[Cite as State v. Joyce, 2022-Ohio-3370.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-006
Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas
MICHAEL S. JOYCE, Trial Court No. 2019 CR 000849 Defendant-Appellant.
OPINION
Decided: September 26, 2022 Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH 44115 (For Defendant- Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Michael S. Joyce, appeals the trial court’s May 11, 2020
sentencing entry. On remand from the Supreme Court of Ohio, we affirm.
I. Introduction
{¶2} Appellant pled guilty to five offenses: Count One, attempted murder, a first-
degree felony; Count Six, grand theft of a motor vehicle, a fourth-degree felony; Count
Seven, aggravated robbery, a first-degree felony; Counts Eleven and Twelve, tampering
with evidence, third-degree felonies. The trial court sentenced appellant as follows: an indefinite prison term with a stated minimum term of 11 years and a maximum prison term
of 16.5 years on Count One; 17 months in prison on Count Six; 9 years in prison on Count
Seven; 30 months in prison on Count Eleven; and 30 months in prison on Count Twelve.
Counts One and Seven are to be served consecutive to each other, while all other terms
are to be served concurrently, resulting in a stated aggregate minimum term of 20 years
and an aggregate maximum term of 25.5 years in prison.
{¶3} Appellant advances one assignment of error:
The sentencing under Ohio law violated the separation of powers doctrine of the Constitutions of the State of Ohio and United States, due process of law, are void for vagueness, and conflict internally with other Ohio law.
{¶4} Appellant argues that the sentencing scheme under which he was
sentenced, identified under R.C. 2901.011 as the Reagan Tokes Law, is unconstitutional
on its face because it violates the separation of powers doctrine and infringes upon his
due process rights.
{¶5} Initially, we note that the constitutionality of the Reagan Tokes Law has
been addressed by other Ohio appellate courts, each of which has declared that the
sentencing scheme does not facially violate an inmate’s constitutional rights. See, e.g.,
State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-
Ohio-5048, 161 N.E.3d 112 (3d Dist.); State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d
607 (4th Dist.); State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372;
State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682 (6th Dist.); State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc); State v. Guyton, 12th Dist. Butler No.
CA2019-12-203, 2020-Ohio-3837. The issue is currently pending before the Supreme
Case No. 2021-L-006 Court of Ohio. See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496, and State v.
Simmons, Sup. Ct. Case No. 2021-0532.
II. Standard of Review
{¶6} We review the constitutionality of a statute de novo, i.e., independently and
without deference to the trial court’s decision. State v. Jenson, 11th Dist. Lake No. 2005-
L-193, 2006-Ohio-5169, ¶ 5. “An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it must appear beyond a
reasonable doubt that the legislation and constitutional provisions are clearly
incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59
(1955), paragraph one of the syllabus; State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-
783, 7 N.E.3d 1156, ¶ 7 (“enactments of the General Assembly enjoy a strong
presumption of constitutionality”). “This means that courts must avoid an unconstitutional
construction where it is reasonably possible to do so.” Jenson at ¶ 5, citing United Air
Lines, Inc. v. Porterfield, 28 Ohio St.2d 97, 100, 276 N.E.2d 629 (1971). “Further, the
party challenging the statute bears the burden of proving the unconstitutionality of the
statute beyond a reasonable doubt.” Woods v. Telb, 89 Ohio St.3d 504, 511, 733 N.E.2d
1103 (2000), citing State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996).
{¶7} A party may challenge a statute as unconstitutional as applied to a particular
set of facts or, as here, on its face. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-
5334, 836 N.E.2d 1165, ¶ 37. “A facial challenge to a statute is the most difficult to bring
successfully because the challenger must establish that there exists no set of
circumstances under which the statute would be valid. The fact that a statute might
operate unconstitutionally under some plausible set of circumstances is insufficient to
Case No. 2021-L-006 render it wholly invalid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.
2095, 95 L.Ed.2d 697 (1987).
III. The Reagan Tokes Law
{¶8} The Reagan Tokes Law, effective as of March 22, 2019, implemented a
system of indefinite sentencing for non-life felonies of the first and second degree
committed on or after the effective date. Pursuant to the Reagan Tokes Law, a
sentencing court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) is required
to order a minimum prison term under that provision and a maximum prison term as
determined by R.C. 2929.144(B).
