[Cite as State v. Sealey,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 109670 v. :

ANTOINE SEALEY, JR., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 10, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-644811-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Frank Cavallo, Assistant Public Defender, for appellee. LISA B. FORBES, P.J.:

The state of Ohio appeals the trial court’s finding the Reagan Tokes

Law unconstitutional. After reviewing the facts of the case and pertinent law, we

affirm the trial court’s decision.

I. Facts and Procedural History

On January 13, 2020, Antoine Sealey, Jr. (“Sealey”) pled guilty to

aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony, with a

one-year firearm specification. On February 12, 2020, the trial court found the

Reagan Tokes Law unconstitutional and did not sentence Sealey under this statutory

scheme. Rather, the court sentenced Sealey to three years in prison for the

aggravated robbery and one year in prison for the firearm specification, to run

consecutive to one another, for an aggregate prison term of four years. It is from

this order that the state of Ohio appeals.

II. Law and Analysis

A. Standard of Review

The constitutionality of a statute presents questions of law, which are

“reviewed de novo, independently and without deference to the trial court’s

decision.” Andreyko v. Cincinnati,

,

,

(1st Dist.). Our review must be conducted in light of the notion that

statutes “enjoy a strong presumption of constitutionality.” State v. Romage,

,

,

.

A party may challenge a statute as unconstitutional on its face or as applied to a particular set of facts. A facial challenge to a statute is the most difficult to bring successfully because the challenger must establish that there exists no set of circumstances under which the statute would be valid. The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.

(Citations omitted.) Harrold v. Collier,

,

,

. In the instant case, the state challenges the trial court’s finding

that the Reagan Tokes Law is unconstitutional as written.

The Ohio Supreme Court has held that “[w]hen determining whether

a law is facially invalid, a court must be careful not to exceed the statute’s actual

language and speculate about hypothetical or imaginary cases.” Wymsylo v. Bartec,

Inc.,

,

,

, citing Washington

State Grange v. Washington State Republican Party,

,

,

(2008). Furthermore, “[r]eference to extrinsic facts is not

required to resolve a facial challenge.”

.

B. Constitutionality of the Reagan Tokes Law

The Reagan Tokes Law sets forth an indefinite sentencing scheme for

certain qualifying first- and second-degree felonies committed on or after March 22,

2019. R.C. 2967.271. Under this scheme, courts sentence a defendant to a minimum

and maximum prison term, with a presumption that the defendant “shall be released

from service of the sentence on the expiration of the offender’s minimum prison

term * * *.” R.C. 2967.271(B). This presumption that the “offender shall be released”

may be rebutted by the Ohio Department of Rehabilitation and Correction (“DRC”) “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.

R.C. 2967.271(C).

In other words, an inmate will be released at the end of his or her

minimum prison term (“presumptive release date”) unless the DRC takes action.

In the case at hand, the trial court’s journal entry declaring the

Reagan Tokes Law unconstitutional included the following language: “This court

adopts the analysis of Judge Tom Heekin in State of Ohio v. William O’Neal, Case

No. B 1903562, Hamilton County Court of Common Pleas.” Upon review, we find the Reagan Tokes Law unconstitutional, although for reasons other than the analysis

set forth in State v. O’Neal, Hamilton C.P. No. B 1903562 (Nov. 20, 2019).

1. Due Process

Under the Fourteenth Amendment to the United States Constitution,

the states shall not “deprive any person of life, liberty, or property, without due

process of law.” See also Fifth Amendment to the United States Constitution; Ohio

Constitution Article I, Section 16. The United States Supreme Court has recognized

that “the convicted felon does not forfeit all constitutional protections by reason of

his conviction and confinement in prison. He retains a variety of important rights

that the courts must be alert to protect.” Meachum v. Fano,

,

,

(1976). “Inmates retain, for example, the right to be free

from racial discrimination, * * * the right to due process, * * * and * * * certain

protections of the First Amendment * * *.” Shaw v. Murphy,

, 228-

229,

,

(2001).

The liberty interests protected under the Due Process Clause become

limited to “the most basic” when the claimant is a prison inmate. Hewitt v. Helms,

,

,

(1983) (“We have repeatedly said

both that prison officials have broad administrative and discretionary authority over

the institutions they manage and that lawfully incarcerated persons retain only a

narrow range of protected liberty interests.”).

