A)(2)(a). The sentencing court must then impose that

maximum sentence as part of the final sentence under the unambiguous language

of R.C. 2929.144(C) (“The court imposing a prison term on an offender [under R.C.

2929.14(A)] 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” and impose both the minimum and maximum terms in

the final entry of conviction.). Thus, Gamble’s belief as to the structure of the

imposed sentence is contrary to the plain language of the statute. The ODRC does

not extend or impose any sentence.

The trial court imposes the minimum and maximum terms of

imprisonment under the unambiguous language of R.C. 2929.144 and 2929.14

(A)(1)(a) and (A)(2)(a). The ODRC simply enforces the sentence imposed and has

been delegated the responsibility over the release determinations under R.C.

2967.271 similar to the executive branch’s authority to release offenders from

sentences under Ohio’s parole system. R.C. 2967.12 and 2967.16. The question,

therefore, is not whether Gamble’s perception of his sentence infringes on Gamble’s

constitutional rights but whether the sentencing law as enacted does. As an

intermediate court of review, we cannot lose sight of that.

Ripeness

The state claims that Gamble’s constitutional challenge of the

statutory scheme codified under the Reagan Tokes Law is not ripe for review in a

direct appeal from the final entry of conviction. However, if a defendant cannot

challenge the constitutional validity of the sentence imposed in the final sentencing

entry in his direct appeal, the question becomes when and how could the defendant

advance that claim. In State v. Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-

Ohio-578, ¶ 18, it was recently concluded that the record in cases such as Gamble’s

is sufficiently developed to allow courts to fairly adjudicate the facial challenges questioning the constitutional validity of the Reagan Tokes Law in general. We need

not stray from that conclusion, but we also need not rest on Wilburn alone.

First and foremost is the aforementioned misconception with respect

to the newly enacted sentencing scheme in the Reagan Tokes Law that weighs on the

ripeness issue. The ODRC does not extend or impose an additional sentence on the

offender — under R.C. 2929.14 and 2929.144, the trial court imposes a maximum

term of imprisonment and a minimum term that carries a presumption in favor of

release. R.C. 2929.14(C). After the minimum term is served, the ODRC may, under

certain conditions not necessary to review here, enforce the remainder of the term

imposed by the sentencing court, but there remains a presumption of release that

the ODRC must overcome. R.C. 2967.271(B). The executive branch is not extending

the defendant’s prison term or imposing its own sentence for violations that occur

while the offender is serving the imposed term of imprisonment.

The parallels between the indefinite non-life felony sentencing

structure imposed under R.C. 2929.144 and the indefinite life felony sentences

under R.C. 2929.02 are instructive. Under the sentencing structure enacted under

the latter section, an offender is sentenced to a term of life with the possibility of

parole after a set time period. After the minimum term is reached, the executive

branch is tasked with reviewing the offender’s status to release him on parole or

from the sentence altogether. R.C. 2967.12; 2967.16. The executive branch is not

considered to be decreasing the imposed sentence when granting an offender parole

or extending the term of imprisonment when denying parole, as a violation of the separation-of-powers doctrine. For that matter, the executive branch is not deemed

to be interfering with the trial court’s sentencing authority when releasing offenders

from their sentences after successful completion of the terms of parole under

R.C. 2967.16.

R.C. 2929.144 simply flips the principle underlying parole, which

essentially presumes enforcement of the life tail over release through parole,

contrasted with non-life indefinite sentencing under the Reagan Tokes Law, which

presumes a release after the minimum term. Under R.C. 2929.144, the trial court

imposes a maximum term, three years in this case, with the presumption that the

ODRC will release the offender from the sentence after two years, similar to the

system enacted under R.C. 2967.16. Thus, the ODRC enforces the sentence imposed

by the trial court, and its review is limited to determining the offender’s release date

— which is no different than the executive branch’s determination of an offender’s

release date under the parole structure for indefinite life sentences. The ODRC’s

decision to release the offender under the provisions of the statute is no different

than the decision to parole an offender serving a sentence under R.C. 2929.02; the

executive agency is simply executing the sentence imposed and exercising the

authority delegated to it to determine the offender’s status of continued

incarceration under the sentence imposed by the sentencing court.

Within this framework, the question becomes how an offender would

challenge the constitutional validity, a facial challenge of the sentencing structure,

outside of the direct appeal. The state does not hazard a guess as to how an offender could appeal the ODRC’s decision to invoke the remaining portion of the offender’s

maximum term under R.C. 2967.271. Under division (E) of that statutory section,

the ODRC conducts the hearings required to determine the offender’s status under

his non-life indefinite sentence under the same notice procedures outlined under

R.C. 2967.12 dealing with parole eligibility.

Traditionally in Ohio, there is no right to appeal release

determinations by the ODRC under R.C. 2967.12. Ridenour v. Randle, 96 Ohio

St.3d 90, 2002-Ohio-3606, 771 N.E.2d 859, ¶ 8. Since R.C. 2967.271(E) expressly

adopts the procedures of R.C. 2967.12, it is logical to conclude that the release

determination under R.C. 2967.271 will likewise not be directly appealable. More to

the point, it has long been held that offenders cannot challenge the constitutionality

of a sentencing provision as being facially suspect, especially that of parole, through

a writ of habeas corpus. Rodgers v. Capots, 67 Ohio St.3d 435, 436, 619 N.E.2d 685

(1993), citing Stahl v. Shoemaker, 50 Ohio St.2d 351, 354, 364 N.E.2d 286 (1977).

According to the Ohio Supreme Court, another remedy must be used, but there are

no remedies available to an offender to challenge the constitutionality of the Reagan

Tokes sentencing law during the offender’s service of the prison term. Stahl at 354.

