[Cite as State v. Ratliff, 2022-Ohio-1372.]
GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DAVID M. RATLIFF, : Case No. 21CA000016 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 20CR000213
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 22, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON R. FARLEY R. JESSICA MANUNGO Guernsey County Prosecutor's Office Office of the Ohio Public Defender Prosecuting Attorney Assistant State Public Defender 627 Wheeling Avenue 250 East Broad Street, Suite 1400 Cambridge, Ohio 43725 Columbus, Ohio 43215 Guernsey County, Case No. 21CA000016 2
Baldwin, J.
{¶1} Defendant-appellant David Ratliff appeals his sentence from the Guernsey
County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 25, 2020, the Guernsey County Grand Jury indicted appellant
on one count of aggravated possession of drugs in violation of R.C. 2925.11(A) and
(C)(1)(d), a felony of the first degree. At his arraignment on December 17, 2020, appellant
entered a plea of not guilty to the charge.
{¶3} Thereafter, on June 11, 2021, appellant withdrew his former not guilty plea
and entered a plea of no contest to the sole count in the indictment and was found guilty
of the same. As memorialized in a Judgment Entry filed on the same day, appellant was
sentenced to an indefinite prison term of a minimum of seven (7) years (all mandatory)
and a maximum prison term of ten and a half (10 ½ ) years. Appellant also was ordered
to pay court costs and his driver’s license was suspended for a period of five (5) years.
The trial court waived the mandatory fine after finding appellant to be indigent.
{¶4} Appellant now appeals, raising the following assignments of error on
appeal:
{¶5} “I. BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND
UNITED STATES CONSTITUTIONS, DAVID RATLIFF’S SENTENCE IS CONTRARY
TO LAW. R.C. 2953.08(G)(2); SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION; ARTICLES I, II AND III OF THE UNITED STATES
CONSTITUTION; ARTICLE I, SECTIONS 5, 10 AND 16 OF THE OHIO CONSTITUTION;
CITY OF S. EUCLID V. JEMISON, 28 OHIO ST.3D 157, 158-59, 503 N.E.2D 136 (1986).” Guernsey County, Case No. 21CA000016 3
{¶6} “II. MR. RATLIFF RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION WHEN TRIAL COUNSEL FAILED TO MOVE FOR WAIVER OF
COURT COSTS AT SENTENCING. STRICKLAND V. WASHINGTON, 466 U.S. 668, 104
S.Ct. 2052, 80 LED 2D 674 (1984); R.C. 2947.23; STATE V. DAVIS, 159 OHIO ST.3D
31, 2020-OHIO-309, 146 N.E.3D 560; STATE V. SPRINGER, 8TH DIST, CUYAHOGA
NO. 104649, 2017-OHIO-8861.”
I
{¶7} Appellant, in his first assignment of error, argues that his sentence is
contrary to law because the Reagan Tokes Act violates the Ohio and United States
Constitutions by violating a person’s constitutional right to trial by jury, separation of
powers, due process and equal protection. We disagree.
{¶8} As an initial matter, we note that the Ohio Supreme Court recently held that
the constitutionality of the Reagan Tokes Act was ripe for review on the defendant's direct
appeal of his or her conviction and prison sentence. See State v. Maddox, --N.E.3d--,
2022-Ohio-764.
The Reagan Tokes Law
{¶9} R.C. 2967.271, which is a part of the “Reagan Tokes Law” allows the Ohio
Department of Rehabilitation and Correction (“DRC”) to administratively extend an
incarcerated person's prison term beyond his or her minimum prison term or presumptive
earned early-release date, but not beyond his or her maximum prison term. The Reagan
Tokes Law (S.B. 201) was enacted in 2018 and became effective on March 22, 2019.
The Reagan Tokes Law, “significantly altered the sentencing structure for many of Ohio's Guernsey County, Case No. 21CA000016 4
most serious felonies’ by implementing an indefinite sentencing system for those non-life
felonies of the first and second degree, committed on or after the effective date.” State v.
Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1.
