State v. Wolfe

2020 Ohio 5501

• Court: Ohio Court of Appeals
• Decided: November 30, 2020
• Docket: 2020CA00021
• Status: Published

Opinion

[Cite as State v. Wolfe, 2020-Ohio-5501.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, Jr. J. : -vs- : : Case No. 2020CA00021 STEPHEN H. WOLFE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas, Case No.19CR730

JUDGMENT: Affirmed in part; Reversed in part and Remanded

DATE OF JUDGMENT ENTRY: November 30, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive BY: PAULA M. SAWYERS Gahanna, OH 43230 ASSISTANT PROSECUTOR 20 S. Second Street, 4th Floor Newark, OH 43055 [Cite as State v. Wolfe, 2020-Ohio-5501.]

Wise, John, J.

{¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions and

sentences after a negotiated guilty plea in the Licking County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 16, 2019, Trooper Matthew Stoffer of the Ohio State Highway

Patrol attempted to make a traffic stop of a 2013 Peterbuilt Semi-truck on State Route 30

in Wyandot County, Ohio for failing to have license plates or a PUCO number displayed

on the commercial vehicle. (T. at 9-10). The vehicle, later determined to be operated by

Appellant Stephen Wolfe, did not stop. (T. at 10). The vehicle reached speeds of 100

mph on Route 30 entering into Crawford County, back into Wyandot County, before

proceeding South on State Route 23 into Marion County and Delaware County. Id. The

vehicle avoided stop strips deployed and ignored multiple cruisers chasing with lights

and sirens activated attempting to stop the vehicle. Id. Appellant steered his vehicle

toward a Trooper placing stop strips on the roadway forcing the Trooper to move out

of the way and injuring himself in the process. Id.

{¶3} The semi-truck collided with a 1989 Jeep Comanche operated by Michael

Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking County, Ohio. Id. As a result

of the collision, Slagle suffered serious physical harm requiring his transfer by life flight to

Grant Hospital. (T. at 10-11). The semi-truck reached speeds of 105 mph in Licking

County. (T. at 11). The vehicle continued through Muskingum County and into Coshocton

County. Id. Appellant abandoned the vehicle and was arrested at 1697 Evergreen Park

Drive. Id. The chase occurred for more than fifty miles in total. Id. [Cite as State v. Wolfe, 2020-Ohio-5501.]

{¶4} Appellant pled guilty to assault on a peace officer, a fourth degree felony, in

violation of R.C. §2903.13(A)(C)(5); felonious assault, a second degree felony, in violation

of R.C. §2903.11; failure to comply, a third degree felony, in violation of R.C. §2921.331;

receiving stolen property, a fourth degree felony, in violation of R.C. §2913.51; and failure

to stop after an accident, a fourth degree felony, in violation of R.C. §4549.02. (T. at 9).

{¶5} Appellant's trial counsel argued that the assault on a peace officer offense

should merge with the offense of failure to comply. (T. at 18). Trial counsel also argued

for merger of the offenses of felonious assault of the motorist, failure to comply, and failure

to stop after an accident. (T. at 18). The trial court declined to merge the offenses, and

Appellant objected. (T. at 24, 32).

{¶6} During the sentencing hearing, Appellant expressed remorse for his

conduct. (T. at 24). His trial counsel noted that Appellant was suffering from mental

health and drug addiction issues because of injuries he sustained serving in Iraq while in

the armed forces. (T. at 20-21). Trial counsel noted that Appellant's life "changes

dramatically" after he came home from Iraq. (T. at 19). Trial counsel further mentioned

that Appellant was not acting with "malice aforethought," but was merely trying to get to

his mother's home. (T. at 19, 21). Thus, Appellant contended that his prison sentences

should be run concurrent. (T. at 32).

{¶7} The court ordered Appellant to serve consecutive prison sentences. The

court noted that Appellant completed a seven-month prison term, and that he has a

pending charge from an incident in Kalamazoo, Michigan. (T. at 29-20).

{¶8} Specifically, the court ordered Appellant to serve: one (1) year in prison for

the assault on a peace officer offense; two (2) years in prison for the failure to comply [Cite as State v. Wolfe, 2020-Ohio-5501.]

offense; nine (9) months in prison for the receiving stolen property offense; and nine (9)

months in prison for the failure to stop after an accident offense. For the felonious assault

offense, the court ordered Appellant to serve five (5) to seven and one-half (7 ½ ) years

in prison. (T. at 30).

{¶9} Appellant now appeals, raising the following assignments of error:

ASSIGNMENTS OF ERROR

{¶10} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S

SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF

OHIO.

