[Cite as State v. Stenson,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1074

Appellee Trial Court No. CR0201901991

v.

Darius Stenson DECISION AND JUDGMENT

Appellant Decided: June 17, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Sara Al-Sorghali, Assistant Prosecuting Attorney, for appellee.

Adam H. Houser, for appellant.

*****

MAYLE, J.

{¶ 1} This case is before the court on remand from the Ohio Supreme Court.

I. Background

{¶ 2} Defendant-appellant, Darius Stenson, appealed the March 20, 2020

judgment of the Lucas County Court of Common Pleas, convicting him of discharging a firearm over prohibited premises and aggravated assault, and sentencing him to an

indefinite prison term of a minimum of four years and a maximum of six years, to be

served consecutively to a three-year prison term for a related specification, and a

concurrent 17-month prison term for the aggravated assault conviction. He assigned

three errors for our review:

1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

SENTENCED APPELLANT PURSUANT TO SENATE BILL 201 (“S.B.

201”) AND O.R.C. 2929.144 VIOLATES THE CONSTITUTIONAL

DOCTRINE OF THE SEPARATION OF POWERS.

2. THE TRIAL COURT COMMITTED PLAIN ERROR

BECAUSE THE JUDGMENT VIOLATES THE APPELLANT’S DUE

PROCESS RIGHTS PURSUANT TO THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AS IT

RELATES TO THE INDEFINITE SENTENCE.

3. THE APPELLANT’S SENTENCE IS EXCESSIVE BECAUSE

IT FAILS TO ACHIEVE THE PURPOSES AND PRINCIPLES OF

SENTENCING UNDER OHIO LAW.

{¶ 3} In a decision journalized on June 30, 2021, we affirmed the trial court

judgment, however, we dismissed Stenson’s first and second assignments of error—

challenges to the constitutionality of the Reagan Tokes Law—on the basis that those

2. assignments were not ripe for review pursuant to our decision in State v. Maddox, 6th

Dist. Lucas No. CL-19-1253,

. State v. Stenson, 6th Dist. Lucas No. L-

20-1074,

. Recognizing that our decision was in conflict with other Ohio

appellate districts, we certified a conflict to the Ohio Supreme Court. The motion to

certify was allowed. State v. Stenson,

,

,

. The case was held pending a decision in Maddox.

{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality

of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox. State v.

Maddox, Slip Opinion No.

. It, therefore, reversed and remanded Stenson.

In re Cases Held for the Decision in State v. Maddox, Slip Opinion No.

.

The merits of Stenson’s first and second assignments of error are now before the court.

II. Law and Analysis

{¶ 5} Senate Bill 201—the Reagan Tokes Law—became effective on March 22,

2019. The Law “significantly altered the sentencing structure for many of Ohio’s most

serious felonies” by implementing an indefinite sentencing system for non-life, first and

second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist.

Ottawa No. OT-19-039,

,

, ¶ 5, fn. 1. The Law

specifies that the indefinite prison terms will consist of a minimum term, selected by the

sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a maximum

term determined by formulas set forth in R.C. 2929.144. The Law establishes a

3. presumptive release date from prison at the end of the minimum term, but the Ohio

Department of Rehabilitation and Correction (“ODRC”) may rebut the presumption if it

determines, after a hearing, that one or more factors apply, including that the offender’s

conduct while incarcerated demonstrates that he continues to pose a threat to

society. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption, it may

maintain the offender’s incarceration for a reasonable, additional period of time,

determined by ODRC, but not to exceed the offender’s maximum prison term. R.C.

2967.271(D).

{¶ 6} In his first assignment of error, Stenson challenges the Reagan Tokes Law

on the basis that it violates the constitutional doctrine of separation of powers. In his

second assignment of error, he challenges the Law on due-process grounds. We consider

both of Stenson’s assignments in turn.

A. Separation of Powers

{¶ 7} In his first assignment of error, Stenson argues that the Reagan Tokes Law

violates the constitutional doctrine of separation of powers. He claims that if his sentence

is extended beyond the minimum term, it will have occurred after an administrative

hearing held by ODRC—not the trial court. Stenson insists that this sentencing structure

divests the judicial branch of its authority to sentence individuals when they commit

crimes, and instead vests the executive branch with this power.

