[Cite as State v. Ratliff , 2022
- Ohio
- 1372.]

GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise , P.J. Plaintiff

- Appell ee : Hon. John W. Wise , J. : Hon. Craig R. Baldwin , J.

- vs - : : DAVID M. RATLIFF , : Case No. 21CA000016 : Defendant

- Appell ant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 20CR000213

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 22, 2022

APPEARANCES: For Plaintiff

- Appell ee For Defendant

- Appell ant JASON R. FARLEY R. JESSICA MANUNGO Guernsey County Prosecutor's Office Office of the Ohio Public Defender Prosecuting Attorney Assistant State Public Defender 627 Wheeling Avenue 250 East Broad Street, Suite 1400 Cambridge, Ohio 43725 Columbus, Ohio 43215Guernsey County, Case No. 21CA000016 2

Baldwin, J. {¶1} Defendant

- appellant David Ratliff appeals his sentence from the Guernsey County Court of Common Pleas. Plaintiff

- appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On November 25, 2020, the Guernsey County Grand Jury indicted appellant on one count of aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(d), a felony of the first degree. At his arraignment on December 17, 2020, appellant entered a plea of not guilty to the charge. {¶3} Thereafter, on June 11, 2021, appellant withdrew his former not guilty plea and entered a plea of no contest to the sole count in the indictment and was found guilty of the same. As memorialized in a Judgment Entry filed on the same day, appellant was sentenced to an indefinite prison term of a minimum of seven (7) years (all mandatory) and a maximum prison term of ten and a half (10 1⁄2 ) years. Appellant also was ordered to pay court costs and his driver’s license was suspended for a period of five (5) years. The trial court waived the mandatory fine after finding appellant to be indigent. {¶4} Appellant now appeals, raising the following assignments of error on appeal: {¶5} “I. BECAUSE THE REAGAN TOKES ACT VIOLATES THE OHIO AND UNITED STATES CONSTITUTIONS, D AVID RATLIFF’S SENTENCE IS CONTRARY TO LAW. R.C. 2953.08(G)(2); SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION; ARTICLES I, II AND III OF THE UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 5, 10 AND 16 OF THE OHIO CONSTITUTION; CITY OF S. EUCLID V. JEMISON , 28 OHIO ST.3D 157, 158

- 59, 503 N.E.2D 136 (1986).”Guernsey County, Case No. 21CA000016 3

{¶6} “II. MR. RATLIFF RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL FAILED TO MOVE FOR WAIVER OF COURT COSTS AT SENTENCING. STRICKLAND V

. WASHINGTON , 466 U.S. 668, 104 S.Ct. 2052, 80 LED 2D 674 (1984); R.C. 2947.23; STATE V. DAVI S , 159 OHIO ST.3D 31, 2020

- OHIO

- 309, 146 N.E.3D 560; STATE V. SPRINGER , 8 TH DIST, CUYAHOGA NO. 104649, 2017

- OHIO

- 8861.”

I {¶7} Appellant, in his first assignment of error, argues that his sentence is contrary to law because the Reagan Tokes Act violates the Ohio and United States Constitution s by violating a person’s constitutional right to trial by jury, separation of powers, due process a n d equal protection. We disagree. {¶8} As an initial matter, we note that the Ohio Supreme Court recently held that the constitutionality of the Reagan Tokes Act was ripe for review on t he defendant's direct appeal of his or her conviction and prison sentence. See State v. Maddox,

-- N.E.3d

-- , 2022

- Ohio

- 764. The Re a gan Tokes Law {¶9} R.C. 2967.271, which is a part of the “Reagan Tokes Law” allows the Ohio Department of Rehabilitation and Correction (“DRC”) to administratively extend an incarcerated person's prison term beyond his or her minimum prison term or presumptive earned early

- release date , but not beyond his or her maximum prison term. 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'sGuernsey County, Case No. 21CA000016 4

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 dat e.” State v. Polley , 6th Dist. Ottawa No. OT