It is with that context in mind that we turn to the United States

Supreme Court’s two-step analysis for constitutional challenges based on due process violations: “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.” Swarthout v. Cooke,

,

,

(2011).

2. Is There a Liberty Interest in the Reagan Tokes Law?

A “liberty interest may arise from the Constitution itself, by reason of

guarantees implicit in the word ‘liberty’” or “from an expectation or interest created

by state laws or policies * * *.” Wilkinson v. Austin,

,

,

(2005), citing Vitek v. Jones,

,

,

(1980) (liberty interest in avoiding involuntary

psychiatric treatment) and Wolff v. McDonnell,

,

,

(1974) (liberty interest in avoiding the withdrawal of state-

created system of good-time credits). To analyze whether there is a liberty interest

in the Reagan Tokes Law, we look first to United States Supreme Court authority,

then to Ohio law for guidance.

In Wolff, prison inmates in Nebraska challenged a state statute that

authorized each penal facility to reduce an inmate’s “good-time credit” if the inmate

engaged in “flagrant or serious misconduct.”

. The United States

Supreme Court found that the state of Nebraska “itself has not only provided a

statutory right to good time but also specifies that it is to be forfeited only for serious

misbehavior.”

. Therefore, the court held, “the prisoner’s interest has real

substance and is sufficiently embraced within the Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances

and required by the Due Process Clause to insure that the state-created right is not

arbitrarily abrogated.”

In a different setting, a California parole statute created a liberty

interest by providing that the prison board ‘“shall set a release date unless it

determines that * * * consideration of the public safety requires a more lengthy

period of incarceration.’” Swarthout,

,

,

, quoting Cal. Penal Code Ann. 3041(b). 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.”

.

Further guidance is found in Wilkinson. The United States Supreme

Court made clear that inmates may have “a protected, state-created liberty interest

in avoiding restrictive conditions of confinement” depending not on the particular

language of the regulations regarding the conditions “but the nature of those

conditions themselves ‘in relation to the ordinary incidents of prison life.’”

Wilkinson,

,

,

, quoting Sandin v.

Connor,

,

,

(1995). The Sandin

Court stated that “[t]he time has come to return to the due process principles”

focusing on “the nature of the deprivation” rather than based on “the language of a

particular regulation * * *.”

. As courts throughout Ohio have begun to review the constitutionality

of the Reagan Tokes Law, many look to case law dealing with parole revocation and

parole eligibility for guidance. Compare State v. Guyton, 12th Dist. Butler

No. CA2019-12-203,

(“The hearings conducted by the ODRC

under R.C. 2967.271(C) are analogous to parole revocation proceedings, probation

revocation proceedings, and postrelease control violation hearings * * *”) with State

v. Leet, 2d Dist. Montgomery No. 28670,

(“requiring a

defendant to remain in prison beyond the presumptive minimum term is akin to the

decision to grant or deny parole * * *” rather than parole revocation).

The distinction between parole eligibility and parole revocation is

significant when discussing due process because the liberty interest in parole

revocation — which entails taking someone’s freedom away — is much greater than

the liberty interest in parole eligibility — which typically entails the hope or

anticipation of freedom. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

,

,

(1979) (“There is a crucial distinction

between being deprived of a liberty one has, as in [revocation of] parole, and being

denied a conditional liberty that one desires[,]” as in “discretionary parole release

from confinement” or parole eligibility.). See also Wolff, U.S. 539 at 560,

,

(“Simply put, revocation proceedings determine whether the

parolee will be free or in prison, a matter of obvious great moment to him.”).

