[Cite as State v. Eaton,

.]

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

State of Ohio Court of Appeals No. L-21-1121

Appellee Trial Court No. CR0201902202

v.

Adrian Eaton DECISION AND JUDGMENT

Appellant Decided: July 15, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy Jarrett, Assistant Prosecuting Attorney, for appellee.

Autumn Adams, for appellant.

*****

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Adrian Eaton, appeals the judgment of the Lucas County Court of

Common Pleas, sentencing him to an indefinite term of 13 to 18 years in prison after he

pled guilty to one count each of involuntary manslaughter, robbery, and aggravated

burglary. Finding no error in the proceedings below for the following reasons, we affirm. A. Facts and Procedural Background

{¶ 2} On July 11, 2019, appellant was indicted on one count of aggravated murder

in violation of R.C. 2903.01(B), an unspecified felony, one count of murder in violation

of R.C. 2903.02(B) and 2929.02, an unspecified felony, one count of aggravated robbery

in violation of R.C. 2911.01(A)(1) and (C), a felony of the first degree, and one count of

aggravated burglary in violation of R.C. 2911.11(A)(2) and (B), a felony of the first

degree. Each of the foregoing counts included a firearm specification under R.C.

2941.145. These charges stemmed from a shooting that took place at an apartment

located at 1324 Ironwood Avenue, Toledo, on July 6, 2019. Tragically, one of the

residents of the apartment, Tyler Carr, was killed during the shooting. Three other

individuals associated with appellant, Dominique Roberts, Justin Wright, and Darion

Martin, were also at the scene of the murder and indicted on the same charges.

{¶ 3} Appellant initially entered a plea of not guilty to the foregoing charges, and

the matter proceeded through pretrial discovery and motion practice. Eventually, on

March 26, 2021, appellant appeared before the trial court for a change of plea hearing.

At the hearing, the parties informed the trial court that they had reached a plea agreement.

The state articulated the agreement, under which appellant agreed to enter a guilty plea to

one count of the lesser-included offense of involuntary manslaughter in violation of R.C.

2903.04(A) and (C), a felony of the first degree, along with an attendant firearm

specification, one count of the lesser-included offense of robbery in violation of R.C.

2911.02(A)(1) and (B), a felony of the second degree, and one count of aggravated

2. burglary in violation of R.C. 2911.11(A)(2) and (B), a felony of the first degree. In

exchange for these pleas, the state agreed to dismiss the charge of aggravated murder and

the firearm specifications attached to the charges of aggravated robbery and aggravated

burglary, and recommend a concurrent sentence.

{¶ 4} Following the state’s articulation of the terms of the plea agreement, the trial

court engaged appellant in a thorough Crim.R. 11 colloquy. Thereafter, the court

determined that appellant entered his plea knowingly, voluntarily, and intelligently,

accepted the plea, and proceeded immediately to sentencing upon the request of

appellant’s defense counsel.

{¶ 5} Ultimately, the trial court adopted the state’s sentencing recommendation

and ordered appellant to serve 10 to 15 years in prison for involuntary manslaughter, 6

years for robbery, and 6 years for aggravated burglary. The court ordered these sentences

served concurrent to one another, but consecutive to the mandatory three-year sentence

associated with the firearm specification, for an aggregate indefinite sentence of 13 to 18

years in prison. The court informed appellant of the statutory procedure pertaining to his

release from confinement at the expiration of his minimum term and the circumstances

under which that release could be delayed. At this point, appellant’s defense counsel

objected, stating: “To the extent that the ODRC can keep Mr. Eaton in prison longer than

the state minimum term without any court intervention, we would object to that on a

constitutional – unconstitutional basis.” The trial court summarily overruled the

objection and finished its sentencing of appellant.

3. {¶ 6} On March 29, 2021, the trial court released its sentencing entry. Three

months later, on June 17, 2021, appellant filed a pro se motion to file a delayed appeal.

We granted appellant’s motion on August 17, 2021, after which appellant was appointed

counsel and the matter proceeded through briefing. The matter was submitted to this

court on the briefs on March 15, 2022, and it is now decisional.

B. Assignments of Error

{¶ 7} On appeal, appellant raises the following assignment of error for our review:

The sentencing provisions of Senate Bill 201, otherwise known as

the Reagan Tokes Act, are unconstitutional.

II. Analysis

{¶ 8} In his sole assignment of error, appellant argues, as he did at sentencing, that

the sentencing scheme established under S.B. 201, identified under R.C. 2901.011 as the

Reagan Tokes Law, is unconstitutional because it violates the separation-of-powers

doctrine and infringes upon his due process rights.

{¶ 9} At the outset, we note that this court, via a panel of visiting judges sitting by

assignment by the Ohio Supreme Court, has already found the Reagan Tokes Law

constitutional. State v. Maddox, 6th Dist. Lucas No. L-19-1253,

. We

issued our decision as to the merits of the defendant’s constitutional argument in Maddox

after the case was remanded by the Ohio Supreme Court upon its determination that a

facial challenge to the Reagan Tokes Law is ripe for review. See State v. Maddox, 2022-

Ohio-764, --- N.E.3d ----. While we could simply rely upon our prior determination as to

4. the constitutionality of the Reagan Tokes Law and reject appellant’s argument on that

basis, we will thoroughly address appellant’s argument based on a recognition of the

brevity of the analysis set forth in Maddox and its mere adoption of the dissenting

opinion in State v. Wolfe, 5th Dist. Licking No. 2020CA00021,

.1

{¶ 10} Additionally, we note that the constitutionality of the Reagan Tokes Law

has been addressed by other appellate courts in this state. In every instance, courts have

deemed the sentencing scheme embodied in the Reagan Tokes Law constitutional.

Indeed, in State v. Ratliff, 5th Dist. Guernsey No. 21CA000016,

, the

Fifth District found the Reagan Tokes Law constitutional and noted:

The Second District Court of Appeals found the law constitutional in State

v. Barnes, 2nd Dist. Montgomery No. 28613,

, State v.

Leet, 2nd Dist. Montgomery

, and State v.

Ferguson, 2nd Dist. Montgomery

. The Third

District found the law constitutional in State v. Hacker, 3rd Dist. Logan No.

8-20-01,

. The Twelfth District Court of Appeals also

determined the law was constitutional in State v. Guyton, 12th Dist. Butler

1 Since Maddox was issued, we have released two additional decisions addressing the constitutionality of the Reagan Tokes Law. In State v. Gifford, 6th Dist. Lucas No. L-21- 1201,

, we addressed only the separation of powers issue, and in State v. Stenson, 6th Dist. L-20-1074, we addressed both separation of powers and due process. Notwithstanding these decisions, we must fully examine the arguments raised by appellant in this case given the nuances contained in these arguments. Although we arrive at the same conclusion reached in our prior cases, we do so using a different analysis.

5. No. CA2019-12-203,

, and State v. Morris, 12th Dist.

Butler No. CA2019-12-205,

. Moreover, in State v.

Delvallie, 8th Dist. Cuyahoga No. 109315,

, the court,

sitting en banc, held that the Reagan Tokes Law is constitutional in that it

does not violate the separation-of-powers doctrine and does not violate

either a defendant’s right to a jury trial or due process of law.

Id. at ¶ 64.2

{¶ 11} Cognizant of the fact that the foregoing decisions have all concluded that

the Reagan Tokes Law is constitutional, we now turn to our analysis of the Reagan Tokes

Law. We will begin with a brief explanation of the Reagan Tokes Law and a summary of

the arguments advanced by appellant and the state in this case. We will then examine the

standard of proof applicable to facial constitutional challenges like that raised by

appellant. Thereafter, we will examine whether the Reagan Tokes Law violates the

separation-of-powers doctrine. Finally, we will consider whether the Reagan Tokes Law

runs afoul of the Due Process Clause of the United States Constitution and its counterpart

in the Ohio Constitution.

2 Notably, the Fifth District issued its decision in Ratliff on the same day in which our decision in Maddox was issued by a panel of visiting judges from the Fifth District.

6. A. The Reagan Tokes Law and Summary of the Arguments

1. Brief Overview of the Reagan Tokes Law

{¶ 12} In 2018, the Ohio General Assembly passed S.B. 201, which modified

Ohio’s “truth-in-sentencing” scheme that had been in place since July 1996 by adopting

an indefinite sentencing scheme for certain serious felonies committed in Ohio. This bill,

commonly referred to as the Reagan Tokes Law, went into effect on March 22, 2019. It

amended over 50 existing sections of the Ohio Revised Code and enacted four new

sections, including R.C. 2901.011, 2929.144, 2967.271, and 5120.038. Delvallie, 2022-

Ohio-470, --- N.E.3d ----, at ¶ 2 (8th Dist.), citing R.C. 2901.011. In general terms, the

Eighth District recently described the Reagan Tokes Law as “an effort to return Ohio to

its core sentencing approach, implementing the reformative incentive for offenders that

was lost to the definite sentencing structure.” Id. at ¶ 12.

{¶ 13} Of the many changes to Ohio’s criminal sentencing scheme that were

brought about by the Reagan Tokes Law, the change that is most pertinent to our present

discussion centers around R.C. 2967.271(B)-(F), which permits prison authorities within

the executive branch to hold defendants in confinement during the indefinite portion of

their sentence for conduct that violates prison rules and regulations. The subsections at

issue in R.C. 2967.271 may be summarized as follows:

- R.C. 2967.271(B) – release of an offender serving a non-life indefinite prison term

is presumed to occur at the expiration of his minimum prison term or earned early

release date, whichever is earlier

7. - R.C. 2967.271(C) – Ohio Department of Rehabilitation and Correction (“ODRC”)

may rebut the presumption for release if it holds a hearing and determines any of

the following applies:

1. The defendant acted in a manner demonstrating he has not been

rehabilitated and remains a threat to society, namely by committing a

violation of law that was not prosecuted or violating prison rules that

compromised prison security or staff safety, or threatened physical harm to

prison staff or inmates;

2. ODRC has placed the defendant in extended restrictive housing at any time

within the year preceding the date of the hearing; or

3. The defendant is classified by ODRC as a security level three or higher at

the time of the hearing

- R.C. 2967.271(D) – Upon rebutting the presumption for release, ODRC may

“maintain” the defendant in confinement for a “reasonable period determined by

[ODRC],” up to the defendant’s maximum prison term

- R.C. 2967.271(E) – ODRC must notify interested parties (not including the

defendant) of release hearings in the same manner as it provides notice of the

possible release of parole inmates

- R.C. 2967.271(F) – Director of ODRC may recommend a reduction in the

defendant’s minimum prison term (except in cases involving sexually oriented

8. offenses), which creates a presumption in favor of said reduction that may be

rebutted by the prosecutor at a hearing

2. Summary of Parties’ Arguments

{¶ 14} In asserting a facial challenge to the constitutionality of the Reagan Tokes

Law, appellant makes two arguments. First, appellant argues the Reagan Tokes Law

violates the separation-of-powers doctrine. Second, appellant argues that the Reagan

Tokes Law does not satisfy the due process protections guaranteed by the Ohio and U.S.

Constitutions. Appellant’s arguments are summarized below:

A. Separation-of-Powers

{¶ 15} Appellant argues that the Reagan Tokes Law, on its face, violates the

separation-of-powers doctrine because it provides the ODRC – an executive branch

agency – with the authority to adjudicate an individual’s guilt for certain conduct that

occurred while imprisoned and to sentence that individual to an additional prison term

upon such a finding.

{¶ 16} A sentence imposed under the Reagan Tokes Law includes both a

minimum and maximum prison term. The minimum term is the amount of time an

individual must serve prior to their presumptive release.3 The remaining portion of the

prison term, up to the maximum, is the indefinite portion that is only served if the ODRC

3 The statute also permits early release from a minimum prison term, as approved by the trial court, under certain conditions. Appellant does not specifically challenge this provision of the Reagan Tokes Law.

9. rebuts the presumption that the offender will be released at the conclusion of the

minimum term. As described above, R.C. 2967.271 provides the bases on which ODRC

may rebut the presumption that a prisoner will be released. In general, these bases relate

to the placement of the prisoner at certain security levels and the prisoner’s violation of

facility rules during the minimum term, any of the prisoner’s conduct that threatens the

safety of correctional facility employees or other inmates, and the prisoner’s commission

of criminal offenses that were not prosecuted. If ODRC rebuts the presumption of

release, it may order the prisoner to serve some or all of the indefinite portion of the

prison term imposed at sentencing.

{¶ 17} Appellant argues that the Reagan Tokes Law sentencing scheme, by

permitting the ODRC to determine whether the prisoner must serve the indefinite portion

of their sentence based on conduct that occurred during confinement, improperly usurps

the judicial branch’s exclusive authority to determine guilt and impose criminal

sentences. As a result, appellant argues that the Reagan Tokes Law, on its face, violates

the separation-of-powers doctrine and is unconstitutional.

B. Due Process

{¶ 18} In terms of due process arguments, appellant first asserts that convicted

defendants like himself have a liberty interest, namely a right to be free from

confinement, which is placed in jeopardy during additional term hearings4 conducted

4 Additional term hearing, as used by the ODRC in its administrative regulations, refers to the hearing conducted by the ODRC to determine whether an inmate should be

10. under the Reagan Tokes Law. Appellant complains that his continued confinement may

be based upon unprosecuted violations of law committed while in prison, and thus

reasons that all additional term hearings conducted under the Reagan Tokes Law must

include certain procedural safeguards including (1) a trial, (2) findings of fact and

determination of guilt by a jury, and (3) representation of counsel, including appointed

counsel.

{¶ 19} Appellant contends that the Reagan Tokes Law, on its face, deprives him of

his due process rights because it does not afford him any of the aforementioned

safeguards during the additional term hearing that will take place after the completion of

the minimum portion of his sentence. Because his liberty interest, the right to be free

from confinement, is deprived without these procedural safeguards, appellant concludes

that the Reagan Tokes Law is facially unconstitutional.

B. Standard Applicable to a Facial Constitutional Challenge

{¶ 20} As already noted, the constitutional challenge raised by appellant in this

case is a facial challenge. “A statute may be challenged as unconstitutional on the basis

that it is invalid on its face or as applied to a particular set of facts.” State v. Lowe,

,

,

. The standard of proof for a facial

challenge is different than the standard of proof for an as-applied challenge. Wymsylo v.

