[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 Common 

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. SAWYERS Gahanna, OH 43230 

ASSISTANT PROSECUTOR 

20 S. Second Street, 4th Floor 

Newark, OH 43055 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

Wise, John, J.

{¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions and 

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 State Highway 

Patrol attempted to make a traffic stop of a 2013 Peterbuilt Semi-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 determined 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 Wyandot County, before 

proceeding South on State Route 23 into Marion County and Delaware County. Id. The 

vehicle avoided stop strips deployed and ignored multiple cruisers 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 Michael 

Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking County, Ohio. Id. As a result 

of the collision, Slagle suffered serious physical harm requiring 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 County and into Coshocton 

County. Id. Appellant abandoned the vehicle and was arrested at 1697 Evergreen 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 degree felony, in 

violation of R.C. §2903.13(A)(C)(5); felonious assault, a second degree felony, in violation 

of R.C. §2903.11; failure to comply, a third degree 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 officer 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 sustained serving in Iraq while in 

the armed forces. (T. at 20-21). Trial counsel noted that Appellant's life "changes 

dramatically" after he came home from Iraq. (T. at 19). Trial counsel further mentioned 

that Appellant was not acting with "malice aforethought," but was merely trying to get to 

his mother's home. (T. at 19, 21). Thus, Appellant contended that his prison sentences 

should be run concurrent. (T. at 32). 

{¶7} The court ordered Appellant to serve consecutive prison sentences. 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) year 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 property offense; and nine (9) 

months in prison for the failure to stop after an accident offense. 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 error: 

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 OF 

OHIO. 

{¶11} “II. STEPHEN H. WOLFE RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES 

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 PROCESS, 

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND 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 Reagan 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 indefinite 

prison term, there shall be a presumption that the person shall be released 

from service of the sentence on the expiration of the offender's minimum 

prison term or on the offender's presumptive earned early release date, 

whichever is earlier. 

(C) The presumption established under division (B) of this section is 

a rebuttable presumption that the department of rehabilitation and 

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 the 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 classified 

at the time of the hearing, both of the following apply: 

(a) During the offender's incarceration, the offender committed

institutional rule infractions that involved compromising the security of a 

state correctional institution, compromising the safety of the staff of a state 

correctional institution or its inmates, or physical harm or the threat of 
[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 infractions or 

violations demonstrate that the offender has not been rehabilitated. 

(b) The offender's behavior while incarcerated, including, but not 

limited to the infractions and violations specified in division (C)(1)(a) of this 

section, demonstrate that the offender continues to pose a threat to society. 

(2) Regardless of the security level in which the offender is classified 

at the time of the hearing, the offender has been placed by the department 

in extended restrictive housing at any time within the year preceding the 

date of the hearing. 

(3) At the time of the hearing, the offender is classified by the 

department as a security level three, four, or five, or at a higher security 

level. 

(D)(1) If the department of rehabilitation and correction, pursuant to 

division (C) of this section, rebuts the presumption established under 

division (B) of this section, the department may maintain the offender's 

incarceration in a state correctional institution under the sentence after the 

expiration of the offender's minimum prison term or, for offenders who have 

a presumptive earned early release date, after the offender's presumptive 

earned early release date. The department may maintain the offender's 

incarceration under this division for an additional period of incarceration 

determined by the department. The additional period of incarceration shall 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

be a reasonable period determined by the department, shall be specified by 

the department, and shall not exceed the offender's maximum prison 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 expiration of the 

offender's minimum prison term plus the additional period of incarceration 

specified by the department as provided under that division or, for offenders 

who have a presumptive earned early release date, on the expiration of the 

additional period of incarceration to be served after the offender's 

presumptive earned early release date that is specified by the department 

as provided under that division. The presumption is a rebuttable 

presumption that the department may rebut, but only if it conducts a hearing 

and makes the determinations specified in division (C) of this section, and 

if the department rebuts the presumption, it may maintain the offender's 

incarceration in a state correctional institution for an additional period 

determined as specified in division (D)(1) of this section. Unless 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 incarceration to be 

served after the offender's presumptive earned early release date 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 presumption, and 

the department's maintenance of an offender's incarceration for an 

additional period of incarceration apply, and may be utilized more 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 this 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 offender 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 and Corrections (DRC) to administratively extend his prison 

term beyond his presumptive minimum prison term violate the United 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 therefore 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 pursuant 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 to the Reagan Tokes 