{¶10} As with any statute enacted by the General Assembly, the Reagan Tokes
Law is entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio
St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possible, statutes must be
construed in conformity with the Ohio and the United States Constitutions.” State v.
Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). A party challenging the
constitutionality of a statute bears the burden of proving that it is unconstitutional beyond
a reasonable doubt. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d
1254, ¶ 41, citing State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110,
¶ 12.
{¶11} The power to define criminal offenses and prescribe punishment is vested
in the legislative branch of government and courts may only impose sentences as
provided by statute. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63
L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187
(1977).
{¶12} In the case at bar, the legislature has authorized as a sentence for a felony
of the first degree:
{¶13} (1)(a) For a felony of the first degree committed on or after the effective date
of this amendment, the prison term shall be an indefinite prison term with a stated
minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or
eleven years and a maximum term that is determined pursuant to section 2929.144 of the Guernsey County, Case No. 21CA000016 5
Revised Code, except that if the section that criminalizes the conduct constituting the
felony specifies a different minimum term or penalty for the offense, the specific language
of that section shall control in determining the minimum term or otherwise sentencing the
offender but the minimum term or sentence imposed under that specific language shall
be considered for purposes of the Revised Code as if it had been imposed under this
division.
{¶14} R.C. 2929.14(A)(1)(a).
{¶15} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for
a felony of the first degree as charged in this case the defendant could have received an
indeterminate minimum sentence of five, six, seven, eight, nine or ten years up to a
maximum of twenty-five years. See, State v. Davis, 9th Dist. Summit No. 13092, 1987
WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11. What is different from prior law
regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive
release date.
{¶16} The Reagan Tokes Law requires that a court imposing a prison term under
R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second degree felony committed on or after
March 22, 2019, impose a minimum prison term under that provision and a maximum
prison term determined under R.C. 2929.144(B); R.C. 2929.144(C). Further, under the
Reagan Tokes Law, there is a presumption that 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.” R.C. 2967.271(B)
(emphasis added). A presumptive earned early release date is a date determined under
procedures described in R.C. 2967.271(F), which allow the sentencing court to reduce Guernsey County, Case No. 21CA000016 6
the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The DRC
may rebut the presumption if it determines at a hearing that one or more statutorily
numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may
maintain the offender's incarceration after the expiration of the minimum prison term or
presumptive earned early release date for a reasonable period of time, determined and
specified by DRC that “shall not exceed the offender's maximum prison term.” R.C.
2967.271(D)(1).
{¶17} Under the Reagan Tokes Law, the judge imposes both a minimum and a
maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction
(“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the
maximum sentence imposed by the trial court.
An incarcerated individual does not have a constitutional right to parole or
release before serving his entire sentence.
{¶18} An inmate has no constitutional right to parole release before the expiration
of his 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). The Ohio Adult Parole Authority has “wide-
ranging discretion in parole matters.” Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d
456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 28. Guernsey County, Case No. 21CA000016 7
{¶19} The Supreme Court has made it clear that a mere unilateral hope or
expectation of release on parole is not enough to constitute a protected liberty interest;
the prisoner “must, instead, have a legitimate claim of entitlement to it.” Greenholtz, 422
U.S. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). Moreover, only state law can
create this “legitimate claim of entitlement”; the federal constitution protects such claims,
but does not create them. “[T]here is no constitutional or inherent right of a convicted
person to be conditionally released [i.e., released on parole] before the expiration of a
valid sentence.” Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Accord, Inmates of Orient
Correctional Institute v. Ohio State Parole Board, 929 F.2d 233, 235 (6th Cir. 1991).
{¶20} 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. See Greenholtz v.
Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60
L.Ed.2d 668 (1979), where the 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.
{¶21} As relevant here, R.C. 2967.271(B) states:
{¶22} (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. (Emphasis added).
{¶23} Also relevant is R.C. 2967.271(C), which states: Guernsey County, Case No. 21CA000016 8
{¶24} (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:
{¶25} (1) Regardless of the security level in which the offender is classified at the
time of the hearing, both of the following apply:
{¶26} (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.