This is especially concerning because the sentencing court does not possess

continuing jurisdiction to review the sentence imposed in the final sentencing entry,

nor would the appellate court be able to review that in the first instance outside of a

direct appeal. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d

776. Since determinations of release are not directly appealable and the

constitutional validity of a sentence cannot be raised in a writ, the only option is to

file a motion with the sentencing court. If relief is sought in the original trial court,

this particular inquiry will not be about the constitutionality of any provision of the

Reagan Tokes Law or the apparent error in imposing a sentence beyond the

maximum permitted by law; it will end up being about whether a trial court

possesses or lacks continuing jurisdiction after entering the final entry of conviction

in a criminal case. See, e.g., State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-

4744, 121 N.E.3d 351, ¶ 38-39 (trial court lacked jurisdiction to consider the

defendant’s claim as being either a petition for postconviction relief or a motion for

a new trial under Crim.R. 33, and without another basis to secure the trial court’s

jurisdiction, the motion must be denied).

Once a court of competent jurisdiction renders a final sentence in a

criminal action, that court’s continuing jurisdiction to act in postconviction

proceedings is limited. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884

N.E.2d 568, ¶ 23, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-

Ohio-5795, 856 N.E.2d 263, ¶ 19. There must be a jurisdictional basis for the trial

court to act or to decide the constitutionality of the sentencing statute. Apanovitch

at ¶ 38-39; State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151,

¶ 1. Parker declared, for example and albeit through a fractured opinion, that the

constitutional challenges did not render a sentence void such that the trial court

maintains continuing jurisdiction to consider challenges to the sentencing structure during the offender’s continued incarceration. Id. (only one justice would have

concluded that the trial court had inherent, continuing jurisdiction to correct the

sentence based on the constitutional validity of a statute; the remaining justices in

one form or another concluded that the trial court’s jurisdiction depended on a rule

or statute).

A defendant can invoke the trial court’s continuing jurisdiction

following the issuance of a final sentencing entry in several ways, for example,

through (1) filing a motion to correct a void judgment under Zaleski; (2) filing a

timely or successive petition for postconviction relief under R.C. 2953.21; (3) filing

a motion for a new trial under Crim.R. 33; or (4) filing a post-sentence motion to

withdraw a plea under Crim.R. 32.1. Because the trial court’s jurisdiction to consider

postconviction motions or petitions is limited, the initial inquiry is whether the trial

court may invoke its continuing jurisdiction to consider the particular

postconviction motion filed. If the motion does not demonstrate that the sentence

is void, that it is a timely petition for postconviction relief or motion for new trial, or

if it is not properly considered as a post-sentence motion to withdraw a plea, the trial

court simply lacks jurisdiction to consider the merits of the motion filed following

the final entry of conviction. See, e.g., Apanovitch; Parker.

It is entirely unclear how the offender could challenge the

constitutional basis of the Reagan Tokes sentencing provisions while he is serving

the imposed term of imprisonment. The trial court does not maintain continuing

jurisdiction over the final entry of conviction in general terms, and there are limited options to collaterally challenge a sentence during the continued term of

incarceration.

If the trial court lacks continuing jurisdiction to consider the

constitutional validity of the sentence imposed in the final entry of conviction, the

appellate court will be unable to address the merits of the constitutional question

asked because appellate review is limited to reviewing whether the trial court

properly assessed its jurisdiction. Id. A court cannot create its own jurisdiction

because it has only “such jurisdiction as may be provided by law.” Ohio

Constitution, Article IV, Section 3(B)(2). If we were to declare this issue not ripe for

review, we would essentially be concluding that somehow, in some form, a court will

have jurisdiction to review the constitutional validity of the sentence imposed at a

later juncture. Tellingly, the state has not presented a single source of authority for

the proposition that any court would maintain continuing jurisdiction over the

constitutional validity of the sentence imposed upon Gamble during his service of

the term of imprisonment or that another mechanism exists in which the

constitutional claim could be preserved at a later date. The state simply presumes

the existence of some mechanism. When framed in this context, the impediments

to delayed review through the invocation of the ripeness doctrine become clearer.

We acknowledge that other districts have concluded that this issue

will not be ripe for review until the ODRC actually overcomes the presumption

against serving the maximum sentence. In State v. Downard, 5th Dist. Muskingum

No. CT2019-0079, 2020-Ohio-4227, for example, the Fifth District analogized the indefinite, non-life sentencing scheme to Ohio’s “bad time” law under former R.C.

2967.11, which provided the executive branch the power to keep a prisoner in jail

beyond the sentence imposed by the trial court but could be challenged through a

writ of habeas corpus after the additional sentence was imposed. State ex rel. Bray

v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000) (“Bray”). Understandably,

that provision was deemed to violate the separation-of-powers doctrine because it

divested the sentencing court of its authority to impose the final sentence — the

ODRC was imposing a sentence beyond that which was authorized by the trial court.

Id. Of note, the offender asserted his constitutional rights deprived by the “bad

time” provision through a writ based on the fact that the trial court had not imposed

the “bad time” prison sentence and the only mechanism to challenge a sentence that

is not imposed by the trial court is through a separate proceeding when the statutory

procedure is invoked by the executive branch. Id. The fact that the sentencing court

did not sentence the offender to the additional prison term also necessarily meant

that application of the “bad time” provision could not be challenged until actually

imposed, which occurred through the writ ultimately accepted by the Ohio Supreme

Court for reviewing the constitutional validity of the statute.

Any application of Bray to the indefinite, non-life felony sentencing

scheme under the Reagan Tokes Law is misplaced. Under R.C. 2929.144, the trial

court imposes the maximum term in the final entry of conviction subject to the

ODRC’s decision to release the offender at the expiration of the minimum term,

similar to the executive agency’s authority to release an offender on parole under R.C. 2929.02, for which the constitutional validity of the imposed sentence can be

immediately appealed. State v. Patrick, Slip Opinion No. 2020-Ohio-6803, ¶ 22.