In Ohio, parole revocation, unlike parole eligibility, “implicates a

liberty interest which cannot be denied without certain procedural protections.” State ex rel. Jackson v. McFaul,

, 186,

(1995). See

also R.C. 2967.15(B). However, there is no presumption of release on parole in Ohio,

thus there is no liberty interest at stake in parole eligibility proceedings. Ohio

Adm.Code 5120:1-1-07(A) states that “[a]n inmate may be released on or about the

date of his eligibility for release, unless the parole board * * * determines that he

should not be released on such date for” various reasons. (Emphasis added.) Ohio

Adm.Code 5120:1-1-07(C) states that “[t]he consideration of any single factor, or any

group of factors, shall not create a presumption of release on parole * * *.” This court

has held that a “prisoner who is denied parole is not thereby deprived of ‘liberty’ if

state law makes the parole decision discretionary. Under R.C. 2967.03, the parole

decision is discretionary.” State v. Ferguson, 8th Dist. Cuyahoga No. 82984, 2004-

Ohio-487, ¶ 9-10. Compare Swarthout,

,

,

, quoting Cal. Penal Code Ann. 3041(b) (the prison board ‘“shall set a

release date unless it determines that * * * consideration of the public safety requires

a more lengthy period of incarceration.’”).

Unlike Ohio’s parole eligibility proceedings, the Reagan Tokes Law

includes an express presumption of release: “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 * * *.” R.C. 2967.271(B). That presumption of release is

repeated in R.C. 2967.271(C): “Unless the [DRC] rebuts the presumption, the

offender shall be released from service of the sentence on the expiration of the offender’s minimum prison term* * *.” A liberty interest may arise “from an

expectation or interest created by state laws or policies.” Wolff,

,

,

. The plain language of the Reagan Tokes Law creates an

expectation of release.

We find that, like the Nebraska statute in Wolff and the California

statute in Swarthout, the Reagan Tokes Law creates a liberty interest. We also find

that, like the nature of the deprivation found in Wilkinson and Sandin, Ohio prison

inmates have an inherent liberty interest in being released from confinement on

their presumptive release date under the Reagan Tokes Law. We agree with the

Twelfth District Court of Appeals’ opinion in Guyton, 12th Dist. Butler No. CA2019-

12-203,

, that the presumptive release date mandate is more akin

to parole revocation proceedings than parole eligibility proceedings. The liberty

interest at stake here is the inmate’s freedom.

As of the date of this opinion, this court has found the Reagan Tokes

Law constitutional in two cases, State v. Wilburn, 8th Dist. Cuyahoga No. 109507,

, and State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-

939. In both opinions, this court assumed without deciding that the Reagan Tokes

Law created a liberty interest, while at the same time stating that it was akin to

parole eligibility. Wilburn at ¶ 30; Simmons at ¶ 19. We disagree with the analogy

to Ohio’s parole eligibility regimen because we find that the inmate has a liberty

interest in being released from prison on the presumptive release date. 3. What Process is Due?

Having found that the Reagan Tokes Law creates a liberty interest, we

turn our attention to what process is due in light of that liberty interest. “Our courts

have long recognized that due process requires both notice and an opportunity to be

heard.” In re Thompkins,

,

,

,

¶ 13. “[T]he fundamental requisite of due process of law is the opportunity to be

heard in a meaningful time and in a meaningful manner.” Woods v. Telb,

,

(2000). Additionally, in the criminal context, the

accused is entitled to fair notice of what conduct is “punishable.” State v. Philpotts,

8th Dist. Cuyahoga No. 107374,

. “This refers to the principle that

due process requires criminal statutes to be written clearly so that individuals are

provided with a fair warning that a certain conduct is within the statute’s

prohibition.” Id. at ¶ 44.

“It is axiomatic that due process ‘is flexible and calls for such

procedural protections as the particular situation demands.’” Greenholtz,

,

,

, quoting Morrissey v. Brewer,

,

,

(1972). In considering what process is due to

protect the liberty interest created by the Reagan Tokes Law, we are mindful that

the United States Supreme Court recognized that:

Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 US. 266, 285 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. * * * Prisoners may * * * claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law.

Wolff,

,

,

.

To analyze what process is due, the United States Supreme Court has

provided a framework requiring consideration of three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Wilkinson,

,

,

, quoting Matthews

v. Eldridge,

,

,

(1976).

The Matthews factors should be balanced. In removing an individual

from free society for a parole violation, as in Morrissey, or revoking good-time

credits based on some specific serious misbehavior, as in Wolff, “more formal,

adversary-type procedures” might be useful; on the other hand, “where the inquiry

draws more on the experience of prison administrators, and where the State’s

interest implicates the safety” of others, more informal, nonadversarial procedures

are more appropriate.

.