{¶11} “II. STEPHEN H. WOLFE RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶12} “III. THE TRIAL COURT SENTENCED WOLFE TO AN INDEFINITE

PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN

VIOLATION OF WOLFE'S RIGHTS TO DUE PROCESS.

{¶13} “IV. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S

OFFENSES FOR ALL BUT THE RECEIVING STOLEN PROPERTY COUNT.

{¶14} “V. THE TRIAL COURT UNLAWFULLY ORDERED WOLFE TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.” [Cite as State v. Wolfe, 2020-Ohio-5501.]

I.

{¶15} In his First Assignment of Error, Appellant argues that the Reagan Tokes

Law, specifically the presumptive release feature of R.C. §2967.271, is unconstitutional.

{¶16} R.C. §2967.271 provides in pertinent part:

(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 [Cite as State v. Wolfe, 2020-Ohio-5501.]

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.

(D)(1) If the department of rehabilitation and correction, pursuant to

division (C) of this section, rebuts the presumption established under

division (B) of this section, the department may maintain the offender's

incarceration in a state correctional institution under the sentence after the

expiration of the offender's minimum prison term or, for offenders who have

a presumptive earned early release date, after the offender's presumptive

earned early release date. The department may maintain the offender's

incarceration under this division for an additional period of incarceration

determined by the department. The additional period of incarceration shall [Cite as State v. Wolfe, 2020-Ohio-5501.]

be a reasonable period determined by the department, shall be specified by

the department, and shall not exceed the offender's maximum prison term.

(2) If the department maintains an offender's incarceration for an

additional period under division (D)(1) of this section, there shall be a

presumption that the offender shall be released on the expiration of the

offender's minimum prison term plus the additional period of incarceration

specified by the department as provided under that division or, for offenders

who have a presumptive earned early release date, on the expiration of the

additional period of incarceration to be served after the offender's

presumptive earned early release date that is specified by the department

as provided under that division. The presumption is a rebuttable

presumption that the department may rebut, but only if it conducts a hearing

and makes the determinations specified in division (C) of this section, and

if the department rebuts the presumption, it may maintain the offender's

incarceration in a state correctional institution for an additional period

determined as specified in division (D)(1) of this section. Unless the

department rebuts the presumption at the hearing, the offender shall be

released from service of the sentence on the expiration of the offender's

minimum prison term plus the additional period of incarceration specified by

the department or, for offenders who have a presumptive earned early

release date, on the expiration of the additional period of incarceration to be

served after the offender's presumptive earned early release date as

specified by the department. [Cite as State v. Wolfe, 2020-Ohio-5501.]

The provisions of this division regarding the establishment of a

rebuttable presumption, the department's rebuttal of the presumption, and

the department's maintenance of an offender's incarceration for an

additional period of incarceration apply, and may be utilized more than one

time, during the remainder of the offender's incarceration. If the offender

has not been released under division (C) of this section or this division prior

to the expiration of the offender's maximum prison term imposed as part of

the offender's non-life felony indefinite prison term, the offender shall be

released upon the expiration of that maximum term.

{¶17} Appellant herein argues the portions of the statute which allow the

Department of Rehabilitation and Corrections (DRC) to administratively extend his prison

term beyond his presumptive minimum prison term violate the United States and Ohio

Constitutions.

{¶18} Appellant, however, has not yet been subject to the application of these

provisions, as he has not yet served his minimum term, and therefore has not been denied

release at the expiration of his minimum term of incarceration.

{¶19} This Court recently analyzed an appeal of a sentence imposed pursuant to

the Reagan Tokes Act. See State v. Downard, 5th Dist. Muskingum No. CT2019-0079,

2020-Ohio-4227. In Downward, the appellant entered a plea of guilty to robbery, a

second-degree felony, and assault on a peace officer, a fourth-degree felony. The trial

court sentenced the appellant on September 23, 2019, pursuant to the Reagan Tokes

Act. On the robbery conviction, the trial court sentenced the appellant to a stated minimum

prison term of eight years. The trial court sentenced the appellant to a stated prison term [Cite as State v. Wolfe, 2020-Ohio-5501.]

of twelve months for assault on a peace officer. The trial court ordered the sentences to

be served consecutively, for an aggregate minimum prison term of nine years and an

aggregate indefinite maximum prison term of thirteen years. Id. at ¶ 2. The appellant

appealed the sentence, arguing the Reagan Tokes Act violated his constitutional rights

to due process and trial by jury. Id. at ¶ 5.