Under the Reagan Tokes Law sentencing scheme, the trial court

sentences the offender to the minimum and maximum terms, and that sentence

must be included in the final entry of conviction. R.C. 2929.14; 2929.144. The

Reagan Tokes Law establishes a presumptive release date at the end of the minimum

term imposed. R.C. 2967.271(B). This sentencing scheme shares nothing in

common with the “bad time” provision, in which an offender could be kept in prison

beyond the judicially imposed sentence upon an additional sentence being imposed

by the executive branch based on conduct that occurred while the offender was

serving the term of imprisonment imposed by the trial court.

In order to determine whether an issue is ripe for judicial review, “the

court must weigh (1) the likelihood that the alleged future harm will ever occur, (2)

the likelihood that delayed review will cause hardship to the parties, and (3) whether

the factual record is sufficiently developed to provide fair adjudication.” Stewart v.

Stewart, 134 Ohio App.3d 556, 558, 731 N.E.2d 743 (4th Dist.1999), citing Ohio

Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921,

(1998). In consideration of those factors, the only one that arguably weighs against

finding Gamble’s claims to be ripe is the likelihood of future harm occurring. The

delayed review of Gamble’s case will, practically speaking, prevent him from being

offered any relief if there is no viable option to advance the constitutional claims

against the sentencing structure implicated by his final sentence while Gamble is serving his sentence. Further, the record is sufficiently developed to address the

matter on the merits. Nothing prevents us from resolving the constitutional validity

of the sentencing statutes underlying Gamble’s final sentence now. On this point, it

has been argued that State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-

171 (“McCann”), supports the notion of divesting Gamble of the right to an

immediate review of the constitutional validity of the sentence imposed.

McCann, however, has no bearing on this ripeness determination. In

McCann, similar to Bray, the defendant argued that the parole board’s exercise of

discretion to impose a period of postrelease control, following the defendant’s

having served his sentence, violated the separation-of-powers doctrine. Id. In that

case, it was concluded that the constitutionality of the period of postrelease control

was not ripe for review because the discretionary period of postrelease control was

not imposed at the time of the defendant’s appeal. Id. at ¶ 6. McCann is, quite

simply, inapplicable — similar to the issues presented in Bray that was only

reviewed in separate writ action after the “bad time” statutory provision was invoked

by the executive agency. Thus, under McCann and Bray, an offender cannot appeal

that which has yet to be imposed. In this case, the maximum sentence that Gamble

is challenging was actually imposed by the trial court in the final entry of conviction.

Gamble has already been impacted through the imposition of the sentence he

challenges.

Further, and as it has been recognized, if the period of postrelease

control is imposed in the final entry of conviction, it must be challenged in the direct appeal or is forever barred. State v. Shepherd, 8th Dist. Cuyahoga No. 109496,

2021-Ohio-507, ¶ 3. In that case, it was concluded the offender must appeal the

imposition of postrelease control in the direct appeal or is forever barred under

Ohio’s return to the traditional distinction between void and voidable. Id., citing

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42. In

Harper and Henderson, 161 Ohio St.3d 285. 2020-Ohio-4784, 162 N.E.3d 176, the

Ohio Supreme Court held that “sentences based on an error, including sentences in

which a trial court fails to impose a statutorily mandated term, are voidable if the

court imposing the sentence has jurisdiction over the case and the defendant.”

Henderson at ¶ 1. If the sentencing error rendered the defendant’s sentence

voidable, the error cannot be corrected through a postconviction proceeding or

through another form of collateral attack. Henderson at ¶ 43. Before the

combination of Harper and Henderson, a sentence imposed in violation of law was

considered void and subject to collateral attack in postconviction proceedings.

In this case, Gamble is challenging the constitutional validity of the

statutory structure under which his final sentence was imposed. McCann is

necessarily limited to the facts of that case, in which the postrelease control was not

imposed in the final entry of conviction and thus could not be challenged until the

period was actually imposed. Further, the procedural mechanism in McCann and

Bray are limited to challenging the imposition of sanctions beyond that which is

imposed in the final entry of conviction. In Shepherd this distinction was

recognized, and Shepherd is more analogous to the current situation in which the maximum term of imprisonment, which Gamble claims violates his constitutional

rights, was imposed in the final entry of conviction. To claim that McCann controls

would be a conclusion that creates a conflict with Shepherd.

This is not to say, however, that all aspects of the Reagan Tokes Law

sentencing provisions are capable of being challenged in the direct appeal. The

above analysis is limited to the fact that Gamble is challenging the statutory law that

resulted in the imposition of a non-life, indefinite sentence in the final entry of

conviction. We must be careful to distinguish the constitutional challenges to the

judicial imposition of a given sentence, which must be raised in the direct appeal,

with constitutional challenges to the execution of the sentence as carried out by the

ODRC. The latter scenario is akin to McCann and Bray, and we agree with the

dissent that any challenges as to the executive branch’s enforcement of the judicially

imposed sentence are not ripe for review in a direct appeal.

Recently, the ODRC has published its policy governing the maximum

term hearing established by R.C. 2967.271. ODRC Policy 105-PBD-15, available at

https://drc.ohio.gov/policies/parole-board (last visited Mar. 26, 2021). This

policy’s stated purpose is to govern and provide for the due process rights a prisoner

sentenced to a non-life, indefinite term are afforded under the legislature’s

delegation of authority to the ODRC under R.C. 5120.01 to establish policies or rules

in carrying out its statutory obligation. The appropriate mechanism to challenge the

constitutional validity of the established policies, rules, or regulations established by

the executive branch to fulfill its obligations created by the legislature, is through a separate declaratory judgment or habeas action seeking to preclude the ODRC from

enforcing its rules. See, e.g., O’Neal v. State, 2020-Ohio-506, 146 N.E.3d 605, ¶ 3

(10th Dist.); Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir.1995); Rodriguez v. United

States Parole Comm., 594 F.2d 170, 173 (7th Cir.1979); State v. Kepling, 3d Dist.

Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 15, fn. 3. Any claims of the deprivation

of due process rights with respect to the maximum term hearing process itself are

not ripe for review in this direct appeal. See, e.g., Wilkinson v. Austin, 545 U.S. 209,

220, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (reviewing the Rev. Stat. 1979, 42 U.S.C.

1983 action to determine the constitutional validity of the procedural rules

established by the ODRC’s statutorily authorized rulemaking authority).

On this point, the state appears to be confusing the general challenges

to the imposition of a sentence with the ripeness of the due process claims based on

the executive branch’s execution of the judicially imposed sentence. Kepling (noting

the state’s ripeness claim is “in effect” targeting a declaratory judgment action under

R.C. Chapter 2721 that is not ripe for review in a direct appeal). Gamble is not

claiming that the ODRC’s policy, established through the delegation of authority

from the legislature, violates his constitutional rights (not surprising in light of the

fact that the policy had not been enacted at the time of this appeal.)

In this case, however, the trial court imposed a maximum term of

three years and a minimum term of two years — it is not relevant that an offender

may be released at the end of the minimum term, no more than would we consider

the possibility of judicial release under R.C. 2929.20, if applicable, as depriving the defendant of the right to challenge the imposition of his sentence in a direct appeal

since the offender may be released, rendering any challenges to the length of the

sentence irrelevant. Further, an offender does not need to wait until parole is denied

in order to challenge the constitutional validity of the indefinite sentencing

structure. Patrick, Slip Opinion No. 2020-Ohio-6803, at ¶ 22. Unlike in McCann,

Gamble has been sentenced to the provision of law he now claims is

unconstitutional. Id., see generally Shepherd. That there is a presumption to

release the offender after completion of the minimum term does not alter the

immutable fact that the trial court has imposed the maximum sentence of three

years. The conclusion from McCann cannot be applied in light of the stark

procedural postures of both situations — the former in which the challenged

sanction had yet to be imposed contrasted with the current situation in which the

sentence has been imposed.

We continue to adhere to the conclusion reached in Wilburn, 8th

Dist. Cuyahoga No. 109507, 2021-Ohio-578 (finding the constitutional challenges to

the sentences imposed under R.C. 2929.144 and 2929.14(A)(1)(a) and (A)(2)(a) to

be ripe for review in the direct appeal of the sentence imposed), that challenges to

the constitutionality of the Reagan Tokes Law’s sentencing provisions are ripe for

review in the direct appeal of the sentence imposed. Id. Nevertheless, we agree with

the state that Gamble has failed to demonstrate that his sentence is in violation of

constitutional norms. The Reagan Tokes Law Is Not Unconstitutional

In this appeal, Gamble asks us to conclude that the “Reagan Tokes Act

is unconstitutional,” premised on the belief that R.C. 2967.271, the source of the

ODRC’s authority to conduct the parole-like hearings over indefinite sentences

under R.C. 2929.144, violates the separation-of-powers doctrine and his right to a

jury trial under the Sixth Amendment.

The Reagan Tokes Law provisions under R.C. 2929.144 and 2967.271,

as previously discussed, largely mirror those from R.C. 2929.02 and 2967.12. Both

create a system of releasing offenders serving indefinite sentences. The Reagan

Tokes Law, unlike the indefinite life sentencing structure under R.C. 2967.16 (final

release from indefinite sentence statutory section, which requires the executive

agency to determine the release on parole and then the final release from the prison

sentence imposed by the trial court in separate stages), creates a presumption of a

final release after the minimum term, subject to any applicable term of postrelease

control. R.C. 2967.271(C). Therefore, Gamble’s request for us to declare the Reagan

Tokes Law unconstitutional in its entirety, including the indefinite sentencing

scheme codified under R.C. 2967.271, 2929.144, and 2929.14(A)(1)-(2), necessarily

presents constitutional implications for indefinite life sentences under Ohio law that

cannot be ignored in light of the fact that the executive branch makes parole

decisions affecting the judicially imposed sentences.

The legislature has the sole authority to define crimes and establish

the punishment in Ohio. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 13, quoting Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888

(1963); Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 2. If the

legislature returns Ohio to indefinite sentencing for certain felony offenses, or even

increases sentencing ranges, that is well within its legislative prerogative, for only

the Ohio electorate can decide the General Assembly’s fate for such a policy decision.

The General Assembly has determined that for any qualifying offense, as defined

under R.C. 2929.144(A), the trial court must impose both a minimum and a

maximum term of imprisonment. R.C. 2929.144(C); 2929.14(A)(1)(a) and

(A)(2)(a).

Gamble’s conclusion that the Reagan Tokes Law is unconstitutional

appears to be entirely based on his perception of the impact of the legislative

determination, not any specific provision of the law that violates a constitutional

principle. In other words, according to Gamble, the Reagan Tokes Law permits the

ODRC to make unilateral sentencing decisions in violation of the separation-of-

powers doctrine and in violation of his right to a jury trial under the Sixth

Amendment because the ODRC controls the release determination under R.C.

2967.271. The statutes enacted under the Reagan Tokes Law do neither. R.C.

2929.144 requires that the trial court impose the maximum term of imprisonment,

and under R.C. 2967.271, the ODRC is merely required to implement or execute that

imposed sentence.

Gamble first analogizes the Reagan Tokes indefinite, non-life

sentencing scheme to Ohio’s “bad time” law under former R.C. 2967.11, which provided the executive branch the power to keep a prisoner in jail beyond the

sentence imposed by the trial court. Bray, 89 Ohio St.3d 132, 729 N.E.2d 359.