{¶27} (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.
{¶28} (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.
{¶29} (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. Guernsey County, Case No. 21CA000016 9
{¶30} 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. Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct.
2415, 96 L.Ed.2d 303 (1987). See, also, Inmates of Orient Correctional Institute v. Ohio
State Adult Parole Authority, 929 F.2d 233, 236-237 (6th Cir. 1991) (“Although the power
to deny parole is purely discretionary as far as Ohio's statutes are concerned, the state's
administrative regulations must also be considered. If Ohio's regulations created an
explicit presumption of entitlement to release on parole—as Tennessee's regulations
formerly did, see Mayes v. Trammell, 751 F.2d 175, 178 (6th Cir. 1984)—or if the Ohio
regulations otherwise used “‘mandatory language’ in connection with ‘specific substantive
predicates’ ” for release on parole, see Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.
1986) (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675
(1983)), the regulations alone could create a protected liberty interest.”). Cf. State, ex rel.
Bailey v. Ohio Parole Board, 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.’ ” (Citing Layne v. Ohio Adult Parole Auth., 97 Ohio
St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 27).
{¶31} “As for the Due Process Clause, standard analysis under that provision
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. Kentucky Dept. of Corrections v. Thompson, 490
U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).” Swarthout v. Cooke, 562 U.S. Guernsey County, Case No. 21CA000016 10
216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Having created an enforceable liberty
interest in parole by the express terms of the Reagan Tokes Act, the question now
becomes what process is due in the prison setting.
Due Process in the prison setting
{¶32} When a State creates a liberty interest, the Due Process Clause requires
fair procedures for its vindication—and courts will review the application of those
constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct.
859, 178 L.Ed.2d 732 (2011).
{¶33} In the context of parole, the United States Supreme Court has held that the
procedures required are minimal. In Greenholtz, the Court found that a prisoner subject
to a parole statute received adequate process when he was allowed an opportunity to be
heard and was provided a statement of the reasons why parole was denied. Id. at 16, 99
S.Ct. 2100. “The Constitution,” we held, “does not require more.” Swarthout v. Cooke,
562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011).
{¶34} {¶50} In Woods v. Telb, the Ohio Supreme Court made the following
observation concerning Ohio law:
Under the [pre-SB2] system of parole, a sentencing judge, imposing
an indefinite sentence with the possibility of parole, had limited power or
authority to control the minimum time to be served before the offender's
release on parole; the judge could control the maximum length of the prison
sentence, but the judge had no power over when parole might be granted
in between those parameters. The judge had no power to control the
conditions of parole or the length of the parole supervision. Guernsey County, Case No. 21CA000016 11
***
But, we observe that for as long as parole has existed in Ohio, the
executive branch (the APA and its predecessors) has had absolute
discretion over that portion of an offender's sentence. See State ex rel. Atty.
Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81.
**
Woods v. Telb, 89 Ohio St.3d at 511-512, 2000-Ohio-171, 733 N.E.2d 1103.
{¶35} Although entitled to the protection under the Due Process Clause, “prison
disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). In Wolff, the United
States Supreme Court observed.
In striking the balance that the Due Process Clause demands,
however, we think the major consideration militating against adopting the
full range of procedures suggested by Morrissey [v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)] for alleged parole violators is the very
different stake the State has in the structure and content of the prison
disciplinary hearing. That the revocation of parole be justified and based on
an accurate assessment of the facts is a critical matter to the State as well
as the parolee; but the procedures by which it is determined whether the
conditions of parole have been breached do not themselves threaten other
important state interests, parole officers, the police, or witnesses—at least
no more so than in the case of the ordinary criminal trial. Prison disciplinary Guernsey County, Case No. 21CA000016 12
proceedings, on the other hand, take place in a closed, tightly controlled
environment peopled by those who have chosen to violate the criminal law
and who have been lawfully incarcerated for doing so. Some are first
offenders, but many are recidivists who have repeatedly employed illegal
and often very violent means to attain their ends. They may have little
regard for the safety of others or their property or for the rules designed to
provide an orderly and reasonably safe prison life. Although there are very
many varieties of prisons with different degrees of security, we must realize
that in many of them the inmates are closely supervised and their activities
controlled around the clock. Guards and inmates co-exist in direct and
intimate contact. Tension between them is unremitting. Frustration,
resentment, and despair are commonplace. Relationships among the
inmates are varied and complex and perhaps subject to the unwritten code
that exhorts inmates not to inform on a fellow prisoner.