Act. On the robbery conviction, the trial court sentenced the appellant to a stated minimum 

prison term of eight years. The trial court sentenced the appellant to a stated prison term 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

of twelve months for assault on a peace officer. The trial court ordered the sentences to 

be served consecutively, for an aggregate minimum prison term of 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 his 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 adjudication, from 

entangling themselves in abstract disagreements over administrative 

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 observed: 

The basic principle of ripeness may be derived from the conclusion 

that ‘judicial machinery should be conserved for problems which are real or 

present and imminent, not squandered on problems which are abstract or 

hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on 

jurisdiction that is nevertheless basically optimistic as regards the prospects 

of a day in court: the time for judicial relief is simply not yet arrived, even 

though the alleged action of the defendant foretells legal injury 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 of the Reagan 

Tokes Act was not ripe for review: 

* * * [W]hile R.C. 2967.271 allows the DRC to rebut the presumption 

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, and thus the 

constitutional issue is not yet ripe for our review.” Downard, at ¶ 11. We 

determined the appropriate action for the Appellant “to challenge the 

constitutionality of the presumptive release portions of R.C. 2967.271 is by 

filing a writ of habeas corpus if he is not released at the conclusion 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 same as those 

raised in Downard. On January 24, 2020, the trial court sentenced Appellant to serve a 

stated prison year of one year on Count 1, five to seven and one-half years on Count 2, 

two years Count 3, nine months on Count 4, and nine months on Count 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 subject to R.C. 

§2967.271, which allows the DRC to rebut the presumption that Appellant will be released 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

after serving his minimum sentence of nine and one-half years and potentially continuing 

his incarceration to a term not exceeding twelve years. 

{¶26} We therefore find that the constitutional issues argued by Appellant, 

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, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631 (constitutionality 

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 was denied 

effective assistance of trial counsel because trial counsel failed to challenge the 

constitutionality of the Reagan Tokes law in the trial court. 

{¶30} To prevail on a Sixth Amendment claim alleging ineffective assistance of 

counsel, a defendant must show that his counsel's performance was 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 must show “that there 

is a reasonable probability that, but for counsel's unprofessional errors, 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). 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

{¶31} In the instant case, because the Reagan Tokes Law is not yet ripe for 

review, the trial court did not err, plain or otherwise, in sentencing 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 result 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 trial 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 contrary to law. 

{¶34} The language of R.C. §2929.19(B)(2)(c) became effective March 22, 2019, 

and to date its application has not received close scrutiny. The 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 pursuant 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 Revised Code. 

(2) Subject to division (B)(3) of this section, if the sentencing 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) which mandates that the court 

notify the offender at the sentencing hearing: 

(c) If the prison term is a non-life felony indefinite prison term, notify 

the offender of all of the following: 

(i) That it is rebuttably presumed that the offender will be released 

from service of the sentence on the expiration of the minimum prison term 

imposed as part of the sentence or on the offender’s presumptive earned 

early release date, as defined in section 2967.271 of the Revised Code, 

whichever is earlier; 

(ii) That the department of rehabilitation and correction may rebut 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 section, the 

department at the hearing makes the specified determinations and rebuts 

the presumption, the department may maintain the offender’s incarceration 

after the expiration of that minimum term or after that presumptive earned 

early release date for the length of time the department determines 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 described in 

divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to 

the limitation specified in section 2967.271 of the Revised Code; 

(v) That if the offender has not been released prior to the expiration 

of the offender’s maximum prison term imposed as part of the sentence, the 

offender must be released upon the expiration of that term. 