Bartec, Inc.,

,

,

.

maintained in prison beyond the minimum prison term imposed by the sentencing court under the Reagan Tokes Law.

11. {¶ 21} When a statute is challenged on its face, the challenger must provide proof

beyond a reasonable doubt that no set of circumstances exists under which the statute

would be valid. Adams v. DeWine,

, --- N.E.3d ----, ¶ 27, citing Ohio Renal

Assn. v. Kidney Dialysis Patient Protection Amendment Commt.,

,

,

, ¶ 26 and

. “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.”

Harrold v. Collier,

,

,

, citing

United States v. Salerno,

,

,

(1987). A

statute is not constitutionally infirm on its face merely because it may “operate

unconstitutionally under some plausible set of circumstances.”

{¶ 22} By contrast, where one challenges a statute on the ground that it is

unconstitutional as applied to a particular set of facts, the challenger “bears the burden of

presenting clear and convincing evidence of a presently existing set of facts that make the

statutes unconstitutional and void when applied to those facts.” Harrold at ¶ 38, citing

Belden v. Union Cent. Life Ins. Co.,

,

(1944), paragraph

six of the syllabus.

{¶ 23} In his brief, appellant argues that the Reagan Tokes Law is unconstitutional

on its face. Thus, in order to prevail, appellant must prove, beyond a reasonable doubt,

that there are no set of circumstances under which the Reagan Tokes Law would be

constitutional. It is with this standard in mind that we proceed.

12. C. Separation-of-Powers

1. General Legal Principles Concerning the Separation-of-Powers Doctrine

{¶ 24} In Mistretta v. U.S.,

,

,

(1989),

the United States Supreme Court provided a broad overview of the separation-of-powers

doctrine as applicable to felony sentences and the appropriate nature of appellate court

review of legislative actions which allegedly violate that doctrine.5 The court’s analysis

began by emphasizing the importance of the separation-of-powers doctrine and noting

that it has “consistently * * * given voice to, and has reaffirmed, the central judgment of

the Framers of the Constitution that, within our political scheme, the separation of

governmental powers in three coordinate branches is essential to the preservation of

liberty.”

.

{¶ 25} Relevant to the present appeal, the court addressed the separation-of-

powers doctrine as it relates to indefinite sentencing, stating:

Statutes specified the penalties for crimes but nearly always gave the

sentencing judge wide discretion to decide whether the offender should be

incarcerated and for how long, whether he should be fined and how much,

5 The ultimate issue resolved in Mistretta was whether Congress’ creation of a sentencing commission to establish binding sentencing guidelines for federal offenses, thereby eliminating the trial court’s discretion to select the sentence it deemed was appropriate, was an unconstitutional delegation of judicial power. The court ultimately determined that because Congress established the scope of the trial court’s discretion in sentencing that the limitation of that discretion was a power granted to the legislative branch and that no separation-of-powers violation occurred.

13. and whether some lesser restraint, such as probation, should be imposed

instead of imprisonment or fine. This indeterminate sentencing system was

supplemented by the utilization of parole, by which an offender was

returned to society under the “guidance and control” of a parole officer.

. Moreover, the indeterminate nature of the trial court’s sentencing decision,

coupled with the parole officer’s discretion in whether the offender should be “returned

to society” is demonstrated by federal sentencing statutes which “required the judge and

the parole officer to make their respective sentencing and release decisions upon their

own assessments of the offender’s amenability to rehabilitation.”

{¶ 26} Over time, the legislature’s desire to grant this broad discretion to both the

judiciary and the executive branches resulted in statutes that provided discretion to the

judge at the time of sentencing and to the parole officer upon the offender’s statutory

eligibility for release before serving the maximum sentence. Id. at 650-651. As a result,

both the judicial branch and the executive branch exercise broad discretion in

determining the length of time a convicted offender may actually serve in prison. Each

branch’s ostensibly competing discretion, however, does not, on its face, violate the

separation-of-powers doctrine.

{¶ 27} “Historically, federal sentencing—the function of determining the scope

and extent of punishment—has never been thought to be assigned by the Constitution to

the exclusive jurisdiction of any one of the three Branches of Government.” Id. at 650,

citing U.S. v. Wiltberger,

,

(emphasis added). Instead, Congress

14. has the power to fix the potential sentence to be imposed by the trial court, and to

establish the trial court’s discretion to impose that sentence. Id. at 651, citing Ex. Parte

U.S.,

.

,

(1916). Conversely, Congress has also

provided “almost absolute discretion over the parole decision” to the executive branch

through its parole officers.

citing Brest v. Ciccone,

(8th

Cir. 1967). Regarding the late-twentieth century shift toward indefinite sentencing

schemes, the court in Mistretta stated:

Congress delegated almost unfettered discretion to the sentencing judge to

determine what the sentence should be within the customarily wide range

so selected. This broad discretion was further enhanced by the power later

granted the judge to suspend the sentence and by the resulting growth of an

elaborate probation system. Also, with the advent of parole, Congress

moved toward a “three-way sharing” of sentencing responsibility by

granting corrections personnel in the Executive Branch the discretion to

release a prisoner before the expiration of the sentence imposed by the

judge. Thus, under the indeterminate-sentence system, Congress defined

the maximum, the judge imposed a sentence within the statutory range

(which he usually could replace with probation), and the Executive

Branch's parole official eventually determined the actual duration of

imprisonment.

Id. at 364-365 (emphasis added).

15. {¶ 28} Mistretta describes the separation-of-powers doctrine as it relates to federal

sentencing statutes under the United States Constitution. This doctrine is not explicitly

stated in the United States Constitution, but “was woven into the documents that [the

framers of the Constitution] drafted in Philadelphia in the summer of 1787.” I.N.S. v.

Chadha,

,

,

(1983), citing Buckley v. Valeo,

,

,

(1976). In Ohio, too, there is no “constitutional

provision specifying the concept of separation of powers[.]” State v. Warner,

,

(1990). Instead, “this doctrine is implicitly embedded in the

framework of those sections of the Ohio Constitution that define the substance and scope

of powers granted to the three branches of the state government.”

. For this

reason, the United States Supreme Court’s development of the separation-of-powers

doctrine and its parameters, absent specific provisions providing otherwise in the Ohio

Constitution, is instructive for our analysis.

{¶ 29} In sum, the holding in Mistretta establishes that the “three-way sharing”

among the legislative, judicial, and executive branches in the realm of indeterminate

sentencing does not violate the separation-of-powers doctrine when the legislature

establishes the prison terms that may be imposed, the judiciary imposes a sentence in

compliance with that statutory edict, and the executive branch is authorized to determine

the portion of that sentence that the offender will ultimately serve, up to the maximum

imposed by the sentencing court. Therefore, to successfully argue that the Reagan Tokes

Law’s sentencing scheme violates the separation-of-powers doctrine, appellant must

16. demonstrate that the authority granted to ODRC to determine whether he will serve the

indeterminate portion of the sentence imposed by the trial court exceeds this three-way

sharing model and actually usurps powers granted solely to the judiciary.

2. Authority of the Coordinate Branches under Reagan Tokes Law

{¶ 30} It is well-established that “in Ohio, judges have no inherent power to create

sentences and the only sentence that a trial judge may impose is that provided for by

statute.” State v. Hitchcock,

,

,

, ¶ 18.

The legislature’s current “comprehensive sentencing scheme,” which was enacted in

1995, acknowledged that “the parameters of sentencing are established by the legislature”

and “Ohio courts may only impose sentences that are authorized by statute.” Id. at ¶ 19.

The legislature’s plenary power to prescribe crimes and fix penalties rather than the

judiciary crafting its own sentences has consistently been held constitutional against

separation-of-power challenges. See State v. Anderson,

, 2015-Ohio-

2089,

; State v. Beasley,

,

(1984),

quoting Colegrove v. Burns,

, 438,

(1964); see

also State v. Morris,

,

(1978), citing Toledo Mun.

Court v. State ex rel. Platter,

,

(1933).

{¶ 31} Once a prison term has been imposed, the power to carry out that sentence

has been delegated by the General Assembly’s legislative authority to the executive

branch, namely through the ODRC. R.C. 5120.01 et seq., Ohio Adm.Code 5120-2-03, et

seq. Such a delegation has been found constitutional under a separation-of-powers

17. challenge. See Woods v. Telb,

,

(2000) (holding that

ODRC’s authority to impose A prison term following violations of conditions of post-

release control did not violate separation-of-powers doctrine); Budd v. Kinelka, 10th Dist.

Franklin No. 01AP-1478,

, ¶ 15, citing Rose v. Haskins,

(6th

Cir. 1968) (holding that Ohio’s parole system did not violate the separation-of-powers

doctrine).

{¶ 32} As described in Mistretta, all three branches of government play some role

in establishing the sentences imposed for criminal conduct. This interplay between three

branches of Ohio government is embedded in the structure and text of the Reagan Tokes

Law. The legislature, by virtue of passing the statute, has established “an indefinite

sentencing system for non-life, first and second-degree felonies committed on or after its

effective date.” State v. Sawyer,

,

(6th Dist.),

citing State v. Polley, 6th Dist. Ottawa No. OT-19-039,

. At

sentencing, the trial court imposes an indefinite prison sentence, pursuant to R.C.

2929.14, which falls within the scope of sentences established by the legislature under the

Reagan Tokes Law. The defendant is then transferred into the custody of the ODRC,

which carries out the sentence imposed by the judiciary.

{¶ 33} This court has previously described the imposition of indeterminate

sentences and ODRC’s enforcement of those sentences as follows:

The [Reagan Tokes] Law specifies that the indefinite prison terms will

consist of a minimum term, selected by the sentencing judge from a range

18. 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 presumptive

release date from prison at the end of the minimum term, but the [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, the

offender may remain incarcerated 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).

State v. Sawyer,

,

(6th Dist.). In other words, the

plain text of the statute permits the trial court to impose a sentence which reflects the

three-way sharing of sentencing decisions between the three branches of government as

described in Mistretta.

{¶ 34} This plain language application of Mistretta to the Reagan Tokes Law is

supported in practice by the scope of the sentences imposed under the law. That is, a

clear identification of what constitutes a “sentence” under the Reagan Tokes Law not

only clarifies the application of the holding in Mistretta but also facilitates this court’s

analysis under appellant’s separation-of-powers argument.

{¶ 35} In our review of the prior decisions from other Ohio appellate districts

addressing the Reagan Tokes Law’s constitutionality, we find that those decisions

19. arguably, but certainly unintentionally, may leave the reader with the inference that the

lawful prison term for a qualifying Reagan Tokes Law offense is only the definite,

minimum term imposed. The determination of the indefinite portion of the sentence,

then, would be a mere function of statutory application of the time calculation formula

established in R.C. 2929.144. We believe this is an incorrect interpretation of what

constitutes a sentence under the Reagan Tokes Law. To avoid any confusion on this

issue, we find it necessary to definitively state that the sentence imposed under the

Reagan Tokes Law includes both the definite minimum as well as the maximum,

indefinite prison term. This conclusion comports with Ohio’s other indefinite sentence

provision for unclassified felonies in R.C. 2929.02.

{¶ 36} An adult offender convicted of murder under R.C. 2903.02 is subject to an

indefinite sentence of fifteen years to life in prison. R.C. 2929.02(B)(1).6 In State v.

Henderson,

,

,

, the Ohio Supreme

Court addressed the indefinite nature of an offender’s sentence in that both the definite

minimum and indefinite portions of the prison term constituted individual components of

a single sentence imposed for the offense. Id. at ¶ 40. Henderson was subject to a prison

term of 15 years to life pursuant to R.C. 2929.02(B) as part of his murder conviction.

The sentencing court, however, imposed only “15 years” in prison for the offense, failing

6 Certain conduct by an offender in the commission of the offense may increase the minimum term to be served under R.C. 2929.02(B)(1), (2), and (3). Each of those subsections still requires the imposition of an indefinite prison term and do not impact our analysis here.

20. to impose the indefinite life imprisonment portion of the sentence. The scope of that

sentence, on appeal from the state’s motion to resentence Henderson filed just prior to the

expiration of his 15-year term, ultimately reached the Ohio Supreme Court. The court

found the trial court had imposed an unlawful sentence when it failed to include the

indefinite portion of the prison term. Id. The court found that the “sentence” authorized

by R.C. 2929.02(B) must include both the maximum life prison term as well as the

definite minimum term to be served. In light of this conclusion, it cannot be argued that

the prison term imposed for murder in violation of R.C. 2903.02 is only the minimum to

be served. If it were, the trial court’s failure to have imposed the indefinite life provision

would not have rendered the sentence unlawful.

{¶ 37} The same rationale is applicable to a sentence imposed under the Reagan

Tokes Law. A sentence that fails to impose a mandatory provision is contrary to law.

State v. Underwood,

,

,

, ¶ 20-21.

Because the Reagan Tokes Law mandates the imposition of both a minimum and

maximum prison term, the failure to impose that provision would result in a sentence that

is contrary to law. See State v. Simmons,

,

(8th

Dist). As a result, we find that the scope of the sentence imposed under the Reagan

Tokes Law includes both the minimum and maximum prison term and definitively

repudiate any inference that the sentence includes only the minimum prison term.

21. {¶ 38} Having provided a general overview of the separation-of-powers analysis

required under Mistretta, and having defined the scope of a prison sentence imposed

under the Reagan Tokes Law, we turn to appellant’s separation-of-powers argument.

{¶ 39} Appellant does not allege a separation-of-powers violation stemming from

the legislature’s exercise of authority in enacting the Reagan Tokes Law or the

judiciary’s exercise of authority in imposing sentences. Instead, appellant complains of

the procedure established under the statute permitting the executive branch, namely the

ODRC, to order him to serve the indefinite portion of his sentence up to the maximum

term established under R.C. 2929.144. Appellant argues that this delegation of authority

results in the executive branch’s usurpation of the judiciary’s exclusive power to

determine guilt and impose sentences. Appellant argues that this delegation of authority

results in the executive branch’s usurpation of the judiciary’s exclusive power to

determine guilt and impose sentences and, as a result, that the actual sentence imposed

under the Reagan Tokes Law is only the minimum prison term. That term, he continues,

can only be extended to result in service of the maximum prison term if ODRC

determines that his conduct while imprisoned warranted the additional term. Therefore,

he argues, the ODRC performs the judicial function of finding him guilty of and

sentencing him to a prison term for his conduct while incarcerated rather than ordering

him to serve the maximum term imposed on his original conviction. Since a finding of

guilt and the imposition of sentence are powers reserved to the judiciary, appellant

contends that the Reagan Tokes Law violates the separation-of-powers doctrine.