- 19

- 039, 2020

- Ohio

- 3213, ¶ 5, fn. 1. {¶10} 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 constitutionalit y 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. {¶11} 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 (1980) ; Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). {¶12} In the case at bar, the legislature has authorized as a sentence for a felony of the first degree: {¶13} (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

e leven years and a maximum term that is determined pursuant to section 2929.144 of theGuernsey County, Case No. 21CA000016 5

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 impose d under this division. {¶14} R.C. 2929.14(A)(1)(a). {¶15} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for a felony of the first degree as charged in this case 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. What is different from prior law regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive release date. {¶16} 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 pris on 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 t he 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 reduceGuernsey County, Case No. 21CA000016 6

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 release date for a reasonable period of time, determined and specified by DRC that “shall not exceed t he offender's maximum prison term.” R.C. 2967.271(D)(1). {¶17} 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 wit hin 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 De partment 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.
A n incarcerated individual does not have a constitutional right to parole or

release before serving his entire sentence. {¶18} 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.Guernsey County, Case No. 21CA000016 7

{¶19} The Supreme Court has made it clear th at 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. “[T ]here 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 Insti tute v. Ohio State Parole Board, 929 F.2d 233, 235 (6th Cir. 1991). {¶20} 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 Nebr

aska 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. {¶21} As relevant here, R.C. 2967.271(B) states: {¶22} (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). {¶23} Also relevant is R.C. 2967.271(C), which states:Guernsey County, Case No. 21CA000016 8

{¶24} (C) The presumption established under divi sion (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 t he 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 followin g applies: {¶25} (1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: {¶26} (a) During the offender's incarceration, the offender committed institutional rule infractions that involved comp romising 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 inma tes, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated. {¶27} (b) The offender's behavior while incarcerated, including, but not limited to the infractions and vio lations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society. {¶28} (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. {¶29} (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 securit y level.Guernsey County, Case No. 21CA000016 9

{¶30} 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

- 2 37 (6th Cir. 1991) (“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. 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, 20 02

- Ohio

- 6719, 780 N.E.2d 548, ¶ 27). {¶31} “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 Stat e 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.Guernsey County, Case No. 21CA000016 10

216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Having created an enforceable liberty
i nterest 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 {¶32} When a State creates a liberty interest, the Due Process Clause requires fair procedures f or 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). {¶33} 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). {¶34} {¶50} In Woods v. Telb , the Oh io 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.Guernsey County, Case No. 21CA000016 11

*** But, we observe that for as long as parole has existed in Ohio, the executive branch (the APA and its predecessors) has had absolute discretion over that portion of an offender's sentence. See State ex r el. Atty. Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81

. * * Woods v. Telb, 89 Ohio St.3d at 511

- 512, 2000

- Ohio

- 171, 733 N.E.2d 1103. {¶35} Although entitled to the protection under the Due Process Clause, “prison disciplinary proceedings are not part of a c riminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). In Wol ff , 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 alleg ed 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 disciplinaryGuernsey County, Case No. 21CA000016 12

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. S ome 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 inm ates 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 n ot to inform on a fellow prisoner. 418 U.S. 539, 561

- 562, 94 S.Ct. 2963, 41 L.Ed.2d 935. {¶36} Indeed, it has been noted, “[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, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)]. As the Martinez Court acknowledged, “the problems of prisons in America are complex an d 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 resourc es, all ofGuernsey County, Case No. 21CA000016 13

which are peculiarly within the province of the legislative and executive branches of government.” Id at 405. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers c oncerns 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.” {¶37} T urn er v. Safley, 482 U.S. 78, 84

- 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). {¶38} “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 un der only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. 2963, 41 L.Ed.2d 935. {¶39} The Courts have found therefore, that the following procedures shoul d be accorded to prisoners facing prison disciplinary proceedings: 1)