(d) Notify the offender that the offender will be supervised under 

section 2967.28 of the Revised Code after the offender leaves prison if the 

offender is being sentenced, other than to a sentence of life imprisonment, 

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 violence and is not a 

felony sex offense. This division applies with respect to all prison terms 

imposed for an offense of a type described in this division, including 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 reduction sentence, 

as defined in section 2967.28 of the Revised Code. If a court imposes a 

sentence including a prison term of a type described in division (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 the offender will 

be supervised under section 2967.28 of the Revised Code after the offender 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

leaves prison or to include in the judgment of conviction entered on the 

journal a statement to that effect does not negate, limit, or otherwise affect 

the mandatory period of supervision that is required for the offender under 

division (B) of section 2967.28 of the Revised 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 described in division (B)(2)(d) of 

this section and failed to notify the offender pursuant to division (B)(2)(d) of 

this section regarding post-release control or to include in the judgment of 

conviction entered on the journal or in the sentence a statement regarding 

post-release control. 

(e) Notify the offender that the offender may be supervised under 

section 2967.28 of the Revised Code after the offender leaves prison 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 type 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 Revised 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 described in 

division (B)(2)(e) of this section and failed to notify the offender pursuant to 

division (B)(2)(e) of this section regarding post-release control 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 imposed 

following the offender’s release from prison, as described in division 

(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 prison term, 

as part of the sentence, of up to one-half of the definite prison 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 offender 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 described in 

division (B)(2)(f) of this section for a violation of that supervision 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 conviction 

entered on the journal a statement to that effect does not negate, 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 prior to the 

offender’s release of the board’s authority to so impose a prison 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 regarding the possibility 
[Cite as State v. Wolfe, 2020-Ohio-5501.]

of the parole board imposing a prison term for a violation of supervision 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 sentencing date but 

excluding conveyance time, that the offender has been confined for any 

reason arising out of the offense for which the offender is being sentenced 

and by which the department of rehabilitation and correction must reduce 

the definite prison term imposed on the offender as the offender’s stated 

prison term or, if the offense is an offense for which a non-life 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 terms 

imposed on the offender as part of that non-life felony indefinite prison term, 

under section 2967.191 of the Revised Code. The court’s calculation shall 

not include the number of days, if any, that the offender served in the 

custody of the department of rehabilitation and correction arising out of any 

prior offense for which the prisoner was convicted and sentenced. 

{¶36} Thus, the trial court must provide the information described in R.C. 

§2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of 

the statute. 

{¶37} In this case, the court gave no advisement of any of the requirements set 

forth in R.C. §2929.19(B) at the sentencing hearing held January 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 Fifth Assignments of Error 

to be premature. 

{¶40} Based on the foregoing, we reverse and remand the decision of the Licking 

County Court of Common Pleas for resentencing consistent with law and this opinion. 

By Wise, John, J. 

Wise, Earle, J., concurs. 

Gwin, J., concurs in part and dissents in part. 

JWW/kw 1117 
Licking County, Case No. 2020CA00021 19 

Gwin, J., concurs in part; dissents in part 

{¶41} I respectfully dissent from the majority’s opinion concerning ripeness 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 whether 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 doctrine “is to prevent the courts, 

through premature adjudication, from entangling themselves in abstract 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 pass, the Supreme 

Court has made clear that “[o]ne does not have to await consummation 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 court had not yet ordered the 

conveyances, the Court reasoned that “where the inevitability of 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 into 
Licking County, Case No. 2020CA00021 20 

effect.” Id. at 143, 95 S.Ct. 335. Although not requiring “inevitability,” the Court has held 

that a claim is ripe when it is “highly probable” that the alleged 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 the factual record is sufficiently 

developed to produce a fair adjudication of the merits of the parties’ 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, prudential 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 parties 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 bromide 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. Police, 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 the statute takes effect, 

ripeness may be found as long as the statute’s operation is inevitable (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 application of such a statute 

is subject to some degree of contingency, the statute may impose sufficiently serious 

collateral injuries that an inquiring court will deem the hardship 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 statute indirectly permits 

private action that causes present harm, or when a party must decide currently 

whether to expend substantial resources that would be largely or 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 (1978) 

61 F.3d 1003, 1010(1st 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 Hatch Act, which 

prohibits federal employees from engaging in certain political activities, was 

non-justiciable with respect to those plaintiff-employees who had not yet 

engaged in any of the prohibited activity. Subsequently, however, the Court 

relaxed Mitchell’s strict approach to justiciability. If the injury is clearly 

impending, the Court has held that the plaintiffs need not await 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(2nd Cir. 1980). 
Licking County, Case No. 2020CA00021 22 

{¶45} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the 

existence of an actual controversy, a genuine dispute between adverse 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 exist, 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, citing 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 Ohio 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 individuals, perhaps a significantly large 

number, will have the DRC extend his or her incarceration beyond 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 claims. It is not unusual for courts to 

be asked to pass upon the constitutionality of statute. The constitutional arguments are 

capable of being addressed in the present appeal. 

{¶48} I would call attention to the fact that other jurisdictions have implicitly 

determined the issue to be ripe for review by addressing the constitutional challenge to the 

Reagan Tokes provisions regarding future, possible extensions of a prison term beyond the 

presumed minimum term. The Second District Court of Appeals found 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, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-5048. The Twelfth District Court of 
Licking 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, 6th Dist. Logan No. L-19-1232, 

2020-Ohio-4855. 

{¶49} The hardship to the parties if judicial relief is denied at this 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 desire to appeal the constitutionally 

of the law? Next, is the inmate entitled to appointed counsel to pursue such an appeal? If 

the inmate is not, then an incarcerated inmate with limited legal resources and acumen will 

have to cobble together a highly involved constitutional argument 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 part of the trial court record. 

In order to establish that the inmate’s sentence was in fact extended, will the trial court be 

required to order the DRC to file its decision with the clerk of courts for inclusion in the trial 

and appellate court records. Further, if the law is declared unconstitutional years from now, 

courts will be inundated with writs of habeas corpus, motions and 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 inmate’s direct appeal. Finally, the 

inmate could potentially have been incarcerated perhaps years beyond his release date for 

the time it takes to decide the issue in the event the law is found to be unconstitutional. 
Licking County, Case No. 2020CA00021 24 

{¶50} In addition, if the law is declared constitutional or unconstitutional, 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 sufficient hardship, 

and that the question of the constitutionality of the Reagan Tokes 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 provisions regarding future, 

possible extensions of a prison term beyond the presumed minimum 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 altered the sentencing structure 

for many of Ohio’s most serious felonies’ by implementing an indefinite sentencing system 

for those non-life felonies of the first and second degree, committed 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 possible, statutes must be 

construed in conformity with the Ohio and the United States Constitutions.” State v. Collier,

62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). A party challenging the constitutionality of 

a statute bears the burden of proving that it is unconstitutional 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 715 
Licking 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 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 three, four, five, six, seven, 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 criminalizes the conduct 

constituting the felony specifies a different minimum term or penalty for the offense, 

the specific language of that section shall control in determining the minimum term 

or otherwise sentencing the offender but the minimum term or sentence imposed 

under that specific language shall be considered for purposes of 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 the 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 section 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 the offense, the specific 

language of that section shall control in determining the minimum term or otherwise 

sentencing the offender but the minimum term or sentence imposed under that 

specific language shall be considered for purposes of the Revised 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 an indeterminate minimum 

sentence of five, six, seven, eight, nine or ten years up to a maximum of twenty-five years. 

See, State v. Davis, 9th 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 second 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 term... 

(B)(5) For a felony of the second degree, the minimum term shall be two, 

three, four or five years, and the maximum shall be fifteen years. 

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 date. 

{¶57} The Reagan Tokes Law requires that a court imposing a prison term under 

R.C. 2929.14(A)(1)(a) or (2)(a) for a first- or second-degree felony committed on or after 

March 22, 2019, impose a minimum prison term under that provision and a maximum prison 

term determined under R.C. 2929.144(B); R.C. 2929.144(C). Further, 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 term 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 determined 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 statutorily numerated factors 

apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may maintain the offender’s 

incarceration after the expiration of the minimum prison term or presumptive earned early 
Licking County, Case No. 2020CA00021 27 

release date for a reasonable period of time, determined and specified 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 to 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 with racial bias. Apprendi held 

this scheme unconstitutional. “[A]ny fact that increases the penalty for a crime beyond the 

prescribed statutory maximum,” this Court explained, “must be submitted 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 on the judicial power by simply 

calling the process of finding new facts and imposing a new punishment 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 expose 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 concerning 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 possessed a gun. The trial court 

relied on the same testimony to determine that Alleyne or his accomplice brandished a gun. 

The testimony was the same, but the findings were different. The jury found that Alleyne 
Licking 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 carried 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 where 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 submitted to the jury.” Id. 

See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 2014-Ohio-3412, ¶29. However, the 

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 does not entail. Our 

ruling today does not mean that any fact that influences judicial 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 (2010) 

(“[W]ithin established limits [,] ... the exercise of [sentencing] 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 it 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 and a 

maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full 

discretion to impose a prison sentence within the statutory range and are no longer required 

to make findings or give their reasons for imposing maximum, consecutive, 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 beyond the maximum sentence 

imposed by the trial court. Further, the facts which postpone an 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 necessary for the courts to invalidate 

punishment as a result of internal prison disciplinary proceedings 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, only state law can create 

this “legitimate claim of entitlement”; the federal constitution 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 expiration 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 that 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 context 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 indefinite prison term, 

there shall be a presumption that the person shall be released from service of the 

sentence on the expiration of the offender’s minimum prison term 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 section is a 

rebuttable presumption that the department of rehabilitation and 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 the 
Licking 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 classified at the 

time of the hearing, both of the following apply: 

(a) During the offender’s incarceration, the offender committed institutional 

rule infractions that involved compromising the security of a state correctional 

institution, compromising the safety of the staff of a state correctional institution or its 

inmates, or physical harm or the threat of physical harm to the staff of a state 

correctional institution or its inmates, or committed a violation of law that was not 

prosecuted, and the infractions or violations demonstrate that the offender has not 

been rehabilitated. 

(b) The offender’s behavior while incarcerated, including, but not limited to the 

infractions and violations specified in division (C)(1)(a) of this section, demonstrate 

that the offender continues to pose a threat to society. 

(2) Regardless of the security level in which the offender is classified at the 

time of the hearing, the offender has been placed by the department in extended 

restrictive housing at any time within the year preceding the date of the hearing. 

(3) At the time of the hearing, the offender is classified by the department as 

a security level three, four, or five, or at a higher security level. 

{¶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 released,” 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 parole 
Licking 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 created 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 Code creates an inherent 

expectation ‘that a criminal offender will receive meaningful consideration 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 provision 

proceeds in two steps: We first ask whether there exists a liberty or property interest of 

which a person has been deprived, and if so we ask whether the procedures followed by 

the State were constitutionally sufficient. 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 arguendo that the 

language chosen by the legislature has been created an enforceable liberty interest in 

parole by the express terms of the Reagan Tokes Act, the question 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 vindication—and courts will review the application 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 held 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 denied. 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, imposing 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 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. 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 APA1 and its predecessors) has had absolute discretion over that portion 

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 Clause, “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 Authority 
Licking 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, however, we 

think the major consideration militating against adopting the full 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 stake 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 is a critical matter to 

the State as well as the parolee; but the procedures by which it is determined whether 

the conditions of parole have been breached do not themselves threaten other 

important state interests, parole officers, the police, or witnesses—at least no more 

so than in the case of the ordinary criminal trial. Prison disciplinary proceedings, on 

the other hand, take place in a closed, tightly controlled environment 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 to attain their ends. 

They may have little regard for the safety of others or their property 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 security, we must realize that 

in many of them the inmates are closely supervised and their activities controlled 

around the clock. Guards and inmates co-exist in direct and intimate contact. 

Tension between them is unremitting. Frustration, resentment, and despair are 

commonplace. Relationships among the inmates are varied and complex 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 undertaking that requires expertise, 

planning, and the commitment of resources, all of which are peculiarly within the 

province of the legislative and executive branches of government. Prison 

administration is, moreover, a task that has been committed to the responsibility of 

those branches, and separation of powers concerns counsel a policy of judicial 

restraint. Where a state penal system is involved, federal courts have, as we 

indicated in Martinez, additional reason to accord deference to the appropriate prison 

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). “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 situation presented by 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 claimed violation. Wolfe, 418 

U.S. at 563. (See, Ohio Adm. Code 5120:1-8-12). 3). A written statement of the fact finders 

as to the evidence relied upon and the reasons for the disciplinary 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 of reprisal or undermine authority, 

as well as to limit access to other inmates to collect statements 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 is 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 comprehension of the case, he should 

be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute 

aid in the form of help from the staff or from a sufficiently competent 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 date, the DRC 

must conduct a hearing and determine whether any of the following factors are applicable: 

During the offender’s incarceration, the offender committed institutional rule 

infractions that involved compromising the security of a state correctional institution, 

compromising the safety of the staff of a state correctional institution or its inmates, 

or physical harm or the threat of physical harm to the staff of a state correctional 

institution or its inmates, or committed a violation of law that was not prosecuted, and 

the infractions or violations demonstrate that the offender has not been rehabilitated 

[and] [t]he offender’s behavior while incarcerated, including, but not limited to the 

infractions and violations specified in division (C)(1)(a) of this section, demonstrate 

that the offender continues to pose a threat to society. 

Regardless of the security level in which the offender is classified at the time 

of the hearing, the offender has been placed by the department in extended 

restrictive housing at any time within the year preceding the date of the hearing. 

At the time of the hearing, the offender is classified by the department as a 

security level three, four, or five, or at a higher security level. 
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 far 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 rules of conduct. Ohio Adm. 

Code 5120-9-08 sets forth the disciplinary procedures for violations 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. Code 5120:1-1-11 sets forth the 

procedure of release consideration hearings. Thus, an inmate is given notice in advance of 

the behavior that can contribute or result in an extended sentence and under what 

circumstance the inmate can be placed or transferred to a restrictive housing assignment. 

Each procedure employed provides at the least for notice and the 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 division (C) or 

(D) of this section in the same manner, and to the same persons, as specified in 

section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to 

be conducted regarding the possible release on parole of an inmate. 

See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, ¶ 11; State v. 

Leet, 2nd 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 sentence beyond 

the minimum given by the trial judge, the Reagan Tokes Law usurps judicial authority. As 
Licking County, Case No. 2020CA00021 38 

already noted, the DRC may not increase 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 in 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. Such 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 not permit the DRC to act 

“’as judge, prosecutor and jury,’ for an action that could be prosecuted 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 noted 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 ninety-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 additional ninety-day penalty began. 

On June 12, 1998, Bray filed a writ of habeas corpus in the Court of Appeals for Warren 

County, claiming that Warden Harry Russell was unlawfully restraining 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 nothing within the Reagan 

Tokes Law that would permit the DRC to extend his sentence beyond 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 before any increase can occur. 

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. For as long as parole has 
Licking County, Case No. 2020CA00021 39 

existed in Ohio, the executive branch (the APA and its predecessors) 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 assistance of 

counsel, a defendant must show that his counsel's performance was 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 must show “that there is a 

reasonable probability that, but for counsel's unprofessional errors, 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 reasonable 

probability that, but for counsel’s failure to challenge the constitutionality of the Reagan 

Tokes Law the result of the proceeding would have been different. 

{¶82} I would therefore overrule Appellant’s First and Second Assignments 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 requirements set forth 

in R.C. 2929.19(B) at the sentencing hearing held January 24, 2020 and, therefore, I would 

agree that the sentence is contrary to law. I would sustain Wolfe’s Third Assignment of Error. 

Because we reverse and remand the decision of the Licking County Court of Common Pleas 

for resentencing, I agree Wolfe’s Fourth and Fifth Assignments of Error to be premature.