[Cite as State v. Jackson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-07-077

: OPINION - vs - 3/15/2021 :

VAN MAURICE JACKSON, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2020-01-0023

Michael T. Gmoser, Butler County Prosecuting Attorney, Stephen M. Wagner, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant

HENDRICKSON, J.

{¶ 1} Appellant, Van Maurice Jackson, appeals from the sentence he received in

the Butler County Court of Common Pleas after pleading guilty to felonious assault with a

firearm. For the reasons set forth below, we affirm appellant's sentence.

{¶ 2} On January 15, 2020, appellant was indicted on one count of attempted

murder in violation of R.C. 2923.02 and 2903.02(A), a felony of the first degree, one count Butler CA2020-07-077

of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree, and

one count of felonious assault in violation of R.C. 2903.11(A)(2), also a felony of the second

degree. A firearm specification pursuant to R.C. 2941.145 accompanied each count. The

charges arose out of allegations that on November 1, 2019, near the area of South Second

Street and Chestnut Street in Hamilton, Butler County, Ohio, appellant shot Jeremy Watson,

causing Watson serious physical harm.

{¶ 3} On May 21, 2020, following plea negotiations, appellant pled guilty to

felonious assault in violation of R.C. 2903.11(A)(1) and the accompanying firearm

specification in exchange for the remaining charges being dismissed. The trial court

conducted a plea colloquy as required by Crim.R. 11(C)(2). During the colloquy, the trial

court advised appellant of the applicability of Senate Bill 201, commonly known as the

Reagan Tokes Law, and informed appellant he would be subject to an indefinite sentence.

The court explained that a possible maximum sentence of eight to twelve years could be

imposed on the felonious assault charge and with the mandatory three-year prison

sentence for the firearm specification, appellant faced an aggregate maximum sentence of

eleven to fifteen years. Appellant indicated he understood the penalties he faced and

entered a guilty plea to felonious assault and the accompanying firearm specification. The

trial court accepted appellant's guilty plea after finding the plea was knowingly, intelligently,

and voluntarily entered. Thereafter, the court ordered a presentence-investigative report

and set the matter for sentencing.

{¶ 4} On July 2, 2020, the trial court sentenced appellant to an indefinite prison term

of six to nine years in prison for felonious assault. This sentence was run consecutive to a

mandatory three-year prison term on the firearm specification. In imposing the indefinite

sentence, the trial court advised appellant of the rebuttable presumption under the Reagan

Tokes Law that he would be released from service of his sentence on the expiration of the

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imposed minimum prison term. However, the Ohio Department of Rehabilitation and

Correction ("ODRC") could rebut this presumption if, at a hearing held pursuant to R.C.

2967.271, it made specific determinations regarding appellant's conduct while confined, his

rehabilitation, threat to society, restrictive housing, if any, while confined, and his security

classification. If ODRC rebutted the presumption, then it could maintain appellant's

incarceration after the expiration of the minimum prison term up to the expiration date of his

maximum prison term.

{¶ 5} After providing this explanation and informing appellant he was also subject

to a mandatory three-year postrelease control term upon his release from prison, the court

asked the parties if there were any questions regarding the imposed sentence. At this time,

counsel for appellant stated, "Your Honor, just for the record, I don't know if it's necessary,

but we'll be objecting and filing an appeal under Reagan [Tokes] constitutionality issue." To

this, the trial court responded, "Right. Right. That will be noted for the record. Thank you."

{¶ 6} Appellant now appeals, raising the following as his sole assignment of error:

{¶ 7} THE TRIAL COURT IMPROPERLY PRESUMED THAT OHIO REVISED

CODE 2967.271 IS CONSTITUTIONAL.

{¶ 8} Appellant argues that the Reagan Tokes Law, specifically R.C. 2967.271, is

unconstitutional as it "allows prison officials and not the sentencing court to justify the

imposition of additional time of incarceration without due process of law," thereby violating

his due process rights as guaranteed by the Fifth and Fourteenth Amendments of the United

States Constitution and Article I, Section 16 of the Ohio Constitution. Appellant maintains

his due process rights are violated by ODRC, rather than then sentencing court, determining

whether a rule infraction warrants a longer stay in prison.

{¶ 9} The state contends that appellant's arguments are not properly before this

court because he failed to raise a challenge to the constitutionality of R.C. 2967.271 before

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the trial court. The state argues appellant's "objection" at the close of sentencing did not

properly preserve the issue for appeal. Alternatively, even if the issue were preserved, the

state contends appellant's constitutional arguments fail as an identical issue was

considered and rejected by this court in State v. Guyton, 12th Dist. Butler CA2019-12-203,

.