{¶9} “Of the many changes to Ohio’s criminal sentencing scheme that were
brought about by the Reagan Tokes Law, the change that is most pertinent to our present
discussion centers around R.C. 2967.271(B)-(F), which permits prison authorities within
the executive branch to hold defendants in confinement during the indefinite portion of
their sentence for conduct that violates prison rules and regulations.” State v. Eaton, 6th
Dist. Lucas No. L-21-1121, 2022-Ohio-2432, ¶ 13.
{¶10} R.C. 2967.271(B) sets forth 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.”
R.C. 2967.271(C) provides that the Ohio Department of Rehabilitation and Correction
(“ODRC”) may rebut the presumption for release if it holds a hearing and determines that
any of the three enumerated factors, discussed below, are applicable. If the ODRC rebuts
the presumption for release, R.C. 2967.271(D)(1) provides that the ODRC may “maintain”
the offender in confinement for a “reasonable period,” which “shall not exceed the
Case No. 2021-L-006 offender’s maximum prison term.” R.C. 2967.271(E) provides that the ODRC “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 it provides for the possible release of inamtes
on parole. Finally, R.C. 2967.271(F) permits the director of the ODRC to recommend a
reduction in the offender’s minimum prison term (except for sexually oriented offense
convictions), which creates a presumption in favor of the reduction that may be rebutted
by the prosecutor at a hearing before the sentencing court.
{¶11} Although indefinite sentencing has previously been utilized as the law in
Ohio for first- and second-degree felonies, the presumptive release date is novel to the
Reagan Tokes Law. See State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-
5501, ¶ 56 (Gwin, J., dissenting), citing State v. Davis, 9th Dist. Summit No. 13092, 1987
WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11, and State v. Jenks, 2d Dist.
Montgomery No. 10264, 1987 WL 20267 (Nov. 16, 1987), citing former R.C. 2929.1.
IV. Due Process Arguments
{¶12} The first question before us is whether the Reagan Tokes Law violates due
process by failing to provide adequate protections for inmates during the process by
which the ODRC determines whether it should maintain an inmate in confinement after
the expiration of the minimum prison term. Appellant’s due process arguments can be
summarized as follows: (1) the law is vague with respect to the conduct that would permit
the ODRC to continue imprisonment after expiration of the minimum term; (2) the law fails
to provide adequate procedural safeguards to be used by the ODRC in conducting the
hearing and exercising its discretion; and (3) the law fails to provide a court hearing prior
to imposing prison time beyond the minimum term. These are facial challenges to the
Case No. 2021-L-006 constitutionality of the enactment, thereby placing the burden on appellant to prove
beyond a reasonable doubt that there is no set of circumstances under which the Reagan
Tokes Law would be constitutional.
V. Due Process Rights
{¶13} “The touchstone of due process is protection of the individual against
arbitrary action of government.” (Citation omitted.) Wolff v. McDonnell, 418 U.S. 539,
558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
{¶14} The Due Process Clause in the Fourteenth Amendment to the United States
Constitution provides: “No State shall * * * deprive any person of life, liberty, or property,
without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16
of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury
done him in his land, goods, person, or reputation, shall have remedy by due course of
law, and shall have justice administered without denial or delay.” The two clauses are
coextensive and provide equivalent due process protections. State v. Aalim, 150 Ohio
St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15; State v. Anderson, 148 Ohio St.3d 74,
2016-Ohio-5791, 68 N.E.3d 790, ¶ 21. We can therefore rely on decisions of both the
United States Supreme Court and the Ohio Supreme Court. Anderson at ¶ 23.
{¶15} The standard analysis of due process proceeds in two steps: “We first ask
whether there exists a liberty or property interest of which a person has been deprived,
and if so we ask whether the procedures followed by the State were constitutionally
sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732
(2011), citing Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,
104 L.Ed.2d 506 (1989). In other words, “[o]nce it is determined that due process applies,
Case No. 2021-L-006 the question remains what process is due. * * * [N]ot all situations calling for procedural
safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). At a minimum, “[o]ur courts have long recognized
that due process requires both notice and an opportunity to be heard.” In re Thompkins,
115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13.