Applying the Matthews factors to the Reagan Tokes Law, we find that

the private interest is an inmate’s freedom; the risk of erroneous deprivation is high,

even taking into consideration the diminished protection afforded a prison inmate; and the government’s interest in running prisons is strong and its resources are

scarce.

As explained by the Morrissey Court “the minimum requirements of

due process” include the following for parole revocation proceedings:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrisey,

,

,

. The Morrisey due

process safeguards have been applied to proceedings other than parole revocation.

Gagnon v. Scarpelli,

,

,

(1973) (applying

Morrissey’s due process requirements regarding parole revocation hearings to

probation violation hearings); Woods,

,

(applying

Morrissey’s due process requirements to postrelease control violation hearings).

In the context of prison discipline, the Wolff Court held that inmates

facing a reduction of their good-time credit must be provided “advance written

notice of the claimed violation and a written statement of the factfinders as to the

evidence relied upon and the reasons for the disciplinary action taken.” Wolff,

,

,

. Specifically, the court held that “written

notice of the charges must be given to the disciplinary-action defendant in order to

inform him of the charges and to enable him to marshal the facts and prepare a defense.”

. Additionally, “the inmate facing disciplinary proceedings

should be allowed to call witnesses and present documentary evidence in his defense

when permitting him to do so will not be unduly hazardous to institutional safety or

correctional goals.”

. The Wolff Court concluded that “some, but not all,

of the procedures specified in Morrissey * * * must accompany the deprivation of

good time by state prison authorities,” although the procedures are “not graven in

stone.”

.

In the context of a statutorily created liberty interest in parole, the

Swarthout Court found the due process “procedures required are minimal.”

Swarthout,

,

,

. The prisoners at issue

received adequate process when “[t]hey were allowed to speak at their parole

hearings and to contest the evidence against them, were afforded access to their

records in advance, and were notified as to the reasons why parole was denied.” Id.

at 221.

4. Does the Reagan Tokes Law Satisfy the Requirements of Due Process?

Next, we determine whether the procedures identified in

R.C. 2967.271 for rebutting the presumptive release date and extending the prison

term are sufficient to protect inmates’ due process rights in light of the guidance as

discussed in this opinion.

For the reasons that follow, we disagree with the holdings in both

Wilburn and Simmons, where this court determined that the Reagan Tokes Law

provides adequate due process safeguards, including “notice and an opportunity to be heard.” Simmons, 8th Dist. Cuyahoga No. 109476,

, citing

Wilburn, 8th Dist. Cuyahoga No. 109507,

. Specifically, this

court referenced R.C. 2967.271(C)(1), (2), and (3); 2967.271(E); and various

provisions of the Ohio Administrative Code. See Wilburn at ¶ 31-36, and Simmons

at ¶ 21.

R.C. 2967.271(C) does not set forth any procedures for the rebuttable

presumption hearing, and most importantly, it does not require that the hearing be

meaningful. The only guidance the statute gives is (a) the DRC may rebut the

presumption of release, and (b) the DRC decides whether it has done so. See

generally Columbus-Suburban Coach Lines v. Pub. Utils. Comm.,

,

(1969) (“In determining legislative intent it is the duty of this

court to give effect to the words used, not to delete words used or insert words not

used.”).

Subsections (1), (2), and (3) of R.C. 2967.271(C) set forth behavior

and circumstances that may serve as the basis for the DRC to rebut the presumption

of release.1 For example, the DRC may rely on certain prison rule infractions

committed by the offender while incarcerated as part of the hearing. Ohio

Adm.Code 5120-9-06 defines DRC “disciplinary violations * * * of institutional or

departmental rules and regulations,” and Ohio Adm.Code 5120-9-08 and 5120-9-10

1 For the purpose of this analysis, we assume without deciding that R.C. 2967.271(C)(1), (2), and (3), along with Ohio Adm.Code 5120-9-06, provide fair notice to inmates of what prison rule infractions are within the Reagan Tokes Law’s prohibition. set forth disciplinary procedures for prison rule infractions and restrictive housing

assignments. However, how — if at all — those administrative rules overlap with or

apply to the Reagan Tokes Law rebuttable presumption hearing is wholly

unexplained by the Reagan Tokes Law. See R.C. 2967.271(C)(1)(a).