Understandably, that “bad time” provision was deemed to violate the separation-of-

powers doctrine because it divested the sentencing court of its authority to impose

the final sentence — the executive branch was tasked with imposing a sentence

beyond that which was imposed by the trial court in the final entry of conviction if

the offender’s misconduct while serving the sentence imposed warranted the action.

Id. Any application of Bray to the indefinite, non-life felony sentencing scheme is

misplaced. Under R.C. 2929.144, the trial court imposes the maximum term in the

final entry of conviction such that the ODRC is merely tasked with implementation

of the imposed sentence. Bray is not relevant to the current discussion.

“A fundamental principle of the constitutional separation of powers

among the three branches of government is that the legislative branch is ‘the

ultimate arbiter of public policy.’” Arbino v. Johnson & Johnson, 116 Ohio St.3d

468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati

Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d

126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. It is the legislature, not the judiciary,

that possesses “the power to continually create and refine the laws to meet the needs

of the citizens of Ohio.” Id. “All statutes have a strong presumption of

constitutionality.” Id. at ¶ 25. In order to find that a statute is unconstitutional,

courts must determine “‘beyond a reasonable doubt that the legislation and

constitutional provisions are clearly incompatible.’” Id., quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of

the syllabus. Further, all doubts regarding the constitutionality of any given statute

are resolved in favor of the statute. State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-

1462, 108 N.E.3d 56, ¶ 5, quoting State v. Gill, 63 Ohio St.3d 53, 55, 548 N.E.2d

1200 (1992).

Under the Reagan Tokes Law, enacted through the codification of

various statutes throughout Title 29, the trial court sentences the offender to the

minimum and maximum term, and that sentence must be included in the final entry

of conviction. R.C. 2929.14; 2929.144. Thus, it is the judicial branch that imposes

the statutorily required sentence; the only sentencing discretion provided to the trial

court lies with the length of the minimum term under R.C. 2929.14(A)(1)(a) and

(A)(2)(a). R.C. 2967.271 establishes a presumptive release date at the end of the

minimum term and provides the ODRC the framework required to enforce the

maximum sentence imposed by the trial court in the final entry of conviction. That

codified process does not alter the fact that the trial court imposed a maximum term

as calculated under R.C. 2929.144. R.C. 2967.271(B). The ODRC may rebut that

presumption and enforce the remaining portion of the offender’s prison term (the

maximum term) already imposed by the trial court. R.C. 2967.271(D)(1)

(authorizing the ODRC to “maintain” the sentence already imposed). This is similar

to a sentencing court’s imposition of an indefinite life sentence that delegates

authority to the executive branch to make any and all parole determinations. R.C.

2967.12; 2967.16. It is important to remember that the separation-of-powers doctrine

as derived from the federal Constitution “has no express provision which prohibits

the officials of one branch of government from exercising functions of the other

branches.” Geraghty v. United States Parole Comm., 719 F.2d 1199, 1210 (3d

Cir.1983), citing Springer v. Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72

L.Ed. 845 (1928) (upholding parole determinations by the executive branch). “The

Constitution does not require three airtight departments of government.” Id., citing

Nixon v. Admr. of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867

(1977). “Ohio, unlike other jurisdictions, [also lacks] a constitutional provision

specifying the concept of separation of powers.” State v. Warner, 55 Ohio St.3d 31,

43-44, 564 N.E.2d 18 (1990), citing State v. Harmon, 31 Ohio St. 250 (1877), and

State, ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464 (1929). Similar

to the federal Constitution, Ohio’s separation-of-powers doctrine “is implicitly

embedded in the entire framework of those sections of the Ohio Constitution that

define the substance and scope of powers granted to the three branches of state

government.” Id. There is no explicit rule prohibiting the delegation of authority as

between the co-equal branches of government. Id.

Thus, Gamble’s claims are premised on the common misconception

that the ODRC is “extending” the prison sentence when, in fact, the final sentence

imposed by the trial court includes both the maximum term, in this case three years,

and the presumptive possibility of release after two years. R.C. 2929.144(C). The

Reagan Tokes sentencing scheme shares nothing in common with the “bad time” provision in which an offender could be kept in prison beyond the judicially imposed

sentence, which undoubtedly violates the separation-of-powers doctrine whether

considered under the state or federal law. Under the sentencing scheme established

by the Reagan Tokes Law, the judiciary imposes the sentence that is enforced by the

ODRC — in complete compliance with the separation-of-powers doctrine. Bray, 89

Ohio St.3d at 136, 2000-Ohio-116, 729 N.E.2d 359, citing State ex rel. Atty. Gen. v.

Peters, 43 Ohio St. 629, 648, 4 N.E. 81 (1885) (concluding that “[t]he determination

of guilt in a criminal matter and the sentencing of a defendant convicted of a crime

are solely the province of the judiciary.”).

Further, it has long been held that “‘when the power to sanction is

delegated to the executive branch, a separation-of-powers problem is avoided if the

sanction is originally imposed by a court and included in its sentence.’” State v.

Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 23; Hernandez v.

Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20; State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19; Woods v. Telb,

89 Ohio St.3d 504, 512-513, 2000-Ohio-171, 733 N.E.2d 1103; Wilburn, 8th Dist.

Cuyahoga No. 109507, 2021-Ohio-578. As has been recognized,

A court imposes both the minimum and maximum prison terms, including both in its sentence. The [O]DRC then determines whether the offender merits more than the minimum and up to the maximum imposed. In terms of the separation of powers, the delegation of power to the [O]DRC is like the system of post-release control: “Those terms are part of the actual sentence, unlike bad time, where a crime committed while incarcerated resulted in an additional sentence not imposed by the court. In other words, the court imposes the full sentence and the [ODRC] determines whether violations merit its imposition.”

Wilburn at ¶ 26, quoting Ferguson at ¶ 23 and Woods at 511.