VI. The Liberty Interest
{¶16} Those who seek to invoke the procedural protection of the Due Process
Clause must establish that one of three interests is at stake: life, liberty, or property.
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). A “liberty
interest may arise from the Constitution itself, by reason of guarantees implicit in the word
‘liberty,’” or “from an expectation or interest created by state laws or policies.” (Citations
omitted.) Id.
{¶17} At stake here is an inmate’s liberty interest. “[L]awfully incarcerated persons
retain only a narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460,
467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). “There is no constitutional or inherent right
of a convicted person to be conditionally released [e.g., released on parole] before the
expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal & Corr.
Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “However, if state law
entitles an inmate to release on parole, that entitlement is a liberty interest that is not to
be taken away without due process.” (Emphasis added.) Ratliff, 2022-Ohio-1372, at ¶
20, citing Greenholtz at 11-16 (“where the [United States] Supreme Court so held in the
context of a statute providing that the Nebraska parole board ‘shall’ release parole-eligible
inmates unless one of several factors specified in the statute should be found to exist”).
Case No. 2021-L-006 {¶18} With this in mind, the relevant sections of the Reagan Tokes Law provide
as follows:
(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.
Case No. 2021-L-006 (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.
(Emphasis added.) R.C. 2967.271.
{¶19} “The legislature by choosing the language ‘there shall be a presumption that
the person shall be released’ and ‘Unless the department rebuts the presumption, the
offender shall be released,’ within the Reagan Tokes Law has arguably created
enforceable liberty interests in parole.” Ratliff at ¶ 30, citing Board of Pardons v. Allen,
482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (where the United States Supreme
Court so held in the context of a Montana statute providing that the parole board “shall”
release a prisoner, subject to certain restrictions). See also State ex rel. Bailey v. Ohio
Parole Bd., 152 Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶ 10 (“The Revised
Code creates an inherent expectation ‘that a criminal offender will receive meaningful
consideration for parole.’” (Citation omitted; emphasis sic.)); and Inmates of Orient Corr.
Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 236-237 (6th Cir.1991) (where the
court suggested that a protected liberty interest would be created by regulations alone if
they “created an explicit presumption of entitlement to release on parole” or “otherwise
used ‘mandatory language’ in connection with ‘specific substantive predicates’ for release
on parole”).
{¶20} A liberty interest is always at stake when an inmate is entitled to release
from confinement, whether that entitlement is presumptive or otherwise. And there is no
Case No. 2021-L-006 disagreement that some liberty interest arises from an expectation or interest that is
created by the Reagan Tokes Law. See Eaton, 2022-Ohio-2432, at ¶ 127 (“The courts
that have considered similar due process challenges to the Reagan Tokes Law have had
no difficulty in concluding that defendants do, in fact, have a liberty interest sufficient to
trigger due process safeguards.”). Nevertheless, the exact nature of this liberty interest—
and, by extension, the nature of the process due—has been the subject of much debate
within and amongst our sibling courts. This disagreement is discussed further below,
pertaining to the procedural safeguards of the additional term hearing. But first, we
consider notice.
VII. Notice of Proscribed Conduct
{¶21} “In the criminal context, the requirement of notice concerns ‘the accused’s
right to fair notice of the proscribed conduct.’” State v. Philpotts, 2019-Ohio-2911, 132
N.E.3d 743, ¶ 44 (8th Dist.), quoting State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578,
¶ 33 (4th Dist.), citing Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70
L.Ed. 322 (1926). “This refers to the principle that due process requires criminal statutes
to be written clearly so that individuals are provided with a fair warning that a certain
conduct is within the statute’s prohibition.” Philpotts at ¶ 44, citing Wheatley at ¶ 33, citing
Screws v. United States, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945);
Connally at 391 (“a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law”); and State v. Elmore,
122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 23 (due process requires law to
be written so that the public can adequately inform itself before acting).
Case No. 2021-L-006 {¶22} Again, in order to rebut the presumptive release date, the ODRC is required
to conduct a hearing and make at least one of the following statutory findings before it
may maintain the inmate beyond the presumptive release date:
(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.
(Emphasis added.) R.C. 2967.271(C).