Moreover, the DRC may rebut the presumption of release based on

the inmate having “committed a violation of law that was not prosecuted.”

R.C. 2967.271(C)(1)(a). The statute does not provide that the inmate be notified that

he or she is being accused of committing a violation of law that has not been

prosecuted or be present at the hearing, much less that he or she be given an

opportunity to defend against the allegation of such unprosecuted crime at the

hearing where the DRC seeks to rebut the presumption of his or her release.

Furthermore, if a rule infraction or an unprosecuted crime is relied

on by the DRC to rebut the presumption of release, the DRC must also establish that

the “offender has not been rehabilitated” and that the “offender continues to pose a

threat to society.” R.C. 2967.271(C)(1)(a) and (b). Again, the statute is silent on

whether the offender will be provided information about the factual basis the DRC

intends to rely on to establish either of these necessary elements for rebuttal, and

the statute makes no provision for the offender to be given an opportunity to rebut

the assertions.

If the DRC determines that the DRC has rebutted the presumption of

release pursuant to R.C. 2967.271(C), the DRC “may maintain the offender’s

incarceration * * * after the expiration of the offender’s minimum prison term * * * for an additional period of incarceration determined by the [DRC] and shall not

exceed the offender’s maximum prison term” under R.C. 2967.271(D). There are no

guidelines whatsoever concerning how the DRC makes its decisions under

subsection (D). Additionally, R.C. 2967.271(D) does not provide for a hearing

separate from the hearing required under subsection (C).

R.C. 2967.271(E) does not protect prison inmates’ due process rights.

Subsection (E) states that the 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.”2 R.C. 2967.12 addresses individuals and entities to whom notice shall be

given in the event the adult parole authority recommends a pardon or commutation,

or grants parole. R.C. Chapter 2930 outlines victims’ rights. Specifically, subsection

(E) provides for notice of the Reagan Tokes Law hearings to be given to the

prosecuting attorney from the inmate’s case; the judge or presiding judge of the

court in which the inmate was indicted; the victims or victims’ representatives of the

crimes of which the inmate was convicted; and certain law enforcement agencies.

Nothing in subsection (E) provides notice of the hearing to the inmate.

2 A hearing is required under the Reagan Tokes Law only under subsection (C). Subsection (D) does not provide for a hearing, other than the potential for subsequent subsection (C) hearings should the DRC decide to extend the inmate’s stay in prison beyond the presumptive release date after the initial rebuttable presumption hearing. In Wilburn, this court held that the Reagan Tokes Law provides a

“hearing at which an inmate can appear and present statements on his behalf.”

Wilburn, 8th Dist. Cuyahoga No. 109507,

, citing Greenholtz

,

,

. See also Simmons, 8th Dist.

Cuyahoga No. 109476,

. But, as discussed, nothing in R.C.

2967.271(C) or (E) establishes that the inmate can appear and present statements

on his or her behalf at the rebuttable presumption hearing.

While we recognize that R.C. 2967.271 provides for a hearing, nothing

in the statute requires that this hearing be meaningful. There is no provision in the

Reagan Tokes Law that the inmate be made aware of the evidence the DRC intends

to use to rebut the presumption, “be heard in person,” be allowed “to present

witnesses and documentary evidence,” or be allowed “to confront and cross-

examine” witnesses. Morrissey,

,

,

.

Nothing in the statute provides that the inmate will receive notice of the allegations

with ample time to “give the charged party a chance to marshal the facts in his

defense and to clarify what the charges are * * *.” Wolff,

,

,

. Nothing requires the determinations to be made by

independent, neutral, and detached decisionmakers. No provision requires the

factfinders to explain their determinations. In other words, the Reagan Tokes Law

does not provide the due process safeguards set forth in Morrissey, Wolff, and their

progeny. We find that the Reagan Tokes Law, as written, does not afford

inmates a meaningful hearing, which is the fundamental element of due process

required by the liberty interest the statute itself creates. In other words, without

looking at extrinsic facts or speculating about hypothetical or imaginary scenarios,

which is not proper in the analysis of a facial challenge to the constitutionality of a

statute, the Reagan Tokes Law is incompatible with constitutional due process. We

are mindful that the analogy of Reagan Tokes Law proceedings and parole

revocation or prison discipline proceedings may not be perfectly on point. Such is

the nature of analogies. However, we conclude that the Reagan Tokes Law triggers

more than the minimum due process protections. The Morrissey and Wolff

requirements should serve as guidelines for Reagan Tokes Law proceedings. Of

particular concern is how these proceedings will impact inmates who suffer from

mental-health and substance-abuse issues. But failing to provide an inmate the

right to present a defense — any defense at all — flies in the face of well-established

due process jurisprudence at its very core.