4. {¶ 8} The state responds that the Reagan Tokes Law is similar to Ohio’s historical

systems of indefinite sentencing and parole that existed before Senate Bill 2, which were

upheld by the Ohio Supreme Court in Woods v. Telb,

,

(2000) and State ex rel. Attorney General v. Peters,

,

(1885). It emphasizes that under the Reagan Tokes Law, the sentencing court is

responsible for all aspects of sentencing, including choosing the minimum term,

calculating the maximum term, and pronouncing and imposing the indefinite sentence. It

insists that the executive agency merely carries out the offender’s sentence and cannot

maintain the offender’s incarceration beyond the range imposed by the sentencing court.

{¶ 9} We recently considered whether the Reagan Tokes Law violates the

constitutional doctrine of separation of powers in State v. Gifford, 6th Dist. Lucas No. L-

21-1201,

. As we explained in Gifford, “the doctrine of separation of

powers is ‘implicitly embedded in the entire framework of those sections of the Ohio

Constitution that define the substance and scope of powers granted to the three branches

of state government.’” State ex rel. Bray v. Russell,

,

(2000), quoting S. Euclid v. Jemison,

,

(1986). “The legislative has the sole right and power to enact laws, the judiciary to

declare their meaning and application, and the executive to enforce their execution.”

Chesnut v. Shane’s Lessee,

, 621 (1847). “‘The essential principle

underlying the policy of the division of powers of government into three departments is

5. that powers properly belonging to one of the departments ought not to be directly and

completely administered by either of the other departments, and further that none of them

ought to possess directly or indirectly an overruling influence over the others.’”

, quoting State ex rel. Bryant v. Akron Metro. Park Dist.,

,

(1929).

{¶ 10} In connection with its role in declaring the “meaning and application” of

laws, the judiciary is solely responsible for determining guilt and sentencing a defendant

who has been convicted of a crime. Id. at 136. Like the defendant in Gifford, Stenson

argues that because R.C. 2967.271 permits ODRC to rebut the presumption that an

offender will be released after serving his or her minimum sentence, the statute deprives

the judiciary of its exclusive authority and instead authorizes ODRC to increase an

offender’s sentence, thereby undermining judicial power and vesting this authority in the

ODRC. We disagree.

{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and

maximum sentence. R.C. 2929.14 and 2929.144. As we emphasized in Gifford, while

R.C. 2967.271(C) and (D) permit ODRC to “maintain” an offender’s incarceration for

“additional”—and “reasonable”—periods beyond the prisoner’s presumptive minimum

term, ODRC is not permitted to “increase” the prisoner’s sentence beyond the maximum

sentence imposed by the trial court. In this way, the Law is different than other

legislation struck down by the Ohio Supreme Court as violating separation of powers,

6. such as former R.C. 2967.11, which governed “bad time” and allowed ODRC to extend

an offender’s prison term beyond the original sentence imposed by the court for

misconduct committed during incarceration. Here, any additional period of incarceration

“shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D). As such, the

authority granted to ODRC under the Reagan Tokes Law is more comparable to the

authority granted to the parole board under the postrelease control statute, R.C. 2967.28,

which the Ohio Supreme Court upheld in Woods v. Telb,

,

(2000).

{¶ 12} As we summarized in Gifford, the Ohio Supreme Court in Woods

recounted the evolution of Ohio’s sentencing statutes up to that point. It explained that

Ohio enacted truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by

trial judges were the sentences served, unless altered by the judge. “This was primarily

accomplished by two methods: eliminating indefinite sentences and eliminating parole.”

. The court described that before S.B. 2, offenders rarely served the time to

which they were sentenced because (1) indefinite sentences were prescribed for most

serious felonies, (2) upon entering a correctional institution, an offender’s sentence was

automatically reduced by 30 percent for good behavior, and (3) the parole board

“reviewed all prison sentences for disparity among offenders and attempted to abate

inequities.”

. Under S.B. 2, offenders were sentenced to definite sentences,

7. good time was significantly reduced and had to be earned, and the parole board no longer

had authority to determine how long an offender stayed in prison.

{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were

subject to parole if they were convicted of first- or second-degree felonies or third- or

fourth-degree felonies that involved an act of violence, or if they had been previously

been convicted of a crime of violence. Instead of parole, S.B. 2 introduced “post-release

control.” Similar to parole, a period of postrelease control is required for all offenders

imprisoned “for first- or second-degree felonies, felony sex offenses, or a third-degree

felony, not a felony sex offense, in which the offender caused or threatened to cause

physical harm to a person.”

citing R.C. 2967.28(B). Post-release control may also be

required at the discretion of the Parole Board for offenders imprisoned for other felonies.

citing R.C. 2967.28(C).