{¶23} The inmate rules of conduct are set forth in Ohio Adm.Code 5120-9-06. The
disciplinary procedures for violations of inmate rules of conduct before the rules infraction
board are set forth in Ohio Adm.Code 5120-9-08. The procedures for when and why an
inmate may be placed in a restrictive housing assignment are set forth in Ohio Adm.Code.
Case No. 2021-L-006 5120-9-10. The hearing procedure for release consideration is set forth in Ohio
Adm.Code 5120:1-1-11. See also Ratliff, 2022-Ohio-1372, at ¶ 47. Each of these Ohio
Administrative Code procedures provides, at a minimum, notice and an opportunity to be
heard. See also id. at ¶ 48.
{¶24} Accordingly, we conclude that an inmate is provided with advance notice
under the Revised Code and the Ohio Administrative Code of the behavior and conduct
that may contribute to or could result in the ODRC rebutting the presumption of release.
VIII. Procedural Safeguards
{¶25} “Although the concept is flexible, at its core, procedural due process under
both the Ohio and United States Constitutions requires, at a minimum, an opportunity to
be heard when the state seeks to infringe a protected liberty or property right.” (Footnote
omitted.) 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.E.2d 113 (1971).
“[T]he opportunity to be heard must occur at a meaningful time and in a meaningful
manner.” (Citations omitted.) Cowan at ¶ 8; see also Vitek v. Jones, 445 U.S. 480, 500,
100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (Powell, J., concurring) (“The essence of
procedural due process is a fair hearing.”).
{¶26} As stated above, our sibling districts are at odds regarding the extent of the
liberty interest and the process that safeguards a fair hearing. The disagreement is rooted
in whether the rebuttable presumption of release in the Reagan Tokes Law is most
analogous to parole revocation proceedings or parole release proceedings (alternatively
referred to as parole eligibility proceedings).
Case No. 2021-L-006 {¶27} “The distinction between parole eligibility and parole revocation is significant
when discussing due process because the liberty interest in parole revocation – which
entails taking someone’s freedom away – is much greater than the liberty interest in
parole eligibility – which typically entails the hope or anticipation of freedom.” Delvallie,
2022-Ohio-470, at ¶ 139 (Forbes, J., dissenting), citing Greenholtz, 442 U.S. at 9
(“[P]arole release and parole revocation are quite different. There is a crucial distinction
between being deprived of a liberty one has, as in parole [revocation], and being denied
a conditional liberty that one desires[,]” as in parole release or eligibility. (Emphasis sic.)).
Although neither affords an inmate the “full panoply of rights due” in a criminal
prosecution, Morrissey, 408 U.S. at 480, parole revocation requires greater procedural
safeguards than parole eligibility or parole release. Greenholtz at 10.
{¶28} The Sixth and Twelfth Districts have concluded that the additional term
hearings under the Reagan Tokes Law are more analogous to parole revocation
proceedings. State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072, ¶ 31
(“the Reagan Tokes Law creates a liberty interest more akin to probation revocation
decisions”); State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 17
(“[t]he hearings conducted by the ODRC under R.C. 2967.271(C) are analogous to parole
revocation proceedings, probation revocation proceedings, and postrelease control
violation hearings”). The Twelfth District explains this conclusion merely by stating that
“[t]his is because * * * all three situations concern whether a convicted felon has
committed violations while under the control and supervision of the ODRC.” Guyton at ¶
17. The Sixth District undertakes a more thorough analysis, explaining that “the Reagan
Tokes Law functions unlike the merely discretionary decision to release an offender on
Case No. 2021-L-006 parole,” which is largely “‘subjective’ and ‘predictive.’” Stenson at ¶ 28-30, quoting
Greenholtz at 13. Rather, the Sixth District finds that the additional term hearing of the
Reagan Tokes Law functions more like a parole revocation decision by requiring “two
determinations under R.C. 2967.271(C)(1): (1) did the offender, during his incarceration,
commit certain rule violations or unprosecuted crimes?—‘wholly retrospective factual
question[s]’; and (2) does this behavior demonstrate that the offender still poses a threat
to society?” Stenson at ¶ 30, quoting Greenholtz at 8. This conclusion is also expressly
favored by the five dissenting judges in the Eighth District’s en banc opinion. See
Delvallie at ¶ 140-142 (Forbes, J., et al., dissenting) (“Unlike Ohio’s parole eligibility
proceedings, the Reagan Tokes Law includes an express presumption of release[.]”) and
¶ 192 (Mays, J., et al., dissenting in part).
