Christley, Presiding Judge.
Appellant, Terrell Spikes, appeals the sentence imposed by the Lake County Court of Common Pleas following his conviction for failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331. For the reasons that follow, we affirm the judgment of the trial court.
Subsequent to appellant’s written plea of guilty, the trial court sentenced appellant to an agreed six-month prison term at the Lorain Correctional Institution. In the sentencing entry, the trial court indicated that it had notified appellant that “bad time may be imposed by the Parole Board under Revised Code Section 2967.11 for certain rule violations committed while in prison.” As part of his sentence, appellant was ordered to serve any bad time subsequently imposed.
Appellant was also notified that postrelease control was optional in his case up to a maximum of three years, and was ordered to serve as part of his sentence any term of postrelease control imposed by the parole board, as well as any prison term for a violation of that postrelease control.
Appellant perfected a timely appeal, asserting one assignment of error:
“By sentencing the appellant pursuant to Sections 2967.11 and 2967.28 of the Ohio Revised Code, as amended by Senate Bill 269, the trial court relied on unconstitutional legislation and instituted an unlawful sentence.”
In his sole assignment of error, appellant challenges the constitutionality of R.C. 2967.11 and 2967.28 on grounds of due process, double jeopardy, separation of powers, and equal protection.
R.C. 2967.11 establishes a system whereby the parole board may extend the sentence of a prisoner if he or she is found to have committed an act in prison that would constitute a criminal offense. This has been labeled “bad time.” R.C. 2967.28 allows, and in some circumstances requires, the parole board to subject a prisoner to postrelease control upon his release from prison, during which the
released prisoner must comply with certain guidelines. If the released prisoner violates the control guidelines, alternative sanctions may be imposed, including increased length of postrelease control or a prison term. In his assignment of error, appellant challenges the constitutionality of the provisions permitting increased control and/or jail time.
However, it is apparent that appellant lacks standing to challenge the constitutionality of the statutory provisions at this time and that the constitutional issues raised herein are not now ripe for review.
It is well established that “[t]he constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.”
Palazzi v. Estate of Gardner
(1987), 32 Ohio St.3d 169, 512 N.E.2d 971, syllabus.
When attempting to demonstrate injury, it is not enough to show a hypothetical or potential injury.
State ex rel. Consumers League of Ohio v. Ratchford
(1982), 8 Ohio App.3d 420, 424, 8 OBR 544, 548, 457 N.E.2d 878, 883. “Concrete injury in fact” must be established to have standing to mount a constitutional challenge.
Id.
Moreover, it is also well established that constitutional questions are not ripe for review until the necessity for a decision arises on the record before the court.
Christensen v. Bd. of Commrs. on Grievances & Discipline
(1991), 61 Ohio St.3d 534, 535, 575 N.E.2d 790, 791.
In the case at bar, appellant has not alleged that he has been subjected to the bad-time provisions of R.C. 2967.11 or the postrelease-control provisions of R.C. 2967.28. Nor does the record indicate that he has been so subjected. He merely claims that because he was sentenced pursuant to these provisions, he has
the potential
to be subjected to extended prison time or postrelease control. Thus, appellant currently lacks standing to challenge these provisions, and the issues raised are not yet ripe for review.
Appellant’s challenge to the constitutionality of R.C. 2967.11, the bad-time provision, will not be ripe for consideration until the conduct report, the charging instrument for bad time,
is given to appellant by the institutional investigator
after reviewing and approving it for hearing by the bad-time panel. We liken the bad-time proceedings to a criminal prosecution under an indictment, information, or complaint and find them sufficiently analogous to assist in determining when appellant will obtain standing to challenge these statutory provisions. In a traditional criminal prosecution, the defendant is indicted by a grand jury or is charged under an information or complaint. If he wishes to challenge these charging instruments, he must do so in a pretrial motion or risk waiver. Crim.R. 12(B)(2). See, also,
State v. Musset
(Dec. 20, 1985), Trumbull App. No. 3517, unreported, 1985 WL 4616. For instance, if the defendant is charged by indictment, information, or complaint with a crime, such as child-endangering, and he claims the child-endangering statute is unconstitutional, he must bring that challenge in a motion before trial if he wishes to preserve the issue for appeal.
Likewise, a defendant may bring a challenge to the constitutionality of the bad-time statute once a decision has been made by the institutional investigator to go forward with a bad-time hearing and a copy of the conduct report is given to the accused inmate. See Ohio Adm.Code 5120-9-091(B)(1)-(B)(3). At this point, proceedings have begun to determine whether the defendant committed an act that would lead to the imposition of bad time, and the injury is sufficiently immediate to warrant review. See
Burger Brewing Co. v. Liquor Control Comm.
