[Cite as State v. Wolfe , 2020-Ohio-5501.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO

-vsPlaintiff-Appellee JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr. J. : : : Case No. 2020CA00021 STEPHEN H. WOLFE Defendant-Appellant : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Court of Comm on Pleas, Case No.19CR730

JUDGMENT: Affirmed in part; Reversed in part and Remanded

DATE OF JUDGMENT ENTRY: November 30, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive BY: PAULA M. SAWYE RS Gahanna , OH 43230 ASSISTANT PROSECUTOR 20 S. Second Street, 4 th Floor Newark, OH 43055[Cite as State v. Wolfe , 2020-Ohio-5501.]

Wise, John, J. {¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions an d sentences after a negotiated guilty plea in the Licking County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE {¶2} On September 16, 2019, Trooper Matthew Stoffer of the Ohio Stat e Highway Patrol attempted to make a traffic stop of a 2013 Peterbuilt Se mi-truck on State Route 30 in Wyandot County, Ohio for failing to have license plates or a PUCO number displayed on the commercial vehicle. (T. at 9-10). The vehicle, later det ermined to be operated by Appellant Stephen Wolfe, did not stop. (T. at 10). The vehicle reached speeds of 100 mph on Route 30 entering into Crawford County, back into Wyando t County, before proceeding South on State Route 23 into Marion County and Delaw are County. Id . The vehicle avoided stop strips deployed and ignored multiple cruis ers chasing with lights and sirens activated attempting to stop the vehicle. Id . Appellant steered his vehicle toward a Trooper placing stop strips on the roadway forcing the Trooper to move out of the way and injuring himself in the process. Id

. {¶3} The semi-truck collided with a 1989 Jeep Comanche operated by M ichael Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking Cou nty, Ohio. Id . As a result of the collision, Slagle suffered serious physical harm requiri ng his transfer by life flight to Grant Hospital. (T. at 10-11). The semi-truck reached speeds of 105 mph in Licking County. (T. at 11). The vehicle continued through Muskingum Cou nty and into Coshocton County. Id . Appellant abandoned the vehicle and was arrested at 1697 Ever green Park

Drive. Id . The chase occurred for more than fifty miles in total. Id

.[Cite as State v. Wolfe , 2020-Ohio-5501.] {¶4} Appellant pled guilty to assault on a peace officer, a fourth d egree felony, in violation of R.C. §2903.13(A)(C)(5); felonious assault, a secon d degree felony, in violation of R.C. §2903.11; failure to com ply, a third degr ee felony, in violation of R.C. §2921.331; receiving stolen property, a fourth degree felony, in violation of R.C. §2913.51; and failure to stop after an accident, a fourth degree felony, in violation of R.C. §4549.02. (T. at 9). {¶5} Appellant's trial counsel argued that the assault on a peace of ficer offense should merge with the offense of failure to comply. (T. at 18). Trial counsel also argued for merger of the offenses of felonious assault of the motorist , failure to comply, and failure to stop after an accident. (T. at 18). The trial court declined to merge the offenses, and Appellant objected. (T. at 24, 32). {¶6} During the sentencing hearing, Appellant expressed remorse for his conduct. (T. at 24). His trial counsel noted that Appellant was suffering from mental health and drug addiction issues because of injuries he sustain ed serving in Iraq while in the armed forces. (T. at 20-21). Trial counsel noted that Appel lant's life "changes dramatically" after he came home from Iraq. (T. at 19). Trial c ounsel further mentioned that Appellant was not acting with "malice aforethought," but w as merely trying to get to his mother's home. (T. at 19, 21). Thus, Appellant contended th at his prison sentences should be run concurrent. (T. at 32). {¶7} The court ordered Appellant to serve consecutive prison sentenc es. The court noted that Appellant completed a seven-month prison term, and that he has a pending charge from an incident in Kalamazoo, Michigan. (T. at 29-20). {¶8} Specifically, the court ordered Appellant to serve: one (1) yea r in prison for the assault on a peace officer offense; two (2) years in prison for the failure to comply[Cite as State v. Wolfe , 2020-Ohio-5501.] offense; nine (9) months in prison for the receiving stolen pro perty offense; and nine (9) months in prison for the failure to stop after an accident offe nse. For the felonious assault offense, the court ordered Appellant to serve five (5) to seven and one-half (7 1⁄2 ) years in prison. (T. at 30). {¶9} Appellant now appeals, raising the following assignments of err or: ASSIGNMENTS OF ERROR {¶10} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE O F

OHIO. {¶11} “II. STEPHEN H. WOLFE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STAT ES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION

. {¶12} “III. THE TRIAL COURT SENTENCED WOLFE TO AN INDEFINITE PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN

VIOLATION OF WOLFE'S RIGHTS TO DUE PROCESS. {¶13} “IV. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S

OFFENSES FOR ALL BUT THE RECEIVING STOLEN PROPERTY COUNT. {¶14} “V. THE TRIAL COURT UNLAWFULLY ORDERED WOLFE TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCES S, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AN D THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.”[Cite as State v. Wolfe , 2020-Ohio-5501.]

I. {¶15} In his First Assignment of Error, Appellant argues that the Rea gan Tokes Law, specifically the presumptive release feature of R.C. §2967 .271, is unconstitutional. {¶16} R.C. §2967.271 provides in pertinent part: (B) When an offender is sentenced to a non-life felony indefini te prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender' s minimum prison term or on the offender's presumptive earned early relea se date,

whichever is earlier. (C) The presumption established under division (B) of this sect ion is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the d epartment rebuts the presumption, the offender shall be released from ser vice of the sentence on the expiration of the offender's minimum prison ter m or on the offender's presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department det ermines, at a hearing, that one or more of the following applies: (1) Regardless of the security level in which the offender is c lassified at the time of the hearing, both of the following apply: (a) During the offender's incarceration, the offender committed institutional rule infractions that involved compromising the s ecurity of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or th e threat of[Cite as State v. Wolfe , 2020-Ohio-5501.] physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the i nfractions or

violations demonstrate that the offender has not been rehabilit ated. (b) The offender's behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a thre at to society. (2) Regardless of the security level in which the offender is c lassified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year pre ceding the date of the hearing. (3) At the time of the hearing, the offender is classified by t he department as a security level three, four, or five, or at a hi gher security

level. (D)(1) If the department of rehabilitation and correction, purs uant to division (C) of this section, rebuts the presumption establishe d under division (B) of this section, the department may maintain the o ffender's

incarceration in a state correctional institution under the sen tence after the expiration of the offender's minimum prison term or, for offend ers who have a presumptive earned early release date, after the offender's p resumptive earned early release date. The department may maintain the offe nder's incarceration under this division for an additional period of i ncarceration determined by the department. The additional period of incarcer ation shall[Cite as State v. Wolfe , 2020-Ohio-5501.]

be a reasonable period determined by the department, shall be s pecified by the department, and shall not exceed the offender's maximum pri son term. (2) If the department maintains an offender's incarceration for an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expirati on of the offender's minimum prison term plus the additional period of in carceration specified by the department as provided under that division or, for offenders who have a presumptive earned early release date, on the expira tion of the additional period of incarceration to be served after the offen der's presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttabl e presumption that the department may rebut, but only if it condu cts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the o ffender's

incarceration in a state correctional institution for an additi onal period determined as specified in division (D)(1) of this section. Unl ess the department rebuts the presumption at the hearing, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of inc arceration to be served after the offender's presumptive earned early release da te as specified by the department.[Cite as State v. Wolfe , 2020-Ohio-5501.] The provisions of this division regarding the establishment of a rebuttable presumption, the department's rebuttal of the presum ption, and the department's maintenance of an offender's incarceration for an additional period of incarceration apply, and may be utilized m ore than one time, during the remainder of the offender's incarceration. If the offender has not been released under division (C) of this section or thi s division prior to the expiration of the offender's maximum prison term imposed as part of the offender's non-life felony indefinite prison term, the offe nder shall be released upon the expiration of that maximum term. {¶17} Appellant herein argues the portions of the statute which allow the Department of Rehabilitation a nd Corrections (DRC) to administr atively extend his prison term beyond his presumptive minimum prison term violate the Uni ted States and Ohio

Constitutions. {¶18} Appellant, however, has not yet been subject to the application of these provisions, as he has not yet served his minimum term, and ther efore has not been denied release at the expiration of his minimum term of incarceration. {¶19} This Court recently analyzed an appeal of a sentence imposed pu rsuant to the Reagan Tokes Act. See State v. Downard , 5th Dist. Muskingum No. CT2019-0079,

2020-Ohio-4227. In Downward , the appellant entered a plea of guilty to robbery, a second-degree felony, and assault on a peace officer, a fourth- degree felony. The trial court sentenced the appellant on September 23, 2019, pursuant t o the Reagan Tokes Act. On the robbery conviction, the trial court sentenced the a ppellant to a stated minimum prison term of eight years. The trial court sentenced the appel lant to a stated prison term[Cite as State v. Wolfe , 2020-Ohio-5501.]

of twelve months for assault on a peace officer. The trial cour t ordered the sentences to be served consecutively, for an aggregate minimum prison term o f nine years and an aggregate indefinite maximum prison term of thirteen years. Id. at ¶ 2. The appellant appealed the sentence, arguing the Reagan Tokes Act violated hi s constitutional rights to due process and trial by jury. Id. at ¶ 5. {¶20} In Downward , we first discussed the legal concept of “ripeness for review” : The Ohio Supreme Court discussed the concept of ripeness for

review in State ex rel. Elyria Foundry Co. v. Indus. Comm. , 82 Ohio St.3d 88, 1998-Ohio-366, 694 N.E.2d 459: Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S. Ct. 335, 357, 42 L.Ed.2d 320, 351. The ripeness doctrine is motivated in part by the desire “to prevent the courts, through avoidance of premature adjudica tion, from entangling themselves in abstract disagreements over administra tive policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S . 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observ ed: The basic principle of ripeness may be derived from the conclus ion that ‘judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abst ract or hypothetical or remote.’ * * * [T]he prerequisite of ripeness i s a limitation on jurisdiction that is nevertheless basically optimistic as regar ds the prospects of a day in court: the time for judicial relief is simply not y et arrived, even though the alleged action of the defendant foretells legal inju ry to the plaintiff.[Cite as State v. Wolfe , 2020-Ohio-5501.] Comment, Mootness and Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460. {¶21} Downard , at ¶¶ 8-9. {¶22} We next found the Appellant's appeal of the constitutionality o f the Reagan Tokes Act was not ripe for review: * * * [W]hile R.C. 2967.271 allows the DRC to rebut the presump tion Appellant will be released after serving his nine year minimum sentence and potentially continue his incarceration to a term not exceeding thirteen years, Appellant has not yet been subject to such action by the DRC, a nd thus the constitutional issue is not yet ripe for our review.” Downard , at ¶ 11. We determined the appropriate action for the Appellant “to challen ge the constitutionality of the presumptive release portions of R.C. 2 967.271 is by filing a writ of habeas corpus if he is not released at the con clusion of his eight year minimum term of incarceration. {¶23} Downard , at ¶ 12. {¶24} We find that the issues presented in the current case are the s ame as those

raised in Downard . On January 24, 2020, the trial court sentenced Appellant to s erve a stated prison year of one year on Count 1, five to seven and on e-half years on Count 2, two years Count 3, nine months on Count 4, and nine months on C ount 5 at the Orient Reception Center. All counts were ordered to run consecutively for nine and one-half (9) years to twelve (12) years. (T. at 30). {¶25} There is no dispute that Appellant has not yet been s ubject to R.C. §2967.271, which allows the DRC to rebut the presumption that A ppellant will be released[Cite as State v. Wolfe , 2020-Ohio-5501.] after serving his minimum sentence of nine and one-half years a nd potentially continuing his incarceration to a term not exceeding twelve years. {¶26} We therefore find that the constitutional issues argued by Appe llant, pursuant to Downard , are not yet ripe for review. {¶27} See, also, State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio5013; State v. Manion , 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230;

State v. Kibler , 5 th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631 (constitutional ity of Reagan Tokes Law not ripe for review where defendant was not yet subject to presumptive release provisions). {¶28} Appellant’s First Assignment of Error is overruled.

II. {¶29} In his Second Assignment of Error, Appellant contends that he w as denied

effective assistance of trial counsel because trial counsel fai led to challenge the constitutionality of the Reagan Tokes law in the trial court. {¶30} To prevail on a Sixth Amendment claim alleging ineffective assi stance of counsel, a defendant must show that his counsel's performance w as deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficie ncy, a defendant must show that “counsel's representation fell below an objective sta ndard of reasonableness.”

Id ., at 688, 104 S.Ct. 2052. And to establish prejudice, a defend ant must show “that there is a reasonable probability that, but for counsel's unprofessio nal errors, the result of the proceeding would have been different.” Id., at 694, 104 S.Ct. 2 052. See, also, Andrus, v. Texas, U.S.__, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335(June 15, 2020).[Cite as State v. Wolfe , 2020-Ohio-5501.] {¶31} In the instant case, because the Reagan Tokes Law is not yet ri pe for review, the trial court did not err, plain or otherwise, in sen tencing Appellant. As the statute is not ripe for review, there is no reasonable probability that , but for counsel’s failure to challenge the constitutionality of the Reagan Tokes Law, the re sult of the proceeding

would have been different. {¶32} Appellant’s Second Assignment of Error is overruled.

III. {¶33} In his Third Assignment of Error, Appellant argues that the tri al court failed to comply with R.C. §2929.19(B)(2)(c) because the court did not provide the requisite notices at his sentencing hearing, and that the sentence is con trary to law. {¶34} The language of R.C. §2929.19(B)(2)(c) became effective March 2 2, 2019, and to date its application has not received close scrutiny. Th e relevant portions of this statute provide that: (B)(1) At the sentencing hearing, the court, before imposing sentence, shall consider the record, any information presented at the hearing by any person pursuant to division (A) of this section, and, if one was prepared, the presentence investigation report made pursuan t to section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim impact statement made pursuant to section 2947.051 of the Revis ed Code. (2) Subject to division (B)(3) of this section, if the sentenci ng court

determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: (Emphasis added.)[Cite as State v. Wolfe , 2020-Ohio-5501.] {¶35} Subsection (B)(2)(c) sets out the notifications that are to be provided in accordance with the directive of Subsections (B)(1) and (2) whi ch mandates that the court notify the offender at the sentencing hearing: (c) If the prison term is a non-life felony indefinite prison t erm, notify the offender of all of the following: (i) That it is rebuttably presumed that the offender will be re leased from service of the sentence on the expiration of the minimum p rison term imposed as part of the sentence or on the offender’s presumptiv e earned early release date, as defined in section 2967.271 of the Revis ed Code, whichever is earlier; (ii) That the department of rehabilitation and correction may r ebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender’s conduct while confined, the offender’s rehabilitation, the offender’s threat to society , the offender’s restrictive housing, if any, while confined, and the offender’s security classification; (iii) That if, as described in division (B)(2)(c)(ii) of this s ection, the department at the hearing makes the specified determinations an d rebuts the presumption, the department may maintain the offender’s inc arceration after the expiration of that minimum term or after that presump tive earned early release date for the length of time the department determ ines to be[Cite as State v. Wolfe , 2020-Ohio-5501.] reasonable, subject to the limitation specified in section 2967 .271 of the Revised Code; (iv) That the department may make the specified determinations and maintain the offender’s incarceration under the provisions desc ribed in divisions (B)(2)(c)(i) and (ii) of this section more than one t ime, subject to the limitation specified in section 2967.271 of the Revised Cod e; (v) That if the offender has not been released prior to the exp iration of the offender’s maximum prison term imposed as part of the se ntence, the offender must be released upon the expiration of that term. (d) Notify the offender that the offender will be supervised un der section 2967.28 of the Revised Code after the offender leaves p rison if the offender is being sentenced, other than to a sentence of life i mprisonment, for a felony of the first degree or second degree, for a felony sex offense, or for a felony of the third degree that is an offense of viole nce and is not a felony sex offense. This division applies with respect to all p rison terms imposed for an offense of a type described in this division, in cluding a nonlife felony indefinite prison term and including a term imposed for any offense of a type described in this division that is a risk red uction sentence,

as defined in section 2967.28 of the Revised Code. If a court i mposes a sentence including a prison term of a type described in divisio n (B)(2)(d) of this section on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(2)(d) of this section that th e offender will be supervised under section 2967.28 of the Revised Code after t he offender[Cite as State v. Wolfe , 2020-Ohio-5501.] leaves prison or to include in the judgment of conviction enter ed on the journal a statement to that effect does not negate, limit, or o therwise affect the mandatory period of supervision that is required for the of fender under division (B) of section 2967.28 of the Revised Code. Section 29 29.191 of the Revised Code applies if, prior to July 11, 2006, a court im posed a sentence including a prison term of a type described in divisio n (B)(2)(d) of this section and failed to notify the offender pursuant to divi sion (B)(2)(d) of this section regarding post-release control or to include in th e judgment of conviction entered on the journal or in the sentence a statemen t regarding post-release control. (e) Notify the offender that the offender may be supervised und er section 2967.28 of the Revised Code after the offender leaves p rison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(2)(d) of this section. This division applies with respect to all prison terms imposed for an offense of a ty pe described in this division, including a term imposed for any such offense that is a risk reduction sentence, as defined in section 2967.28 of the Revise d Code. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term of a type desc ribed in division (B)(2)(e) of this section and failed to notify the off ender pursuant to division (B)(2)(e) of this section regarding post-release contr ol or to include in the judgment of conviction entered on the journal or in the sentence a statement regarding post-release control.[Cite as State v. Wolfe , 2020-Ohio-5501.] (f) Notify the offender that, if a period of supervision is imp osed following the offender’s release from prison, as described in d ivision (B)(2)(d) or (e) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division ( B) of section 2967.131 of the Revised Code, the parole board may impose a pri son term, as part of the sentence, of up to one-half of the definite pris on term originally imposed upon the offender as the offender’s stated prison term or up to onehalf of the minimum prison term originally imposed upon the off ender as part of the offender’s stated non-life felony indefinite prison term. If a court imposes a sentence including a prison term on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(2)(f) of this section that the parole board may impose a prison term as descr ibed in division (B)(2)(f) of this section for a violation of that supe rvision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code or to include in the judgment of c onviction entered on the journal a statement to that effect does not nega te, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature if, pursuant to division (D)(1) of section 2967.28 of the Revised Code, the parole board notifies the offender pri or to the offender’s release of the board’s authority to so impose a pris on term. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term and failed to notify the offender pursuant to division (B)(2)(f) of this section regardi ng the possibility[Cite as State v. Wolfe , 2020-Ohio-5501.] of the parole board imposing a prison term for a violation of s upervision or a condition of post-release control. (g)(i)1 Determine, notify the offender of, and include in the sentencing entry the total number of days, including the senten cing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is bei ng sentenced and by which the department of rehabilita tion and correction mu st reduce the definite prison term imposed on the offender as the offende r’s stated prison term or, if the offense is an offense for which a non-li fe felony indefinite prison term is imposed under division (A)(1)(a) or ( 2)(a) of section 2929.14 of the Revised Code, the minimum and maximum prison ter ms imposed on the offender as part of that non-life felony indefin ite prison term,

under section 2967.191 of the Revised Code. The court’s calcula tion shall not include the number of days, if any, that the offender serve d in the custody of the department of rehabilitation and correction aris ing out of any prior offense for which the prisoner was convicted and sentence d. {¶36} Thus, the trial court must provide the information desc ribed in R.C. §2929.19(B)(2)(c) to a defendant at the sentencing hearing to f ulfill the requirements of

the statute. {¶37} In this case, the court gave no advisement of any of the requir ements set forth in R.C. §2929.19(B) at the sentencing hearing held Januar y 24, 2020 and, therefore, we find that the sentence is contrary to law. {¶38} Appellant’s Third Assignment of Error is sustained.[Cite as State v. Wolfe , 2020-Ohio-5501.]

IV. and V. {¶39} Because we reverse and remand the decision of the Licking County Court of Common Pleas for resentencing, we find Appellant’s Fourth and F ifth Assignments of Error to be premature. {¶40} Based on the foregoing, we reverse and remand the decision of t he Licking County Court of Common Pleas for resentencing consistent with l aw and this opinion. By Wise, John, J. Wise, Earle, J., concurs. Gwin, J., concurs in part and dissents in part.

JWW/kw 1117Licking County, Case No. 2020CA00021 19 Gwin, J., concurs in part; dissents in part {¶41} I respectfully dissent from the majority’s opinion concerning r ipeness and Appellant’s First and Second Assignments of Error. I concur in the majority’s disposition of Appellant’s Third and Fourth Assignments of Error.

I.& II. Ripeness. {¶42} Ripeness reflects constitutional considerations that implicate “Article III limitations on judicial power,” as well as “prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social Services, Inc ., 509 U.S. 43, 57, n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). In evaluating a claim to determine wheth er it is ripe for judicial review, courts should consider both “the fitness of the issues for judicial decision” and “the hardship of withholding court consideration.” National Park Hospitality Assn. v. Department

of Interior , 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The Supreme Court has stated that the “basic rationale” of the ripeness doc trine “is to prevent the courts, through premature adjudication, from entangling themselves in a bstract disagreements.”

Abbott Laboratories v. Gardner , 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). {¶43} In determining the “likelihood” that an injury will come to pas s, the Supreme Court has made clear that “[o]ne does not have to await consumm ation of threatened injury to obtain preventive relief.” Blum v. Yaretsky , 457 U.S. 991, 1000, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). For example, in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Court deemed ripe an action brought by eight major railroads challenging the conveyance of their property to Conrail. Although a reorganization plan had not yet been formulated and a special c ourt had not yet ordered the conveyances, the Court reasoned that “where the inevitability o f the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come intoLicking County, Case No. 2020CA00021 20 effect.” Id. at 143, 95 S.Ct. 335. Although not requiring “in evitability,” the Court has held that a claim is ripe when it is “highly probable” that the alle ged harm or injury will occur. {¶44} “Three factors guide the ripeness inquiry: ‘(1) the likelihood that the harm alleged by the plaintiffs will ever come to pass; (2) whether t he factual record is sufficiently developed to produce a fair adjudication of the merits of the p arties’ respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings.’ ” Berry v. Schmitt , 688 F.3d 290, 298 (6th Cir. 2012) ( quoting Grace Cmty. Church v. Lenox Twp. , 544 F.3d 609, 615 (6th Cir. 2008)). See also , Reno v. Catholic Social Services, Inc., 509 U.S.43, 71, 113 S.Ct. 2485, 125 L.Ed.2d 38(1993)(O’Conner, J. concurring)(“These are just the kinds of factors identified in the two-part, prudentia l test for ripeness that Abbott

Laboratories [ v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681(1967)] articulated. “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the partie s of withholding court consideration.” 387 U.S. at 149, 87 S.Ct. at 1515. See Thomas v. Union Carbide Agricultural Products Co ., 473 U.S. 568, 581–582, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985) ( relying upon Abbott Laboratories test); Pacific Gas, supra , 461 U.S. at 200–203, 103 S.Ct., at 1720–1721 (same); National Crushed Stone, supra , 449 U.S. at 72–73, n. 12, 101 S.Ct., at 301–302, n. 12 (same).”). As the court in Riva v. Commonwealth of

Massachusetts noted, Although it is a familiar bromi de that courts should not labor to protect a party against harm that is merely remote or contingent, see, e.g., Ernst & Young, 45 F.3d at 536; Massachusetts Ass’n of Afro–Am. Pol ice, 973 F.2d at 20; Lincoln House v. Dupre , 903 F.2d 845, 847 (1st Cir. 1990), there is some play in the joints. For example, even when the direct application of a statute is open to a charge of remoteness by reason of a lengthy, built-in time delay before t he statute takes effect, ripeness may be found as long as the statute’s operation is ine vitable (or nearly so).Licking County, Case No. 2020CA00021 21 See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102, 142–43, 95 S.Ct. 335, 357– 58, 42 L.Ed.2d 320 (1974). And, even when the direct applicatio n of such a statute is subject to some degree of contingency, the statute may impos e sufficiently serious collateral injuries th at an inquiring court will deem the hards hip component satisfied. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.2, at 121–22 (2d ed. 1994). In general, collateral effects can rise to this level when a statu te indirectly permits private action that causes present harm, or when a party must d ecide currently whether to expend substantial resources that would be largely o r entirely wasted if the issue were later resolved in an unfavorable way. See, e.g., Pacific Gas , 461 U.S. at 201, 103 S.Ct. at 1720–21; Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81–82, 98 S.Ct. 2620, 2634–35, 57 L.Ed.2d 595 (197 8) 61 F.3d 1003, 1010(1 st Cir. 1995).

In United Public Workers v. Mitchell , 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), the Supreme Court held that review of the Hat ch Act, which prohibits federal employees from engaging in certain political activities, was non-justiciable with respect to those plaintiff-employees who h ad not yet engaged in any of the prohibited activity. Subsequently, howeve r, the Court

relaxed Mitchell’s strict approach to justiciability. If the injury is clearly impending, the Court has held that the plaintiffs need not awai t consummation of the injury to bring their suit. Babbitt v. United Farm Workers National Union , 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979); Regional Rail Reorganization Act Cases , 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974); Steffel v. Thompson , 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Pennsylvania v. West Virginia , 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). Signorelli v. Evans, 637 F.2d 853, 856-857(2 nd Cir. 1980).Licking County, Case No. 2020CA00021 22 {¶45} The Ohio Supreme Court has interpreted a “justiciable matter” t o mean the existence of an actual controversy, a genuine dispute between a dverse parties . State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas , 74 Ohio St.3d 535, 542, 660 N.E.2d 458 (1996). In order for a justiciable question to e xist, the “threat” to a party’s position “must be actual and genuine and not merely possible or remote.” M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C ., 2014-Ohio-2537, 14 N.E.3d 1054, ¶ 17, c iting Mid–Am. Fire & Cas. Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. {¶46} In the present case, every individual throughout the State of O hio who is convicted of a first- or second-degree felony must be sentenced under the Reagan Tokes Law. It is a virtual certainty that a number of those individua ls, perhaps a significantly large number, will have the DRC extend hi s or her incarceration beyon d the presumed release date. This is not an abstract or hypothetical case; rather, it is a virtual certainty to occur. Under Reagan Tokes, the question is not if a defendant will be denied his or her presumptive release date; but rather when a defendant’s sentence will be extended. {¶47} The record before this Court is sufficiently developed to allow us to produce a fair adjudication of the merits of the parties’ respective clai ms. It is not unusual for courts to be asked to pass upon the constitutionality of statute. The con stitutional arguments are capable of being addressed in the present appeal. {¶48} I would call attention to the fact that other jurisdictions hav e implicitly determined the issue to be ripe for review by addressing the co nstitutional challenge to the Reagan Tokes provisions regarding future, possible extensions o f a prison term beyond the presumed minimum term. The Second District Court of Appeals fou nd the law constitutional

in State v. Barnes , 2nd Dist. Montgomery No. 28613, 2020-Ohio-4150, State v. Leet , 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592, and State v. Ferguson , 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153. The Third District found the law constitutional in State v. Hacker, 3 rd Dist. Logan No. 8-20-01, 2020-Ohio-5048. The Twelfth District Court ofLicking County, Case No. 2020CA00021 23 Appeals also determined the law was constitutional in State v. Guyton , 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, State v. Rodgers , 12th Dist. Butler No. CA2019-11-194, 2020-Ohio-4102, and State v. Morris , 12th Dist. Butler No. CA2019-12-205, 2020-Ohio4103. I further note that the Sixth District has certified the ripeness issue to the Ohio Supreme Court as being in conflict with the decisions from the Second and Twelfth Districts

that have found the law constitutional. State v. Velliquette, 6 th Dist. Logan No. L-19-1232,

2020-Ohio-4855. {¶49} The hardship to the parties if judicial relief is denied at thi s stage in the proceedings is real and immense. Now, the indigent appellant, who wishes to raise a constitutional challenge to the law in his or her direct appeal as of right has the assistance of appointed counsel. If, for example, the appellant must wait for two years for the DRC to extend his sentence, both the inmate and the courts will face a myriad of legal hurdles. First, how will the inmate inform the court of his or her desir e to appeal the constitutionally of the law? Next, is the inmate entitled to appointed counsel t o pursue such an appeal? If the inmate is not, then an incarcerated inmate with limited leg al resources and acumen will have to cobble together a highly involved constitutional argume nt without the assistance of counsel and with extremely limited access to legal resources. It will also become evident that the DRC decision extending the inmate’s sentence is not pa rt of the trial court record.

In order to establish that the inmate’s sentence was in fact ex tended, will the trial court be required to order the DRC to file its decision with the clerk o f courts for inclusion in the trial and appellate court records. Further, if the law is declared un constitutional years from now,

courts will be inundated with writ s of habeas corpus, motions a nd other request for release or resentencing from the hundreds of inmates who were sentenced under the law and not permitted to appeal the constitutionality of the law in the inm ate’s direct appeal. Finally, the inmate could potentially have been incarcerated perhaps years b eyond his release date for

the time it takes to decide the issue in the event the law is f ound to be unconstitutional.Licking County, Case No. 2020CA00021 24 {¶50} In addition, if the law is declared constitutional or unconstit utional, that holding will apply, not just to the single inmate whose appeal is under consideration, but also to all

inmates that have been sentenced under the new law. {¶51} It is clear on these facts that Appellant has demonstrated suff icient hardship, and that the question of the constitutionality of the Reagan To kes Law is fit for our review at this time. I find that nothing is to be gained by postponing for possibly years the unavoidable constitutional challenge to the Reagan Tokes provis ions regarding future, possible extensions of a prison term beyond the presumed minimu m term. The Reagan Tokes Law. {¶52} The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became effective on March 22, 2019. The Reagan Tokes Law, “significantly altere d the sentencing structure for many of Ohio’s most serious felonies’ by implementing an in definite sentencing system for those non-life felonies of the first and second degree, com mitted on or after the effective

date.” State v. Polley , 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1. {¶53} As with any statute enacted by the General Assembly, the Reagan Tokes Law is entitled to a “strong presumption of constitutionality.” State v. Romage , 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possi ble, statutes must be construed in conformity with the Ohio and the United States Con stitutions.” State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). A party challen ging the constitutionality of a statute bears the burden of proving that it is unconstitution al beyond a reasonable doubt.

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. {¶54} The power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and courts may only impose sentences as provided by

statute. Whalen v. United States , 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715Licking County, Case No. 2020CA00021 25 (1980); Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In the case at bar, the legislature has authorized as a sentence for a felony of the first degree, (1)(a) For a felony of the first degree committed on or after t he effective date of this amendment, the prison term shall be an indefinite priso n term with a stated minimum term selected by the court of three, four, five, six, s even, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that c riminalizes the conduct constituting the felony specifies a different minimum term or p enalty for the offense, the specific language of that section shall control in determin ing the minimum term or otherwise sentencing the offender but the minimum term or se ntence imposed under that specific language shall be considered for purposes o f the Revised Code as if it had been imposed under this division. R.C. 2929.14(A)(1)(a). {¶55} The legislature has authorized as a sentence for a felony of th e second degree, (2)(a) For a felony of the second degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to s ection 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for th e offense, the specific language of that section shall control in determining the minim um term or otherwise sentencing the offender but the minimum term or sentence impose d under that specific language shall be considered for purposes of the Revis ed Code as if it had been imposed under this division. (R.C. 2929.14(A)(2)(a)).Licking County, Case No. 2020CA00021 26 {¶56} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for a felony of the first degree, the defendant could have received a n indeterminate minimum sentence of five, six, seven, eight, nine or ten years up to a maximum of twenty-five years. See, State v. Davis, 9 th Dist. Summit No. 13092, 1987 WL 25743(Nov. 25, 1987), citing former R.C. 2929.11. The pre-SB2 sentence for a felony of the s econd degree was as follows, Whoever is convicted of or pleads guilty to a felony other than aggravated murder or murder . . . shall be imprisoned for an indefinite te rm... (B)(5) For a felony of the second degree, the minimum term shal l be two, three, four or five years, and the maximum shall be fifteen yea rs. See, State v. Jenks, 2nd Dist. Montgomery No. 10264, 1987 WL 20267(Nov. 16, 1987), citing former R.C. 2929.1. What is different from prior law regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive release dat e. {¶57} The Reagan Tokes Law requires that a court imposing a prison te rm under R.C. 2929.14(A)(1)(a) or (2)(a) for a first- or second-degree f elony committed on or after March 22, 2019, impose a minimum prison term under that provisi on and a maximum prison term determined under R.C. 2929.144(B); R.C. 2929.144(C). Furt her, under the Reagan Tokes Law, there is a presumption that the offender “ shall be released from service of the sentence on the expiration of the offender’s minimum prison ter m or on the offender’s presumptive earned early release date, whichever is earlier.” R.C. 2967.271(B) (emphasis added). A presumptive earned early release date is a date dete rmined under procedures described in R.C. 2967.271(F), which allow the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The DRC may rebut the presumption if it determines at a hearing that one or more stat utorily numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it ma y maintain the offender’s incarceration after the expiration of the minimum prison term o r presumptive earned earlyLicking County, Case No. 2020CA00021 27 release date for a reasonable period of time, determined and sp ecified by DRC that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271( D)(1). Right to a jury trial to determine to rebut the presumptive release. {¶58} Wolfe first argues that Reagan Tokes violates his right to have a jury determine any increase in punishment beyond that authorized by the jury’s verdict and findings, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 238, 147 L.Ed.2d 435(2000) and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004). {¶59} In Apprendi, a jury convicted the defendant of a gun crime that carried a maximum prison sentence of 10 years. But then a judge sought t o impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime wit h racial bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the p enalty for a crime beyond the prescribed statutory maximum,” this Court explained, “must be s ubmitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. 530 U. S. at 490, 120 S.Ct. 2348. Nor may a State evade this traditional restraint o n the judicial power by simply calling the process of finding new facts and imposing a new pun ishment a judicial “sentencing enhancement.” Id., at 495, 120 S.Ct. 2348. “[T]he relevant inquiry is one not of form, but of effect—does the required [judicial] finding exp ose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id., at 494, 120 S.Ct. 2348. {¶60} In Alleyne v. United States , 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court address, a case concern ing mandatory minimum

sentences and the Sixth Amendment. In Alleyne , the jury relied on the testimony of the victim of an armed robbery that one of the perpetrators possess ed a gun. The trial court relied on the same testimony to determine that Alleyne or his a ccomplice brandished a gun. The testimony was the same, but the findings were different. T he jury found that AlleyneLicking County, Case No. 2020CA00021 28 possessed a gun, but made no finding with regard to whether the weapon was brandished. The court, however determined that the gun was brandished. The Supreme Court reviewed the statutory punishment structure, which included a mandatory minimum sentence of five years if a crime of violence was committed while the offender c arried a firearm, seven years if the firearm was brandished, and ten years if the firearm was discharged during the crime. 18 U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not exceeding 20 years. 18 U.S.C.1951 (a). The court held that wh ere facts were not found by a jury that enhanced the mandatory minimum penalty for a crime, principles of the Sixth

Amendment were violated. Alleyne at paragraph one of the syllabus. Specifically, “[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an ‘element’ that must be su bmitted to the jury.” Id. See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 2014-Ohio-3412, ¶29. However, t he majority in Alleyne was careful to declare that, In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding do es not entail. Our ruling today does not mean that any fact that influences judici al discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial fact-finding, does not violate the Sixth Amendment. See, e .g., Dillon v.

United States , 560 U.S. 817, ––––, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (20 10) (“[W]ithin established limits [,] ... the exercise of [sentenci ng] discretion does not contravene the Sixth Amendment even if it is informed by judge- found facts” (emphasis deleted and internal quotation marks omitted)); Apprendi , 530 U.S., at 481, 120 S.Ct. 2348 (“[N]othing in this history suggests that i t is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute”).Licking County, Case No. 2020CA00021 29 Alleyne , 133 S.Ct. at 2163, 186 L.Ed.2d 314. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA 28, 2014-Ohio-357, ¶19. {¶61} Under the Reagan Tokes Law, the judge imposes both a minimum an d a maximum sentence. Judicial fact-finding is not required. In O hio, “trial courts have full discretion to impose a prison sentence within the statutory ran ge and are no longer required to make findings or give their reasons for imposing maximum, co nsecutive, or more than

the minimum sentences.” State v. Kalish , 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction (“DRC”) is not permitted to extend a sentence imposed by the trial court beyon d the maximum sentence imposed by the trial court. Further, the facts which postpone a n inmate’s release date are facts found as a result of prison disciplinary proceedings, not the underlying crime. To extend Wolfe’s argument to its logical end it would be necessar y for the courts to invalidate punishment as a result of internal prison disciplinary proceedi ngs entirely, or require all rule infractions to be tried before a jury. {¶62} It is evident that Apprendi and its progeny have no application in a prison disciplinary setting where the DRC does not have the authority to extend the inmate’s sentence beyond the maximum sentence imposed by the trial judge

. An incarcerated individual does not have a constitutional right to parole or release before serving his entire sentence. {¶63} An inmate has no constitutional right to parole release before the expiration of

his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex , 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Ohio Adult Parole Authority has “wide-ranging discretion in parole matters.” Layne v. Ohio Adult Parole Auth. , 97 Ohio St.3d 456, 2002- Ohio-6719, 780 N.E.2d 548, ¶ 28. See also, State ex rel. Bailey v. Ohio Parole Board, 152 Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶9.Licking County, Case No. 2020CA00021 30 {¶64} The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner “must, instead, have a legitimate claim of entitlement to it.” Greenholtz, 422 U.S. at 7, 99 S.Ct. at 2104 ( quoting Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). Moreover, on ly state law can create this “legitimate claim of entitle ment”; the federal constitutio n protects such claims, but does not create them. “There is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the ex piration of a valid sentence.” Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. Accord, Inmates of Orient Correctional Institute v. Ohio State Parole Board, 929 F.2d 233, 235(6th Cir 1991). {¶65} However, if state law entitles an inmate to release on parole t hat entitlement is a liberty interest that is not to be taken away without due process. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the cont ext of a statute providing that the Nebraska parole board “shall” release parole-eligible inmates unless one of several factors specified in the statute should be found to exist. {¶66} As relevant here, R.C. 2967.271(B) states: (B) When an offender is sentenced to a non-life felony indefini te prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. (Emphasis added). {¶67} Also relevant is R.C. 2967.271(C), which states: (C) The presumption established under division (B) of this sect ion is a rebuttable presumpti on that the department of rehabilitation an d correction may rebut as provided in this division. Unless the department rebuts the presumption, the

offender shall be released from service of the sentence on the expiration of theLicking County, Case No. 2020CA00021 31 offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies: (1) Regardless of the security level in which the offender is c lassified at the time of the hearing, both of the following apply: (a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a s tate correctional institution, compromising the safety of the staff of a state co rrectional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violati on of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not

been rehabilitated. (b) The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of t his section, demonstrate that the offender continues to pose a threat to society. (2) Regardless of the security level in which the offender is c lassified at the time of the hearing, the offender has been placed by the depart ment in extended restrictive housing at any time within the year preceding the d ate of the hearing. (3) At the time of the hearing, the offender is classified by t he department as a security level three, four, or five, or at a higher security level. {¶68} The legislature by choosing the language “there shall be a presumption that the person shall be released ” and “Unless the department rebuts the presumption, the

offender shall be rele a sed ,” within the Reagan Tokes Law has arguably created enforceable liberty interests in parole. Board of Pardons v. Allen , 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). See, also, Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233, 236-237(6th Cir. 1991(“Although the power to deny paroleLicking County, Case No. 2020CA00021 32 is purely discretionary as far as Ohio’s statutes are concerned , the state’s administrative regulations must also be considered. If Ohio’s regulations cre ated an explicit presumption of entitlement to release on parole—as Tennessee’s regulations formerly did, see Mayes

v. Trammell , 751 F.2d 175, 178 (6th Cir. 1984)—or if the Ohio regulations otherwise used “‘mandatory language’ in connection with ‘specific substantive predicates’ ” for release on parole, see Beard v. Livesay , 798 F.2d 874, 877 (6th Cir.1986) (quoting Hewitt v. Helms , 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)), the regulations alone could create a protected liberty interest.”). Cf. State, ex rel. Bailey v. Ohio Parole Board, 152 Ohio St.3d 426, 2017-Ohio-9202, 97 N.E.3d 433, ¶ 10 (“The Revised Co de creates an inherent expectation ‘that a criminal offender will receive meaningful c onsideration for parole.’” ( Citing Layne v. Ohio Adult Parole Auth ., 97 Ohio St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 27). {¶69} “As for the Due Process Clause, standard analysis under that pr ovision proceeds in two steps: We first ask whether there exists a libe rty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient . Kentucky Dept. of Corrections v. Thompson , 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).” Swarthout v. Cooke, 562 U.S. 216, 219-220, 131 S.Ct. 859, 178 L.Ed.2d 732(2011). Assuming a rguendo that the language chosen by the legislature has been created an enforcea ble liberty interest in parole by the express terms of the Reagan Tokes Act, the questi on now becomes what process is due in the prison setting. Due Process in the prison setting. {¶70} When a State creates a liberty interest, the Due Process Clause requires fair procedures for its v indication—and courts will review the appli cation of those constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732(2011).Licking County, Case No. 2020CA00021 33 {¶71} In the context of parole, the United States Supreme Court has h eld that the procedures required are minimal. In Greenholtz , the Court found that a prisoner subject to a parole statute received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was deni ed. Id. at 16, 99 S.Ct. 2100. “The Constitution,” we held, “does not require more.” Swarthout v. Cooke, 562 U.S. 216, 220, 131 S.Ct. 859, 178 L.Ed.2d 732(2011). {¶72} In Woods v. Telb , the Ohio Supreme Court made the following observation concerning Ohio law, Under the [pre-SB2] system of parole, a sentencing judge, impos ing an indefinite sentence with the possibility of parole, had limited power or authority to

control the minimum time to be served before the offender’s rel ease 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 parame ters. The judge had no power to control the conditions of parole or the length of the parole supervision.

*** But, we observe that for as long as parole has existed in Ohio, the executive branch (the APA 1 and its predecessors) has had absolute discretion over that po rtion

of an offender’s sentence. See State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81.

* * * Woods v. Telb, 89 Ohio St.3d at 511-512, 733 N.E.2d 1103. {¶73} Although entitled to the protection under the Due Process Claus e, “prison disciplinary proceedings are not part of a criminal prosecution , and the full panoply of rights due a defendant in such proceedings does not apply.” Wolfe v. McDonnell, 416 U.S. 539,

1 Adult Parole AuthorityLicking County, Case No. 2020CA00021 34 556, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974) (citations omitted). In Wolfe, the United States Supreme Court observed, In striking the balance that the Due Process Clause demands, ho wever, we think the major consideration militating against adopting the f ull range of procedures suggested by Morrissey [ v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972)] for alleged parole violators is the very different s take the State has in the structure and content of the prison disciplinary hearing. That the revocation of parole be justified and based on an accurate assessment of the facts i s a critical matter to the State as well as the parolee; but the procedures by which i t is determined whether the conditions of parole have been breached do not themselves t hreaten other important state interests, parole officers, the police, or witn esses—at least no more

so than in the case of the ordi nary criminal trial. Prison dis ciplinary proceedings, on the other hand, take place in a closed, tightly controlled envi ronment peopled by

those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means t o attain their ends. They may have little regard for the safety of others or their p roperty or for the rules designed to provide an orderly and reasonably safe prison life. Although there are very many varieties of prisons with different degrees of securi ty, we must realize that in many of them the inmates are closely supervised and their ac tivities controlled

around the clock. Guards and inmates co-exist in direct and in timate contact. Tension between them is unremitting. Frustration, resentment, a nd despair are commonplace. Relationships among the inmates are varied and co mplex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner. 416 U.S. 539, 561-562, 94 S.Ct. 2963, 41 L.Ed.2d 935. Indeed, it has been noted,Licking County, Case No. 2020CA00021 35 “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” [Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224(1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413(1989)]. As the Martinez Court acknowledged, “the problems of prisons in America are complex and intractable, and , more to the point, they are not readily susceptible of resolution by decree.” Id. , at 404–405, 94 S.Ct. at 1807. Running a prison is an inordinately difficult undertakin g that requires expertise, planning, and the commitment of resources, all of which are pec uliarly within the province of the legislative and executive branches of governmen t. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a pol icy of judicial restraint. Where a state penal system is involved, federal cou rts have, as we

indicated in Martinez , additional reason to accord deference to the appropriate pris on authorities. See id., at 405, 94 S.Ct. at 1807. Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987). “View ed 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 situation presented b y a disciplinary proceeding in a state prison.” Wolfe v. McDonnell, 418 U.S. at 560, 94 S.Ct. 2963, 41 L.Ed.2d 935. {¶74} The Courts have found therefore, that the following procedures should be accorded to prisoners facing prison disciplinary proceedings: 1 ). a prisoner is entitled to a review unaffected by “arbitrary” decision-making. Wolfe, 418 U.S. at 557-558; ( See , Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claime d violation. Wolfe, 418 U.S. at 563. ( See, Ohio Adm. Code 5120:1-8-12). 3). A written statement of the fa ct finders as to the evidence relied upon and the reasons for the discipli nary action taken. Wolfe, 418 U.S. at 563. ( See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120:1-11(G)(1)). 4).Licking County, Case No. 2020CA00021 36 Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk o f reprisal or undermine authority,

as well as to limit access to other inmates to collect statemen ts or to compile other documentary evidence. Wolfe, 418 U.S. at 566. ( See, Ohio Adm. Code 5120-9-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). Where an illiterate inmate i s involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehensio n of the case, he should be free to seek the aid of a fellow inmate, or if that is forbi dden, to have adequate substitute aid in the form of help from the staff or from a sufficiently c ompetent inmate designated by

the staff. Wolfe, 418 U.S. at 570. ( See, Ohio Adm. Code 5120-9-07(H)(1)). {¶75} In the case at bar, in order to rebut the presumptive release d ate, the DRC must conduct a hearing and determine whether any of the followi ng factors are applicable: During the offender’s incarceration, the offender committed ins titutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional in stitution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law tha t was not prosecuted, and

the infractions or violations demonstrate that the offender has not been rehabilitated [and] [t]he offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of t his section, demonstrate that the offender continues to pose a threat to society. Regardless of the security level in which the offender is class ified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the d ate of the hearing. At the time of the hearing, the offender is classified by the d epartment as a security level three, four, or five, or at a higher security le vel.Licking County, Case No. 2020CA00021 37 R.C. 2967.271(C)(1), (2) and (3). {¶76} “Although the power to deny parole is purely discretionary as f ar as Ohio’s statutes are concerned, the state’s administrative regulations must also be considered.” Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233, 236-237(6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C. 2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate ru les of conduct. Ohio Adm. Code 5120-9-08 sets forth the disciplinary procedures for viola tions of inmate rules of

conduct before the rules infraction board. Ohio Adm. Code 5120 -9-10 sets forth the procedures for when and under what circumstances an inmate may be placed in and/or transferred to a restrictive housing assignment. Ohio Adm. Cod e 5120:1-1-11 sets forth the procedure of release consideration hearings. Thus, an inmate i s given notice in advance of

the behavior that can contribute or result in an extended sente nce and under what circumstance the inmate can be placed or transferred to a restr ictive housing assignment. Each procedure employed provides at the least for notice and th e opportunity to be heard. {¶77} Under the Reagan Tokes Law, an inmate is afforded notice and a hearing by R.C. 2967.271(E), which states: [DRC] shall provide notices of hearings to be conducted under d ivision (C) or (D) of this section in the same manner, and to the same persons , as specified in section 2967.12 and Chapter 2930 of the Revised Code with respe ct to hearings to be conducted regarding the possible release on parole of an inm ate. See, State v. Guyton, 12 th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 11; State v. Leet, 2 nd Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶11 (“Reagan Tokes does not facially violate a defendant’s right to procedural due process. ”) Separation of Powers is not violated. {¶78} Nor can it be argued that because the DRC can increase a senten ce beyond the minimum given by the trial judge, the Reagan Tokes Law usur ps judicial authority. AsLicking County, Case No. 2020CA00021 38 already noted, the DRC may not i ncrease the sentence beyond the maximum sentence imposed by the trial court. The Ohio Supreme Court has made it clear 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 i n its sentence. See Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20, citing State v.

Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19. Suc h is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶23. The statute does no t permit the DRC to act “’as judge, prosecutor and jury,’ for an action that could be p rosecuted as a felony in a court

of law.” Woods v. Telb, 89 Ohio St.3d at 512, 733 N.E.2d 1103, quoting State, ex rel. Bray v. Russell, 89 Ohio St.3d 132, 135, 729 N.E.2d 359(2000). It should be not ed that Bray was charged with and convicted of drug possession and sentenced to an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed a ni nety-day bad-time penalty to be added to Bray’s original term. Bray’s original sentence of eight months for drug possession expired on June 5, 1998, at which time his additiona l ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus in the Cou rt of Appeals for Warren County, claiming that Warden Harry Russell was unlawfully restr aining him. 89 Ohio St.3d 132, 133, 729 N.E.2d 359. Thus, the Parole Board extended Brey ’s sentence beyond the maximum sentence the trial court had impose. Wolfe points to n othing within the Reagan Tokes Law that would permit the DRC to extend his sentence beyo nd the seven and onehalf year maximum sentence set by the trial judge. {¶79} Further, as we have noted, under the Reagan Tokes Law an inmate is afford the due process rights accorded to one who is incarcerated befo re any increase can occur. Prison disciplinary proceedings are not part of a criminal pros ecution, and the full panoply of rights due a defendant in such proceedings does not apply. For as long as parole hasLicking County, Case No. 2020CA00021 39 existed in Ohio, the executive branch (the APA and its predeces sors) has had absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512, 733

N.E.2d 1103. {¶80} To prevail on a Sixth Amendment claim alleging ineffective assi stance of counsel, a defendant must show that his counsel's performance w as deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show that “counsel's representation fell below an objective standard of reasonableness.” Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant m ust show “that there is a reasonable probability that, but for counsel's unprofessional e rrors, the result of the proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. See, also, Andrus, v. Texas, __U.S.__, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335(June 15, 2020). {¶81} Because the Reagan Tokes Law is constitutional, there is no rea sonable probability that, but for counsel’s failure to challenge the co nstitutionality of the Reagan Tokes Law the result of the proceeding would have been differen t. {¶82} I would therefore overrule Appellant’s First and Second Assignm ents of Error. III., IV. & V. {¶83} I concur with the majority’s disposition of Appellant’s Third, Fourth and Fifth Assignments of Error. {¶84} In this case, the court gave no advisement of any of the requir ements set forth in R.C. 2929.19(B) at the sentencing hearing held January 24, 2 020 and, therefore, I would agree that the sentence is contrary to law. I would sustain Wol fe’s Third Assignment of Error. Because we reverse and remand the decision of the Licking Count y Court of Common Pleas for resentencing, I agree Wolfe’s Fourth and Fifth Assignments of Error to be premature.