418 U.S. 539, 561-562, 94 S.Ct. 2963, 41 L.Ed.2d 935.
{¶36} Indeed, it has been noted, “[C]ourts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform.” Procunier v. Martinez,
416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)]. As
the Martinez Court acknowledged, “the problems of prisons in America are complex and
intractable, and, more to the point, they are not readily susceptible of resolution by
decree.” Id., at 404–405, 94 S.Ct. at 1807. “Running a prison is an inordinately difficult
undertaking that requires expertise, planning, and the commitment of resources, all of Guernsey County, Case No. 21CA000016 13
which are peculiarly within the province of the legislative and executive branches of
government.” Id at 405. Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and separation of powers concerns
counsel a policy of judicial restraint. Where a state penal system is involved, federal courts
have, as we indicated in Martinez, additional reason to accord deference to the
appropriate prison authorities. See Id., at 405, 94 S.Ct. at 1807.”
{¶37} Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
{¶38} “Viewed in this light it is immediately apparent that one cannot
automatically apply procedural rules designed for free citizens in an open society, or for
parolees or probationers under only limited restraints, to the very different situation
presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. at
560, 94 S.Ct. 2963, 41 L.Ed.2d 935.
{¶39} The Courts have found therefore, that the following procedures should be
accorded to prisoners facing prison disciplinary proceedings: 1). a prisoner is entitled to
a review unaffected by “arbitrary” decision-making. Wolff, 418 U.S. at 557-558, 94 S.Ct.
2963; (See, Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claimed
violation. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3).
A written statement of the fact finders as to the evidence relied upon and the reasons for
the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code
5120-9-08(M); Ohio Adm. Code 5120:1-11(G)(1)). 4). Prison officials must have the
necessary discretion to keep the hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or undermine authority, as well as to limit
access to other inmates to collect statements or to compile other documentary evidence. Guernsey County, Case No. 21CA000016 14
Wolff, 418 U.S. at 566, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120-9-08(E) (3); Ohio
Adm. Code 5120-9-08(F)). 5). “Where an illiterate inmate is involved, however, or whether
the complexity of the issue makes it unlikely that the inmate will be able to collect and
present the evidence necessary for an adequate comprehension of the case, he should
be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate
substitute aid in the form of help from the staff or from a sufficiently competent inmate
designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio Adm. Code
5120-9-07(H)(1)).
{¶40} In the case at bar, in order to rebut the presumptive release date, the DRC
must conduct a hearing and determine whether any of the following factors are applicable:
{¶41} (1) Regardless of the security level in which the offender is classified at the
{¶42} (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.
{¶43} (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. Guernsey County, Case No. 21CA000016 15
{¶44} (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.
{¶45} (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.
{¶46} R.C. 2967.271 (C)(1), (2) and (3).
{¶47} “Although the power to deny parole is purely discretionary as far as Ohio's
statutes are concerned, the state's administrative regulations must also be considered.”
Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d
233, 236 (6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C.
2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate rules of conduct. Ohio
Adm. Code 5120-9-08 sets forth the disciplinary procedures for violations of inmate rules
of conduct before the rules infraction board. Ohio Adm. Code 5120-9-10 sets forth the
procedures for when and under what circumstances an inmate may be placed in and/or
transferred to a restrictive housing assignment. Ohio Adm. Code 5120: 1-1-11 sets forth
the procedure of release consideration hearings. Thus, an inmate is given notice in
advance of the behavior that can contribute or result in an extended sentence and under
what circumstance the inmate can be placed or transferred to a restrictive housing
assignment.