{¶ 14} The Ohio Supreme Court recognized that R.C. 2967.28 gives the parole

board significant discretion to impose conditions of release “designed to protect the

public and to promote the releasee’s successful reintegration into the community.”

citing Ohio Adm.Code 5120:1–1–17(A). R.C. 2967.28(D) sets forth factors for the APA

to consider in determining whether to impose postrelease control and what conditions to

impose. It even permits the board to impose residential sanctions including a prison term.

{¶ 15} Ultimately, the Ohio Supreme Court reversed the decision of this court—

which had found that the postrelease control statute violated the separation of powers

8. doctrine because the delegation of powers to the Adult Parole Authority usurped judicial

authority—after it concluded that the delegation of power to the APA is no different for

postrelease control than it was under the former system of parole. It compared the two

systems.

{¶ 16} Under the parole system, the Ohio Supreme Court explained, a sentencing

court imposed an indefinite sentence with the possibility of parole. It could control the

maximum length of the prison sentence, but had no power over when parole might be

granted or what conditions of parole would be imposed. Similarly, under postrelease

control, the sentencing court imposes a sentence from the options available under the

sentencing scheme, informs the offender that he or she may be subject to a period of

postrelease control, and advises him or her that a violation of the conditions of

postrelease control could result in additional time up to 50 percent of the original

sentence.

{¶ 17} In Woods, the defendant argued that the postrelease control statute was

similar to the bad time statute that was found unconstitutional in Bray. But the Ohio

Supreme Court found that unlike bad time—where a crime committed while incarcerated

resulted in an additional sentence not imposed by the trial court—the imposition of

postrelease control is part of the judicially-imposed sentence. Also, it explained,

postrelease control sanctions are aimed at behavior modification to facilitate reintegration

into the community rather than mere punishment for an additional crime, as was the case

9. with the bad-time statute. The court acknowledged that the sentencing judge has no

control over how much time an offender may serve on postrelease control, but it observed

that this was also true for parole. It noted that “for as long as parole has existed in Ohio,

the executive branch * * * has had absolute discretion over that portion of an offender’s

sentence.”

, citing State ex rel. Atty. Gen. v. Peters,

,

(1885). It concluded that “the APA’s discretion in managing post-release control does

not impede the function of the judicial branch,” therefore, the statute did not violate the

separation of powers doctrine. Id. at 512.

{¶ 18} As we recognized in Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-

1620, since Woods, a unanimous decision of the Ohio Supreme Court reaffirmed the

holding and reasoning in that case, recognizing that a trial court’s imposition of

postrelease-control in its original sentence “avoids any potential separation-of-powers

problem.” Hernandez v. Kelly,

,

,

, citing State v. Jordan,

,

,

, ¶ 19.

{¶ 19} Moreover, it is important to note that Woods is not the first time that the

Ohio Supreme Court has recognized the role of the executive branch in determining the

circumstances under which a properly-sentenced offender should be released from prison.

In McDougle v. Maxwell,

,

(1964), the Ohio Supreme

Court recognized that “[t]he granting of parole and the final release of prisoners is the

function of the Pardon and Parole Commission * * * as is the supervision of those on

10. parole * * *. It emphasized that “[w]hether a prisoner should be released before he has

served his maximum sentence is an administrative not a judicial matter.”

{¶ 20} Here, there are strong similarities between the authority of the judiciary and

executive branches under the Reagan Tokes Law and their authority under the systems of

parole and postrelease control that the Ohio Supreme Court upheld in Woods and

supported in McDougle. Under the Reagan Tokes Law, the trial court imposes a

minimum sentence and a maximum sentence. While ODRC may rebut the presumption

that an offender will be released after service of his or her minimum sentence (or on the

presumptive earned early release date) if it demonstrates any of the circumstances

enumerated in R.C. 2967.271(C), under no circumstances may it maintain an offender’s

incarceration beyond the maximum term imposed by the sentencing court. As such, the

executive agency does not impede the function of the judicial branch, and the

constitutional doctrine of separation of powers is not violated. See Gifford at ¶ 36.

{¶ 21} Accordingly, we find Stenson’s first assignment of error not well-taken.