{¶20} In Downward, we first discussed the legal concept of “ripeness for review”:

The Ohio Supreme Court discussed the concept of ripeness for

review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d

88, 1998-Ohio-366, 694 N.E.2d 459:

Ripeness “is peculiarly a question of timing.” Regional Rail

Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42

L.Ed.2d 320, 351. The ripeness doctrine is motivated in part by the desire

“to prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over administrative

policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87

S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:

The basic principle of ripeness may be derived from the conclusion

that ‘judicial machinery should be conserved for problems which are real or

present and imminent, not squandered on problems which are abstract or

hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on

jurisdiction that is nevertheless basically optimistic as regards the prospects

of a day in court: the time for judicial relief is simply not yet arrived, even

though the alleged action of the defendant foretells legal injury to the plaintiff. [Cite as State v. Wolfe, 2020-Ohio-5501.]

Comment, Mootness and Ripeness: The Postman Always Rings Twice

(1965), 65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460.

{¶21} Downard, at ¶¶ 8-9.

{¶22} We next found the Appellant's appeal of the constitutionality of the Reagan

Tokes Act was not ripe for review:

* * * [W]hile R.C. 2967.271 allows the DRC to rebut the presumption

Appellant will be released after serving his nine year minimum sentence and

potentially continue his incarceration to a term not exceeding thirteen years,

Appellant has not yet been subject to such action by the DRC, and thus the

constitutional issue is not yet ripe for our review.” Downard, at ¶ 11. We

determined the appropriate action for the Appellant “to challenge the

constitutionality of the presumptive release portions of R.C. 2967.271 is by

filing a writ of habeas corpus if he is not released at the conclusion of his

eight year minimum term of incarceration.

{¶23} Downard, at ¶ 12.

{¶24} We find that the issues presented in the current case are the same as those

raised in Downard. On January 24, 2020, the trial court sentenced Appellant to serve a

stated prison year of one year on Count 1, five to seven and one-half years on Count 2,

two years Count 3, nine months on Count 4, and nine months on Count 5 at the Orient

Reception Center. All counts were ordered to run consecutively for nine and one-half (9)

years to twelve (12) years. (T. at 30).

{¶25} There is no dispute that Appellant has not yet been subject to R.C.

§2967.271, which allows the DRC to rebut the presumption that Appellant will be released [Cite as State v. Wolfe, 2020-Ohio-5501.]

after serving his minimum sentence of nine and one-half years and potentially continuing

his incarceration to a term not exceeding twelve years.

{¶26} We therefore find that the constitutional issues argued by Appellant,

pursuant to Downard, are not yet ripe for review.

{¶27} See, also, State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio-

5013; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230;

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

of Reagan Tokes Law not ripe for review where defendant was not yet subject to

presumptive release provisions).

{¶28} Appellant’s First Assignment of Error is overruled.

II.

{¶29} In his Second Assignment of Error, Appellant contends that he was denied

effective assistance of trial counsel because trial counsel failed to challenge the

constitutionality of the Reagan Tokes law in the trial court.

{¶30} To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel's performance was deficient and that

his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must

show that “counsel's representation fell below an objective standard of reasonableness.”

Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. See, also, Andrus,

v. Texas, U.S.__, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335(June 15, 2020). [Cite as State v. Wolfe, 2020-Ohio-5501.]

{¶31} In the instant case, because the Reagan Tokes Law is not yet ripe for

review, the trial court did not err, plain or otherwise, in sentencing Appellant. As the statute

is not ripe for review, there is no reasonable probability that, but for counsel’s failure to

challenge the constitutionality of the Reagan Tokes Law, the result of the proceeding

would have been different.

{¶32} Appellant’s Second Assignment of Error is overruled.

III.

{¶33} In his Third Assignment of Error, Appellant argues that the trial court failed

to comply with R.C. §2929.19(B)(2)(c) because the court did not provide the requisite

notices at his sentencing hearing, and that the sentence is contrary to law.

{¶34} The language of R.C. §2929.19(B)(2)(c) became effective March 22, 2019,

and to date its application has not received close scrutiny. The relevant portions of this

statute provide that:

(B)(1) At the sentencing hearing, the court, before imposing

sentence, shall consider the record, any information presented at the

hearing by any person pursuant to division (A) of this section, and, if one

was prepared, the presentence investigation report made pursuant to

section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim

impact statement made pursuant to section 2947.051 of the Revised Code.

(2) Subject to division (B)(3) of this section, if the sentencing court

determines at the sentencing hearing that a prison term is necessary or

required, the court shall do all of the following:

(Emphasis added.) [Cite as State v. Wolfe, 2020-Ohio-5501.]