{¶48} Each procedure employed provides at the least for notice and the
opportunity to be heard. Under the Reagan Tokes Law, an inmate is afforded notice and
a hearing by R.C. 2967.271(E), which states: Guernsey County, Case No. 21CA000016 16
{¶49} The [DRC] shall provide notices of hearings to be conducted under division
(C) or (D) of this section in the same manner, and to the same persons, as specified in
section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be
conducted regarding the possible release on parole of an inmate.
{¶50} See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-
3837, ¶ 11; State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶19
(“Reagan Tokes does not facially violate a defendant's right to procedural due process.”)
{¶51} We find, therefore, that Reagan Tokes does not violate appellant’s right to
due process.
Separation of Powers is not violated
{¶52} Nor can it be argued that because the DRC can increase a sentence beyond
the minimum given by the trial judge, the Reagan Tokes Law usurps judicial authority. As
already noted, the DRC may not increase the sentence beyond the maximum sentence
imposed by the trial court. The Ohio Supreme Court has 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.
See 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. Such
is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson,
2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit the
DRC to act “ ‘as judge, prosecutor and jury,’ for an action that could be prosecuted as a
felony in a court of law.” Woods v. Telb, 89 Ohio St.3d at 512, 733 N.E.2d 1103, quoting
State, ex rel. Bray v. Russell, 89 Ohio St.3d 132, 135, 729 N.E.2d 359 (2000). It should Guernsey County, Case No. 21CA000016 17
be noted that Bray was charged with and convicted of drug possession and sentenced to
an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in
violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed
a ninety-day bad-time penalty to be added to Bray's original term. Bray's original sentence
of eight months for drug possession expired on June 5, 1998, at which time his additional
ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus in the
Court of Appeals for Warren County, claiming that Warden Harry Russell was unlawfully
restraining him. 89 Ohio St.3d 132, 133, 729 N.E.2d 359. Thus, the Parole Board
extended Brey's sentence beyond the maximum sentence the trial court had impose.
Appellant points to nothing within the Reagan Tokes Law that would permit the DRC to
extend his sentence beyond the maximum time set by the trial judge.
{¶53} Furthermore, as we have noted, under the Reagan Tokes Law an inmate is
afforded the due process rights accorded to one who is incarcerated before any increase
can occur. Prison disciplinary proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings does not apply. For as long as
parole has existed in Ohio, the executive branch (the APA and its predecessors) has had
absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at
511-512, 733 N.E.2d 1103.
{¶54} The Reagan Tokes Law does not allow the DRC to lengthen a defendant's
sentence beyond the maximum sentence imposed by the trial court. The Law does not
give the DRC unfettered discretion to require an offender to serve more than the minimum
term. The statutes afford an offender notice and an opportunity to be heard before a more Guernsey County, Case No. 21CA000016 18
than the minimum may be required. The Reagan Tokes Law provides a prisoner with the
appropriate due process rights accorded to prisoners.
{¶55} Although entitled to the protection under the Due Process Clause, prison
disciplinary proceedings are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply. For as long as parole has
existed in Ohio, the executive branch (the APA and its predecessors) has had absolute
discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512,
733 N.E.2d 1103.
{¶56} Based on the forgoing, we find that the Reagan Tokes Law does not violate
the separation of powers doctrine.
Right to Jury Trial not violated
{¶57} Appellant also argues that Reagan Tokes violates his right to have a jury
determine any increase in punishment beyond the minimum sentence, citing Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant notes that
the DRC can unilaterally find facts concerning sufficiently bad behavior to rebut the
presumption of release and extend his sentence.
{¶58} In Apprendi, a jury convicted the defendant of a gun crime that carried a
maximum prison sentence of 10 years. But then a judge sought to impose a longer
sentence pursuant to a statute that authorized him to do so if he found, by a
preponderance of the evidence, that the defendant had committed the crime with racial
bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum,” the Court explained, “must be Guernsey County, Case No. 21CA000016 19
submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.