B. Due Process

{¶ 22} In his second assignment of error, Stenson argues that he is entitled to due

process protections under the Reagan Tokes Law because the provision for release after

service of the minimum term creates a presumption of release and, therefore, a liberty

interest. He claims that the Reagan Tokes Law does not afford the required due-process

rights because ODRC is able to impose an additional prison term without providing

11. offenders the essential due-process protections of notice and the opportunity to be heard

in a meaningful time and manner.

{¶ 23} The state responds that the presumption of release after service of the

minimum term is analogous to parole-release decisions and it claims that only minimal

process is due offenders under the Reagan Tokes Law. It emphasizes that R.C.

2967.271(C) permits a hearing before ODRC may rebut the presumption of release and

disagrees that the Law fails to provide the requisite due-process protections.

{¶ 24} The Fifth and Fourteenth Amendments to the U.S. Constitution and Article

I, Section 16 of the Ohio Constitution guarantee procedural due process. “The Due

Process Clause applies when government action deprives a person of liberty or

property[.]” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex,

,

,

(1979). If due process applies, the question

becomes what process is due. Morrissey v. Brewer,

,

,

(1972). “[D]ue process is flexible and calls for such procedural protections

as the particular situation demands.”

At a minimum, due process requires an

opportunity to be heard at a meaningful time and in a meaningful manner. State v.

Cowan,

,

,

, citing Mathews v.

Eldridge,

,

,

(1976).

{¶ 25} Because the Reagan Tokes Law creates a presumption of release after

service of an offender’s minimum sentence, we conclude that it creates a liberty interest

12. implicating due process rights. See

; See also Wolff v. McDonnell,

,

,

(1974) (finding that inmates had liberty

interest in state-created right to good-time credit, the extinguishment of which entitled

them to due process to insure that the right “is not arbitrarily abrogated”). That leaves us

to determine what process is due under the circumstances.

{¶ 26} Courts that have considered what process is due under the additional-term

provisions of the Reagan Tokes Law often draw analogies between the Law and either (1)

probation or parole release decisions, or (2) probation or parole revocation decisions.

Neither release nor revocation decisions afford a defendant the “full panoply of rights

due” in a criminal prosecution, however, the U.S. Supreme Court has determined that the

latter requires greater procedural safeguards than the former.

;

Greenholtz, at 10.

{¶ 27} The Court concluded in Morrissey, where parole revocation was at issue,

that due process required “(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

13. revoking parole.”

. It concluded in Greenholtz, where parole release

was at issue, that due process was afforded where an offender was given an opportunity

to be heard, and in the case of denial of parole, information was provided concerning in

what respects the offender fell short of qualifying for parole. Id. at 16.

{¶ 28} The U.S. Supreme Court explained in Greenholtz its rationale for

differentiating between release and revocation decisions. In a parole revocation decision,

the Court explained, an offender is threatened with the deprivation of the liberty he has;

in a parole release decisions, the offender merely desires liberty. The U.S. Supreme

Court recognized that parole-revocation determinations actually require two decisions:

“whether the parolee in fact acted in violation of one or more conditions of parole and

whether the parolee should be recommitted either for his or society’s benefit.” Id. at 9. It

emphasized that the first step in a parole revocation decision “involves a wholly

retrospective factual question.” Id. at 9. Parole release decisions, on the other hand, are

“more subtle and depend[] on an amalgam of elements, some of which are factual but

many of which are purely subjective appraisals by the Board members based upon their

experience with the difficult and sensitive task of evaluating the advisability of parole

release.” (Internal citations and quotations omitted.) Id. at 9-10. “Unlike the revocation

decision,” when the board reviews a parole eligibility decision, “there is no set of facts

which, if shown, mandate a decision favorable to the individual.” Id. at 10. To the

14. contrary, the parole release decision is “subjective” and “predictive,” and the statute

“vests very broad discretion” in the parole board. Id. at 13.

{¶ 29} The Reagan Tokes Law creates a presumption that an offender will be

released after service of his or her minimum sentence. It does not provide for a “purely

subjective appraisal” whether release is advisable after service of the minimum sentence.