The Reagan Tokes Law does not violate any constitutional safeguard

because the executive branch has always possessed the authority to determine

parole or sentencing release matters under an indefinite sentencing scheme after the

trial court imposes the minimum and maximum terms. See R.C. 2967.12 and

2967.16 (executive branch authorized to grant final release of the offender following

adherence to the terms of parole). R.C. 2929.144, 2929.14(A)(1)(a) and (A)(2)(a),

and R.C. 2967.271 do not stray from the sentencing structure already in place under

Ohio law.

Keeping an offender in prison under R.C. 2929.144 past the minimum

term is no different than keeping an offender in prison under an indefinite life

sentence after the offender becomes eligible for parole. The executive branch’s

decision releasing an offender from or retaining an offender in an indefinite

sentence has been part of the Ohio criminal justice system from time immemorial.

McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334 (1964) (discussing the

parole board’s unilateral authority to release an offender from the maximum

indefinite sentence). According to the Ohio Supreme Court, “the granting and

revocation of parole are matters traditionally handled by administrative officers.”

Woods at 514. The indefinite sentencing scheme enacted under the Reagan Tokes Law does not violate the separation-of-powers doctrine under either Ohio or federal

law.

Further, there can be no violation of the right to a jury trial under

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because the

trial court is statutorily required to impose the minimum and maximum terms

under R.C. 2929.144 upon the offender being found guilty of the qualifying felony

offense — similar to an offender being sentenced to life with the possibility of parole

under the indefinite life sentencing structure. The trial court lacks discretion to

impose any term beyond the maximum under any provision of the Reagan Tokes

Law — similar to the trial court’s authority to impose sentences within ranges under

R.C. 2929.14. In Apprendi, the Supreme Court held that, in order to sentence a

defendant to a term of imprisonment in excess of the statutory maximum, the

factual circumstances justifying the enhanced sentence must be found by the jury

beyond a reasonable doubt. That conclusion is simply irrelevant to Ohio’s

sentencing law in general that contains no provision permitting a sentencing court

to impose a sentence beyond the maximum set forth in the sentencing statutes,

much less is that concern relevant to the newly enacted sections under the Reagan

Tokes Law: R.C. 2929.144 or 2929.14(A)(1)(a) and (A)(2)(a).

Gamble also cites State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470, in which it was concluded that Ohio’s sentencing structure of

permitting the trial court to impose a sentence beyond the minimum based on the issuance of findings violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004). Foster was superseded by Oregon v. Ice, 555 U.S. 160, 129

S.Ct. 711, 172 L.Ed.2d 517 (2009), as recognized in State v. Sergent, 148 Ohio St.3d

94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 35. In Ice, the Supreme Court concluded that

a state court’s discretion to impose consecutive sentences did not violate the right to

a jury trial under the Sixth Amendment because throughout history the jury played

no role in that sentencing decision. Ice at 167-168. The sole limitation was that a

trial court cannot impose a sentence “beyond the maximum” provided by law based

on consideration and determination of facts not considered by the jury. Id. at 167.

“Instead, specification of the regime for administering multiple sentences has long

been considered the prerogative of state legislatures[,]” even those prerogatives that

in effect lengthen the offender’s sentence. Id. at 168.

Gamble seems to claim that any consideration of facts not determined

by the trier of fact violates Apprendi. There is no basis for that conclusion under

Ohio or federal law. In fact, Ohio’s sentencing structure in general depends on

judicial consideration of facts beyond that which is considered by the trier of fact in

rendering a decision of guilt. R.C. 2929.11; 2929.12; 2929.14 (providing for a

sentencing range upon nonqualifying felony offenses). Under Gamble’s rationale,

Ohio would be returned to the pre-Oregon v. Ice days in which any and all

sentencing considerations violate the offender’s constitutional rights and such a

conclusion would necessarily impact Ohio’s complete sentencing structure that

relies on judicial determinations to sentence within ranges. Nevertheless, under R.C. 2929.144(C), the trial court is required to

sentence the offender to the maximum term upon the trier of fact’s finding of guilt.

There is no discretion exercised by the trial court in imposing the maximum term,

which is determined through a simple formula, and nothing within any provision

codified under the Reagan Tokes Law permits any branch of government to impose

a sentence beyond the maximum term as defined under R.C. 2929.144. R.C.

2929.144 is in complete compliance with Foster and Apprendi.

The only discretion lies with imposition of the minimum term of

imprisonment under R.C. 2929.14, which is in accordance with Ohio’s sentencing

structure for every nonqualifying felony offense in which the trial court determines

the final sentence within the prescribed sentencing range upon consideration of

factors not considered by the trier of fact. The maximum sentence is solely

determined from a mathematical formula. R.C. 2929.144(B). Upon calculating the

maximum term of imprisonment, the trial court then must impose that maximum

term as part of the offender’s sentence. R.C. 2929.144(C). The only difference is the

indefinite nature of the sentence, similar to pre-S.B. 2 sentencing laws that provided

an indefinite term between two ranges. Neither R.C. 2929.144 nor 2929.14(A)(1)(a)

and (A)(2)(a) runs afoul of Apprendi.

We cannot help but note that offenders should tread lightly in this

area. Gamble’s claim that R.C. 2967.271 violates the Constitution would necessarily

invoke the severability doctrine, for which the constitutionally infirm provision is

severed from the statutory scheme as a whole. R.C. 1.50 unambiguously states that if any section of the Revised Code, or a provision therein, is determined to be 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.”

Solely for the sake of discussion, if Gamble is correct and R.C.