(1973), 34 Ohio St.2d 93, 97, 63 O.O.2d 149, 151, 296 N.E.2d 261, 264. We feel it an unnecessary delay to require those who fall under the coverage of the bad-time provisions to wait until the panel has decided that the defendant has committed a crime punishable by bad time or, worse yet, until the defendant actually begins serving bad time before he may challenge the statute. Once the defendant receives notice that the panel will be considering him for bad time (i.e., receives the approved conduct report), he has standing to challenge the bad-time statute, and the issue of the constitutionality of the statute is ripe for consideration.
Similarly, with regard to postrelease control pursuant to R.C. 2967.28, when the defendant receives notification that he is being considered by the parole board or the adult parole authority for increased postrelease control or a prison
term for
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Christley, Presiding Judge.
Appellant, Terrell Spikes, appeals the sentence imposed by the Lake County Court of Common Pleas following his conviction for failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331. For the reasons that follow, we affirm the judgment of the trial court.
Subsequent to appellant’s written plea of guilty, the trial court sentenced appellant to an agreed six-month prison term at the Lorain Correctional Institution. In the sentencing entry, the trial court indicated that it had notified appellant that “bad time may be imposed by the Parole Board under Revised Code Section 2967.11 for certain rule violations committed while in prison.” As part of his sentence, appellant was ordered to serve any bad time subsequently imposed.
Appellant was also notified that postrelease control was optional in his case up to a maximum of three years, and was ordered to serve as part of his sentence any term of postrelease control imposed by the parole board, as well as any prison term for a violation of that postrelease control.
Appellant perfected a timely appeal, asserting one assignment of error:
“By sentencing the appellant pursuant to Sections 2967.11 and 2967.28 of the Ohio Revised Code, as amended by Senate Bill 269, the trial court relied on unconstitutional legislation and instituted an unlawful sentence.”
In his sole assignment of error, appellant challenges the constitutionality of R.C. 2967.11 and 2967.28 on grounds of due process, double jeopardy, separation of powers, and equal protection.
R.C. 2967.11 establishes a system whereby the parole board may extend the sentence of a prisoner if he or she is found to have committed an act in prison that would constitute a criminal offense. This has been labeled “bad time.” R.C. 2967.28 allows, and in some circumstances requires, the parole board to subject a prisoner to postrelease control upon his release from prison, during which the
released prisoner must comply with certain guidelines. If the released prisoner violates the control guidelines, alternative sanctions may be imposed, including increased length of postrelease control or a prison term. In his assignment of error, appellant challenges the constitutionality of the provisions permitting increased control and/or jail time.
However, it is apparent that appellant lacks standing to challenge the constitutionality of the statutory provisions at this time and that the constitutional issues raised herein are not now ripe for review.
It is well established that “[t]he constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.”
Palazzi v. Estate of Gardner
(1987), 32 Ohio St.3d 169, 512 N.E.2d 971, syllabus.
When attempting to demonstrate injury, it is not enough to show a hypothetical or potential injury.
State ex rel. Consumers League of Ohio v. Ratchford
(1982), 8 Ohio App.3d 420, 424, 8 OBR 544, 548, 457 N.E.2d 878, 883. “Concrete injury in fact” must be established to have standing to mount a constitutional challenge.
Id.
Moreover, it is also well established that constitutional questions are not ripe for review until the necessity for a decision arises on the record before the court.
Christensen v. Bd. of Commrs. on Grievances & Discipline
(1991), 61 Ohio St.3d 534, 535, 575 N.E.2d 790, 791.
In the case at bar, appellant has not alleged that he has been subjected to the bad-time provisions of R.C. 2967.11 or the postrelease-control provisions of R.C. 2967.28. Nor does the record indicate that he has been so subjected. He merely claims that because he was sentenced pursuant to these provisions, he has
the potential
to be subjected to extended prison time or postrelease control. Thus, appellant currently lacks standing to challenge these provisions, and the issues raised are not yet ripe for review.
Appellant’s challenge to the constitutionality of R.C. 2967.11, the bad-time provision, will not be ripe for consideration until the conduct report, the charging instrument for bad time,
is given to appellant by the institutional investigator
after reviewing and approving it for hearing by the bad-time panel. We liken the bad-time proceedings to a criminal prosecution under an indictment, information, or complaint and find them sufficiently analogous to assist in determining when appellant will obtain standing to challenge these statutory provisions. In a traditional criminal prosecution, the defendant is indicted by a grand jury or is charged under an information or complaint. If he wishes to challenge these charging instruments, he must do so in a pretrial motion or risk waiver. Crim.R. 12(B)(2). See, also,
State v. Musset
(Dec. 20, 1985), Trumbull App. No. 3517, unreported, 1985 WL 4616. For instance, if the defendant is charged by indictment, information, or complaint with a crime, such as child-endangering, and he claims the child-endangering statute is unconstitutional, he must bring that challenge in a motion before trial if he wishes to preserve the issue for appeal.