{¶29} Under this parole revocation view, the process that is due with regard to the
additional term hearing under the Reagan Tokes Law is set forth in the United States
Supreme Court’s decision in Morrissey. See Stenson at ¶ 31; Guyton at ¶ 14; and
Delvallie at ¶ 148 (Forbes, J., dissenting). Pursuant to Morrissey, the minimum
requirements of due process include the following for parole revocation proceedings:
(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
Case No. 2021-L-006 (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Morrissey at 489; accord State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975).
{¶30} On the other hand, the Second District has concluded that “requiring a
defendant to remain in prison beyond the presumptive minimum term is akin to the
decision to grant or deny parole,” i.e., akin to parole eligibility/release, rather than parole
revocation. State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.
“Simply put, if [the offender] commits rule infractions or crimes while in prison, he may be
required to serve the entire sentence already imposed by the trial court.” Id. This
conclusion, that the liberty interest at stake under the Reagan Tokes Law is most
analogous to parole eligibility/release, is also favored by the Sixth District’s lead opinion
in Eaton, albeit the minority view of that panel’s decision. Eaton, 2022-Ohio-2432, at ¶
133. The author of that opinion provides several reasons in support of this conclusion:
First, the defendant is suffering a loss of his physical liberty in institutional confinement in both situations [the initial parole release hearing and the additional term hearing under the Reagan Tokes Law], unlike the relative freedom he enjoys when already released on parole or post-release control. This is important because a defendant who is already in confinement has a reduced liberty interest and is therefore entitled to less process than a defendant who is already free.
Second, in both the parole release hearing and the [additional term] review hearing under the Reagan Tokes Law, the reviewing body is focused upon whether the defendant’s conduct justifies his release from confinement, not whether he should be returned to confinement. Again, the liberty interests are different and thus the protections to which a defendant is entitled are different.
Since the trial court imposes both the minimum and maximum sentence, a defendant sentenced under the Reagan Tokes Law is still serving his sentence at the time of the additional
Case No. 2021-L-006 term hearing and, if ordered to serve the indefinite portion of the sentence, will continue to serve the sentence previously imposed by the trial court. Therefore, the issue in the additional term hearing is release from confinement, not revocation of parole. Stripping away the semantics, the reality here is that, from [the inmate’s] perspective, he is presently incarcerated and wishes to be freed from incarceration – by definition, this is release and not revocation.
(Emphasis sic.) Id. at ¶ 131-132. Further support for this view can be found in the fact
that R.C. 2967.271 is referenced in R.C. 2967.13, the statute governing “parole eligibility”
(“(F) A prisoner serving a stated prison term that is a non-life felony indefinite prison term
shall be released in accordance with sections 2967.271 and 2967.28 of the Revised
Code.”); compare R.C. 2967.15 (the statute governing parole revocation makes no
mention of R.C. 2967.271).
{¶31} Under this parole eligibility/release view, the process that is due with regard
to the additional term hearing under the Reagan Tokes Law is equivalent to “the process
required for defendants under the presumptive parole regime”—i.e., “minimal process
including an opportunity to be heard and an explanation of the basis for denial of parole
release.” Eaton at ¶ 137, citing Greenholtz, 442 U.S. at 16 (“The Constitution does not
require more.”); Cooke, 562 U.S. at 220 (“In the context of parole, we have held that the
procedures required are minimal.”); see also Bailey, 2017-Ohio-9202, at ¶ 9-10.
{¶32} We find it premature to reach a conclusion on this issue. Again, “[a] facial
challenge to a statute is the most difficult to bring successfully because the challenger
must establish that there exists no set of circumstances under which the statute would be
valid.” Harrold, 2005-Ohio-5334, at ¶ 37, citing Salerno, 481 U.S. at 745. To prevail, it
must be shown that the statute cannot be constitutionally applied in any circumstances.
Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21. “The
Case No. 2021-L-006 fact that a statute might operate unconstitutionally under some plausible set of
circumstances is insufficient to render it wholly invalid.” Harrold at ¶ 37, citing Salerno at
745. Additionally, we caution that “[t]he judicial authority to override the legislative will
should be used with extreme caution and restraint, because declaring a statute
unconstitutional based on a facial challenge is an ‘exceptional remedy.’” State v. Mole,
149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 96 (Kennedy, J., dissenting),
quoting Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir.2010); see also Sabri v. United
States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), quoting United States
v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (“Facial adjudication
carries too much promise of ‘premature interpretation of statutes’ on the basis of factually
barebones records.”).
{¶33} Here, because the ODRC has not sought to extend appellant’s term beyond
the presumptive minimum sentence, appellant’s challenge to the procedural safeguards
of the additional term hearing is necessarily a facial challenge to the Reagan Tokes Law.
See Stenson, 2022-Ohio-2072, at ¶ 31; see also Delvallie, 2022-Ohio-470, at ¶ 53, citing
Morrissey, 408 U.S. at 480 (an inmate’s liberty interest in the right to be released from a
prison term “does not arise until after the offender is sentenced and his conviction deemed
final”).
{¶34} As noted by the Sixth and Eighth Districts, the United States Supreme
Court’s opinion in “Morrissey is instructive because it necessarily implies that the specific
procedural requirements applicable to protect a particular liberty interest need not be set
forth in the legislation itself.” Stenson at ¶ 32, citing Morrissey; Delvallie at ¶ 66
(“Morrissey itself does not even require the legislature to codify the procedural details,
Case No. 2021-L-006 nor does it require the executive agency to formally draft rules in compliance with
Morrissey.”). We agree. Albeit in the specific context of the process due a parolee whose
parole is being revoked, the Court acknowledged that most states have enacted
legislation setting forth procedural requirements for parole revocation hearings, while
others have done so by judicial decision. Morrissey at 488 (“We cannot write a code of
procedure; that is the responsibility of each State. Most States have done so by
legislation, others by judicial decision usually on due process grounds.”). “In other words,
Morrissey suggests that the Reagan Tokes Law may not be found to be unconstitutional,
on its face, as violating due process merely because the specific procedures for invoking
an additional period of incarceration are not set forth in the Law itself.” Stenson at ¶ 32.
{¶35} “No constitutional provision requires the legislature to expressly set forth
each and every right afforded to an offender at every stage of proceedings created by
statutory process. For that, the legislature is free to delegate authority to the executive
branch.” Delvallie at ¶ 58, citing AMOCO v. Petroleum Underground Storage Tank
Release Comp. Bd., 89 Ohio St.3d 477, 480, 733 N.E.2d 592 (2000) (the General
Assembly may delegate rule-making authority to an executive agency); State v.
Schreckengost, 30 Ohio St.2d 30, 32, 282 N.E.2d 50 (1972) (“Delegation to state
administrative officials of the authority to adopt and enforce regulations to implement such
a declared legislative policy is not, per se, unlawful.”); and O’Neal v. State, 2020-Ohio-
506, 146 N.E.3d 605, ¶ 50 (10th Dist.) (“the General Assembly constitutionally may
delegate authority to promulgate rules, policies, and regulations to subordinate boards
and agencies”). “[T]he legislature is not required to codify all rules and procedures under
the statutory provision but instead can defer to the executive agency’s establishment of
Case No. 2021-L-006 its own rules or procedures to safeguard constitutional concerns, which must be
challenged through the appropriate mechanisms.” Delvallie at ¶ 59, citing Wilkinson, 545
U.S. at 226 and Wolff, 418 U.S. at 563 (both cases involved reviewing the rules or
procedures established by the executive agency for constitutional compliance).
{¶36} R.C. 2967.271 does not include procedural requirements for the additional
term hearing, nor does it include language authorizing the ODRC to draft rules and
regulations for the review hearings. Nevertheless, the enabling statute R.C. 5120.01
requires that “[a]ll duties” conferred upon the ODRC by the legislature “shall be performed
under the rules and regulations that the director prescribes and shall be under the
director’s control.” See Delvallie, 2022-Ohio-470, at ¶ 60, quoting Bibler v. Stevenson,
150 Ohio St.3d 144, 2016-Ohio-8449, 80 N.E.3d 424, ¶ 15 (“R.C. 2967.271 ‘does not
exist in a vacuum. It is a creature of the Revised Code, it is subservient to the Revised
Code, and it necessarily incorporates the Revised Code.’”).
