[Cite as State v. Lacy, 2023-Ohio-1923.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-22-043
Appellee Trial Court No. 2021 CR 0173
v.
Mario Lacy, Sr. DECISION AND JUDGMENT
Appellant Decided: June 9, 2023
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
SULEK, J.
I. Introduction
{¶ 1} Appellant Mario Lacy, Sr., appeals the September 9, 2022 judgment of the
Erie County Court of Common Pleas which, following Lacy’s guilty plea, sentenced him
to an indefinite prison term. Lacy maintains that indefinite sentencing pursuant to the
Reagan Tokes Law, R.C. 2967.271, is unconstitutional because it violates his right to due process, the separation of powers doctrine, and his right to trial by jury. For the reasons
that follow, the trial court’s judgment is affirmed.
II. Relevant Background
{¶ 2} In the spring of 2021, Lacy was coaching a youth team in a basketball
tournament when he got into an altercation with a parent inside the gymnasium. The
confrontation eventually continued outside in the parking lot, with much of it recorded on
video. Lacy, who was prohibited from carrying a firearm at the time, pulled out a gun
and shot at the parent four times, causing serious physical harm. Lacy then fled the scene
in his truck with his children. He disposed of the firearm in a nearby pond.
{¶ 3} Following these events, the Erie County Grand Jury indicted Lacy on three
counts of attempted murder, two counts of felonious assault, one count of having
weapons under disability, two counts of tampering with evidence, two counts of
improperly handling firearms in a motor vehicle, one count of inducing panic, and three
counts of endangering children.
{¶ 4} On June 14, 2022, Lacy pled guilty to: (1) one count of felonious assault,
with an amended firearms specification; (2) one count of having weapons under
disability; and (3) one count of inducing panic. In exchange, the state agreed to dismiss
the remaining charges.
{¶ 5} On September 9, 2022, the trial court sentenced Lacy to serve an indefinite
prison term of 6 to 9 years for the felonious assault, a mandatory 3 years for the firearm
specification, 30 months for having weapons under disability, and 17 months for inducing
2. panic. The trial court ordered all of the sentences to be served consecutively, for a total
indefinite prison term of 155 to 191 months. It is from this sentencing decision that Lacy
now appeals.
III. Assignment of Error
{¶ 6} Lacy asserts the following assignment of error on appeal:
I. As amended by the Reagan Tokes Act, the Revised Code’s
sentences for first and second degree qualifying felonies violate the United
States and Ohio Constitutions. The court erred in issuing an indefinite
sentence pursuant to the Act.
IV. Analysis
A. Due Process
{¶ 7} Lacy first argues that R.C. 2967.271 violates his right to due process under
the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of
the Ohio Constitution by depriving him of adequate notice and a fair hearing.
{¶ 8} R.C. 2967.271(C) allows for the Ohio Department of Rehabilitation
and Corrections (ODRC) to rebut a presumption of release after the minimum
prison sentence has been served if, at a hearing, it is found that:
(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
3. 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.
{¶ 9} Here, the ODRC has not yet sought to extend Lacy’s presumptive
minimum sentence and therefore his claim is merely a facial challenge to the law.
“When a statute is challenged on its face, the challenger must provide proof
beyond a reasonable doubt that no set of circumstances exists under which the
4. statute would be valid.” State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236, ¶ 21
(6th Dist.). Lacy has not met this burden of proof.
{¶ 10} In support of his assignment of error, Lacy argues that there is a lack of
notice due to the vague standards of “not been rehabilitated” and “pose a threat to
society.” This court has addressed these facial claims of vagueness regarding these
phrases in State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, ¶ 42. This
court reasoned that “‘[a] facial challenge requires that the challenging party * * * show
that the statute is vague not in the sense that it requires a person to conform his conduct to
an imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.’” Id. at ¶ 43, quoting State v. Carrick, 131 Ohio
St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 15. In holding that the facial claim of
vagueness failed, this court concluded that “a standard is specified in the statute.”
(Emphasis sic.) Id.