Likewise, a defendant may bring a challenge to the constitutionality of the bad-time statute once a decision has been made by the institutional investigator to go forward with a bad-time hearing and a copy of the conduct report is given to the accused inmate. See Ohio Adm.Code 5120-9-091(B)(1)-(B)(3). At this point, proceedings have begun to determine whether the defendant committed an act that would lead to the imposition of bad time, and the injury is sufficiently immediate to warrant review. See
Burger Brewing Co. v. Liquor Control Comm.
(1973), 34 Ohio St.2d 93, 97, 63 O.O.2d 149, 151, 296 N.E.2d 261, 264. We feel it an unnecessary delay to require those who fall under the coverage of the bad-time provisions to wait until the panel has decided that the defendant has committed a crime punishable by bad time or, worse yet, until the defendant actually begins serving bad time before he may challenge the statute. Once the defendant receives notice that the panel will be considering him for bad time (i.e., receives the approved conduct report), he has standing to challenge the bad-time statute, and the issue of the constitutionality of the statute is ripe for consideration.
Similarly, with regard to postrelease control pursuant to R.C. 2967.28, when the defendant receives notification that he is being considered by the parole board or the adult parole authority for increased postrelease control or a prison
term for
a violation of a postrelease-control sanction, he has standing to challenge the postrelease-control statute and the issue of the constitutionality of that statute is ripe for review.
At this point, the defendant has several alternatives to bring his challenge.
If he failed to bring an appeal of his conviction and/or sentence within thirty days of the initial judgment entry of conviction and sentence, he may petition the court of appeals for permission to file a delayed appeal of the initial judgment entry that incorporated any future bad time or imposition of postrelease control pursuant to App.R. 5(A). Permission rests within the discretion of the appellate court. He
may not
bring a judicial appeal of the decision of the bad-time panel, the warden, the director of the department of rehabilitation, the parole board, or the adult parole authority; no such right was provided in the statute, nor does the decision of any of these officials fall within the scope of R.C. Chapter 2505 or 119.
A second option, unless time is a factor, would be to file a declaratory judgment action under R.C. 2721.01
et seq.,
seeking a determination of the constitutionality of the statute. Alternatively, the defendant could petition the appellate court or Supreme Court for a writ of prohibition or file an action for injunction under R.C. 2727.02
et seq.,
seeking an order restraining the bad-time panel or the parole board from commencing the proceedings. However, these alternative remedies are granted only in limited circumstances and are subject to very stringent requirements.
Once the defendant has completed his initial term and begins serving any bad time imposed upon him, or once he is imprisoned for a violation of a postreleasecontrol sanction, he may file a petition for a writ of habeas corpus and claim that he is being held in violation of the constitution.
The availability of any one of these mechanisms to test the constitutionality of the bad-time or postreleasecontrol statutes will be dependent upon the particular facts of each case.
In the case at bar, appellant has failed to allege a concrete injury that would establish standing to bring the instant appeal. We, therefore, conclude that the necessity for a decision on these constitutional challenges is not apparent from the record at this time, and the issues are, thus, not ripe for review.
We note that other appellate courts have similarly decided the issue. See
State v. Davis
(Dec. 81, 1997), Miami App. No. 97 CA 17, unreported, 1997 WL 797722;
State v. Cusac
(Apr. 22, 1998), Hancock App. No. 5-97-39, unreported, 1998 WL 229796;
State v. Shearn
(Apr. 13, 1998), Coshocton App. Nos. 97-CA-10, 97-CA-12, 97-CA-19, 97-CA-25, unreported, 1998 WL 517699;
State v. Somerlot
(Jan. 23, 1998), Erie App. No. E-97-002, unreported, 1998 WL 34578.
We expressly indicate that nothing in our mandate in this case should be construed as creating a bar by way of
res judicata
or collateral estoppel that in
any way
would prohibit appellant from again raising the constitutionality of the bad-time provisions contained in R.C. 2967.11 or the postrelease-control concept set forth in R.C. 2967.28 under a proper factual predicate.
The judgment of the trial court is affirmed.
Judgment affirmed.
Nader, J., concurs.
William M. O’Neill, J., dissents.