[Cite as State v. Clark,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2020 CA 00017 JASON D. CLARK

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 2019 CR 00894

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 20, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES KORT GATTERDAM Licking County Prosecutor ERIK P. HENRY Carpenter, Lipps & Leland, LLP PAULA M. SAWYERS 280 Plaza, Suite #1300 Assistant Prosecuting Attorney 280 North High Street 20 S. Second Street, Fourth Floor Columbus, Ohio 43215 Newark, Ohio 43055 Licking County, Case No. 2020 CA 00017 2

Hoffman, P.J. {¶1} Appellant Jason D. Clark appeals the judgment entered by the Licking

County Common Pleas Court convicting him following his pleas of guilty to aggravated

possession of controlled substances (methamphetamine) (R.C. 2925.11(A)(C)(1)(c)),

aggravated trafficking in drugs (methamphetamine) (R.C. 2925.03(A)(2)(C)(1)(d)),

aggravated possession of controlled substances (fentanyl) (R.C. 2925.11(A)(C)(1)(a)),

aggravated trafficking in drugs (fentanyl) (R.C. 2925.03(A)(1)(C)(1)(a)), and possession

of controlled substances (heroin) (R.C. 2925.11(A)(1)(6)(a)) with a forfeiture specification,

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

aggregate indefinite maximum prison term of four and one-half years. Appellee is the

state of Ohio.

STATEMENT OF THE CASE1

{¶2} On November 14, 2019, Appellant was indicted by the Licking County

Grand Jury with five offenses: aggravated possession of controlled substances

(methamphetamine), a felony of the second degree; aggravated trafficking in drugs

(methamphetamine), a felony of the second degree; aggravated possession of controlled

substances (fentanyl), a felony of the third degree; aggravated trafficking in drugs

(fentanyl), a felony of the third degree; and possession of controlled substances (heroin),

a felony of the fifth degree. The indictment included a forfeiture specification for $1,356.31

in cash. On November 26, 2019, the State moved to amend counts three and four to

charge a felony of the fifth degree and a felony of the fourth degree, respectively. The

trial court granted the motion on November 27, 2019.

1 A rendition of the facts is not necessary for our resolution of the issues raised on appeal. Licking County, Case No. 2020 CA 00017 3

{¶3} In anticipation of resolving the case through a plea agreement, on January

13, 2020, Appellant filed a motion to strike the indefinite sentencing provisions of Senate

Bill 201, the Reagan Tokes Act. The court denied the motion.

{¶4} On January 30, 2020, Appellant entered pleas of guilty to the indictment as

amended. He was convicted of all counts and the forfeiture specification. The court

merged counts one and two, with the State electing to have Appellant sentenced on count

one. The court also merged counts three and four, with the State electing to proceed to

sentencing on count three.

{¶5} On count one of aggravated possession of controlled substances, the trial

court sentenced Appellant to a stated minimum term of incarceration of three years and

a maximum indefinite term of incarceration of four and one-half years. The court

sentenced Appellant to twelve months incarceration on count three, and twelve months

incarceration on count five. The court ordered all sentences to run concurrently, for an

aggregate sentence of three to four and one-half years.

{¶6} It is from the January 30, 2020 judgment of the Licking County Common

Pleas Court Appellant prosecutes this appeal, assigning as error:

I. THE TRIAL COURT ERRED IN FINDING THE INDEFINITE

SENTENCING PROVISIONS OF SENATE BILL 201 CONSTITUTIONAL.

I.

{¶7} 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 and Licking County, Case No. 2020 CA 00017 4

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

powers. 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

physical harm to the staff of a state correctional institution or its inmates, or Licking County, Case No. 2020 CA 00017 5

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

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

the department, and shall not exceed the offender's maximum prison term. Licking County, Case No. 2020 CA 00017 6

(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.

The provisions of this division regarding the establishment of a

rebuttable presumption, the department's rebuttal of the presumption, and Licking County, Case No. 2020 CA 00017 7

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.

{¶8} 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.

{¶9} 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 Licking County, Case No. 2020 CA 00017 8

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

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.

{¶10} Id. at 89,

.

{¶11} 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.

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

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

and potentially continue his incarceration to a term not exceeding four and one-half years,

Appellant has not yet been subject to such action by the DRC, and thus the constitutional Licking County, Case No. 2020 CA 00017 9

issue is not yet ripe for our review. Our conclusion is consistent with our duty not to issue

advisory opinions, as well as “‘the cardinal principle of judicial restraint—if it is not

necessary to decide more, it is necessary not to decide more.’” State ex rel.

LetOhioVote.org v. Brunner,

,

,

,

quoting PDK Laboratories, Inc. v. United States Drug Enforcement Adm. (C.A.D.C. 2004),

(C.A.D.C. 2004)(Roberts, J., concurring in part and in judgment).

{¶13} 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

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 Licking County, Case No. 2020 CA 00017 10

habeas corpus if he is not released at the conclusion of his three year minimum term of

incarceration.

{¶14} See, also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-

Ohio-4227; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009,

(constitutionality of Reagan Tokes Law not ripe for review where defendant was not yet

subject to presumptive release provisions).

{¶15} We find the issue raised in this appeal is not yet ripe for review.

{¶16} The appeal is dismissed.

By: Hoffman, P.J. Delaney, J. and Baldwin, J. concur