2967.271 is declared invalid, that conclusion does not impact R.C. 2929.144 that

requires the trial court to sentence him to the maximum term. Importantly, Gamble

has not directly claimed that R.C. 2929.144 and the imposition of indefinite

sentences under that section and R.C. 2929.14(A)(1)(a) and (A)(2)(a) are likewise

invalid. How could he when indefinite sentencing structures have been part of Ohio

sentencing law for decades at the least? The impact on Gamble would be

immeasurable. Declaring R.C. 2967.271 constitutionally invalid would subject

Gamble to the indefinite sentencing range of two years minimum, up to the

maximum of three years under R.C. 2929.144 without the benefit of the

presumption of release after serving the minimum term. See, e.g., Foster (leaving

the sentencing ranges while severing the judicial fact-finding requirement). That

cannot be the Pyrrhic victory Gamble is envisioning.

And even if we declared the whole of the act unconstitutional, nothing

stops the legislature from reinstating the minimum and maximum terms without

providing for the presumption of release. Bates, 118 Ohio St.3d 174, 2008-Ohio-

1983, 887 N.E.2d 328, at ¶ 13, quoting Maxwell, 174 Ohio St. at 181, 187 N.E.2d 888

(it is solely in the province of the legislature to define punishments for crimes). Thus, the judicial intervention being requested here could very well lead to increased

sentences for all offenders. It is for this reason that any policy considerations of the

length of sentences is best left for the legislature and any judicial intervention should

not be taken lightly. Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420,

at ¶ 21 (all statutes are presumed to be constitutional).

And finally, Gamble claims that R.C. 2967.271 provides no due

process protections because it is silent as to the hearing provided thereunder. As

previously mentioned, R.C. 2967.271(E) expressly provides that the notice of the

hearing necessary to resolving the offender’s release status is conducted under the

provisions of R.C. 2967.12, Ohio’s parole hearing structure for indefinite life

sentences.

When a state “creates a liberty interest, the Due Process Clause

requires fair procedures for its vindication” so only then “courts will review the

application of those constitutionally required procedures.” Swarthout v. Cooke, 562

U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). “‘Requiring a defendant to

remain in prison beyond the presumptive minimum term is akin to the decision to

grant or deny parole.’” Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, at

¶ 30, quoting State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.

As has been long held, “the required due process procedures [for parole

proceedings] are minimal. Specifically, the court has found that a prisoner subject

to parole receives adequate due process when he is allowed an opportunity to be

heard and is provided a statement of the reasons why parole was denied.” Id., citing Swarthout at 220, and Greenholtz v. Inmates of Nebraska Penal & Corr. Complex,

442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Constitutional safeguards

require nothing further. Id.

R.C. 2967.271(C)(1) also expressly provides the offender notice of

what conduct shall constitute grounds for the invocation of the maximum term of

imprisonment imposed by the trial court. Under that provision, the ODRC may

enforce the maximum term of imprisonment imposed by the trial court if

(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.

Id. To conclude that offenders lack notice of what is required or that R.C. 2967.271

lacks the establishment of due process safeguards necessarily ignores the

unambiguous statutory language. That the legislature omitted an exhaustive list of

infractions that constitute grounds for denying the offender’s release after serving

the minimum term should no more impact the constitutional considerations than

the vagaries of that parole determination as it relates to indefinite life sentences

under R.C. 2967.12. And regardless, ODRC Policy 105-PBD-15, in fact, details those

violations for non-life indefinite sentences and the procedures for addressing those violations on presumptive release. ODRC Policy 105-PBD-15, Section F, available at

https://drc.ohio.gov/policies/parole-board (last visited Mar. 26, 2021); Cleveland

Metro. Bar Assn. v. Davie, 133 Ohio St.3d 202, 2012-Ohio-4328, 977 N.E.2d 606,

¶ 42 (citing ODRC policy). Any challenges with respect to the constitutional validity

of the policy established governing the maximum term hearing is well beyond the

scope of our current review.

It suffices that Gamble’s arguments as to the constitutional validity of

“the Reagan Tokes Act” are without merit. Although the facial constitutional

challenges are ripe for review, we overrule Gamble’s argument that the Reagan

Tokes Law is unconstitutional. We affirm.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________________ SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, J., CONCURS; MARY J. BOYLE, A.J., DISSENTS WITH SEPARATE OPINION MARY J. BOYLE, A.J., DISSENTING:

Respectfully, I must dissent because I believe the state is correct that

the issues raised by Gamble are not yet ripe.

In concluding that the constitutional challenges raised by Gamble are

ripe, the majority states that it “continue[s] to adhere to Wilburn”; however,

Wilburn did not address McCann. The majority asserts that McCann has no bearing

on the ripeness determination because McCann involved a discretionary period of

postrelease control which had not yet been imposed whereas the instant appeal

involves a maximum sentence that has already been imposed. However, the

majority is conflating the imposition of the maximum sentence by the court and the

actual execution thereof.

The relevance of McCann cannot be discounted, and we are obligated

to follow the authority of this court. Several of our sister courts have relied upon

McCann in determining that challenges to sentencing under the Reagan Tokes Law

are not ripe for review until a defendant has been held past his or her minimum

sentence. See, e.g., State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177,

¶ 20; State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227;

State v. Manion, 5th Dist. Tuscarawas No. AP 03 0009, 2020-Ohio-4230; State v.

Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631; State v. Maddox,

6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702.2

2 There are currently two cases pending before the Supreme Court of Ohio dealing with the question of ripeness, to wit: State v. Maddox, Case No. 2020-1266 (“Is the constitutionality of the provisions of the Reagan Tokes Act, which allow the Department In McCann, the defendant argued that because the parole board had

the power under R.C. 2967.28 to extend his sentence by up to an additional five

years for violation of postrelease control, the statute was unconstitutional. We

concluded that because the defendant in McCann was not currently the subject of

such action by the parole board, the issue was not yet ripe for review. Id. at ¶ 6.