Rather, under R.C. 2967.271(B) and (C), an Ohio offender must be released after service

of the minimum sentence unless ODRC makes the purely factual finding that (1) the

offender is a security level three or higher at the time of the hearing, or (2) the offender

was placed in extended restrictive housing within the year preceding the hearing—

classifications and decisions made pursuant to ODRC’s own detailed sets of policies and

procedures—or (3) during his incarceration, the offender committed rule violations that

involved compromising the security of the institution, compromising the safety of the

staff or inmates, or physical harm or the threat of physical harm to the staff, or committed

a violation of law that was not prosecuted, and the infractions show that the offender has

not been rehabilitated, and the offender’s behavior while incarcerated demonstrates that

he or she continues to pose a threat to society.

{¶ 30} In this way, the Reagan Tokes Law functions unlike the merely

discretionary decision to release an offender on parole and more like a parole revocation

decision. It requires two determinations under R.C. 2967.271(C)(1): (1) did the

offender, during his incarceration, commit certain rule violations or unprosecuted

15. crimes?—“wholly retrospective factual question[s]”; and (2) does this behavior

demonstrate that the offender still poses a threat to society? Id. at 8. For these reasons,

the liberty interest at stake under the Reagan Tokes Law is more akin to the liberty

interest at stake in a parole revocation decision rather than a parole release decision.

{¶ 31} Because the Reagan Tokes Law creates a liberty interest more akin to

probation revocation decisions, this means that the type of process due in Morrissey is

due under the additional-term provisions of the Law. Here, however, ODRC has not

sought to extend Stenson’s term beyond the presumptive minimum sentence. Stenson’s

challenge to the Reagan Tokes Law is necessarily a facial challenge. A facial challenge

to a legislative act is “the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists under which the Act would

be valid.” United States v. Salerno,

,

,

(1987). To prevail on a facial challenge to a statute, rule, or ordinance, it must be shown

that the law or rule cannot be applied constitutionally in any circumstances. Toney v.

City of Dayton,

,

(2d Dist.), citing Wymsylo v.

Bartec, Inc.,

,

,

. “The fact that

a statute might operate unconstitutionally under some plausible set of circumstances is

insufficient to render it wholly invalid.” Harrold v. Collier,

, 2005-

Ohio-5334,

, citing id.

16. {¶ 32} In considering the process due a parolee whose parole is being revoked, the

U.S. Supreme Court in Morrissey acknowledged that most states have enacted legislation

setting forth procedural requirements for parole revocation hearings, but others have done

so by judicial decision. Although the legislation in the present case does not involve

parole revocation, Morrissey is instructive because it necessarily implies that the specific

procedural requirements applicable to protect a particular liberty interest need not be set

forth in the legislation itself. In other words, Morrissey suggests that the Reagan Tokes

Law may not be found to be unconstitutional, on its face, as violating due process merely

because the specific procedures for invoking an additional period of incarceration are not

set forth in the Law itself.

{¶ 33} Here, the Reagan Tokes Law states simply that ODRC may rebut the

presumption of release at a “hearing.” R.C. 2967.271(C) and (D). It provides no details

concerning the type or timing of notice that must be provided to the offender, the

procedures for the hearing (including pre-hearing disclosure of evidence, the type of

evidence and witnesses that may be presented, or the offender’s right to confront and

cross-examine adverse witnesses), or the manner in which the offender must be apprised

of ODRC’s decision. But given that this is a facial challenge to the Law, it cannot be said

at this juncture that the Law “cannot be applied constitutionally in any circumstances.”

Should the Law ultimately be applied in a manner that is unconstitutional, an offender

would not be precluded from challenging the Law as applied. See, e.g., Wilkinson v.

17. Austin,

,

,

(2005) (“If an inmate were

to demonstrate that the New Policy did not in practice operate in [a constitutionally-

permissible] fashion, resulting in a cognizable injury, that could be the subject of an

appropriate future challenge.”).

{¶ 34} Accordingly, we find that the Reagan Tokes Law does not, on its face,

violate the constitutional right to due process, and we find Stenson’s second assignment

of error not well-taken.

III. Conclusion

{¶ 35} We reject Stenson’s challenges to the constitutionality of the Reagan Tokes

Law. We conclude that the Law does not violate the separation-of-powers doctrine and

does not, on its face, deprive offenders of their right to due process. We, therefore, find

Stenson’s first and second assignments of error not well-taken.

{¶ 36} We affirm the March 20, 2020 judgment of the Lucas County Court of

Common Pleas. Stenson is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

18. State of Ohio v. Darius Stenson L-20-1074

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Christine E. Mayle, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

19.