{¶37} Expressly under the authority of R.C. 5120.01 and R.C. 2967.271, the
Director of the ODRC promulgated ODRC Policy 105-PBD-15, available at
https://drc.ohio.gov/policies/parole-board (last visited July 25, 2022). “The purpose of this
policy is to establish a standard procedure for the [ODRC] to carry out its statutory duties
efficiently and consistently concerning the Additional Term Hearing Process for persons
sentenced under Senate Bill 201 (132nd Ohio General Assembly).” ODRC Policy 105-
PBD-15, Section II. The Policy itself is set forth as follows:
Pursuant to the authority granted to ODRC under ORC 2967.271, it is the policy of ODRC to establish an Additional Term Hearing process for conducting hearings to determine whether the presumption of release at the expiration of an incarcerated adult’s minimum term is rebutted, and if so, to maintain incarceration of an incarcerated adult for an
Case No. 2021-L-006 additional period of time, up to the maximum term. Incarcerated adults sentenced under ORC 2967.271 may be subject to an Additional Term Hearing following a finding of guilt of certain Inmate Rules of Conduct by the Rules Infraction Board (RIB) and affirmance of that finding after completion of any RIB appeals or following a recommendation from the Annual Security Review Team.
ODRC Policy 15-PBD-15, Section V.
{¶38} Two issues arise: (1) whether the policy is of sufficient legal force and effect
to fill the legislative procedural gaps left by R.C. 2971.271; and (2) whether the policy
provides constitutionally sufficient due process. See, e.g., Delvallie (where the issues are
debated at length in the en banc and dissenting opinions). These issues, however, should
be addressed in an as-applied challenge to the procedural safeguards in effect at the
time, if ever, appellant is subjected to an additional term hearing. But see Eaton, 2022-
Ohio-2432, at ¶ 141 (addressing the substance and constitutional sufficiency of the
administrative policy). “This cannot be overemphasized. The appropriate mechanism to
challenge the validity of policies, rules, regulations, or protocols established by the
executive is through a separate declaratory judgment or habeas action seeking to
preclude ODRC from enforcing them, which only occurs at the actual time when those
policies, rules, regulations, or protocols are being applied against the inmate.” (Citations
omitted.) Delvallie at ¶ 91.
{¶39} “[G]iven that this is a facial challenge to the Law, it cannot be said at this
juncture that the Law ‘cannot be applied constitutionally in any circumstances.’ Should
the Law ultimately be applied in a manner that is unconstitutional, an offender would not
be precluded from challenging the Law as applied.” Stenson, 2022-Ohio-2072, at ¶ 33,
citing Wilkinson, 545 U.S. at 230 (“If an inmate were to demonstrate that the New Policy
Case No. 2021-L-006 did not in practice operate in [a constitutionally-permissible] fashion, resulting in a
cognizable injury, that could be the subject of an appropriate future challenge.”); see also
Delvallie, 2022-Ohio-470, at ¶ 90 (“If the sentence, as imposed, is valid at this stage, an
inmate has the later right to challenge the actual process or procedures that particular
inmate will be subjected to when the sentence is actually carried out by the executive
branch.”).
{¶40} Accordingly, appellant’s arguments pertaining to the procedural safeguards
of the additional term hearing are as-applied challenges and not ripe for review.
IX. Court Hearing
{¶41} Finally, appellant argues the Reagan Tokes Law violates his right to due
process because it fails to provide a court hearing prior to imposing prison time beyond
the minimum term. This argument has been found without merit by the Second, Fourth,
and Twelfth District Courts of Appeals, and we agree with their conclusion. Even under
Morrissey’s heightened standard of minimum due process pertaining to parole revocation,
it is not required that the sentencing court conduct the proceedings. See Guyton, 2020-
Ohio-3837, at ¶ 16-17, citing Woods, 89 Ohio St.3d 504 (Morrissey requires no more than
a hearing conducted by a neutral and detached Parole Board hearing officer); accord
State v. Alexander, 4th Dist. Adams No. 21CA1144, 2022-Ohio-1812, ¶ 60; see also
Barnes, 2020-Ohio-4150, at ¶ 38, fn. 2.