22. {¶ 40} Our resolution focuses on comparable statutes and how Ohio courts have

resolved similar separation-of-powers challenges in those instances.

3. Comparison of Regan Tokes Sentencing Scheme to Other Sentencing Schemes

A. Extension of a Definite Prison Term Pursuant to R.C. 2967.11 (Ohio’s former “Bad Time” statute)

{¶ 41} The primary argument raised by appellant is that the indefinite sentencing

scheme under the Reagan Tokes Law is comparable to Ohio’s former “bad time” statute,

which was held unconstitutional in State ex rel. Bray v. Russell,

,

(2000). In Bray, the Adult Parole Authority (“APA”) added an additional

incarceration term of 90 days to Bray’s original sentence pursuant to R.C. 2967.11 –

Ohio’s “bad time” statute.7 That statute authorized the APA to impose additional prison

time for “violations” an offender committed while serving their judicially-imposed prison

term on their original conviction. A “violation” under R.C. 2967.11 was limited to “an

act that is a criminal offense under the law of this state or the United States, whether or

not a person is prosecuted for the commission of the offense.” If, after following the

procedure outlined in the statute, the APA determined through “clear and convincing

evidence” that the offender committed a violation, it was authorized to impose additional

days the offender must serve beyond the prison term imposed at their sentencing.

7 R.C. 2967.11(B) defined the extended prison term as “bad time,” the name by which the statute is consistently referenced in Bray.

23. {¶ 42} Bray challenged the imposition of additional days arguing that R.C.

2967.11 violated the separation-of-powers doctrine by granting constitutional powers of

the judicial branch – that is, the prosecution, finding of guilt, and imposition of sentence

for criminal offenses—to the executive branch. The Ohio Supreme Court held that the

statute did indeed violate the separation-of-powers doctrine. The court stated that the

provisions of R.C. 2967.11 “enable the executive branch to prosecute an inmate for a

crime, to determine whether a crime has been committed, and to impose a sentence for

that crime. This is no less than the executive branch’s acting as judge, prosecutor, and

jury.”

. “The determination of guilt in a criminal matter and the sentencing

of a defendant convicted of a crime are solely the province of the judiciary.”

.

As a result, the court found that the statute authorizing the executive branch to add

additional time to a prisoner’s sentence, time which, by definition, was not imposed by

the judiciary, “intrudes well beyond the defined role of the executive branch as set forth

in our constitution.”

{¶ 43} Here, appellant argues that any order by ODRC that a prisoner serve the

indefinite portion of their sentence under the Reagan Tokes Law likewise grants judicial

powers to the executive branch. A thorough review and comparison of the two statutory

provisions leads us to the inescapable conclusion that the “bad time” statute is factually

distinguishable and thus the case law analyzing that statute is inapplicable here.

{¶ 44} Under the Reagan Tokes Law, specifically R.C. 2929.14 and 2929.144, a

lawful sentence imposed on qualifying felonies must include both the minimum prison

24. term as well as the maximum prison term. Thus the entirety of the potential prison term

the offender may serve is announced and imposed by the court at sentencing. The Eighth

District Court of Appeals, rejecting a similar separation-of-powers argument in

-- N.E.3d --,

, noted that “when the power to sanction is delegated

to the executive branch, a separation-of-powers problem is avoided if the sanction is

originally imposed by a court and included in its sentence.” Id. at ¶ 35, citing

2d Dist. Montgomery No. 28644,

. By imposing the

entirety of the sentence an offender could serve at sentencing but permitting ODRC to

determine whether the maximum sentence should be served, the Reagan Tokes Law does

not authorize the ODRC to order a prisoner to serve a term longer than the maximum

duration imposed by the court at sentencing. Id. at ¶ 35. This process is distinguishable

from the “bad time” statute that “provided the executive branch the power to keep a

prisoner in jail beyond the sentence imposed by the trial court.” Id. at ¶ 34, citing Bray.

{¶ 45} As the former “bad time” statute and the Reagan Tokes Law are readily

distinguishable, the Ohio Supreme Court’s decision in Bray is neither instructive nor

persuasive here. The Reagan Tokes Law does not authorize ODRC to order a prisoner to

serve additional time beyond that which was imposed by the trial court at sentencing.

{¶ 46} Our research, then, turns to other comparable challenges to Ohio

sentencing statutes to guide our analysis as to whether the Reagan Tokes Law violates the

separation-of-powers doctrine.

B. Post-release Control

25. {¶ 47} In Woods, supra,

,

,

, the

Ohio Supreme Court considered a constitutional challenge to Ohio’s post-release control

system alleging that the statute violated the separation-of-powers doctrine. R.C. 2967.28,

Ohio’s post-release control statute, created a “period of supervision by the adult parole

authority after a prisoner’s release from imprisonment that includes one or more post-

release control sanctions[.]” Id. at 508. Post-release control for individuals convicted of

first, second, and certain third degree felonies is mandatory upon their release. Id. Post-

release control for individuals convicted of any felonies other than those specifically

enumerated is imposed upon the individual’s release at the discretion of the APA. Id.

R.C. 2967.28(D) outlines the factors which the APA must consider in exercising that

discretion. Id. Regardless of whether the post-release control is mandatory or

discretionary, the trial court is obligated to provide notice of the imposition of post-

release control at the sentencing hearing. State v. Bates, -- Ohio St.3d ---, 2022-Ohio-

475, --- N.E.3d ----, ¶ 11.

{¶ 48} In 1996, Woods was sentenced to a ten-month prison term following his

conviction for theft, a fifth-degree felony. At sentencing, Woods was advised that upon

release from prison, he was subject to post-release control and, following a determination

by the APA that he violated that control, he could be returned to prison for up to 50% of

his stated term. Upon his release after his original ten-month term expired, Woods was

placed on three years of post-release control.

26. {¶ 49} Woods violated the conditions of his post-release control multiple times in

the eight months following his release. He ultimately admitted to the violations alleged

at a March 30, 1998 violation hearing and was ordered to serve a 150-day prison term –

50% of his original term. After being released from that sanction, Woods again violated

the conditions of his post-release control and was ordered to serve an additional 30 days

in jail at a March 25, 1999 violation hearing.

{¶ 50} After that second violation hearing, Woods filed a writ of habeas corpus in

the 6th District Court of Appeals requesting his immediate release. He argued that the

imposition of post-release control was a violation of the separation-of-powers doctrine

because it provided the APA with the authority to render a finding of guilt and impose

sentence for his violations – powers reserved to the judiciary in the Ohio Constitution.

This court found that R.C. 2967.28 violated the separation-of-powers doctrine because it

impeded the administration of justice by the judiciary branch. Id. at 511. The Lucas

County Sheriff, respondent to the habeas petition, appealed that decision to the Ohio

Supreme Court.

{¶ 51} On appeal, the Ohio Supreme Court reversed and held that the statute was

constitutional. The court stated “[u]nder the current system of post-release control, the

judge sentences the offender from the options available under the new sentencing scheme

and informs the offender that he or she may be subject to a definite period of post-release

control[.]” Id. at 511. The trial court is also required to notify the offender that a

violation of the conditions of post-release control would result in an additional prison

27. term up to the statutory cap of 50% of the original term imposed. Id. Therefore, “unlike

bad time, where a crime committed while incarcerated resulted in an additional sentence

not imposed by the court * * * [t]he offender is fully informed at sentencing that

violations of post-release control will result in [an additional prison term up to the

statutory cap].” As a result, the Ohio Supreme Court held that the post-release control

system created under R.C. 2967.28 did not violate the separation-of-powers doctrine.

{¶ 52} In addition to the general overview of the separation-of-powers issue

applicable to the present appeal, Woods provides a clear example from the Ohio Supreme

Court of the three-way sharing among the legislative, judicial, and executive branches

regarding felony sentencing as described in Mistretta. At Woods’s March 30, 1997

sentencing on his initial post-release control convictions, he was ordered to serve an

additional prison term of 150 days. This constituted 50% of his original sentence. After

completing that sentence, Woods again violated the conditions of his post-release control

and, on March 25, 1999, was ordered to serve an additional 30 days in jail – resulting in a

combined period of confinement which exceeded 50% of his original sentence.

{¶ 53} In his habeas petition, Woods argued that the additional 30 days, which

combined with the 150 days previously imposed, exceeded the statutory cap that limited

prison terms for post-release control to 50% of the original term imposed. The Ohio

Supreme Court agreed and, despite finding that the post-release control statute did not

violate the separation-of-powers doctrine, held that the imposition of a term beyond the

50% cap identified in the statute violated the law and warranted Woods’s immediate

28. release from incarceration. Woods, therefore, plainly reveals that Ohio has incorporated

the Mistretta three-way sharing model for felony sentencing. That is, the General

Assembly establishes the range of available sentences, the judiciary elects a sentence

within the range established by the legislature up to the maximum authorized by statute,

and the executive branch ultimately determines which portion of the maximum sentence

an offender serves. It is only when a branch of government – in this case, the judiciary –

exceeds the authority granted to it under that division of power that the sentence is

rendered invalid. Importantly, it is a branch’s act of exceeding its authority granted under

the Mistretta division that renders the sentence invalid under the separation-of-powers

doctrine, not the sentencing scheme itself.

{¶ 54} In the present appeal, appellant challenges only the sentencing scheme

itself, arguing that any executive branch order to serve the indefinite portion of his

sentence violates the separation-of-powers doctrine. We find that the analysis utilized in

Woods to describe the manner in which post-release control does not result in the

executive branch’s usurpation of judicial authority is equally applicable to sentences

imposed under the Reagan Tokes Law. Under the current indeterminate sentencing

scheme, the trial court must impose a minimum and maximum prison term. R.C.

2929.14. At sentencing, the offender is informed that it is presumed he or she will be

released at the conclusion of the minimum term unless ODRC rebuts that presumption

based on certain factors described in the statute. R.C. 2967.271.

29. {¶ 55} Here, it is evident that the sentencing judge selected a sentence from the

options available under the Reagan Tokes Law and informed appellant of those minimum

and maximum terms at the time of sentencing. Therefore, appellant is fully informed of

the entire prison term he might be obligated to serve at the time of sentencing.

Importantly, there is nothing in the Reagan Tokes Law that permits ODRC to extend an

offender’s prison term beyond the maximum imposed by the court at sentencing. As a

result, a sentence imposed under the Reagan Tokes Law establishes the parameters under

which appellant may be ordered to serve the indefinite portion of his prison term up to the

maximum statutory cap, a sentencing framework which was deemed constitutional in

Woods.

{¶ 56} In sum, the post-release control system in Ohio is analogous to an

indeterminate sentence imposed under the Reagan Tokes Law in that at the time of

sentencing the offender is advised of the minimum prison term they will serve as well as

the maximum prison term they might serve. The discretion of an executive branch

agency to determine what portion of that sentence the offender will ultimately serve does

not usurp the judiciary’s constitutional power to impose that sentence. For these reasons,

Woods is instructive in resolving appellant’s separation-of-powers argument in the

present appeal.

C. Parole

{¶ 57} Having found the Reagan Tokes Law’s sentencing scheme distinct from

Ohio’s former bad time statute but analogous with Ohio’s post-release control sentencing

30. structure, we now turn to Ohio’s parole system and prior authority reviewing it, and find

that this authority provides further guidance as to the constitutionality of the Reagan

Tokes Law under a separation-of-powers challenge. Ohio’s parole system is governed

under R.C. 2967.01 et seq. Similar to a sentence imposed under the Reagan Tokes Law,

the parole system allows an offender to be released from prison prior to serving the

maximum sentence imposed by the trial court. R.C. 2967.13(A) and (B) define which

offenders are eligible for release through parole. Parole is granted at the discretion of the

APA pursuant to R.C. 2967.02(A).

{¶ 58} While the parole system is procedurally distinguishable from the

sentencing scheme under the Reagan Tokes Law (as discussed below), challenges to the

system as a violation of the separation-of-powers doctrine is instructive to the present

appeal. Separation-of-powers arguments have been raised against the original

establishment of parole and after each subsequent modification to parole. Ohio courts

have consistently found that determining parole eligibility is a non-judicial function

properly exercised by the executive branch. See Budd v. Kinelka, 10th Dist. No. 01AP-

1478,

, ¶ 15 (holding that “the act of determining parole is not a judicial

function but is purely executive in nature”); Rose v. Haskins,

(6th Cir. 1968)

(“It is axiomatic that the administration of the state’s penal system is exclusively a state

function under the reserved powers in the Constitution. The state may thus enact

legislation defining what conduct constitutes a crime and fixing the sentence to be

imposed * * * [and] the execution of the sentence is within the authority of the state’s

31. executive department.”); State ex rel. Blake v. Shoemaker,

,

(1983);

(“Under [Ohio’s parole system] a sentencing judge imposing

an indefinite sentence with the possibility of parole, had limited authority to control the

minimum time to be served before the offender’s release on parole; the judge could

control the maximum length of the prison sentence, but the judge had no power over

when parole might be granted in between those parameters. * * * [F]or as long as parole

has existed in Ohio, the executive branch * * * has had absolute discretion over that

portion of an offender’s sentence.”). The consistent thread in each of these decisions is

that parole decisions are exclusive to the APA despite the power to sentence offenders

being reserved to the judiciary. Compared with the Reagan Tokes Law, there appears to

be no difference as the sentence in both instances is imposed by the trial court and the

carrying out of that sentence is handled by the executive branch.

{¶ 59} Put simply, provided that the trial court imposes the maximum sentence,

the executive branch does not violate the separation-of-powers doctrine by merely

enforcing the sentence imposed by the trial court. In this way, the parole scheme is

similar to Ohio’s post-release control system, which was held constitutional in Woods.

Likewise, the Reagan Tokes Law sentencing structure is similar to both parole and post-

release control in terms of the sharing of authority among the three branches. Sentences

imposed under the Reagan Tokes Law comply with this judicially-imposed but

executively-enforced structure. Thus, the Ohio Supreme Court’s approval of the parole

32. system’s constitutionality against a separation-of-powers challenge is persuasive

authority as to the Reagan Tokes Law’s constitutionality.