{¶ 11} Lacy also argues that R.C. 2967.271 provides “no structure
regarding the manner in which the hearing will be conducted” and therefore it
violates his due process right to a fair hearing. Again, however, this is merely a
facial challenge to the constitutionality of the law and this court has held that
“R.C. 2967.271 does not, on its face, violate the constitutional right to due process
because even though the specific procedures for the applicable ‘hearing’ are not
set forth in the law itself, the law may ultimately be applied in a manner that is not
unconstitutional.” State v. Printke, 6th Dist. Lucas No. L-21-1233, 2022-Ohio-
5. 2981, ¶ 7, citing State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 33 (6th
Dist.).
{¶ 12} Therefore, Lacy has not established that R.C. 2967.271 violates his
right to due process.
B. Separation of Powers
{¶ 13} Lacy next argues that R.C. 2967.271 is unconstitutional as it violates the
separation-of-powers doctrine by transferring sentencing authority from the judicial
branch to the ODRC, an agency of the executive branch.
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[Cite as State v. Lacy, 2023-Ohio-1923.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-22-043
Appellee Trial Court No. 2021 CR 0173
v.
Mario Lacy, Sr. DECISION AND JUDGMENT
Appellant Decided: June 9, 2023
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
SULEK, J.
I. Introduction
{¶ 1} Appellant Mario Lacy, Sr., appeals the September 9, 2022 judgment of the
Erie County Court of Common Pleas which, following Lacy’s guilty plea, sentenced him
to an indefinite prison term. Lacy maintains that indefinite sentencing pursuant to the
Reagan Tokes Law, R.C. 2967.271, is unconstitutional because it violates his right to due process, the separation of powers doctrine, and his right to trial by jury. For the reasons
that follow, the trial court’s judgment is affirmed.
II. Relevant Background
{¶ 2} In the spring of 2021, Lacy was coaching a youth team in a basketball
tournament when he got into an altercation with a parent inside the gymnasium. The
confrontation eventually continued outside in the parking lot, with much of it recorded on
video. Lacy, who was prohibited from carrying a firearm at the time, pulled out a gun
and shot at the parent four times, causing serious physical harm. Lacy then fled the scene
in his truck with his children. He disposed of the firearm in a nearby pond.
{¶ 3} Following these events, the Erie County Grand Jury indicted Lacy on three
counts of attempted murder, two counts of felonious assault, one count of having
weapons under disability, two counts of tampering with evidence, two counts of
improperly handling firearms in a motor vehicle, one count of inducing panic, and three
counts of endangering children.
{¶ 4} On June 14, 2022, Lacy pled guilty to: (1) one count of felonious assault,
with an amended firearms specification; (2) one count of having weapons under
disability; and (3) one count of inducing panic. In exchange, the state agreed to dismiss
the remaining charges.
{¶ 5} On September 9, 2022, the trial court sentenced Lacy to serve an indefinite
prison term of 6 to 9 years for the felonious assault, a mandatory 3 years for the firearm
specification, 30 months for having weapons under disability, and 17 months for inducing
2. panic. The trial court ordered all of the sentences to be served consecutively, for a total
indefinite prison term of 155 to 191 months. It is from this sentencing decision that Lacy
now appeals.
III. Assignment of Error
{¶ 6} Lacy asserts the following assignment of error on appeal:
I. As amended by the Reagan Tokes Act, the Revised Code’s
sentences for first and second degree qualifying felonies violate the United
States and Ohio Constitutions. The court erred in issuing an indefinite
sentence pursuant to the Act.
IV. Analysis
A. Due Process
{¶ 7} Lacy first argues that R.C. 2967.271 violates his right to due process under
the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of
the Ohio Constitution by depriving him of adequate notice and a fair hearing.
{¶ 8} R.C. 2967.271(C) allows for the Ohio Department of Rehabilitation
and Corrections (ODRC) to rebut a presumption of release after the minimum
prison sentence has been served if, at a hearing, it is found that:
(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
3. 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.
{¶ 9} Here, the ODRC has not yet sought to extend Lacy’s presumptive
minimum sentence and therefore his claim is merely a facial challenge to the law.
“When a statute is challenged on its face, the challenger must provide proof
beyond a reasonable doubt that no set of circumstances exists under which the
4. statute would be valid.” State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236, ¶ 21
(6th Dist.). Lacy has not met this burden of proof.
{¶ 10} In support of his assignment of error, Lacy argues that there is a lack of
notice due to the vague standards of “not been rehabilitated” and “pose a threat to
society.” This court has addressed these facial claims of vagueness regarding these
phrases in State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2022-Ohio-2606, ¶ 42. This
court reasoned that “‘[a] facial challenge requires that the challenging party * * * show
that the statute is vague not in the sense that it requires a person to conform his conduct to
an imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.’” Id. at ¶ 43, quoting State v. Carrick, 131 Ohio
St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 15. In holding that the facial claim of
vagueness failed, this court concluded that “a standard is specified in the statute.”
(Emphasis sic.) Id.
{¶ 11} Lacy also argues that R.C. 2967.271 provides “no structure
regarding the manner in which the hearing will be conducted” and therefore it
violates his due process right to a fair hearing. Again, however, this is merely a
facial challenge to the constitutionality of the law and this court has held that
“R.C. 2967.271 does not, on its face, violate the constitutional right to due process
because even though the specific procedures for the applicable ‘hearing’ are not
set forth in the law itself, the law may ultimately be applied in a manner that is not
unconstitutional.” State v. Printke, 6th Dist. Lucas No. L-21-1233, 2022-Ohio-
5. 2981, ¶ 7, citing State v. Stenson, 2022-Ohio-2072, 190 N.E.3d 1240, ¶ 33 (6th
Dist.).
{¶ 12} Therefore, Lacy has not established that R.C. 2967.271 violates his
right to due process.
B. Separation of Powers
{¶ 13} Lacy next argues that R.C. 2967.271 is unconstitutional as it violates the
separation-of-powers doctrine by transferring sentencing authority from the judicial
branch to the ODRC, an agency of the executive branch.
{¶ 14} In Eaton, this court addressed this same issue and concluded that R.C.
2967.271 did not violate the separation-of-powers doctrine, holding that a thirteen-year
minimum and eighteen-year maximum sentence, with the option of parole at the ODRC’s
discretion, did not delegate sentencing authority to branches outside of the judiciary.
Eaton, 2022-Ohio-2432, 192 N.E.3d 1236, at ¶ 60. See also State v. Rice, 6th Dist. Wood
No. WD-22-022, 2023-Ohio-743; State v. Anderson, 6th Dist. Wood No. WD-22-013,
2022-Ohio-3680; Stenson, 6th Dist. Lucas No. L-20-1074, 2022-Ohio-2072; State v.
Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620. Lacy’s separation of powers
argument is not well taken.
C. Right to Trial by Jury
{¶ 15} Finally, Lacy argues that R.C. 2967.271 violates the Sixth Amendment to
the United States Constitution because it permits an additional punishment for conduct
not found by a jury. Like the issues above, this court has addressed an identical argument
6. in Bothuel and found it unavailing. R.C. 2967.271 does not allow for the ORDC to
extend the sentence beyond the maximum permitted by statute and imposed by the
judiciary. Bothuel at ¶ 23; State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-
2812, ¶ 16. Thus, it is the trial court, not ODRC that determines Lacy’s maximum
possible punishment. Lacy has not been deprived of his right to a trial by jury.
D. Summary
{¶ 16} In sum, Lacy has not demonstrated that R.C. 2967.271 is
unconstitutional; the Act does not, on its face, deprive individuals of their right to
due process, it does not violate the separation-of-powers doctrine, and it does not
violate an individual’s right to a trial by jury.
{¶ 17} Accordingly, Lacy’s assignment of error is not well-taken.
IV. Conclusion
{¶ 18} For the foregoing reasons, the judgment of the Erie County Court of
Common Pleas is affirmed. Lacy is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
7. State of Ohio v. Mario Lacy, Sr. C.A. No. E-22-043
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.