530 U. S. at 490, 120 S.Ct. 2348. Nor may a State evade this traditional restraint on the
judicial power by simply calling the process of finding new facts and imposing a new
punishment a judicial “sentencing enhancement.” Id., at 495, 120 S.Ct. 2348. “[T]he
relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose
the defendant to a greater punishment than that authorized by the jury's guilty verdict?”
Id., at 494, 120 S.Ct. 2348.
{¶59} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), the United States Supreme Court addressed a case concerning mandatory
minimum sentences and the Sixth Amendment. In Alleyne, the jury relied on the testimony
of the victim of an armed robbery that one of the perpetrators possessed a gun. The trial
court relied on the same testimony to determine that Alleyne or his accomplice brandished
a gun. The testimony was the same, but the findings were different. The jury found that
Alleyne possessed a gun, but made no finding with regard to whether the weapon was
brandished. The court, however determined that the gun was brandished. The Supreme
Court reviewed the statutory punishment structure, which included a mandatory minimum
sentence of five years if a crime of violence was committed while the offender carried a
firearm, seven years if the firearm was brandished, and ten years if the firearm was
discharged during the crime. 18 U.S.C. 924(c)(1)(A). The crime was otherwise punishable
by a term of imprisonment not exceeding 20 years. 18 U.S.C.1951 (a). The court held
that where facts were not found by a jury that enhanced the mandatory minimum penalty
for a crime, principles of the Sixth Amendment were violated. Specifically, “[b]ecause
mandatory minimum sentences increase the penalty for a crime, any fact that increases Guernsey County, Case No. 21CA000016 20
the mandatory minimum is an ‘element’ that must be submitted to the jury.” 570 U.S. at
103. See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-
3412, ¶29. However, the majority in Alleyne was careful to declare that:
In holding that facts that increase mandatory minimum sentences
must be submitted to the jury, we take care to note what our holding does
not entail. Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial fact-finding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.
817, ––––, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“[W]ithin
established limits [,] ... the exercise of [sentencing] discretion does not
contravene the Sixth Amendment even if it is informed by judge-found facts”
(emphasis deleted and internal quotation marks omitted)); Apprendi, 530
U.S. at 481, 120 S.Ct. 2348 (“[N]othing in this history suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute”).
Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA 28,
2014-Ohio-357, ¶19.
{¶60} Under the Reagan Tokes Law, the judge imposes both a minimum and a
maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or Guernsey County, Case No. 21CA000016 21
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction
(“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the
maximum sentence imposed by the trial court. Further, the facts which postpone an
inmate's release date are facts found as a result of prison disciplinary proceedings, not
the underlying crime. To extend Wolff's argument to its logical end it would be necessary
for the courts to invalidate punishment as a result of internal prison disciplinary
proceedings entirely, or require all rule infractions to be tried before a jury.
{¶61} It is evident that Apprendi and its progeny have no application in a prison
disciplinary setting where the DRC does not have the authority to extend the inmate's
sentence beyond the maximum sentence imposed by the trial judge. We find that
appellant’s right to a jury trial was thus not violated.
Right to Equal Protection not violated
{¶62} Appellant further contends that his right to equal protection was violated.
However, we concur with the court in State v. Hodgkin, 12th Dist. Warren No. CA2020-08-
048, 2021-Ohio-1353 at footnote 2, appeal allowed, 2021-Ohio-2742, 164 Ohio St. 3d
1403, 172 N.E.3d 165:
As for the equal protection argument, the fact that prisoners do not
receive the full panoply of rights afforded those accused of crimes is not an
equal protection violation. See State ex rel. Bray v. Russell, 12th Dist.
Warren No. CA98-06-068, 1998 WL 778373, 1998 Ohio App. LEXIS 5377
(Nov. 9, 1998). There is a fundamental difference between normal society
and prison society. Id. Rules designed to govern those functioning in a free Guernsey County, Case No. 21CA000016 22
society cannot automatically be applied to the very different situation
presented in a prison. Prison disciplinary proceedings are not part of a
criminal prosecution and the full panoply of rights due a defendant in such
proceedings does not apply. Id. Furthermore, an equal protection claim
arises only when similarly situated individuals are treated differently. In
other words, laws are to operate equally upon persons who are identified in
the same class. It is axiomatic that the entire Ohio penal system is based
upon classifying and treating each felony degree differently.
{¶63} We find that Reagan Tokes does not violate appellant’s right to equal
protection.
Conclusion
{¶64} Accordingly, we find that the Reagan Tokes Law is constitutional. The
Second District Court of Appeals found the law constitutional in State v. Barnes, 2nd Dist.
Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2nd Dist. Montgomery No.
28670, 2020-Ohio-4592, and State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-
Ohio-4153. The Third District found the law constitutional in State v. Hacker, 3rd Dist.
Logan No. 8-20-01, 2020-Ohio-5048. The Twelfth District Court of Appeals also
determined the law was constitutional in State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837, and State v. Morris, 12th Dist. Butler No. CA2019-12-205,
2020-Ohio-4103. Moreover, in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470, the court, sitting en banc, held that the Reagan Tokes Law is constitutional in
that it does not violate the separation-of-powers doctrine and does not violate either a
defendant's right to a jury trial or due process of law. Guernsey County, Case No. 21CA000016 23
{¶65} Appellant’s first assignment of error is, therefore, overruled.
II
{¶66} Appellant, in his second assignment of error, argues that his trial counsel
was ineffective in failing to move for a waiver of court costs at the time of sentencing since
appellant was indigent. We disagree.
In order to prevail on an ineffective-assistance-of-counsel claim, a
defendant must prove that counsel's performance was deficient and that the
defendant was prejudiced by counsel's deficient performance. Bradley, 42
Ohio St.3d at 141-142, 538 N.E.2d 373; Strickland, 466 U.S. at 687, 104
S.Ct. 2052, 80 L.Ed.2d 674. Thus, the defendant must demonstrate that
counsel's performance fell below an objective standard of reasonableness
and that there exists a reasonable probability that, but for counsel's error,
the result of the proceeding would have been different. See Bradley1 at
paragraphs two and three of the syllabus. ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ Id. at 142,
538 N.E.2d 373, quoting Strickland2 at 694, 104 S.Ct. 2052.
State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560 at paragraph 10.
{¶67} The Supreme Court of Ohio held “* * *when trial counsel fails to request that
the trial court waive court costs on behalf of a defendant who has previously been found
to be indigent, a determination of prejudice for purposes of an ineffective-assistance-of-
counsel analysis depends upon whether the facts and circumstances presented by the
1 State v. Bradley, 42 Ohio St.3d 136, 38 N.E.2d 378. 2 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 22052, 80 L.Ed 2nd 674. Guernsey County, Case No. 21CA000016 24
defendant establish that there is a reasonable probability that the trial court would have
granted the request to waive costs had one been made.” State v. Davis, 159 Ohio St.3d
31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 16.
{¶68} In the case sub judice, at the arraignment, the trial court found appellant to
be entitled to court appointed counsel due to his indigency. At the plea hearing, the trial
court noted that it had previously found appellant to be indigent and had appointed
counsel for appellant. The trial court then asked appellant if anything had changed in his
financial circumstances for the better since counsel was appointed and appellant
responded in the negative. The trial court, in waiving the mandatory fine in this case,
stated that it did not “have any information that you have the ability to pay that. The fine
is waived. You will pay the court costs, not the part of your court appointed attorney. I
don’t have any indication you will have the ability to pay for your attorney fees in this
matter.” Transcript at 52.
{¶69} Based on the foregoing, we find that there is not a reasonable probability
that the trial court would have granted the request to waive costs had one been made.
The trial court, in this matter, sua sponte waived the mandatory fine and counsel fees and
clearly chose not to waive the court costs.
{¶70} Appellant’s second assignment of error is, therefore, overruled. Guernsey County, Case No. 21CA000016 25
{¶71} Accordingly, the judgment of the Guernsey County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Wise, John, J. concur.