4. Conclusion – Reagan Tokes Law does not Violate the Separation-of- Powers Doctrine

{¶ 60} Under the Reagan Tokes Law’s sentencing scheme, the trial court imposes

a minimum and maximum prison term for certain categories of offenses. While it is

presumed that the offender will be released at the conclusion of the minimum term,

ODRC may rebut that presumption and order the offender to serve the indefinite portion

of the term up to the maximum imposed. The Ohio Supreme Court has consistently

rejected separation-of-powers challenges to statutes that require the trial court to impose a

maximum prison term at the time of sentencing while permitting the executive branch to

determine which portion of that sentence will ultimately be served, so long as the term to

be served does not exceed the stated maximum. The Reagan Tokes Law mirrors this

constitutionally permitted sentencing structure. Therefore, we find that the Reagan Tokes

Law does not violate the separation-of-powers doctrine.

D. Due Process of Law

{¶ 61} Having found that the Reagan Tokes Law does not violate the separation-

of-powers doctrine, I now turn to appellant’s due process argument. As previously noted,

appellant contends that he has a liberty interest in being free from confinement at the

expiration of his minimum term, and that this interest is not adequately protected under

the Reagan Tokes Law. Appellant argues that due process in this context requires, at a

minimum, certain basic procedural safeguards including (1) a trial, (2) findings of fact

33. and determination of guilt by a jury, and (3) representation of counsel, including

appointed counsel. Appellant contends that the Reagan Tokes Law deprives him of his

due process rights because it does not afford him any of these safeguards, and thus the

Reagan Tokes Law is unconstitutional on its face.

1. Historical Development of Due Process Rights in Post-Sentencing Cases

{¶ 62} Before analyzing the merits of appellant’s particular due process

arguments, it is necessary to review the historical development of due process rights in

post-sentencing cases.

{¶ 63} “The Fourteenth Amendment’s Due Process Clause protects persons

against deprivations of life, liberty, or property; and those who seek to invoke its

procedural protection must establish that one of these interests is at stake.” Wilkinson v.

Austin,

,

,

(2005). Here, appellant

claims that he has been deprived of a liberty interest. Such an interest may arise (1) from

the United States Constitution itself, (2) by reason of guarantees implicit in the word

“liberty,” or (3) from an expectation or interest created by state laws or policies.

With that in mind, we now turn to an examination of the case law addressing due process

challenges in post-sentencing criminal cases like the case presently before us.

{¶ 64} At the outset, it should be noted that the due process protections afforded a

defendant under the Ohio Constitution are coextensive with the due process protections

guaranteed under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. State v. Anderson,

,

,

. 790, ¶ 21. As such, “we can rely on decisions of both [the Ohio Supreme Court] and the

United States Supreme Court” in construing the defendant’s due process rights. Id. at ¶

23. I will therefore begin by reviewing relevant case law from the United States Supreme

Court. I will then briefly review select Ohio case law.

A. United States Supreme Court Cases

{¶ 65} Long ago, the United States Supreme Court recognized the difficulty

inherent in sharply defining the term “due process” as it is used in the United States

Constitution. Indeed, in Dent v. West Virginia,

,

,

(1889), the court recognized:

As we have said on more than one occasion, it may be difficult, if not

impossible, to give to the terms ‘due process of law’ a definition which will

embrace every permissible exertion of power affecting private rights, and

exclude such as are forbidden. They come to us from the law of England,

from which country our jurisprudence is to a great extent derived; and their

requirement was there designed to secure the subject against the arbitrary

action of the crown, and place him under the protection of the law. They

were deemed to be *124 equivalent to ‘the law of the land.’ In this country

the requirement is intended to have a similar effect against legislative

power; that is, to secure the citizen against any arbitrary deprivation of his

rights, whether relating to his life, his liberty, or his property. * * * The

35. great purpose of the requirement is to exclude everything that is arbitrary

and capricious in legislation affecting the rights of the citizen.

.

{¶ 66} Over time, the United States Supreme Court and inferior courts following it

have further developed the law with respect to due process in areas involving the

deprivation of a defendant’s liberty arising out of criminal prosecution and subsequent

incarceration. In that arena, the court reiterated what it had previously said in Dent,

namely that “[t]he touchstone of due process is protection of the individual against

arbitrary action of government.” Wolff v. McDonnell,

,

,

(1974), citing

.

{¶ 67} In order to ensure that an act of government is not arbitrary, and thus in

violation of due process protections, the United States Supreme Court has, as set forth in

greater detail below, established a two-part test that looks first at whether due process

applies and then, if so, considers what process is due. The court has stressed that courts

must be flexible when applying this test. In its decision in Morrissey v. Brewer,

,

,

(1972), the court stated:

Once it is determined that due process applies, the question remains what

process is due. It has been said so often by this Court and others as not to

require citation of authority that due process is flexible and calls for such

procedural protections as the particular situation demands.

‘(C)onsideration of what procedures due process may require under any

36. given set of circumstances must begin with a determination of the precise

nature of the government function involved as well as of the private interest

that has been affected by governmental action.’ Cafeteria & Restaurant

Workers Union v. McElroy,

,

,

(1961). To say that the concept of due process is flexible

does not mean that judges are at large to apply it to any and all

relationships. Its flexibility is in its scope once it has been determined that

some process is due; it is a recognition that not all situations calling for

procedural safeguards call for the same kind of procedure.

Id. at 481.

{¶ 68} The court expounded further on the need for flexibility when it issued its

decision in Wolff two years after Morrissey. In Wolff, the court stated:

We have often repeated that ‘(t)he very nature of due process negates any

concept of inflexible procedures universally applicable to every imaginable

situation.’ ‘(C)onsideration of what procedures due process may require

under any given set of circumstances must begin with a determination of

the precise nature of the government function involved as well as of the

private interest that has been affected by governmental action.’ Viewed in

this light it is immediately apparent that one cannot automatically apply

procedural rules designed for free citizens in an open society, or for

parolees or probationers under only limited restraints, to the very different

37. situation presented by a disciplinary proceeding in a state prison. (Citations

omitted.)

; see also Vitek v. Jones,

,

,

(1980) (Powell, J., concurring) (“Our decisions defining the

necessary qualifications for an impartial decisionmaker demonstrate that the

requirements of due process turn on the nature of the determination which must be

made. * * * The essence of procedural due process is a fair hearing.”).

{¶ 69} The court in Wolff, a prison disciplinary case, went on to note the “great

unwisdom” inherent in

encasing the disciplinary procedures in an inflexible constitutional

straitjacket that would necessarily call for adversary proceedings typical of

the criminal trial, very likely raise the level of confrontation between staff

and inmate, and make more difficult the utilization of the disciplinary

process as a tool to advance the rehabilitative goals of the institution.

.

{¶ 70} Notwithstanding this precedent and its emphasis upon the need for

flexibility, appellant argues that due process in this case requires the provision of the

following procedural safeguards during additional term hearings conducted under the

Reagan Tokes Law: (1) a trial; (2) findings of fact and determination of guilt by a jury;

and (3) representation of counsel, including appointed counsel.

38. {¶ 71} Against this backdrop, I turn to the specific arena in which appellant’s due

process argument is raised, requiring us to determine whether the presumptive release

provisions of the Reagan Tokes Law are more akin to parole release or parole revocation.

I am guided in my determination on this issue by the words of Judge Henry Friendly,

who “cogently noted that ‘there is a human difference between losing what one has and

not getting what one wants.’” Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex,

,

,

(1979), quoting Friendly, “Some

Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1296 (1975).

{¶ 72} In its decision in Morrissey, the United States Supreme Court set forth

some general due process principles in the context of a challenge to the constitutionality

of parole revocation procedures in Iowa. Initially, the court distinguished between parole

revocation proceedings and criminal prosecutions, where the defendant is entitled to the

“full panoply” of due process rights. Id. at 480. The court explained that the criminal

prosecution concludes with the imposition of sentence, and reasoned that the revocation

of parole was not part of the criminal prosecution since it took place after the sentence

was imposed by the trial court. Id. As such, the court found that the liberty interest at

stake in a revocation proceeding was not the “absolute liberty to which every citizen is

entitled, but only * * * the conditional liberty properly dependent on observance of

special parole restrictions.” Id.

{¶ 73} Thereafter, the court articulated a two-part analysis to be applied to due

process challenges like the one at issue in the present case. First, the court examined

39. whether due process applies at all. This examination required the court to consider the

“extent to which an individual will be ‘condemned to suffer grievous loss.’” Id. at 481,

quoting Joint Anti-Fascist Refugee Committee v. McGrath,

,

,

(1951) (Frankfurter, J., concurring). The question here was whether

the nature of the interest at stake was within the meaning of the “liberty or property”

language of the Fourteenth Amendment.

citing Fuentes v. Shevin,

,

,

(1972).

{¶ 74} If due process applies, the analysis moves to the second step, in which it

must be determined “what process is due.”

In connection with step two of the

analysis, the court in Morrissey cautioned that “due process is flexible and calls for such

procedural protections as the particular situation demands.”

{¶ 75} After setting forth the two-step analytical framework above, the court

examined the nature of the parolee’s interest in his continued liberty to determine

whether due process applied. The court observed that the liberty of the parolee is “very

different from that of confinement in prison” given that such liberty permits the parolee

to live a “relatively normal life” as a “responsible, self-reliant person.” Id. at 482.

Because a parolee’s liberty is, in many ways, very similar to the unqualified liberty of

one who is not subject to parole, the court found that it is within the protection of the

Fourteenth Amendment. Id. Moreover, the court found that the revocation of parole, and

thus the termination of the parolee’s liberty, “calls for some orderly process, however

informal.” Id.

40. {¶ 76} In evaluating what process was required in order to deprive the parolee of

his conditional liberty interest through the revocation of parole, the court began by

recognizing: “Given the previous conviction and the proper imposition of conditions, the

State has an overwhelming interest in being able to return the individual to imprisonment

without the burden of a new adversary criminal trial if in fact he has failed to abide by the

conditions of his parole.” Id. at 483. Nonetheless, the state may not revoke parole

without certain procedural guarantees, including “an informal hearing structured to assure

that the finding of a parole violation will be based on verified facts and that the exercise

of discretion will be informed by an accurate knowledge of the parolee’s behavior.” Id.

at 484. The court ultimately specified that the minimum requirements of due process

pertaining to parole revocation include

(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.

Id. at 489.

41. {¶ 77} The court then emphasized that “there is no thought to equate this second

stage of parole revocation to a criminal prosecution in any sense.” Id. Further, the court

noted that it was not reaching or deciding the question of whether the parolee was entitled

to the assistance of retained or appointed counsel at the revocation hearing. Id.

{¶ 78} Less than one year after Morrissey was decided, the United States Supreme

Court issued its decision in Gagnon v. Scarpelli,

,

,

(1973). There, Scarpelli, a felony probationer, was arrested after committing a

burglary. He subsequently admitted his involvement in the burglary and his probation

was revoked without a hearing and without Scarpelli having the benefit of counsel.

Scarpelli challenged the revocation of his probation by filing a habeas petition.

{¶ 79} The case ultimately made its way to the United States Supreme Court,

which held that probationers like Scarpelli are entitled to a preliminary and revocation

hearing under the same conditions as it set forth for parolees in Morrissey.

at

paragraph one of the syllabus. Indeed, the court found that there is no difference between

parole and probation in terms of due process rights that must be afforded prior to

revocation, and stated that “[p]robation revocation, like parole revocation, is not a stage

of a criminal prosecution, but does result in a loss of liberty.”

.

{¶ 80} Thereafter, the court addressed the “more difficult” issue it had previously

refused to consider in Morrissey, namely whether an indigent probationer has a due

process right to appointed counsel during revocation hearings. Ultimately, the court

found that this determination must be made on a case-by-case basis by the body holding

42. the hearings.

at paragraph two of the syllabus. To aid in this process, the court

explained;

Though the State is not constitutionally obliged to provide counsel in all

cases, it should do so where the indigent probationer or parolee may have

difficulty in presenting his version of disputed facts without the

examination or cross-examination of witnesses or the presentation of

complicated documentary evidence. Presumptively, counsel should be

provided where, after being informed of his right, the probationer or parolee

requests counsel, based on a timely and colorable claim that he has not

committed the alleged violation or, if the violation is a matter of public

record or uncontested, there are substantial reasons in justification or

mitigation that make revocation inappropriate.

{¶ 81} While Morrissey and Gagnon dealt with due process arguments raised by

defendants who were already released from confinement, either on parole or probation,

the next decision issued by the United States Supreme Court, Greenholtz, involved a due

process challenge raised by a defendant who was denied parole at his initial suitability

hearing. I find that this initial suitability hearing is the closest analog to the additional

term hearing held under the Reagan Tokes Law and challenged by appellant (and others

who have raised similar due process challenges to the Reagan Tokes Law).

Consequently, examination of the Greenholtz decision warrants careful consideration.

43. {¶ 82} In Greenholtz, inmates of a Nebraska prison brought a civil rights class

action against the Nebraska State Board of Parole and others, alleging due process

violations in the Board’s consideration of the inmates’ suitability for parole. The matter

eventually made its way to the United States Supreme Court, which granted certiorari “to

decide whether the Due Process Clause of the Fourteenth Amendment applies to

discretionary parole-release determinations by the [Board], and, if so, whether the

procedures the Board currently provides meet constitutional requirements.” Id. at 3.

{¶ 83} At the beginning of its decision, the court reviewed the familiar framework

of Nebraska’s parole statutes, which provided for both mandatory and discretionary (yet

presumptive) parole. An inmate serving an indefinite prison sentence consisting of a

minimum and maximum term became eligible for parole upon completion of the

minimum term, and was entitled to mandatory parole upon completion of the maximum

term. Id. at 4. Only discretionary parole was at issue in Greenholtz. Id.

{¶ 84} Under preexisting procedures established partly by the Nebraska legislature

via state statutes and partly by the Nebraska State Board of Parole via regulations, an

initial parole review hearing and a final review hearing was conducted prior to the release

of an eligible inmate on discretionary parole. Id. At the initial hearing, the Board

reviewed the inmate’s preconfinement and postconfinement record, interviewed the

inmate, and considered any letters or statements the inmate wished to present in support

of his release. Id. No evidence was presented at the initial hearing. Id. At the

conclusion of the initial hearing, the Board would determine whether the inmate was a

44. likely candidate for parole. If not, the Board would deny parole, inform the inmate of the

basis for its denial or parole, and make recommendations to the inmate as to how he

could remedy the deficiencies observed by the Board. Id. at 5.

{¶ 85} If the Board determined that the inmate was a likely candidate for release

on parole, it would schedule a final hearing and notify the inmate of the date and time of

the hearing. At the final hearing, the inmate was permitted to present evidence, call

witnesses and be represented by retained counsel. Id. The inmate was not permitted to

hear adverse testimony or conduct cross examination of witnesses providing such

testimony. Id. If, after the final hearing, the Board denied parole, it was required to

furnish a written statement of its reasons for such denial to the inmate within 30 days. Id.

{¶ 86} Following its articulation of the statutory framework at issue, the court

began its analysis by articulating generic due process considerations. Of note here, the

court explained that “[t]here is no constitutional or inherent right of a convicted person to

be conditionally released before the expiration of a valid sentence.” Id. at 7. The court

went on to explain that one who has not yet been convicted of a criminal offense shares

the same desire to be free from confinement as one who is presently in confinement and

wishes to be released. Id. Nonetheless, the former individual has a liberty interest in

being free from confinement, whereas the latter individual has already had that liberty

interest extinguished by virtue of a criminal conviction and its attendant procedural

safeguards. Id.

45. {¶ 87} The court further explained that decisions of the executive branch, in this

case the Nebraska State Board of Parole, “do not automatically invoke due process

protection; there simply is no constitutional guarantee that all executive decisionmaking

must comply with standards that assure error-free determinations. * * * This is

especially true with respect to the sensitive choices presented by the administrative

decision to grant parole release.” Id.

{¶ 88} Thereafter, the court considered two alternative arguments advanced by the

inmates as to why they were entitled to due process protections not afforded them by

Nebraska’s parole suitability procedures. First, the inmates argued that Nebraska’s

creation of the possibility of parole gave rise to a reasonable entitlement to due process.

The inmates relied heavily upon the court’s prior decision in Morrissey to support their

first argument. The court found the inmates’ reliance upon Morrissey misplaced in light

of the fact that “parole release and parole revocation are quite different.” (Emphasis

sic.). Id. at 9.

{¶ 89} The court went on to observe a “crucial distinction between being deprived

of a liberty one has, as in parole, and being denied a conditional liberty that one desires.”

Id. Unlike the parolees in Morrissey and probationers in Gagnon, who were already

released from prison and therefore “at liberty,” the court observed that the inmates were

still confined and “thus subject to all of the necessary restraints that inhere in a prison.”

Id. Further, the court distinguished parole release from parole revocation by noting the

different nature of the decision that must be made in each case. Unlike parole revocation,

46. where the reviewing body’s concern is “wholly retrospective,” the parole release decision

is

more subtle and depends 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. Unlike the revocation

decision, there is no set of facts which, if shown, mandate a decision

favorable to the individual. The parole determination, like a prisoner-

transfer decision, may be made “for a variety of reasons and often

involve[s] no more than informed predictions as to what would best serve

[correctional purposes] or the safety and welfare of the inmate.” Meachum

v. Fano, 427 U.S., at 225,

.

.

{¶ 90} In sum, the court found that, where parole release in general is concerned,

the state merely holds out the possibility of parole and thus “provides no more than a

mere hope that the benefit will be obtained.”

, citing Board of Regents v. Roth,

,

,

(1972). Simply put, “the general

interest asserted here is no more substantial than the inmate’s hope that he will not be

transferred to another prison, a hope which is not protected by due process.”

citing

Meachum v. Fano,

,

,

(1976).

47. {¶ 91} Second, the inmates argued in the alternative that they were entitled to

certain due process rights because the language employed in the Nebraska statutes

created an expectation of parole. In particular, the inmates pointed to statutory language

that stated:

Whenever the Board of Parole considers the release of a committed

offender who is eligible for release on parole, it shall order his release

unless it is of the opinion that his release should be deferred because:

(a) There is a substantial risk that he will not conform to the

conditions of parole;

(b) His release would depreciate the seriousness of his crime or

promote disrespect for law;

(c) His release would have a substantially adverse effect on

institutional discipline; or

(d) His continued correctional treatment, medical care, or vocational

or other training in the facility will substantially enhance his capacity to

lead a law-abiding life when released at a later date.

quoting Neb.Rev.Stat. § 83-1,114(1).

{¶ 92} According to the inmates, this statutory language “creates a presumption

that parole release will be granted, and that this in turn creates a legitimate expectation of

release absent the requisite finding that one of the justifications for deferral exists.” Id. at

12. The court agreed, and found that the expectancy of release provided in the foregoing

48. statute entitled the inmates to “some measure of constitutional protection.”8 Id. In other

words, the presumption in favor of parole release under Nebraska law created a separate

liberty interest requiring some due process.9 What remained for the court was to identify

what specific process was due.

{¶ 93} Turning to that issue, the court began by stressing the rehabilitative purpose

of parole and the need for flexible, non-adversarial proceedings in order to accommodate

that purpose. Because the parole release decision was one that was made largely on the

basis of the inmate’s files, the court found that the protections afforded to inmates during

the initial hearing, including the Board’s mandatory consideration of the inmate’s entire

record and the opportunity of the inmate to present letters and statements on his own

behalf, adequately protected inmates against serious risks of error and satisfied due

process. Id. at 15. Summing up its decision, the court stated: “The Nebraska procedure

affords an opportunity to be heard, and when parole is denied it informs the inmate in

8 The United States Supreme Court abrogated this liberty interest analysis in the context of cases involving due process arguments regarding changes in prison conditions for inmates in Sandin v. Conner,

,

,

(1995). It is unclear, however, whether this framework still remains valid for other types of cases more factually akin to Greenholtz, such as parole suitability. For purposes of my analysis below, and since it inures to appellant’s benefit, I will apply this framework, rather than the more stringent framework set forth in Sandin, in my analysis of whether appellant has demonstrated a liberty interest. 9 The court noted the unique structure of the Nebraska parole system and emphasized that “whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.”

.

49. what respects he falls short of qualifying for parole; this affords the process that is due

under these circumstances. The Constitution does not require more.”

.

{¶ 94} Ten months after Greenholtz was decided, the United States Supreme Court

issued its decision in Vitek v. Jones,

,

,

(1980). In this case, which is heavily cited by appellant in his brief, a prisoner leveled a

procedural due process constitutional challenge against a Nebraska statute allowing the

Director of Correctional Services to transfer a prisoner to a mental hospital if a physician

or psychologist found the prisoner suffered from a mental disease that could not be

properly treated in prison. The federal District Court found the involuntary transfer

statute unconstitutional, and the matter proceeded to the United States Supreme Court.

{¶ 95} The court in Vitek reviewed the involuntary transfer statute and concluded

that it implicated a liberty interest that was protected under the Fourteenth Amendment’s

Due Process Clause.

. The court explained that an inmate’s transfer to a

mental hospital carried with it certain “adverse social consequences” that “can have a

very significant impact on the individual.”

. Although the prisoner challenging

the law had already been convicted and confined, thereby extinguishing his liberty

interest to be free from confinement, the court found that the transfer from prison to a

mental hospital constituted a change in confinement with consequences that were

“qualitatively different from the punishment characteristically suffered by a person

convicted of crime.”

. The court went on to explain: “A criminal conviction

and sentence of imprisonment extinguish an individual’s right to freedom from

50. confinement for the term of his sentence, but they do not authorize the State to classify

him as mentally ill and to subject him to involuntary psychiatric treatment without

affording him additional due process protections.”

.

{¶ 96} Once the court found that the prisoner was entitled to some due process

protection, it moved on to the issue of what process was required. Ultimately, the court

adopted most of the procedures articulated by the District Court, including written notice

of the transfer request, a hearing with disclosure of the basis for the transfer and an

opportunity to be heard and present evidence, an opportunity (with some exceptions) at

the hearing to present testimony of witnesses and to cross-examine witnesses called by

the state, an independent decisionmaker, a written statement by the factfinder as to the

evidence relied on and the reasons for transferring the prisoner, and effective and timely

notice of all the foregoing rights.10

.

{¶ 97} Since Vitek, the United States Supreme Court has released at least two

decisions addressing due process arguments raised by prisoners who wish to challenge

changes to their conditions of confinement. See Sandin v. Conner,

,

,

(1995) (finding no liberty interest protecting against a 30-

day assignment to segregated confinement), and Wilkinson v. Austin,

,

,

(2005) (finding a liberty interest protecting against

10 Four of the justices would also have upheld the District Court’s requirement that the state provide access to appointed counsel for indigent prisoners. The provision of mandatory appointed counsel did not garner the support of a majority of the justices, and is thus not required under the court’s decision in Vitek. Id. at 497.

51. assignment to an Ohio “Supermax” prison, but finding state policy provides a sufficient

level of process to survive constitutional scrutiny). The liberty interest at issue in these

cases, namely the interest to have one’s confinement conditions maintained, is distinct

from the liberty interest at issue in the present case, which appellant identifies as the

interest to be free from confinement altogether. Thus, I need not address cases in Vitek’s

progeny, which develop the case law as to what process is due to defendants who are

subject to changes in their conditions of confinement. Indeed, the court in Wilkinson

recognized this distinction, stating:

Ohio is not, for example, attempting to remove an inmate from free society

for a specific parole violation, * * * or to revoke good-time credits for

specific, serious misbehavior, * * * where more formal, adversary-type

procedures might be useful. Where the inquiry draws more on the

experience of prison administrators, and where the State’s interest

implicates the safety of other inmates and prison personnel, the informal,

nonadversary procedures set forth in Greenholtz,

,

,

, and Hewitt v. Helms,

,

,

(1983), provide the appropriate model.

.

{¶ 98} Over three decades after it decided Vitek, the United States Supreme Court

took up a case involving a challenge to California’s parole suitability statutes. In

Swarthout v. Cooke,

,

,

(2011), the court

52. considered the merits of a habeas petition filed by a convicted murderer, Damon Cooke,

who was denied parole after serving 12 years of his indeterminate prison sentence of

seven years to life. Id. at 217.

{¶ 99} The California parole statute in effect at the time, Cal.Penal Code Ann.

3041(b), required the Board to “set a release date unless it determines that * * *

consideration of the public safety requires a more lengthy period of incarceration.” If

parole was denied, a prisoner could seek judicial review via a state habeas petition.

Under then-existing California Supreme Court case law, such petitions were reviewed to

determine whether “some evidence” supports the conclusion that the inmate is dangerous

and thus unsuitable for parole. Id.

{¶ 100} In its decision denying parole, the California Board of Prison Terms found

that Cooke was not yet suitable for parole due to the heinous nature of his crime, his

failure to fully participate in rehabilitative programs while in prison, his failure to

develop marketable skills, and several incidents of misconduct while in prison. Id.

Cooke filed a habeas petition with a California trial court, which denied the petition upon

a finding that there was some evidence to support the Board’s denial. Id. That decision

was affirmed on appeal.

{¶ 101} Cooke then filed another habeas petition in federal District Court. The

District Court also denied Cooke’s petition. However, the Ninth Circuit reversed, finding

that California’s parole statute and the “some evidence” requirement that was read into

53. the statute by the California Supreme Court created a liberty interest protected by the Due

Process Clause. Id. at 218.

{¶ 102} As the United States Supreme Court reviewed the propriety of federal

habeas relief granted by the Ninth Circuit, it recognized that Cooke had a state liberty

interest in receiving parole when the California standards for parole have been met,

which it found in the California parole statute and its interpretation by the California

Supreme Court. Id. at 220. The court then moved to a consideration of what process was

required in connection with that liberty interest. Id. Relying upon its prior decision in

Greenholtz, the court stated that “[i]n the context of parole, we have held that the

procedures required are minimal.” Id. Specifically, the procedures required include (1)

an opportunity to be heard and (2) a statement of the reasons why parole is denied. Id.,

citing Greenholtz at 16.

{¶ 103} The court found that Cooke was afforded the necessary procedures in state

court, noting that Cooke was allowed to speak at his parole hearing and contest the

evidence against him, was afforded access to the state’s records, and was notified as to

the reasons why his parole was denied. Id. Therefore, the court found that the Ninth

Circuit improperly reversed the decision of the District Court denying Cooke’s habeas

petition.

B. Select Ohio Case Law

{¶ 104} The foregoing cases establish the constitutional framework set forth by

the United States Supreme Court for evaluating appellant’s due process challenge to the

54. Reagan Tokes Law. Next, I will address how Ohio courts have handled similar due

process claims, beginning with the relevant decisions issued by the Ohio Supreme Court

prior to the General Assembly’s passage of the Reagan Tokes Law. I will then examine

how other Ohio intermediate appellate courts have addressed due process challenges to

the Reagan Tokes Law itself.

55. i. Pre-Reagan Tokes Law Ohio Supreme Court Decisions

{¶ 105} I begin my review of the relevant case law from the Ohio Supreme Court

with Woods, supra,

,

(2000), which was discussed

above in the analysis of appellant’s separation-of-powers argument. After holding that

the APA’s authority to impose a prison term following violations of conditions of post-

release control did not violate the separation-of-powers doctrine, the court in Woods

reviewed this court’s finding that the APA’s post-release control procedures did not

afford Woods with the necessary due process under Morrissey and its progeny. Upon its

consideration, the court disagreed with our finding and held that the procedures afforded

Woods did not violate his due process rights.

{¶ 106} In particular, the court considered the statutory obligation placed upon the

APA to ensure procedural due process to an alleged violator, and also took into

consideration the relevant administrative regulations that had been promulgated to ensure

such procedural due process.

. The regulations afforded Woods the right to (1)

written notice of the violations he was alleged to have committed, (2) a hearing at which

he could present witnesses and evidence, (3) cross-examination of witnesses (subject to

some exceptions), (4) disclosure of the evidence against him, (5) representation of

counsel (appointed counsel if indigent), and (6) access to a written digest of the

proceedings by the hearing officer.

. The court briefly reviewed the United

States Supreme Court’s decision in Morrissey. Ultimately, the court construed the due

process requirements articulated in Morrissey as limited to the provision of a neutral and

56. detached decision-maker.

. Since the APA assigned a hearing officer other

than Woods’ parole officer to preside over the post-release control violation hearing and

render a decision, the court rejected Woods’ due process argument.

{¶ 107} Several years prior to its decision in Woods, the Ohio Supreme Court

issued a decision in a case involving parole. In

,

(1983), the court briefly reviewed the dismissal of a mandamus action filed

by an inmate who had been denied parole by the APA and argued that he was denied

minimal due process rights in his parole hearing. In particular, the inmate argued that the

parole statute in effect at the time, R.C. 2967.03, created a liberty interest sufficient to

establish his right to procedural due process.

.

{¶ 108} The court briefly reviewed the parole statute, which provided that the

APA may grant parole to a prisoner “if in its judgment there is a reasonable ground to

believe that if * * * the prisoner is paroled, such action would further the interests of

justice and be consistent with the welfare and security of society.”

. Noting

the language used, the court characterized the statute as a “grant of discretion,” and found

that “it does not create any presumption that parole will be issued and does not create an

expectancy of parole upon which appellant can base his due process claim.”

.

Citing to the United States Supreme Court’s decision in Greenholtz, the court rejected the

inmate’s contention that the statute created a liberty interest triggering procedural due

process, and affirmed the dismissal of the mandamus action.

. {¶ 109} Importantly, the discretionary form of parole at issue in Shoemaker is

distinguishable from the presumptive parole enacted under the Reagan Tokes Law,

wherein an inmate is presumed to be entitled to release upon completion of the minimum

term. This distinction is meaningful, for the existence of the liberty interest found in

Greenholtz hinged upon the fact that Nebraska’s parole statutes set forth a presumptive

entitlement to parole, like the Reagan Tokes Law, and not a wholly-discretionary parole

system.

{¶ 110} More recently, the Ohio Supreme Court issued a decision in a mandamus

action brought by several inmates who were denied parole by the APA. In State ex rel.

Bailey v. Ohio Parole Board,

,

,

(2017), the inmates argued that the APA had an “unwritten policy of denying parole to

old-law offenders” based upon statements made by board members that those who

remained on parole were the worst inmates and those who were suitable for parole had

likely already been released. Id. at 426.

{¶ 111} The court began its analysis by citing to Greenholtz and noting that

inmates have “no constitutional right to parole release before the expiration of his

sentence.” Id. at 428, citing Greenholtz at 7; see also State ex rel. Miller v. Leonard,

,

(2000) (“There is no constitutional or inherent right to

be released before the expiration of a valid sentence.”). Further, the court explained that

the APA has broad discretion in parole matters.

citing Layne v. Ohio Adult Parole

Auth.,

,

,

. Nonetheless, the court

58. expressed that the APA’s discretion is not unlimited, since the Ohio Revised Code creates

an expectation that inmates would receive meaningful consideration for parole.

citing Layne at ¶ 27. The court explained that the principle of meaningful consideration

is violated when, for example, the inmate’s parole eligibility is determined based upon an

offense category score that does not correspond to the actual offense committed by the

inmate or upon information in an inmate’s file that is substantively incorrect. Id., citing

Layne at ¶ 27 and State ex rel. Keith v. Ohio Adult Parole Auth.,

,

,

(“Requiring the board to consider specific factors

to determine the inmate’s fitness for release would not mean anything if the board is

permitted to rely on incorrect, and therefore irrelevant, information about a particular

candidate.”).

{¶ 112} The court then applied these principles to the facts before it, and

concluded that the inmates had failed to state a claim for relief in mandamus. The court

noted that the APA did not base its parole decision on factually inaccurate information or

hold the inmates to account for crimes more serious than the ones they actually

committed, including murder and involving a minor in nudity material.

Instead, the

APA properly exercised its discretion in assigning the weight it deemed appropriate to

the seriousness of the inmates’ offenses. In upholding that exercise of discretion, the

Ohio Supreme Court stated: “So long as each assessment rests on correct facts and falls

within permissible guidelines, an inmate has no basis to challenge the decision.”

.

59. {¶ 113} In short, the court in Bailey recognized a liberty interest in parole flowing

from the structure of the parole statute, but held that the APA provided the necessary

procedural due process to the inmates. The recognition of a liberty interest was already

settled law by the time Bailey was issued. Indeed, the court stated three years earlier

concerning the parole statute: “[H]aving set up the system and defined at least some of

the factors to be considered in the parole decision, the state has created a minimal due-

process expectation that the factors considered at a parole hearing are to be as described

in the statute or rule and are to actually and accurately pertain to the prisoner whose

parole is being considered.”

. Thus, in the parole context, the real

issue was whether the APA provided the requisite process, not whether the inmates had a

protected liberty interest. Further, the challenge at issue was an as-applied challenge, not

a facial one.

ii. Ohio Appellate Decisions Addressing Due Process Arguments Under Reagan Tokes Law

{¶ 114} I have thus far provided a general overview of the legal landscape

concerning due process in the context of probation, parole, and post-release control,

derived from decisions issued by the United States Supreme Court and the Ohio Supreme

Court. Given its relatively recent passage, the Reagan Tokes Law has not been evaluated

by either of these courts for due process conformity. However, the due process question

has been addressed by other intermediate appellate courts in Ohio. Thus, I now turn my

attention to some of those decisions.

60. {¶ 115} In

2d Dist. Montgomery No. 28644,

,

the Second District considered the question of whether the Reagan Tokes Law passes

constitutional muster under the Due Process Clause. There, the court began its due

process analysis by emphasizing “‘[t]he fundamental requisite of due process of law is

the opportunity to be heard in a meaningful time and in a meaningful manner.’” Id. at ¶

25, quoting

. The court found that the Reagan Tokes Law satisfies these

requirements (originally imposed in Woods in the context of post-release control) by

requiring that a defendant receive a hearing, notice, and an opportunity to be heard before

ODRC may maintain the defendant beyond the minimum prison term.

Further, the

court expressly rejected the application of case law pertaining to the bad-time statute that

was struck down in Bray, concluding that Woods was the closer analog since “under the

Reagan Tokes Law a court imposes the ‘additional sentence’ when imposing a maximum

prison term.” Id. at ¶ 26.

{¶ 116} Eight months after it released its decision in Ferguson, the Second District

issued its decision in State v. Compton, 2d Dist. Montgomery No. 28912, 2021-Ohio-

1513, which involved, inter alia, a due process challenge to the Reagan Tokes Law. In

that case, the defendant argued that the Reagan Tokes Law violates due process because

it:

(1) does not provide sufficient notice of what conduct will cause the

ODRC to rebut the presumption for release after expiration of the minimum

term; and (2) provides the ODRC with a “high degree of official discretion”

61. to rebut the presumption for release without sufficient guidance or

safeguards to prevent arbitrary and discriminatory enforcement.

Id. at ¶ 13. The defendant acknowledged that the Reagan Tokes law afforded him a

hearing and statutory findings before additional prison time was imposed, but complained

that R.C. 2967.271(C) is too vague as to how the hearing would be conducted or what

rights he would have at the hearing. Id. at ¶ 16. He asserted that he “should be entitled to

due process rights that are associated with criminal trials.” Id.

{¶ 117} On review, the Second District found that only minimal due process

procedures including opportunity to be heard and a statement of the reasons denying

release are required in review hearings under the Reagan Tokes Law. Id. at ¶ 18. In so

concluding, the court applied language from United States Supreme Court precedent in

the parole context, including Greenholtz. In support of applying parole cases, the court

cited a prior decision in which it noted that “[r]equiring a defendant to remain in prison

beyond the presumptive minimum term is akin to the decision to grant or deny parole[.]”

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

.

{¶ 118} The Second District released a third decision involving the Reagan Tokes

Law on November 12, 2021. In State v. Thompson, 2d Dist. Clark No. 2020-CA-60,

, the court addressed whether the Reagan Tokes law violates a

defendant’s right to a trial by jury under the Sixth Amendment. The court rejected the

defendant’s constitutional argument after it distinguished the sentencing scheme

embodied in the Reagan Tokes Law from that at issue in the United States Supreme

62. Court decisions cited by the defendant, namely Apprendi v. New Jersey,

,

,

(2000); Ring v. Arizona,

,

,

(2002); and Blakely v. Washington,

,

,

.

{¶ 119} In distinguishing indefinite sentences under the Reagan Tokes Law from

those at issue the aforementioned cases, the Second District observed: “Unlike the

sentencing scheme in Apprendi and Ring, there is ‘no discretion exercised by the trial

court in imposing the maximum term’ under the Reagan Tokes Law, and ‘nothing within

any provision codified under the Reagan Tokes Law permits any branch of government

to impose a sentence beyond the maximum term as defined under R.C. 2929.144.’” Id. at

¶ 24, quoting State v. Gamble,

,

(8th Dist.); see

also State v. Rogers, 12th Dist. Butler No. CA2021-02-010,

(distinguishing the Reagan Tokes Law from Apprendi, Ring, and Blakely based on the

fact that a sentencing court operating under the Reagan Tokes Law must impose both the

minimum and maximum prison term and include the entire indefinite sentence in its final

entry of conviction). In that light, the court found that the Reagan Tokes Law does not

violate a defendant’s constitutional right to a trial by jury. Id. at ¶ 25.

{¶ 120} In addition to the foregoing precedent from the Second District, the

Eighth District has considered the constitutionality of the Reagan Tokes Law under the

Due Process Clause on several occasions, culminating with it extensive treatment of the

issue in its recent en banc decision in

, --- N.E.3d ----, at

63. ¶ 2 (8th Dist.). As noted above, the court in Delvallie reviewed and rejected the

contention that the Reagan Tokes Law violates the separation-of-powers doctrine.

{¶ 121} Additionally, the court separately examined the due process argument and

the argument regarding the Sixth Amendment right to a trial by jury. As to the latter, the

Eighth District recognized that, under the Reagan Tokes Law, “the only discretion lies

with the length of the minimum term, and therefore, the trial court is not imposing a

sentence ‘in excess of the maximum’ term as expressly prohibited under Apprendi. And

the trial court is also not imposing a sentence beyond the minimum term prescribed by

statute based on any findings of facts.” Id. at ¶ 44. Thus, the court found that the Reagan

Tokes Law does not infringe upon a defendant’s Sixth Amendment right to a trial by jury.

Id. at ¶ 47.

{¶ 122} The court also found that the Reagan Tokes Law provides adequate

process to survive a due process challenge. As to what process is required, the court

observed that the full panoply of constitutional rights owed a defendant prior to

conviction are not required for inmates during the enforcement of judicially imposed

sentences. Id. at ¶ 50, citing

; Rose v. Haskins,

,

(1970); and State ex rel. Sweet v. Capots, 10th Dist. Franklin No.

93AP-340,

, (Oct. 26, 1993). Further, the court found that “there is no

inherent right to counsel during a parole revocation hearing, which is analogous to the

maximum-term hearing according to the defendants who extensively claimed as much

during oral argument on this matter.”

citing State ex rel. Marsh v. Tibbals,

. St.3d 656,

,

. Therefore, the Eighth District found that

“[t]he Reagan Tokes Law is not unconstitutional based on the claims presented by the

defendants.” Id. at ¶ 51.

{¶ 123} The decision in Delvallie was not unanimous. In one of the dissenting

opinions written in Delvallie, the author, Hon. Lisa Forbes, deemed the Reagan Tokes

Law unconstitutional. Because Judge Forbes’ dissent raises significant issues worth

evaluating as to the constitutionality of the Reagan Tokes Law, I will examine it

carefully.

{¶ 124} Judge Forbes contrasted parole release (or eligibility) and parole

revocation, stating: “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.” Id. at

¶ 139, citing Greenholtz at 9, and

,

,

(1974). Judge Forbes then noted the liberty interest found in the Nebraska

law at issue in Greenholtz (a parole release case) and Wolff (a prison discipline case), as

well as the liberty interest found in the California law at issue in Cooke (a parole release

case) to conclude, like the majority, that “the Reagan Tokes Law creates a liberty

interest.” Id. at ¶ 142.

{¶ 125} However, Judge Forbes departed with the majority in Delvallie in finding

that the sentencing scheme under the Reagan Tokes Law did not provide adequate due

65. process to survive constitutional muster. In particular, she concluded that the Reagan

Tokes Law is analogous to parole revocation proceedings and concluded that “R.C.

2967.271 does not contain any due process safeguards.” Id. at ¶ 124. Because she found

that parole revocation, and not parole release, is the appropriate analog to look to for

guidance, Judge Forbes concluded that the safeguards outlined in the United States

Supreme Court’s decision in Morrissey were required. Id. at ¶ 160. Since those

safeguards were not provided under the statutes and the administrative rules promulgated

by the ODRC, the author found the Reagan Tokes Law unconstitutional.

2. Analysis of Appellant’s Due Process Argument

{¶ 126} In advancing his due process argument, appellant contends that he has a

liberty interest in being free from confinement after serving his minimum prison term and

that due process requires, at minimum, certain basic procedural safeguards including (1) a

trial, (2) findings of fact and determination of guilt by a jury, and (3) representation of

counsel, including appointed counsel. As already noted, appellant asserts that the Reagan

Tokes Law deprives him of his due process rights because it does not afford him any of

these safeguards, and thus the Reagan Tokes Law is unconstitutional on its face.

{¶ 127} Examination of the aforementioned case law from the United States

Supreme Court reveals that due process challenges are reviewed using a two-part

analysis. The first step requires us to examine whether appellant has a liberty interest at

stake that entitles him to the protections of the Due Process Clause. The courts that have

considered similar due process challenges to the Reagan Tokes Law have had no

66. difficulty in concluding that defendants do, in fact, have a liberty interest sufficient to

trigger due process safeguards. Like the presumptive parole system that was deemed to

create an expectancy of parole, and thus a protectible liberty interest, in Greenholtz, the

rebuttable presumption in favor of release that is set forth in the Reagan Tokes Law gives

rise to a liberty interest here.

{¶ 128} In particular, R.C. 2967.271(B) establishes a presumption that a defendant

sentenced under the Reagan Tokes Law will be released from prison on the expiration of

his minimum prison term. Under R.C. 2967.271(C), this presumption may be rebutted by

ODRC, but only after certain procedures are observed and the ODRC makes specific

findings to support maintaining the defendant in prison. Further, ODRC has published

policy No. 105-PBD-15, which requires that defendants receive notice of additional term

hearings. See ODRC Policy 105-PBD-15, Section F, available at

https://drc.ohio.gov/policies/parole-board (last visited June 8, 2022). These statutory

sections, taken together with established ODRC policies, provide Ohio inmates with

“some measure of constitutional protection,”

, and establish

certain protections that give rise to an expectation in the same type of “meaningful

review” found to constitute a liberty interest in Bailey. See also

,

,

(finding that Ohio’s parole statute

created a minimal due-process expectation that the factors considered at a parole hearing

were to be as described in the statute or rule and were to actually and accurately pertain

to the prisoner whose parole was being considered). Thus, I find that appellant has

67. demonstrated a liberty interest associated with his release from confinement at the

expiration of his minimum term.

{¶ 129} I now turn to step two, in which I must determine what process is due.

This determination is a flexible one and the procedures must be tailored to the particular

situation at hand, in this case the release of an inmate at the expiration of the inmate’s

minimum term.

{¶ 130} Under the Reagan Tokes Law, a defendant’s sentence consists of two

components: the minimum prison term and the maximum prison term. The trial judge, in

his or her discretion, determines the appropriate minimum prison term within the

statutory range for the offense, and then also imposes the maximum term based upon the

formula set forth by statute. It must be reemphasized that the trial judge imposes both

terms at sentencing. The sentence imposed is not merely the minimum prison term, but

includes the maximum term as well. After the defendant is sentenced by the trial judge to

both terms, the process of criminal conviction is complete. See United States v.

Haymond,

,

(2019), citing

,

,

(2000) (recognizing that “a ‘criminal

prosecution’ continues and the defendant remains an ‘accused’ with all the rights

provided by the Sixth Amendment, until a final sentence is imposed”). Because his

criminal conviction is already complete, a defendant is not entitled to the “full panoply”

of preconviction due process rights by the time he appears before the ODRC for the

additional term hearing.

,

,

. 484 (1972). Thus, the question is what process short of the full panoply is required for

hearings conducted under Ohio’s presumptive parole scheme.11

{¶ 131} As articulated in our review of historical case law above, there are at least

three post-conviction sentencing situations in which defendants have previously raised

due process arguments. These are (1) parole release hearings, (2) probation/parole

revocation hearings, and (3) post-release control revocation hearings. The initial parole

release hearing is most akin to the review hearing under the Reagan Tokes Law for

several reasons. First, the defendant is suffering a loss of his physical liberty in

institutional confinement in both situations, unlike the relative freedom he enjoys when

already released on parole or post-release control. This is important because a defendant

who is already in confinement has a reduced liberty interest and is therefore entitled to

less process than a defendant who is already free. Second, in both the parole release

hearing and the review hearing under the Reagan Tokes Law, the reviewing body is

focused upon whether the defendant’s conduct justifies his release from confinement, not

whether he should be returned to confinement. Again, the liberty interests are different

and thus the protections to which a defendant is entitled are different.

11 I emphasize that the constitutional challenge to the Reagan Tokes Law raised by appellant in this case is a facial one similar to the one this court found not ripe for review in Maddox. On appeal, the Ohio Supreme Court reversed our ripeness determination as to a facial challenge, not an as-applied challenge. Such an as-applied challenge is not ripe in this case since appellant has not yet been subjected to the release hearing proceedings. Thus, my focus is on the process the statute provides, not the process actually afforded to appellant at some point in the future.

69. {¶ 132} Since the trial court imposes both the minimum and maximum sentence, a

defendant sentenced under the Regan Tokes Law is still serving his sentence at the time

of the additional term hearing and, if ordered to serve the indefinite portion of the

sentence, will continue to serve the sentence previously imposed by the trial court.

Therefore, the issue in the additional term hearing is release from confinement, not

revocation of parole. Stripping away the semantics, the reality here is that, from

appellant’s perspective, he is presently incarcerated and wishes to be freed from

incarceration – by definition, this is release and not revocation.

{¶ 133} For these reasons, I find that parole release cases, not parole revocation

cases, should guide our understanding of what procedures are required to satisfy due

process in cases involving the Reagan Tokes Law. I note that parole statutes like the one

at issue in Greenholtz and Cooke, while slightly different in the manner in which they

operate, are nearly identical in terms of the presumption in favor of release on parole.

The concurrence makes much of the differences between the procedural mechanics of the

statute at issue in Greenholtz and the Reagan Tokes Law. While such mechanics may

vary from state to state, the fact remains that the liberty interest of a Reagan Tokes

defendant is the release from confinement, the same liberty interest at issue in Greenholtz

and Cooke.

{¶ 134} Moreover, the subjectivity embodied in the Nebraska statute at issue in

Greenholtz is not entirely different from the criteria used under the Reagan Tokes Law,

which allows the ODRC to rebut the presumption of release based upon:

70. (1) the offender’s commission of institutional rule infractions (which are

promulgated, enforced, and adjudicated by the ODRC during the offender’s

incarceration prior to the additional term hearing) and behavior that, in ODRC’s

estimation, poses a threat to society;

(2) the offender’s placement in extended restrictive housing within the year

preceding the date of the additional term hearing (said placement being instituted

at ODRC’s discretion); or

(3) the offender’s security level (which is determined by ODRC during the

offender’s incarceration prior to the additional term hearing). See R.C.

2967.271(C).

{¶ 135} Thus, while the criteria established under the Reagan Tokes Law appears,

at least on the surface, to be objective in nature, a closer examination reveals a substantial

subjective component to such criteria lying below the surface of that “objective finding.”

The subjectivity that exists here, albeit prior to the additional term hearing, provides an

additional rationale for why this situation is analogous to the Nebraska statute addressed

by the court in Greenholtz, and thus parole release is the more correct analog through

which to evaluate the Reagan Tokes Law under due process.

{¶ 136} Therefore, I find no basis to depart from the guidance provided by the

court in Greenholtz and Cooke on the issue of what process is required. I further reject

the notion that the Reagan Tokes Law is deficient from a due process perspective based

upon its lack of procedural safeguards deemed necessary by the court in Morrissey in the

71. context of parole revocation, because what is at issue here is the initial release of

appellant from confinement, not the revocation of his freedom and placement back into

confinement.

{¶ 137} In light of the foregoing, I find that the initial parole release hearing

context, especially when the initial release is presumptive, is the closest analog to the

sentencing scheme set forth under the Reagan Tokes Law. Thus, it follows that the

process required for defendants under the presumptive parole regime is all that is required

for defendants like appellant under the Reagan Tokes Law. In

,

,

(1979), the United States Supreme Court upheld

the Nebraska presumptive parole review procedure, which afforded defendants minimal

process including an opportunity to be heard and an explanation of the basis for denial of

parole release.

. In so doing, the court explained:

It is important that we not overlook the ultimate purpose of parole which is

a component of the long-range objective of rehabilitation. The fact that

anticipations and hopes for rehabilitation programs have fallen far short of

expectations of a generation ago need not lead states to abandon hopes for

those objectives; states may adopt a balanced approach in making parole

determinations, as in all problems of administering the correctional

systems. The objective of rehabilitating convicted persons to be useful,

law-abiding members of society can remain a goal no matter how

disappointing the progress. But it will not contribute to these desirable

72. objectives to invite or encourage a continuing state of adversary relations

between society and the inmate. Procedures designed to elicit specific

facts, such as those required in Morrissey, Gagnon, and Wolff, are not

necessarily appropriate to a Nebraska parole determination. * * * Merely

because a statutory expectation exists cannot mean that in addition to the

full panoply of due process required to convict and confine there must also

be repeated, adversary hearings in order to continue the confinement.

.

{¶ 138} Similarly, in

,

,

(2011), the court reaffirmed its holding in Greenholtz that those eligible for parole release

are only entitled to minimal procedure including an opportunity to be heard and a

statement of the reasons why parole is denied. Id. at 220, citing Greenholtz at 16.

{¶ 139} Ohio Supreme Court precedent concerning parole release echoes that of

the United States Supreme Court. In its decision in

,

,

(2017), the court noted that an inmate has “no

constitutional right to parole release before the expiration of his sentence,” Id. at 428,

citing Greenholtz at 7, and found that due process was provided “[s]o long as each

assessment rests on correct facts and falls within permissible guidelines.” Id. at 429.

{¶ 140} Put simply, the presumptive parole sentencing structure at issue in

Greenholtz and Cooke is functionally equivalent to the rebuttable presumption in favor of

73. release set forth in the Reagan Tokes Law. Consequently, Greenholtz and Cooke are

dispositive of the due process issues presented in this case.

{¶ 141} Here, I find that the Reagan Tokes Law, and specifically R.C. 2967.271

provides the due process safeguards that are required under Greenholtz and Cooke. For

example, R.C. 2967.271(C) requires ODRC to hold a hearing in order to rebut the

presumption for release. Further, ODRC policy No. 105-PBD-15 requires ODRC to

notify an inmate of release hearings in the same manner as it provides notice to inmates

of the possibility of release on parole. Additionally, the regulations governing additional

term hearings that have been promulgated by the ODRC provide many other safeguards.

Included within those regulations is the requirement that the hearing officer review the

officer’s decision with the inmate and provide the inmate with a copy of the decision.

Since all that is required under Greenholtz and Cooke is minimal process including an

opportunity to be heard and an explanation of the basis for denial of parole release, I find

that the procedural safeguards afforded defendants under the Reagan Tokes Law are more

than sufficient to pass constitutional muster.

3. Conclusion – Regan Tokes Law does not Infringe Appellant’s Due Process Rights on its Face

{¶ 142} Having reviewed the relevant case law in light of the sentencing scheme

set forth in the Regan Tokes Law, it is clear that the General Assembly created a liberty

interest when it established a presumption in favor of release at the expiration of an

inmate’s minimum sentence. Furthermore, this liberty interest entitles defendants like

appellant to some process before presumptive release is denied. However, only minimal

74. process is required, including a hearing on the matter with notification of the reasons for

denial of such release. R.C. 2967.271 clearly satisfies this requirement; indeed, it

provides more process than is required. Further, as already noted, the ODRC has

promulgated a policy that provides even greater procedural protections than the statute.

Consequently, appellant has not proven beyond a reasonable doubt that the Reagan Tokes

Law deprives him of the due process of law to which he is entitled under the Constitution

of the United States or the Ohio Constitution.

E. Disposition of Appellant’s Assignment of Error

{¶ 143} Upon due consideration, we find that the sentencing scheme established

under the Reagan Tokes Law is constitutional insofar as it does not, on its face, violate

well-established separation-of-powers parameters or infringe upon a defendant’s due

process rights. Appellant has not provided proof beyond a reasonable doubt that no set of

circumstances exist under which the Reagan Tokes Law would be valid. Since this is

appellant’s burden in a facial constitutional challenge, we find his assignment of error is

not well-taken.

75. III. Judgment Affirmed

{¶ 144} In light of the foregoing, we find substantial justice was done to the party

complaining and we affirm the judgment of the Lucas County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

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

Gene A. Zmuda, J. ____________________________ JUDGE

Christine E. Mayle, J. CONCURS IN JUDGMENT ONLY AND WRITES SEPARATELY ____________________________ JUDGE

Myron C. Duhart, P.J. CONCURS IN JUDGMENT ONLY ____________________________ AND CONCURS IN JUDGE JUDGE MAYLE’S CONCURRENCE

MAYLE, J.

{¶ 145} I concur with the lead decision. I agree with its separation-of-powers

analysis, and I agree that Eaton has failed to meet his heavy burden of establishing that

the Reagan Tokes law, on its face, is unconstitutional on due-process grounds. I write

76. separately, however, because I disagree that the liberty interest at stake under the Law is

most analogous to parole or probation release decisions; I believe the liberty interest at

stake under the Law is more analogous to parole or probation revocation decisions. For

that reason, I disagree with the lead decision’s conclusion that the procedural safeguards

articulated in the Law itself are sufficient to pass constitutional muster. Nevertheless,

because the Law is capable of being applied in such a manner as to afford the required

procedural safeguards, I agree with the lead decision that Eaton cannot prevail on this

facial challenge to its constitutionality.

A. The liberty interest at stake under the Reagan Tokes Law is most analogous to parole or probation revocation decisions.

{¶ 146} The lead decision correctly explains that the process that is due a

defendant depends on the nature of the liberty interest at stake. It properly recognizes

that the U.S. Supreme Court differentiates between the liberty interests at stake in

probation or parole eligibility decisions versus probation or parole revocation decisions.

Although neither affords a defendant the “full panoply of rights due” in a criminal

prosecution, the latter requires greater procedural safeguards than the former. Morrissey

v. Brewer,

,

,

(1972); Greenholtz v.

Inmates of the Neb. Penal and Correctional Complex,

,

,

(1979). The lead decision concludes that the presumptive-release provisions

of the Reagan Tokes Law creates a liberty interest that is more analogous to probation or

parole eligibility than to probation or parole revocation because (1) “the defendant is

suffering a loss of his physical liberty in institutional confinement in both situations,

77. unlike the relative freedom he enjoys when already released on parole or post-release

control;” and (2) “in both the parole release hearing and the review hearing under the

Reagan Tokes Law, the reviewing body is focused upon whether the defendant’s conduct

justifies his release from confinement, not whether he should be returned to

confinement.”

{¶ 147} Importantly, to clarify, the review hearing under the Reagan Tokes Law is

not focused on whether the defendant’s conduct “justifies his release from

confinement”—it is focused on whether the defendant’s conduct justifies not releasing

him from confinement. This distinction is crucial because the presumption that the

offender will be released on a date certain, after service of the minimum term—and the

burden ODRC must meet to rebut this presumption—goes to the heart of why I believe

that the Law is more analogous to the decision to revoke parole or probation. A deeper

look at Greenholtz demonstrates this point.

{¶ 148} As summarized by the lead decision, the Nebraska statutes at issue in

Greenholtz provided for the possibility of discretionary parole after an offender served

his minimum term, less good-time credits. The Parole Board held two types of hearings:

initial review hearings and final parole hearings. Initial review hearings had to be held at

least once a year “regardless of parole eligibility.”

. No evidence could be

introduced at review hearings, but the board examined the offender’s pre-confinement

and post-confinement record (including “the circumstances of the offender’s offense, the

presentence investigation report, his previous social history and criminal record, his

78. conduct, employment, and attitude during commitment, and the reports of such physical

and mental examinations as have been made”), interviewed the offender, and considered

any statements or letters the offender wished to present.

If the board determined that

the offender was not yet a good risk for release, it denied parole, informed the offender of

its reasons, and made recommendations to correct observed deficiencies. If the board

determined that the offender was a good candidate for release, a final hearing took place

where the offender could present evidence, call witnesses, and be represented by private

counsel. A record of the hearing was preserved and if parole was denied, a written

statement was provided within 30 days.

{¶ 149} In a civil rights action brought by inmates alleging due process violations,

the Court of Appeals found that even at the initial review stage of a parole eligibility

decision, offenders had a “Morrissey-type, conditional liberty interest at stake” and

should be afforded Morrissey-like procedures to protect that interest.

. The U.S.

Supreme Court disagreed. It differentiated parole revocation decisions—where, the

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

parole release decisions—where the offender merely desires liberty. In doing so, the

Court examined the nature of the decision to be made.

{¶ 150} 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.”

. It emphasized that the first step in a parole revocation

79. decision “involves a wholly retrospective factual question.”

. 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.)

. “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.”

. To the contrary, the parole release decision is “subjective” and

“predictive,” and the statute “vests very broad discretion” in the parole board.

.

{¶ 151} Ultimately, the Court concluded that the parole board need not inform an

offender of the particular evidence in the file or elicited at the offender’s interview upon

which it relied in making the discretionary determination that the offender was not ready

for conditional release. It found that “[t]he Nebraska procedure affords an opportunity to

be heard, and when parole is denied, it informs the inmate in what respects he falls short

of qualifying for parole; this affords the process that is due under these circumstances.”

.

{¶ 152} The U.S. Supreme Court relied on the presumptive nature of the Nebraska

statute in concluding that an offender had a protectable liberty interest. Importantly, the

U.S. Supreme Court in Sandlin v. Conner,

,

,

(1995), has since clarified that the nature of the deprivation at issue ought to

be the focus rather than the mandatory language in the text of a statute or prison

80. regulation. Either way, it is my view that the Reagan Tokes Law goes further than the

Nebraska statute in Greenholtz in creating an expectation of release and, therefore, a

liberty interest requiring procedural protections more akin to Morrissey.

{¶ 153} The lead decision remarks on the similarities between the Reagan Tokes

Law and the Nebraska law at issue in Greenholtz—commenting that the Nebraska statute

“set forth a presumptive entitlement to parole, like the Reagan Tokes Law.” But in doing

so, it merely skims the surface of the Nebraska statute. It focuses on language that

provides that “[w]henever the Board of Parole considers the release of a committed

offender who is eligible for release on parole, it shall order his release * * *.” (Emphasis

added.) Id. at 11. It ignores the remaining language in the statute—the deeper substance

of the statute—which makes clear that release shall be ordered unless the board “is of the

opinion” that “release should be deferred” for certain enumerated, subjective reasons. In

other words, while the Nebraska statute does create a presumption in favor of parole,

when read as a whole, the discretion granted to the parole board whether to release an

offender is extremely broad. This broad discretion is dissimilar to how the Reagan Tokes

Law is intended to operate.

{¶ 154} Of course, the Reagan Tokes Law, too, creates a presumption. But unlike

the statute in Greenholtz, it is presumed that offenders sentenced under the Reagan Tokes

Law will be released from prison on a date certain—i.e., after service of their minimum

sentence. That presumption may not be rebutted based only on a discretionary, “purely

subjective appraisal” whether release is advisable.

81. {¶ 155} To the contrary, 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, as well as administrative rules—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, 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.

{¶ 156} In this way, the Reagan Tokes Law functions unlike the highly

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

decision. In the case of R.C. 2967.271(C)(1), it requires two determinations: (1) did the

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

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

demonstrate that the offender still poses a threat to society? Id. at 8. There is no

“subtle,” “purely subjective appraisal[]” like the Nebraska parole eligibility statute.12 For

12 The lead decision contends that there is a “substantial subjective component” lying below the surface of the criteria for rebutting the presumption of release, which takes

82. these reasons, Greenholtz does not support the lead decision’s position that the liberty

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

in a parole release decision rather than a parole revocation decision.

{¶ 157} The lead decision was also persuaded by the distinction between an

offender who has already been released from confinement and one who is hoping to be

released from confinement. Although that is a relevant consideration in determining the

process due, I believe that Wolff v. McDonnell,

,

,

(1974), demonstrates that this is not necessarily dispositive.

{¶ 158} In Wolff, the Nebraska prison had a policy permitting officials to

extinguish an offender’s earned good-time credit as punishment for flagrant or serious

misconduct and also permitting it to confine the offender in a disciplinary cell. As

summarized by the U.S. Supreme Court, the first mode of punishment “affects the term

of confinement,” while the second “involves alteration of the conditions of confinement.”

place “prior to the additional term hearing.” I assume the lead decision is referring to the findings underlying R.C. 2967.271(C)(2) and (3) relating to security classifications and placement in extended restrictive housing. Those decisions are made pursuant to ODRC’s own detailed sets of policies—and, in the case of restrictive housing, administrative regulations. See Ohio Adm.Code 5120-9-9, 5120-9-10, and 5120-9-11. From my review of the relevant ODRC policies, it appears that those decisions are intended to be made based in large part on objective factors. See, e.g., ODRC Policy No. 53-CLS-01 (security classifications) (creating a classification process that considers the offender’s “behavior and such other objective factors are available and relevant when assessing an individual’s institutional security needs”); ODRC Policy No. 53-CLS-04 (placement in extended restrictive housing) (enumerating various administrative and behavioral criteria that must be found before an offender may be placed in extended restrictive housing).

83.

. The inmate-plaintiffs brought suit arguing that “the rules, practices, and

procedures * * * which might result in the taking of good time violated the Due Process

Clause of the Fourteenth Amendment.”

. The state argued that “the procedure

for disciplining prison inmates for serious misconduct is a matter of policy raising no

constitutional issue.”

. The Court observed that lawful imprisonment

necessarily strips an offender of many rights and privileges, but it does not wholly strip

the offender of constitutional protections. “[T]here must be mutual accommodation

between institutional needs and objectives and the provisions of the Constitution that are

of general application.”

.

{¶ 159} The Court recognized that the state provided a statutory right to good

time, and also specified that that good time could be forfeited only for serious

misconduct. It found that “the State having created the right to good time and itself

recognizing that its deprivation is a sanction authorized for major misconduct, the

prisoner’s interest has real substance and is sufficiently embraced within 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.”

. And because “prisoners in Nebraska can

only lose good-time credits if they are guilty of serious misconduct, the determination of

whether such behavior has occurred becomes critical, and the minimum requirements of

procedural due process appropriate for the circumstances must be observed.”

.

84. {¶ 160} The procedure for forfeiting good-time credit in Nebraska was (1) a

preliminary conference informing the offender of the misconduct charge and engaging in

preliminary discussions of the merits; (2) the preparation of a conduct report and hearing

before the Adjustment Committee where the report was read to the offender; and (3) the

opportunity at the hearing for the offender to ask questions of the charging party. While

the state claimed these procedures were adequate, the court of appeals found that the

Morrissey due process requirements must be satisfied.

{¶ 161} The U.S. Supreme Court agreed with neither position. It found that the

current procedures were deficient, but it also found that the deprivation of good-time

credit did not implicate the same liberty interest as parole revocation proceedings, thus

not all the process afforded under Morrissey was due. Ultimately, it concluded that (1)

advanced written notice of the claimed violation must be provided to the offender no less

than 24 hours before his appearance before the adjustment committee; (2) the offender

must be provided a written statement of the factfinders as to the evidence relied upon and

the reasons for the disciplinary action taken; (3) the offender must be allowed to call

witnesses and present documentary evidence if not unduly hazardous to institutional

safety or correction goals (and it may be “useful,” but not required, for the committee to

explain its reasons for not allowing a witness to testify); (4) no confrontation or cross-

examination should be required; (5) there should be no right to counsel; (6) illiterate

offenders may need aid; and (7) the Adjustment Committee is sufficiently impartial to

conduct the hearings. See also Superintendent, Massachusetts Correctional Institution,

85. Walpole v. Hill,

,

,

(1985) (“We now

hold that revocation of good time does not comport with ‘the minimum requirements of

procedural due process’ * * * unless the findings of the prison disciplinary board are

supported by some evidence in the record.”).

{¶ 162} Like the statute in Wolff, the Reagan Tokes Law allows for the possibility

of good-time credit. R.C. 2967.271(F). This is a separate consideration from the

presumption of release after service of one’s minimum sentence. As such, I believe it

only logical that the process due an offender threatened with an additional period or

periods of incarceration would be heightened as compared to those provided to someone

who had been rewarded with credit then penalized by extinguishment of that credit.

Accordingly, it is my view that the heightened process due under Morrissey should be

applied to offenders facing an additional period of incarceration under the Reagan Tokes

Law.

B. Eaton cannot prevail on this facial challenge to the constitutionality of the Reagan Tokes Law because the Law is capable of being applied in a manner that would afford the required procedural safeguards.

{¶ 163} Having concluded that Morrissey-type protections were not warranted, the

lead decision concludes that R.C. 2967.271 provides the required due process safeguards

insofar as (1) “R.C. 2967.271(C) requires ODRC to hold a hearing in order to rebut the

presumption for release;” (2) “ODRC policy No. 105-PBD-15 requires ODRC to notify

an inmate of release hearings in the same manner as it provides notice to inmates of the

86. possibility of release on parole”; and (3) “the regulations governing additional term

hearings that have been promulgated by the ODRC provide many other safeguards.”

{¶ 164} Importantly ODRC has not promulgated “regulations” governing

additional term hearings. R.C. Chapter 119 sets forth a detailed process for adopting,

amending, or rescinding “rules”—defined in R.C. 119.01(C) to include “regulations.”

“[A]n administrative rule adopted pursuant to statutory authority has the force of law * *

*.” State ex rel. Gallon & Takacs Co., L.P.A. v. Conrad,

,

(10th Dist. 1997), cause dismissed,

,

(1998). An administrative policy does not. See State ex rel. Sziraki v. Indus. Comm.,

10th Dist. Franklin No. 10AP-267,

, ¶ 41, aff’d sub nom. State ex rel.

Estate of Sziraki v. Admr., Bur. of Workers’ Comp.,

, 2013-Ohio-

4007,

(observing that BWC policy did not have the effect of law).

As recognized by Judge Forbes in her dissent in State v. Delvallie,

,

(8th Dist.), appeal allowed,

,

,

, “a policy is not a rule.” As such, ODRC policy No. 105-PBD-15 is not

a “regulation.”

{¶ 165} Interestingly, although the lead decision concludes that R.C. 2967.271, on

its face, provides “more than sufficient” due process protections for offenders, its

conclusion expressly depends upon the notice requirements and “other safeguards” of

ODRC Policy No. 105-PBD-15—which are not found in R.C. 2967.271. In my view, it

is inappropriate to depend upon the provisions of an administrative policy, which lacks

87. the force and effect of law, to conclude that a statute fully satisfies all of the mandates of

constitutional due process on its face. While the actual application of the procedures of

ODRC Policy No. 105-PBD-15 would certainly be relevant to an as-applied challenge—

brought by an offender after having been subjected to an additional-term hearing under

R.C. 2967.271(C)—they are irrelevant to appellant’s facial challenge to R.C. 2967.271,

which is limited to the provisions of the statute itself.13

{¶ 166} This distinction is crucial. Eaton’s challenge to the Law is a facial

challenge; it is not an as-applied challenge. For this reason, I would find that Eaton’s

challenge to the Law must fail because while the specific hearing procedures are not

articulated in the Law itself and the current policy does not provide Morrissey-type

safeguards, the Law is still capable of being enforced in a manner that would not violate

his constitutional right to due process.

{¶ 167} 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

13 In any event, given the lead decision’s reliance upon ODRC Policy No. 105- PBD-15, I feel compelled to point out that the procedures set forth in that policy fall short of the Morrissey-type safeguards that I believe are warranted under the Reagan Tokes Law. In fact, ODRC Policy No. 105-PBD-15 does not even provide all the protections the U.S. Supreme Court held were necessary before prison authorities could revoke good- time credit in Wolff. See Wolff,

,

,

.

88. 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,

,

,

, citing

{¶ 168} 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.

This recognition 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. So long as ODRC ultimately enforces the law in a manner consistent with

the process due an offender, an offender’s constitutional rights will not be violated.

Moreover, “‘the remedy for noncompliance with the Morrissey parole-revocation due

process requirements is a new hearing, not outright release from prison.’” State ex rel.

Spann v. Mitchell,

,

(1998), quoting State ex rel.

Jackson v. McFaul,

,

(1995).

89. {¶ 169} 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. Moreover, no administrative rules have been adopted addressing

these details—only an ODRC policy without the effect of law. 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. 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.”).

{¶ 170} I feel it necessary to correct one last misunderstanding evidenced in the

lead decision. In a footnote, it acknowledges that this court decided State v. Stenson, 6th

Dist. Lucas No. L-20-1074,

, where we addressed both the separation of

powers and due-process issues addressed here. Concerning due process, Stenson is

consistent with my analysis above. The lead decision characterizes its decision and

Stenson as reaching the “same conclusion” but using “a different analysis.” Given that

90. the lead decision concludes here that “the procedural safeguards afforded defendants

under the Reagan Tokes Law are more than sufficient to pass constitutional muster,” I do

not agree that we have reached the “same conclusion.”

{¶ 171} Nevertheless, I concur with the lead decision that the Reagan Tokes Law

does not violate principles of separation of powers. I agree that Eaton has failed to meet

his heavy burden of establishing that the Reagan Tokes law, on its face, is

unconstitutional on due-process grounds. However, given the presumption of release

upon service of one’s minimum sentence, I would find that Morrissey sets forth the

process that must be afforded where ODRC seeks to maintain an offender’s incarceration

for any additional period beyond the minimum sentence imposed by the trial court.

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/.

91.