{¶42} For these reasons, we conclude that the Reagan Tokes Law does not, on
its face, violate the constitutional right to due process.
X. Separation of Powers
Case No. 2021-L-006 {¶43} Appellant additionally argues that the Reagan Tokes Law violates the
separation of powers doctrine. “The Ohio Supreme Court has said that ‘[t]he
administration of justice by the judicial branch of the government cannot be impeded by
the other branches of the government in the exercise of their respective powers.’” State
v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 21, quoting State ex
rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the
syllabus.
{¶44} In arguing that the Reagan Tokes Law violates the separation of powers,
offenders have generally relied on State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729
N.E.2d 359 (2000), where the Supreme Court of Ohio held unconstitutional former R.C.
2967.11, commonly known as “the bad-time law.” The relevant portion of the bad-time
law, provided that “[a]s 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.” (Emphasis
added.) Former R.C. 2967.11(B).
{¶45} The Bray Court concluded that the various provisions of former R.C.
2967.11 enabled “the executive branch to prosecute an inmate for a crime, to determine
whether a crime has been committed, and to impose a sentence for that crime. This is
no less than the executive branch’s acting as judge, prosecutor, and jury. R.C. 2967.11
intrudes well beyond the defined role of the executive branch as set forth in our
Constitution.” Bray at 135.
{¶46} However, after deciding Bray, the Ohio Supreme Court decided Woods, 89
Ohio St.3d 504, “holding that the post-release-control statute did not violate the
Case No. 2021-L-006 separation-of-powers doctrine.” Ferguson, 2020-Ohio-4153, at ¶ 22. “The post-release-
control statute required a court to impose the terms of post-release control and left it to
the Adult Parole Authority (APA) to determine whether to impose sanctions for any
violation of the terms. The Court said that this statute was ‘clearly distinguishable’ from
the bad-time statute at issue in Bray.” Id. at ¶ 22, quoting Woods at 512. “Unlike
additional prison time under the latter statute, post-release-control terms were made part
of the original judicially imposed sentence.” Ferguson at ¶ 22. “‘[B]ecause the APA’s
discretion in managing post-release control does not impede the function of the judicial
branch,’ said the Court, the post-release-control statute did not violate the separation-of-
powers doctrine.” Id. at ¶ 22, quoting Woods at 512.
{¶47} The Second District in Ferguson determined that the Reagan Tokes Law
does not violate separation of powers, noting the Ohio Supreme Court had “made it clear
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.” Ferguson at ¶ 23, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-
Ohio-126, 844 N.E.2d 301, ¶ 18-20, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 19, overruled on other grounds, citing Woods. “Such is the case
under the scheme established by the Reagan Tokes Law.” Ferguson at ¶ 23. The
Ferguson court explained that pursuant to the Reagan Tokes Law:
A court imposes both the minimum and maximum prison terms, including both in its sentence. The [ODRC] 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 [ODRC] 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
Case No. 2021-L-006 sentence not imposed by the court. In other words, the court imposes the full sentence and the [ODRC] determines whether violations merited its imposition.”
Id. at ¶ 23, quoting Woods at 511.
{¶48} Accordingly, appellate courts considering this challenge to the Reagan
Tokes Law have concluded that the law does not violate the separation of powers
doctrine. Ferguson at ¶ 23 (2d Dist.); Hacker, 2020-Ohio-5048, at ¶ 22-23 (3d Dist.);
Alexander, 2022-Ohio-1812, at ¶ 56 (4th Dist.); Ratliff, 2022-Ohio-1372, at ¶ 56 (5th Dist.);
Maddox, 2022-Ohio-1350, at ¶ 7 (6th Dist.); Delvallie, 2022-Ohio-470, at ¶ 36 (8th Dist.);
State v. Henderson, 12th Dist. Warren No. CA2020-11-072, 2021-Ohio-3564, ¶ 10-12.
We agree.
XI. Conclusion
{¶49} For these reasons, we conclude that appellant has not established that the
Reagan Tokes Law is unconstitutional on its face. Appellant’s assigned error is without
merit.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
Case No. 2021-L-006