[Cite as State v. Manion,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 AP 03 0009 HAROLD E. MANION, III

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019 CR 08 0349

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: August 25, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMANDA K. MILLER LINDSEY K. DONEHUE-ANGLER Assistant Prosecuting Attorney 217 N. 8th Street Tuscarawas County Cambridge, Ohio 43725 125 East High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2020 AP 03 0009 2

Hoffman, P.J. {¶1} Appellant Harold Manion, III, appeals the judgment entered by the

Tuscarawas County Common Pleas Court convicting him of aggravated burglary (R.C.

2911.11), burglary (R.C. 2911.12), possessing criminal tools (R.C. 2923.24), and two

counts of violating a protection order (R.C. 2919.27), following his pleas of guilty, and

sentencing him to an aggregate minimum prison term of eight years and an aggregate

indefinite maximum prison term of ten and one-half years. Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On August 12, 2019, Appellant was indicted by the Tuscarawas County

Grand Jury on one count of aggravated burglary, one count of burglary, one count of

possessing criminal tools, and two counts of violating a protection order. On February

24, 2020, Appellant entered guilty pleas to all charges, and was convicted.

{¶3} The case proceeded to sentencing. Appellant was sentenced pursuant to

Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act. Counts one, two, and

three merged as allied offenses of similar import, and the State elected sentencing on

count one, aggravated burglary. Counts four and five also merged as allied offenses, and

the State elected sentencing on count four of violating a protection order. The court

sentenced Appellant to a minimum of seven years and a maximum of ten and one-half

years on the aggravated burglary conviction. The court sentenced Appellant to thirty-six

months incarceration for violating a protection order, to be served concurrently with the

aggravated burglary sentence. The court sentenced Appellant to twelve months

1 A rendition of the facts is not necessary for our resolution of the issues raised on appeal. Tuscarawas County, Case No. 2020 AP 03 0009 3

incarceration for the time he had remaining under post-release control, for an aggregate

sentence of eight to ten and one-half years incarceration.

{¶4} It is from the February 25, 2020, judgment of the Tuscarawas County

Common Pleas Court Appellant prosecutes this appeal, assigning as error:

THE REAGAN TOKES ACT VIOLATES THE CONSTITUTIONS OF

THE UNITED STATES AND THE STATE OF OHIO.

I.

{¶5} In his assignment of error, Appellant challenges the presumptive release

feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury, equal

protection, and due process of law, and further violates the constitutional requirement of

separation of powers.

{¶6} 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 Tuscarawas County, Case No. 2020 AP 03 0009 4

rebuts the presumption, the offender shall be released from service of the

sentence on the expiration of the offender's minimum prison term or on the

offender's presumptive earned early release date, whichever is earlier. The

department may rebut the presumption only if the department determines,

at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is classified

at the time of the hearing, both of the following apply:

(a) During the offender's incarceration, the offender committed

institutional rule infractions that involved compromising the security of a

state correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not

limited to the infractions and violations specified in division (C)(1)(a) of this

section, demonstrate that the offender continues to pose a threat to society.

(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. Tuscarawas County, Case No. 2020 AP 03 0009 5

(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

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 Tuscarawas County, Case No. 2020 AP 03 0009 6

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.

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. Tuscarawas County, Case No. 2020 AP 03 0009 7

{¶7} Appellant 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.

However, Appellant 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.

{¶8} The Ohio Supreme Court discussed the concept of ripeness for review in

State ex rel. Elyria Foundry Co. v. Indus. Comm.,

,

,

:

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

Reorganization Act Cases (1974),

,

,

. 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),

,

,

. 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 Tuscarawas County, Case No. 2020 AP 03 0009 8

though the alleged action of the defendant foretells legal injury to the

plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings

Twice (1965), 65 Colum. L.Rev. 867, 876.

{¶9} Id. at 89,

.

{¶10} In State v. McCann, 8th Dist. Cuyahoga No. 85657,

, the

defendant argued because the Parole Board, pursuant to R.C. 2967.28, could extend his

sentence by up to an additional five years for violation of post-release control, the statute

was unconstitutional. The Eighth District Court of Appeals concluded because McCann

was not currently the subject of such action by the Parole Board, the issue was not yet

ripe for review. Id. at ¶6.

{¶11} Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut

the presumption Appellant will be released after serving his eight year minimum sentence

and potentially continue his incarceration to a term not exceeding ten and one-half 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.

{¶12} In State ex rel. Bray v. Russell,

,

(2000),

the Ohio Supreme Court held the former R.C. 2967.11, which allowed executive branch

officials to try, convict, and add bad time to a prisoner’s term for a criminal violation

occurring during the course of the prisoner's stated term of incarceration, violated the

constitutional doctrine of separation of powers and was therefore unconstitutional The

case involved three prisoners who had been subject to application of the “bad time”

provision. One prisoner had filed a writ of habeas corpus in the Court of Appeals for Tuscarawas County, Case No. 2020 AP 03 0009 9

Warren County, which denied the writ, and he appealed. A second prisoner filed a writ

of habeas corpus in the Court of Appeals for Trumbull County, which granted the writ,

and the State appealed. A third prisoner filed an original petition for a writ of habeas

corpus in the Ohio Supreme Court. Although the Bray court did not specifically discuss

the necessity of the use of a writ of habeas corpus to challenge the constitutionality of the

bad time provisions of the statute, the court ruled on the merits of the writs, finding the

statute violated the constitutional doctrine of separation of powers.

,

. We thus infer the appropriate method for 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.

{¶13} We find the issues raised in this appeal are not yet ripe for review. The

assignment of error is overruled.

{¶14} The appeal is dismissed.

By: Hoffman, P.J. Baldwin, J. and Wise, Earle, J. concur