The cases cited by the majority in support of a finding of ripeness,

Shepherd, Harper, and Henderson, involve issues with the sentence imposed and

the obligation to raise any errors in such imposition at the direct appeal. But

Gamble’s claimed constitutional violations do not arise from the imposition of the

sentence in this matter. As acknowledged by the majority, Gamble was properly

sentenced to both a minimum and maximum term under the statute. Gamble’s

claimed constitutional violations relate solely to the process by which the ODRC may

make the determination of whether to keep him beyond the minimum sentence and

trigger the maximum sentence.

The majority readily admits that the ODRC “simply enforces the

sentence imposed and has been delegated the responsibility over the release

determinations under R.C. 2967.271.” This correct assertion underscores the fact

that Gamble’s challenge is not ripe, because he does not contest the imposition or

of Rehabilitation and Corrections [sic] to administratively extend a criminal defendant’s prison term beyond the presumptive minimum term, ripe for review on direct appeal from sentencing, or only after the defendant has served the minimum term and been subject to extension by application of the Act?”); and State v. Downard, Case No. 2020-1232 (are challenges to the Reagan Tokes Law ripe for review on direct appeal?). validity of his sentence but, rather, the potential execution of the maximum

sentence.

Both Gamble and the defendant in McCann raised issues with the

process that extended, or would extend, their sentence. In McCann, it was argued

that the postrelease control statute violated his right to a jury trial by allowing the

parole board to extend his sentence. Gamble’s argument is in the same vein — it is

the ODRC that will decide whether Gamble must serve the maximum sentence

rather than only the minimum sentence, and it is the process through which this

determination is made by the ODRC that he claims is unconstitutional.

The ODRC is permitted to rebut the presumption of his minimum

sentence and keep Gamble in prison for an additional period not to exceed the

maximum term imposed by the sentencing judge. R.C. 2967.271(C). The statute

provides that the presumption may be rebutted if the ODRC determines at a hearing

any of the following:

(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:

(a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and 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.

At this stage, it is impossible for us to know whether any of the above

conditions will occur and rebut the presumption of the minimum sentence. Thus,

Gamble is not currently subject to any action by the ODRC related to extending his

sentence, and he may very well never be. This is the very epitome of a failure to

demonstrate ripeness.

“[C]onstitutional questions are not ripe for review until the necessity

for a decision arises on the record before the court.” State v. Spikes, 129 Ohio

App.3d 142, 147, 717 N.E.2d 386 (11th Dist.1998), citing Christensen v. Bd. of

Commrs. on Grievances & Discipline, 61 Ohio St.3d 534, 535, 575 N.E.2d 790

(1991). While the majority posits that criminal defendants will have no other way to

challenge the provisions raised herein and assert that a habeas corpus petition is not

a viable option, it is unclear why the majority believes this to be the case. As noted

by the Fourth District:

[A] petition for a writ of habeas corpus was the procedure by which the defendants in Bray challenged the constitutionality of the “bad time” statute, R.C. 2967.11. The defendants were sentenced, served their prison terms, and then were sanctioned with bad time penalties that were added to the maximum sentence imposed by the trial court. Each defendant filed a petition for a writ of habeas corpus, alleging that they were unlawfully restrained because R.C. 2967.11 was unconstitutional. Similarly, in Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 N.E.2d 1103, an inmate, Woods, challenged the post-release control statute, R.C. 2967.28, on the grounds that it violated the separation of powers doctrine and due process. Woods was sentenced to ten months in prison and then placed on post-release control for three years. After a number of violations, Woods was sanctioned to serve one hundred and eighty days in a community based correctional facility. Woods filed a petition for a writ of habeas corpus arguing that the post-release control statute was unconstitutional. The Supreme Court of Ohio held that the post-release control statute was constitutional. As in Bray, the Court did not specifically discuss the necessity of the use of a petition for a writ of habeas corpus to challenge the constitutionality of the post- release control statute, the Court ruled on the merits, finding the statute constitutional. Thus, as with Bray and as recognized by the Fifth District in Downard and Minion, we find that a habeas corpus petition is the appropriate method for Ramey to challenge the constitutionality of the Reagan Tokes Law when — if ever — the ODRC holds him beyond the minimum sentence.

State v. Ramey, 4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733,

¶ 21.

Thus, contrary to the majority’s assertion, none of the three factors

used to determine ripeness weighs in favor of Gamble’s claims. First, the likelihood

of harm occurring is completely unknown at this time. It is possible that none of the

conditions in R.C. 2967.271(C) will occur, and there may never be a question as to

whether Gamble’s sentence would be extended beyond the minimum term. At this

time, there is only the potential for Gamble to be subjected to the maximum prison

term. “Generally, a claim is not ripe if the claim rests upon ‘future events that may

not occur as anticipated, or may not occur at all.’” McLaughlin v. McLaughlin, 4th

Dist. Athens No. 06CA14, 2007-Ohio-260, ¶ 12, quoting Texas v. United States, 523

U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998). Moreover, while a party is

not required to await the consummation of threatened injury to obtain preventive relief, the injury must be ‘“certainly impending.’” Thomas v. Union Carbide

Agricultural Prods. Co., 473 U.S. 568, 581-582, 105 S.Ct. 3325, 87 L.Ed.2d 409

(1985), quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct.

335, 42 L.Ed.2d 320 (1974), citing Pennsylvania v. West Virginia, 262 U.S. 553,

593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923).

In addition, the factual record is not sufficiently developed for us to

provide fair adjudication. Because Gamble has not been subject to any

determination by the ODRC, there is nothing in the record that would allow us to

assess whether the process of such determination violates his constitutional rights.

Finally, as noted above, Gamble has a vehicle within which to challenge the ODRC’s

determination process should it actually occur — a petition for habeas corpus.

Accordingly, I believe this matter is not ripe, and it would be

premature for us to address the constitutional challenges raised in Gamble’s appeal.

I respectfully dissent.