{¶35} Subsection (B)(2)(c) sets out the notifications that are to be provided in

accordance with the directive of Subsections (B)(1) and (2) which mandates that the court

notify the offender at the sentencing hearing:

(c) If the prison term is a non-life felony indefinite prison term, notify

the offender of all of the following:

(i) That it is rebuttably presumed that the offender will be released

from service of the sentence on the expiration of the minimum prison term

imposed as part of the sentence or on the offender’s presumptive earned

early release date, as defined in section 2967.271 of the Revised Code,

whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the

presumption described in division (B)(2)(c)(i) of this section if, at a hearing

held under section 2967.271 of the Revised Code, the department makes

specified determinations regarding the offender’s conduct while confined,

the offender’s rehabilitation, the offender’s threat to society, the offender’s

restrictive housing, if any, while confined, and the offender’s security

classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the

department at the hearing makes the specified determinations and rebuts

the presumption, the department may maintain the offender’s incarceration

after the expiration of that minimum term or after that presumptive earned

early release date for the length of time the department determines to be [Cite as State v. Wolfe, 2020-Ohio-5501.]

reasonable, subject to the limitation specified in section 2967.271 of the

Revised Code;

(iv) That the department may make the specified determinations and

maintain the offender’s incarceration under the provisions described in

divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to

the limitation specified in section 2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the expiration

of the offender’s maximum prison term imposed as part of the sentence, the

offender must be released upon the expiration of that term.

(d) Notify the offender that the offender will be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced, other than to a sentence of life imprisonment,

for a felony of the first degree or second degree, for a felony sex offense,

or for a felony of the third degree that is an offense of violence and is not a

felony sex offense. This division applies with respect to all prison terms

imposed for an offense of a type described in this division, including a non-

life felony indefinite prison term and including a term imposed for any

offense of a type described in this division that is a risk reduction sentence,

as defined in section 2967.28 of the Revised Code. If a court imposes a

sentence including a prison term of a type described in division (B)(2)(d) of

this section on or after July 11, 2006, the failure of a court to notify the

offender pursuant to division (B)(2)(d) of this section that the offender will

be supervised under section 2967.28 of the Revised Code after the offender [Cite as State v. Wolfe, 2020-Ohio-5501.]

leaves prison or to include in the judgment of conviction entered on the

journal a statement to that effect does not negate, limit, or otherwise affect

the mandatory period of supervision that is required for the offender under

division (B) of section 2967.28 of the Revised Code. Section 2929.191 of

the Revised Code applies if, prior to July 11, 2006, a court imposed a

sentence including a prison term of a type described in division (B)(2)(d) of

this section and failed to notify the offender pursuant to division (B)(2)(d) of

this section regarding post-release control or to include in the judgment of

conviction entered on the journal or in the sentence a statement regarding

post-release control.

(e) Notify the offender that the offender may be supervised under

section 2967.28 of the Revised Code after the offender leaves prison if the

offender is being sentenced for a felony of the third, fourth, or fifth degree

that is not subject to division (B)(2)(d) of this section. This division applies

with respect to all prison terms imposed for an offense of a type described

in this division, including a term imposed for any such offense that is a risk

reduction sentence, as defined in section 2967.28 of the Revised Code.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term of a type described in

division (B)(2)(e) of this section and failed to notify the offender pursuant to

division (B)(2)(e) of this section regarding post-release control or to include

in the judgment of conviction entered on the journal or in the sentence a

statement regarding post-release control. [Cite as State v. Wolfe, 2020-Ohio-5501.]

(f) Notify the offender that, if a period of supervision is imposed

following the offender’s release from prison, as described in division

(B)(2)(d) or (e) of this section, and if the offender violates that supervision

or a condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose a prison term,

as part of the sentence, of up to one-half of the definite prison term originally

imposed upon the offender as the offender’s stated prison term or up to one-

half of the minimum prison term originally imposed upon the offender as

part of the offender’s stated non-life felony indefinite prison term. If a court

imposes a sentence including a prison term on or after July 11, 2006, the

failure of a court to notify the offender pursuant to division (B)(2)(f) of this

section that the parole board may impose a prison term as described in

division (B)(2)(f) of this section for a violation of that supervision or a

condition of post-release control imposed under division (B) of section

2967.131 of the Revised Code or to include in the judgment of conviction

entered on the journal a statement to that effect does not negate, limit, or

otherwise affect the authority of the parole board to so impose a prison term

for a violation of that nature if, pursuant to division (D)(1) of section 2967.28

of the Revised Code, the parole board notifies the offender prior to the

offender’s release of the board’s authority to so impose a prison term.

Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a

court imposed a sentence including a prison term and failed to notify the

offender pursuant to division (B)(2)(f) of this section regarding the possibility [Cite as State v. Wolfe, 2020-Ohio-5501.]

of the parole board imposing a prison term for a violation of supervision or

a condition of post-release control.

(g)(i)1 Determine, notify the offender of, and include in the

sentencing entry the total number of days, including the sentencing date but

excluding conveyance time, that the offender has been confined for any

reason arising out of the offense for which the offender is being sentenced

and by which the department of rehabilitation and correction must reduce

the definite prison term imposed on the offender as the offender’s stated

prison term or, if the offense is an offense for which a non-life felony

indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of section

2929.14 of the Revised Code, the minimum and maximum prison terms

imposed on the offender as part of that non-life felony indefinite prison term,

under section 2967.191 of the Revised Code. The court’s calculation shall

not include the number of days, if any, that the offender served in the

custody of the department of rehabilitation and correction arising out of any

prior offense for which the prisoner was convicted and sentenced.

{¶36} Thus, the trial court must provide the information described in R.C.

§2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of

the statute.

{¶37} In this case, the court gave no advisement of any of the requirements set

forth in R.C. §2929.19(B) at the sentencing hearing held January 24, 2020 and, therefore,

we find that the sentence is contrary to law.

{¶38} Appellant’s Third Assignment of Error is sustained. [Cite as State v. Wolfe, 2020-Ohio-5501.]

IV. and V.

{¶39} Because we reverse and remand the decision of the Licking County Court of

Common Pleas for resentencing, we find Appellant’s Fourth and Fifth Assignments of Error

to be premature.

{¶40} Based on the foregoing, we reverse and remand the decision of the Licking

County Court of Common Pleas for resentencing consistent with law and this opinion.

By Wise, John, J.

Wise, Earle, J., concurs.

Gwin, J., concurs in part and dissents in part.

JWW/kw 1117 Licking County, Case No. 2020CA00021 19

Gwin, J., concurs in part; dissents in part {¶41} I respectfully dissent from the majority’s opinion concerning ripeness and

Appellant’s First and Second Assignments of Error. I concur in the majority’s disposition of

Appellant’s Third and Fourth Assignments of Error.

I.& II.

Ripeness.

{¶42} Ripeness reflects constitutional considerations that implicate “Article III

limitations on judicial power,” as well as “prudential reasons for refusing to exercise

jurisdiction.” Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n. 18, 113 S.Ct. 2485,

125 L.Ed.2d 38 (1993). In evaluating a claim to determine whether it is ripe for judicial

review, courts should consider both “the fitness of the issues for judicial decision” and “the

hardship of withholding court consideration.” National Park Hospitality Assn. v. Department

of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The Supreme

Court has stated that the “basic rationale” of the ripeness doctrine “is to prevent the courts,

through premature adjudication, from entangling themselves in abstract disagreements.”

Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

{¶43} In determining the “likelihood” that an injury will come to pass, the Supreme

Court has made clear that “[o]ne does not have to await consummation of threatened injury

to obtain preventive relief.” Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 73

L.Ed.2d 534 (1982). For example, in the Regional Rail Reorganization Act Cases, 419 U.S.

102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Court deemed ripe an action brought by eight

major railroads challenging the conveyance of their property to Conrail. Although a

reorganization plan had not yet been formulated and a special court had not yet ordered the

conveyances, the Court reasoned that “where the inevitability of the operation of a statute

against certain individuals is patent, it is irrelevant to the existence of a justiciable

controversy that there will be a time delay before the disputed provisions will come into Licking County, Case No. 2020CA00021 20 effect.” Id. at 143, 95 S.Ct. 335. Although not requiring “inevitability,” the Court has held

that a claim is ripe when it is “highly probable” that the alleged harm or injury will occur.

{¶44} “Three factors guide the ripeness inquiry: ‘(1) the likelihood that the harm

alleged by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently

developed to produce a fair adjudication of the merits of the parties’ respective claims; and

(3) the hardship to the parties if judicial relief is denied at this stage in the proceedings.’ ”

Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (quoting Grace Cmty. Church v. Lenox

Twp., 544 F.3d 609, 615 (6th Cir. 2008)). See also, Reno v. Catholic Social Services, Inc.,

509 U.S.43, 71, 113 S.Ct. 2485, 125 L.Ed.2d 38(1993)(O’Conner, J. concurring)(“These are

just the kinds of factors identified in the two-part, prudential test for ripeness that Abbott

Laboratories [v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681(1967)] articulated.

“The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of

the issues for judicial decision and the hardship to the parties of withholding court

consideration.” 387 U.S. at 149, 87 S.Ct. at 1515. See Thomas v. Union Carbide

Agricultural Products Co., 473 U.S. 568, 581–582, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409

(1985) (relying upon Abbott Laboratories test); Pacific Gas, supra, 461 U.S. at 200–203,

103 S.Ct., at 1720–1721 (same); National Crushed Stone, supra, 449 U.S. at 72–73, n. 12,

101 S.Ct., at 301–302, n. 12 (same).”). As the court in Riva v. Commonwealth of

Massachusetts noted,

Although it is a familiar bromide that courts should not labor to protect a party

against harm that is merely remote or contingent, see, e.g., Ernst & Young, 45 F.3d

at 536; Massachusetts Ass’n of Afro–Am. Police, 973 F.2d at 20; Lincoln House v.

Dupre, 903 F.2d 845, 847 (1st Cir. 1990), there is some play in the joints. For

example, even when the direct application of a statute is open to a charge of

remoteness by reason of a lengthy, built-in time delay before the statute takes effect,

ripeness may be found as long as the statute’s operation is inevitable (or nearly so). Licking County, Case No. 2020CA00021 21 See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102, 142–43, 95 S.Ct. 335, 357–

58, 42 L.Ed.2d 320 (1974). And, even when the direct application of such a statute

is subject to some degree of contingency, the statute may impose sufficiently serious

collateral injuries that an inquiring court will deem the hardship component satisfied.

See Erwin Chemerinsky, Federal Jurisdiction § 2.4.2, at 121–22 (2d ed. 1994). In

general, collateral effects can rise to this level when a statute indirectly permits

private action that causes present harm, or when a party must decide currently

whether to expend substantial resources that would be largely or entirely wasted if

the issue were later resolved in an unfavorable way. See, e.g., Pacific Gas, 461 U.S.

at 201, 103 S.Ct. at 1720–21; Duke Power Co. v. Carolina Envtl. Study Group, Inc.,

438 U.S. 59, 81–82, 98 S.Ct. 2620, 2634–35, 57 L.Ed.2d 595 (1978)

61 F.3d 1003, 1010(1st Cir. 1995).

In United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91

L.Ed. 754 (1947), the Supreme Court held that review of the Hatch Act, which

prohibits federal employees from engaging in certain political activities, was

non-justiciable with respect to those plaintiff-employees who had not yet

engaged in any of the prohibited activity. Subsequently, however, the Court

relaxed Mitchell’s strict approach to justiciability. If the injury is clearly

impending, the Court has held that the plaintiffs need not await consummation

of the injury to bring their suit. Babbitt v. United Farm Workers National Union,

442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979); Regional Rail

Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d

320 (1974); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39

L.Ed.2d 505 (1974); Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43

S.Ct. 658, 663, 67 L.Ed. 1117 (1923).

Signorelli v. Evans, 637 F.2d 853, 856-857(2nd Cir. 1980). Licking County, Case No. 2020CA00021 22 {¶45} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the

existence of an actual controversy, a genuine dispute between adverse parties. State ex

rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 535, 542,

660 N.E.2d 458 (1996). In order for a justiciable question to exist, the “threat” to a party’s

position “must be actual and genuine and not merely possible or remote.” M6 Motors, Inc.

v. Nissan of N. Olmsted, L.L.C., 2014-Ohio-2537, 14 N.E.3d 1054, ¶ 17, citing Mid–Am. Fire

& Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9.

{¶46} In the present case, every individual throughout the State of Ohio who is

convicted of a first- or second-degree felony must be sentenced under the Reagan Tokes

Law. It is a virtual certainty that a number of those individuals, perhaps a significantly large

number, will have the DRC extend his or her incarceration beyond the presumed release

date. This is not an abstract or hypothetical case; rather, it is a virtual certainty to occur.

Under Reagan Tokes, the question is not if a defendant will be denied his or her presumptive

release date; but rather when a defendant’s sentence will be extended.

{¶47} The record before this Court is sufficiently developed to allow us to produce a

fair adjudication of the merits of the parties’ respective claims. It is not unusual for courts to

be asked to pass upon the constitutionality of statute. The constitutional arguments are

capable of being addressed in the present appeal.

{¶48} I would call attention to the fact that other jurisdictions have implicitly

determined the issue to be ripe for review by addressing the constitutional challenge to the

Reagan Tokes provisions regarding future, possible extensions of a prison term beyond the

presumed minimum term. 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 Licking County, Case No. 2020CA00021 23 Appeals also determined the law was constitutional in State v. Guyton, 12th Dist. Butler No.

CA2019-12-203, 2020-Ohio-3837, State v. Rodgers, 12th Dist. Butler No. CA2019-11-194,

2020-Ohio-4102, and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-

4103. I further note that the Sixth District has certified the ripeness issue to the Ohio

Supreme Court as being in conflict with the decisions from the Second and Twelfth Districts

that have found the law constitutional. State v. Velliquette, 6th Dist. Logan No. L-19-1232,

2020-Ohio-4855.

{¶49} The hardship to the parties if judicial relief is denied at this stage in the

proceedings is real and immense. Now, the indigent appellant, who wishes to raise a

constitutional challenge to the law in his or her direct appeal as of right has the assistance

of appointed counsel. If, for example, the appellant must wait for two years for the DRC to

extend his sentence, both the inmate and the courts will face a myriad of legal hurdles.

First, how will the inmate inform the court of his or her desire to appeal the constitutionally

of the law? Next, is the inmate entitled to appointed counsel to pursue such an appeal? If

the inmate is not, then an incarcerated inmate with limited legal resources and acumen will

have to cobble together a highly involved constitutional argument without the assistance of

counsel and with extremely limited access to legal resources. It will also become evident

that the DRC decision extending the inmate’s sentence is not part of the trial court record.

In order to establish that the inmate’s sentence was in fact extended, will the trial court be

required to order the DRC to file its decision with the clerk of courts for inclusion in the trial

and appellate court records. Further, if the law is declared unconstitutional years from now,

courts will be inundated with writs of habeas corpus, motions and other request for release

or resentencing from the hundreds of inmates who were sentenced under the law and not

permitted to appeal the constitutionality of the law in the inmate’s direct appeal. Finally, the

inmate could potentially have been incarcerated perhaps years beyond his release date for

the time it takes to decide the issue in the event the law is found to be unconstitutional. Licking County, Case No. 2020CA00021 24 {¶50} In addition, if the law is declared constitutional or unconstitutional, that holding

will apply, not just to the single inmate whose appeal is under consideration, but also to all

inmates that have been sentenced under the new law.

{¶51} It is clear on these facts that Appellant has demonstrated sufficient hardship,

and that the question of the constitutionality of the Reagan Tokes Law is fit for our review

at this time. I find that nothing is to be gained by postponing for possibly years the

unavoidable constitutional challenge to the Reagan Tokes provisions regarding future,

possible extensions of a prison term beyond the presumed minimum term.

The Reagan Tokes Law.

{¶52} 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 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.

{¶53} 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.

{¶54} 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 Licking County, Case No. 2020CA00021 25 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In the

case at bar, the legislature has authorized as a sentence for a felony of the first degree,

(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 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.

R.C. 2929.14(A)(1)(a).

{¶55} The legislature has authorized as a sentence for a felony of the second

degree,

(2)(a) For a felony of the second 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 two, three, four, five, six, seven, or

eight years and a maximum term that is determined pursuant to section 2929.144 of

the 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. (R.C. 2929.14(A)(2)(a)). Licking County, Case No. 2020CA00021 26 {¶56} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for a

felony of the first degree, 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. The pre-SB2 sentence for a felony of the second degree was as

follows,

Whoever is convicted of or pleads guilty to a felony other than aggravated

murder or murder . . . shall be imprisoned for an indefinite term...

(B)(5) For a felony of the second degree, the minimum term shall be two,

three, four or five years, and the maximum shall be fifteen years.

See, State v. Jenks, 2nd Dist. Montgomery No. 10264, 1987 WL 20267(Nov. 16, 1987),

citing former R.C. 2929.1. What is different from prior law regarding indefinite sentences is

that the Reagan Tokes Law has created a presumptive release date.

{¶57} 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 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 Licking County, Case No. 2020CA00021 27 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).

Right to a jury trial to determine to rebut the presumptive release.

{¶58} Wolfe first argues that Reagan Tokes violates his right to have a jury

determine any increase in punishment beyond that authorized by the jury’s verdict and

findings, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 238, 147 L.Ed.2d

435(2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403(2004).

{¶59} 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,” this Court explained, “must be 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.

{¶60} In Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), the United States Supreme Court address, 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 Licking County, Case No. 2020CA00021 28 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. Alleyne at paragraph one of the syllabus. Specifically,

“[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that

increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id.

See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 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”). Licking County, Case No. 2020CA00021 29 Alleyne, 133 S.Ct. at 2163, 186 L.Ed.2d 314. See also, State v. Salim, 5th Dist. Guernsey

No. 13 CA 28, 2014-Ohio-357, ¶19.

{¶61} 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. 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 Wolfe’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.

{¶62} 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.

An incarcerated individual does not have a constitutional right to parole or

release before serving his entire sentence.

{¶63} 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. See also, State ex rel. Bailey v. Ohio Parole Board, 152

Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶9. Licking County, Case No. 2020CA00021 30 {¶64} 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. “There 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).

{¶65} 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.

{¶66} As relevant here, R.C. 2967.271(B) states:

(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).

{¶67} Also relevant is R.C. 2967.271(C), which states:

(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 Licking County, Case No. 2020CA00021 31 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.

(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.

{¶68} 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 Licking County, Case No. 2020CA00021 32 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).

{¶69} “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.

216, 219-220, 131 S.Ct. 859, 178 L.Ed.2d 732(2011). Assuming arguendo that the

language chosen by the legislature has been 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.

{¶70} 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). Licking County, Case No. 2020CA00021 33 {¶71} 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).

{¶72} 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.

***

But, we observe that for as long as parole has existed in Ohio, the executive

branch (the APA1 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, 733 N.E.2d 1103.

{¶73} 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.” Wolfe v. McDonnell, 416 U.S. 539,

1 Adult Parole Authority Licking County, Case No. 2020CA00021 34 556, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974) (citations omitted). In Wolfe, 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 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.

416 U.S. 539, 561-562, 94 S.Ct. 2963, 41 L.Ed.2d 935. Indeed, it has been noted, Licking County, Case No. 2020CA00021 35 “[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(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 which are peculiarly within the

province of the legislative and executive branches of government. 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.

Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987). “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.” Wolfe v. McDonnell, 418 U.S. at 560, 94 S.Ct. 2963, 41 L.Ed.2d 935.

{¶74} 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. Wolfe, 418 U.S. at 557-558; (See, Ohio

Adm. Code 5120-9-08). 2). Advance written notice of the claimed violation. Wolfe, 418

U.S. at 563. (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. Wolfe, 418

U.S. at 563. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120:1-11(G)(1)). 4). Licking County, Case No. 2020CA00021 36 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. Wolfe, 418 U.S. at 566. (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. Wolfe, 418 U.S. at 570. (See, Ohio Adm. Code 5120-9-07(H)(1)).

{¶75} 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:

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

[and] [t]he offender’s behavior while incarcerated, including, but not limited to the

infractions and violations specified in division (C)(1)(a) of this section, demonstrate

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.

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. Licking County, Case No. 2020CA00021 37 R.C. 2967.271(C)(1), (2) and (3).

{¶76} “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,

236-237(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.

Each procedure employed provides at the least for notice and the opportunity to be heard.

{¶77} Under the Reagan Tokes Law, an inmate is afforded notice and a hearing by

R.C. 2967.271(E), which states:

[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.

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, ¶11 (“Reagan Tokes does not

facially violate a defendant’s right to procedural due process.”)

Separation of Powers is not violated.

{¶78} 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 Licking County, Case No. 2020CA00021 38 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 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. Wolfe points to nothing within the Reagan

Tokes Law that would permit the DRC to extend his sentence beyond the seven and one-

half year maximum sentence set by the trial judge.

{¶79} Further, as we have noted, under the Reagan Tokes Law an inmate is afford

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 Licking County, Case No. 2020CA00021 39 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.

{¶80} To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel's performance was deficient and that his

counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668,

694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show

that “counsel's representation fell below an objective standard of reasonableness.” Id., at

688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. See, also, Andrus, v.

Texas, __U.S.__, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335(June 15, 2020).

{¶81} Because the Reagan Tokes Law is constitutional, there is no reasonable

probability that, but for counsel’s failure to challenge the constitutionality of the Reagan

Tokes Law the result of the proceeding would have been different.

{¶82} I would therefore overrule Appellant’s First and Second Assignments of Error.

III., IV. & V.

{¶83} I concur with the majority’s disposition of Appellant’s Third, Fourth and Fifth

Assignments of Error.

{¶84} In this case, the court gave no advisement of any of the requirements set forth

in R.C. 2929.19(B) at the sentencing hearing held January 24, 2020 and, therefore, I would

agree that the sentence is contrary to law. I would sustain Wolfe’s Third Assignment of Error.

Because we reverse and remand the decision of the Licking County Court of Common Pleas

for resentencing, I agree Wolfe’s Fourth and Fifth Assignments of Error to be premature.