What process is due is a malleable concept, and one we think better

left to the legislature to sort out. Courts cannot simply rewrite a statute to make it

constitutional. Pratte v. Stewart,

,

,

, ¶ 54. The Reagan Tokes Law remains young and its implementation untested.

Our analysis concludes that subsections (C) and (D) are unconstitutional. However,

we stop short of delineating the procedural safeguards necessary to align the

statute’s proceedings with the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution. See generally

Sandin,

,

,

(noting the negative effects

of involving the “courts in the day-to-day management of prisons, often squandering

judicial resources with little offsetting benefit to anyone. In doing so, it has run

counter to the view expressed in several of our cases that federal courts ought to

afford appropriate deference and flexibility to state officials trying to manage a

volatile environment”).

The Ohio legislature knows how to include due process safeguards in

statutes. For example, in R.C. 2967.28(E)(5)(d), the legislature authorized the DRC

to adopt rules in accordance with Chapter 119 of the Revised Code that “[e]stablish

standards to be used by the adult parole authority in imposing further sanctions” for

postrelease control violations, “including standards that * * * [e]nsure procedural

due process to an alleged violator * * *”. As another example, the legislature

expressly specified due process protections in R.C. 2971.04, which addresses parole

board termination of its control over certain offenders’ service of their prison terms.

That statute itself provides “[t]he offender has the right to be present at any hearing

held under this section. At the hearing, the offender and the prosecuting attorney

may make a statement and present evidence as to whether the parole board should

terminate its control over the offender’s service of the prison term * * *.”

This court is aware that effective March 15, 2021, the director of the

DRC issued policy number 105-PBD-15 establishing procedures for the “Additional

Term Hearing Process” under the Reagan Tokes Law. That policy was not in effect at the time the parties brought this appeal, it was not in effect at the time the parties

submitted their briefs, and it was not in effect at the time the parties participated in

oral argument in this case. It is not before this court to consider whether the DRC

policy provides due process protections that are absent from the statute. See State

v. Tate,

,

,

.

The protected liberty interest in Reagan Tokes Law proceedings is the

expectation of release from prison on the presumptive release date. In other words,

the nature of the deprivation at issue is freedom. “Freedom from imprisonment —

from government custody, detention, or other forms of physical restraint — lies at

the heart of the liberty that [the constitution] protects.” Zadvydas v. Davis,

, 121 S.Ct.2491,

(2001).

[I]t is clear that a convict does not lose all his constitutional rights once he enters the prison population; constitutional rights of a fundamental nature, adapted to the context and penologic purposes of the imprisonment, are still available to him. * * * The extension of fundamental fairness to prison inmates is not in any way inconsistent with appropriate penologic considerations; indeed, it may well be that the grant of basic constitutional rights to prisoners will enhance, rather than impede, legitimate penologic ends.

In re Lamb,

,

(8th Dist. 1973).

As written, the Reagan Tokes Law does not satisfy the requirements

of due process and, as such, violates Sealey’s constitutional rights.

III. Conclusion

R.C. 2967.271 creates a constitutionally protected liberty interest in

being released from prison on the presumptive release date. However,

R.C. 2967.271 “does not contain adequate procedural protections to prevent the deprivation of that interest without due process of law.” CT Ohio Portsmouth, L.L.C.

v. Ohio Dept. of Medicaid, 10th Dist. Franklin No. 19AP-588,

.

The state’s assignment of error is overruled, and Sealey’s prison sentence is

affirmed. Furthermore, the trial court’s finding the Reagan Tokes Law

unconstitutional is affirmed, albeit for different reasons than those relied upon by

the trial court and set forth in O’Neal, Hamilton C.P. No. B 1903562.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR