[Cite as State v. Compton , 2021-Ohio-1513.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. BRYON M. COMPTON Defendant-Appellant : : : : : : : : : : Appellate Case No. 28912

Trial Court Case No. 2020-CR-1185/1 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of April, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218 , Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayt on, Ohio 45409 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Bryon M. Compton, appeals from his convict ion in the Montgomery County Court of Common Pleas after he pled guilty to one count of aggravated robbery. In support of his appeal, Compton contends that the law under which he was sentenced—the Reagan Tokes Law (S.B. 201)—is uncon stitutional. For the reasons outlined below, the judgment of the trial court wil l be affirmed.

Facts and Course of Proceedings {¶ 2} On May 12, 2020, a Montgomery County grand jury returned an ind ictment charging Compton with one count of aggravated robbery in violat ion of R.C. 2911.01(A)(1), a felony of the first degree, which included a t hree-year firearm specification. The indictment also charged Compton with one co unt of obstructing official business in violation of R.C. 2921.31(A), a felony of the fifth degree. {¶ 3} On August 28, 2020, Compton pled guilty to the aggravated robbe ry, in exchange for which the State agreed to dismiss the attendant th ree-year firearm specification and the charge of obstructing official business. After engaging Compton in the necessary plea colloquy, the trial court accepted Compton’s guilty plea and scheduled the matter for sentencing. {¶ 4} On September 11, 2020, the trial court sentenced Compton to ser ve a minimum term of four years in prison and a maximum term of six years in prison. The trial court then ordered Compton’s prison term to be served con currently with a ninemonth prison term imposed for a drug offense in Montgomery C.P. No. 2019-CR-4159. Following the trial court’s sentencing decision, Compton immedi ately objected to the constitutionality of the law under which he was sentenced—the R eagan Tokes Law.-3- {¶ 5} Compton now appeals from his conviction, raising three assignme nts of error for review. Because Compton’s three assignments are interrelat ed, for ease of discussion, we will address them together.

Assignments of Error {¶ 6} Under each of his three assigned errors, Compton contends that the law under which his indefinite sentence was imposed—the Reagan Toke s Law (S.B. 201)— is unconstitutional. Compton claims that the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers doctrine and the r ight to due process. We disagree. {¶ 7} Pursuant to the Reagan Tokes Law, qualifying first and second-d egree felonies committed on or after March 22, 2019, are subject to t he imposition of indefinite

sentences. Indefinite sentences consist of a minimum term and a maximum term. The trial court selects the minimum term from a range of terms set forth in R.C. 2929.14(A). Once the minimum term is selected, the trial court calculates t he maximum term using formulas set forth in R.C. 2929.144(B). {¶ 8} When an offe nder’s minimum term expire s, there is a presumption that the offender shall be released from prison. R.C. 2967.271(B). The Ohio Department of Rehabilitation and Correction (“ODRC”), however, may rebut the presumption for release and hold an offender in custody up to the maximum term. R.C. 2 967.271(C). In order to do this, the ODRC must first hold a hearing and find that ce rtain statutory factors apply

to the offender. Id . The statutory factors relate to the offender’s conduct while in prison.

See R.C. 2967.271(C)(1)-(3).-4- {¶ 9} “As with any statute enacted by the General Assembly, the Reaga n Tokes Law is entitled to a ‘strong presumption of constitutionality.’ ” State v. Leet , 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 10, quoting State v. Romage , 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. “Thus, ‘if at all poss ible, statutes must be construed in conformity with the Ohio and the United States Con stitutions.’ ” Id ., quoting

State v. Collier , 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). “A party chal lenging the constitutionality of a statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt.” Id ., citing State v. Bloomer , 122 Ohio St.3d 200, 2009- Ohio-2462, 909 N.E.2d 1254, ¶ 41, citing State v. Ferguson , 120 Ohio St.3d 7, 2008- Ohio-4824, 896 N.E.2d 110, ¶ 12.

Separation of Powers {¶ 10} Under his first assignment of error, Compton contends that the sentencing scheme set forth in the Reagan Tokes Law violates the separatio n-of-powers doctrine because it usurps the role of the judiciary by giving the ODRC (the executive branch of government) authority to sentence offenders to a longer prison term. {¶ 11} We recently considered the constitutionality of the Reagan Toke s Law in State v. Ferguson , 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 and concluded t hat it does not violate the separation-of-powers doctrine. We reac hed this conclusion

because we found that the Law’s scheme is consistent with estab lished authority from the Supreme Court of Ohio, which held that “when the power to sanct ion 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.” Ferguson at ¶ 23, citing Hernandez v.-5- Kelly , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20, c iting State v.

Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19, citi ng Woods v. Telb , 89 Ohio St.3d 504, 512-513, 733 N.E.2d 1103 (2000). {¶ 12} As in Ferguson , the minimum and maximum prison terms in this case were originally imposed by the trial court and were included as part of the trial court’s sentence.

See Judgment Entry of Conviction (Sept. 18, 2020). Because the Re agan Tokes Law does not allow the ODRC to lengthen an offender’s sentence beyo nd the maximum sentence imposed by the trial court, we once again hold that th e Law does not violate the separation-of-powers doctrine. Ferguson at ¶ 23. See also State v. Barnes , 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36.

Due Process {¶ 13} Under his second and third assignments of error, Compton conten ds 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 presump tion for release after expiration of the minimum term; and (2) provides the ODRC with a “high degree of official discretion” to rebut the presumption for release without suffic ient guidance or safeguards to prevent arbitrary and discriminatory enforcement. {¶ 14} Just like Compton’s arguments regarding the separation-of-power s doctrine, in Ferguson , this court already determined that the Reagan Tokes Law does not violate due process. In this regard, we commented that: “[T]he fundamental requisite of due process of law is the oppor tunity to be heard in a meaningful time and in a meaningful manner.” * * * The-6- Reagan Tokes Law satisfies these requirements. The Law states that, in order to rebut the presumption of the minimum term, the [ODRC] must make a particular statutory determination “at a hearing.” R.C. 2967 .271(C) and (D). The Law does not give the [ODRC] unfettered discretion to require an

offender to serve more than the minimum term. And it affords a n offender notice and an opportunity to be heard before more than the mini mum may be required. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 at ¶ 25, quoting Woods , 89 Ohio St.3d 504, 513, 733 N.E.2d 1103, citing Goldberg v. Kelly , 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). {¶ 15} Similarly, the Eighth District Court of Appeals noted in State v. Simmons , 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939, that: [The ODRC] is constrained in its ability to hold an offender pa st the minimum term. R.C. 2967.271(C)(1), (2) and (3) set forth very specific factors for the [ODRC] to consider in determining whether an in mate may be imprisoned beyond his minimum release date, thereby limiting its discretion. Inmates are given adequate notice of the conduct t hat will lead to rule infractions or restrictive housing assignments, factors that trigger the [ODRC] to extend an inmate’s minimum term of incarceration. Oh io Adm.

Code 5120-9-06 sets forth inmate rules of conduct. Ohio Adm. C ode 5120- 9-08 provides detailed disciplinary procedures for inmate rule violations, with a hearing before the Rules Infraction Board and notice to the inmate of the hearing and an opportunity to appeal the decision of the bo ard. Ohio-7- Adm. Code 5120-9-10 sets forth the procedures for when and unde r what circumstances an inmate may be placed in and/or transferred to a restrictive housing assignment. These provisions of the Reagan Tokes Law [ R.C. 2967.271(C)(1)-(3)] provide adequate notice and an opportunity to be

heard.

Id. at ¶ 21, citing State v. Wilburn , 2021-Ohio-578, --- N.E.3d ---, ¶ 36 (8th Dist.). {¶ 16} While Compton acknowledges that R.C. 2967.271(C) requires a hea ring and statutory findings before additional prison time is imposed , he nevertheless contends that the statute is vague in that it provides no structure as t o how the hearing will be conducted or what rights the defendant will have at the hearing . In so arguing, Compton suggests that when undergoing a hearing pursuant to R.C. 2967.2 71(C), an offender should be entitled to due process rights that are associated wi th criminal trials. However, “the fact that prisoners retain rights under the Due P rocess Clause in no way implies that these rights are not subject to restrictions impos ed by the nature of the regime to which they have been lawfully committed.” (Citations omitte d.) Wolff v. McDonnell , 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). For e xample, “[p]rison disciplinary proceedings are not part of a criminal prosecution , and the full panoply of rights due a defendant in such proceedings does not apply.” Id. {¶ 17} This court has noted that “[r]equiring a defendant to remain in prison beyond the presumptive minimum term is akin to the decision to grant o r deny parole[.]” Leet , 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, at ¶ 17. “In th e context of parole proceedings, the United States Supreme Court has held that the required due process procedures are minimal. Specifically, the court has found that a prisoner subject to-8- parole receives adequate due process when he is allowed an oppo rtunity to be hear d and is provided a statement of the reasons why parole was denied.” Wilburn at ¶ 30, citing

Swarthout v. Cooke , 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011), cit ing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex , 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “ ‘The Constitution * * * does not requ ire more.’ ” Id ., quoting

Swarthout at 220. {¶ 18} Because the procedures employed under the Reagan Tokes Law prov ide for notice of a hearing at which an offender has an opportunity to be heard, and because the Reagan Tokes Law does not give the ODRC unfettered discreti on to decide when an offender must serve more than the minimum term, we once again h old that the Law does not violate an offender’s right to due process. {¶ 19} For the foregoing reasons, Compton has failed to prove that the Reagan Tokes Law is unconstitutional, and thus has not shown that his sentence is unlawful. Therefore, Compton’s first, secon d, and third assignments of er ror are overruled.

Conclusion {¶ 20} Having overruled all of Compton’s assignments of error, the jud gment of the

trial court is affirmed.

. . . . . . . . . . . . . TUCKER, P.J. and DONOVAN, J., concur. Copies sent to: Mathias H. Heck, Jr. Jamie J. Rizzo Hilary Lerman Hon. Mary Katherine Huffman-9-