{¶ 10} We find Guyton to be instructive. First, as to the issue of whether appellant

forfeited his challenge to the constitutionality of R.C. 2967.271, we find that he properly

preserved the issue for appeal. Appellant's objection to the sentence and challenge to the

constitutionality of the statute is similar to the objection and challenge raised in Guyton.

There, after Guyton's sentence was announced, Guyton's trial counsel raised a general

objection to the constitutionality of the Reagan Tokes Law, stating, "[F]or appellate

purposes, a[n] objection with regard to the * * * Reagan Tokes Act for any potential

Constitutional issues there may be here and in the future. Obviously, that matter has not

been litigated, but to just notice that it's preserved for Mr. Guyton * * *." Id. at ¶ 5. On

appeal, Guyton raised a constitutional due process challenge to R.C. 2967.271, and this

court addressed the merits of his assignment of error. See id. at ¶ 6-18.

{¶ 11} Conversely, in State v. Alexander, 12th Dist. Butler No. CA2019-12-204,

, this court found a defendant waived his right to challenge the

constitutionality of R.C. 2967.271 on appeal as he failed to raise the issue in the trial court.

There, the defendant did not raise any objection or constitutional challenge to the Reagan

Tokes Law either before or after the trial court issued its sentencing decision. Id. at ¶ 5.

{¶ 12} As the case before us is similar to Guyton, in that appellant raised an objection

and constitutional challenge to R.C. 2967.271 at the sentencing hearing, we find it

appropriate to address the merits of his arguments. As this court explained when we

addressed an identical constitutional due process challenge to R.C. 2967.271 in Guyton,

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"[i]t is well established that 'we are to presume that the state statute is constitutional and

the burden is on the person challenging the statute to prove otherwise beyond a reasonable

doubt.'" Guyton,

, quoting State v. Lowe,

, 2007-

Ohio-606, ¶ 17.

{¶ 13} Here, like in Guyton, appellant has failed to set forth any argument

demonstrating how the language set forth in R.C. 2967.271 violates his constitutional right

to due process mandating he be provided with notice and the opportunity to be heard. See

id. at ¶ 11, citing State v. Ritchie, 12th Dist. Warren No. CA2017-11-155,

("[a]t a minimum, due process requires notice and the opportunity to be heard").

Appellant acknowledges that "under the current statute, an inmate is afforded notice and a

hearing" under R.C. 2967.271(C) where ODRC may rebut the presumption that an inmate

will be released from prison upon the expiration of his minimum prison term or presumed

early release date, whichever is earlier. This is confirmed by R.C. 2967.271(E), which

states that ODRC "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 possible release on parole of an inmate."

{¶ 14} Appellant contends it is "illogical" to exclude the sentencing court from

participating in the "rebuttable presumption of serving a minimum sentence" set forth in R.C.

2967.271(C) when another division of the statute, section (F), requires that the sentencing

court hold a hearing in circumstances where the director of ODRC recommends the

sentencing court grant a reduction in the minimum prison term imposed on a specified

offender "due to the offender's exceptional conduct while incarcerated or the offender's

adjustment to incarceration." Contrary to appellant's arguments, we find nothing illogical

about the differing requirements set forth by the General Assembly in R.C. 2967.271(C) and

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(F).

. As we previously explained, divisions (C) and (F) of R.C. 2967.271

"address radically different factual scenarios; one dealing with circumstances where the

inmate has already completed his or her minimum prison term imposed by the trial court,

whereas the other deals with instances where the inmate has not."

The General

Assembly is entitled to set forth different requirements under each scenario.

{¶ 15} Furthermore, as we discussed in great detail in Guyton, "the [h]earings

conducted by the ODRC under R.C. 2967.271(C) are analogous to parole revocation

proceedings, probation revocation proceedings, and postrelease control violation hearings"

at issue in Morrissey v. Brewer,

,

(1972); Gagnon v. Scarpelli,

,

(1973); and Woods v. Telb,

, 2000-Ohio-

171. Guyton,

. In none of those situations, where a convicted felon

has committed violations while under the control and supervision of ODRC, does due

process require the sentencing court to conduct the revocation or violation hearings.

Similarly, due process does not require the sentencing court to conduct a hearing under

R.C. 2967.271(C) to determine whether ODRC has rebutted the presumption set forth in

R.C. 2967.271(B).

The Reagan Tokes Law, specifically R.C. 2967.271, therefore, does

not run afoul of an offender's due process rights as guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution and Article I, Section 16 of the Ohio

Constitution. Appellant's sole assignment of error is overruled.

{¶ 16} Judgment affirmed.

PIPER, P.J., and S. POWELL, J., concur.

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