. a prisoner is entitled to a review unaffected by “arbitrary” decision

- making. Wolff, 418 U.S. at 557

- 558, 94 S.Ct. 2963; ( See , Ohio Adm. Code 5120

- 9

- 08). 2). Advance written notice of t he claimed violation. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. ( 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. Wolff, 418 U.S. at 563, 94 S.Ct. 2 963. ( See, Ohio Adm. Code
5120

- 9

- 08(M); Ohio Adm. Code 5120:1

- 11(G)(1)). 4). 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 au thority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.Guernsey County, Case No. 21CA000016 14

Wolff, 418 U.S. at 566, 94 S.Ct. 2963. ( 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 i f 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.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. ( See, Ohio Adm. Code
5120

- 9

- 07(H)(1)). {¶40} In the case at bar, in o rder to rebut the presumptive release date, the DRC must conduct a hearing and determine whether any of the following factors are applicable: {¶41} (1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: {¶42} (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 i nstitution 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 offe nder has not been rehabilitated. {¶43} (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 soci ety.Guernsey County, Case No. 21CA000016 15

{¶44} (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. {¶45} (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. {¶46} R.C. 2967.271 (C)(1), (2) and (3). {¶47} “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 (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 f orth 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 no tice 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. {¶48} Each procedure employed provides at the least for notice and the opportunity to be heard. Under the Reagan Tokes Law, an inmate is afforded notice and a hearing by R.C. 2967.271(E), which states:Guernsey County, Case No. 21CA000016 16

{¶49} The [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. {¶50} 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, ¶19 (“Reagan Tokes does not facially violate a defendant's right to procedural due process.”) {¶51} We fin d, therefore, that Reagan Tokes does not violate appellant’s right to due process. Separation of Powers is not violated {¶52} 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 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

- Ohi o - 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 a n 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 shouldGuernsey County, Case No. 21CA000016 17

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 Wa rren 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. Appellant points to nothing with in the Reagan Tokes Law that would permit the DRC to extend his sentence beyond the maximum time set by the trial judge. {¶53} Furthermore, as we have noted, under the Reagan Tokes Law an inmate is afforded the due process rights accorded to one who is incarcer ated 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 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. {¶54} The Reagan Tokes Law does not allow the DRC to lengthen a defendant's sentence beyond the maximum sentence imposed by the trial court. The Law does not give the DRC unfettered discretion to require an offender to serve more than the minimum term. The statutes afford an offender notice and an opportunity to be heard before a moreGuernsey County, Case No. 21CA000016 18

than the minimum may be require d. The Reagan Tokes Law provides a prisoner with the appropriate due process rights accorded to prisoners. {¶55} Although entitled to the protection under the Due Process Clause, prison disciplinary proceedings are not part of a criminal prosecution, and the ful l panoply of rights due a defendant in such proceedings does not apply. For as long as parole has 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.3 d at 511

- 512, 733 N.E.2d 1103. {¶56} Based on the forgoing, we find that the Reagan Toke s Law does not violate the separation of powers doctrine. Right to Jury Trial not violated {¶57} Appellant also argues that Reagan Tokes violates his right to have a jury determine any increase in punishment beyond the minimum sentence, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant notes that the DRC can unilaterally find facts concerning sufficiently bad behavior to rebut the presumption of release and extend his sentence. {¶58} 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 comm itted 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,” th e Court explained, “must beGuernsey County, Case No. 21CA000016 19

submitted to a jury, and proved beyond a reasonable dou bt” 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. {¶59} In A lleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court address ed 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 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 t erm 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. Specifically, “[b]ecause manda tory minimum sentences increase the penalty for a crime, any fact that increasesGuernsey County, Case No. 21CA000016 20

the mandatory minimum is an ‘element’ that must be submitted to the jury.” 570 U.S. at
103. See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 17 N.E.3d 1172, 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 an y 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 inte rnal 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 imp osing a judgment within the range prescribed by statute”). Alleyne , 570 U.S. at 116

. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA 28,
2014

- Ohio

- 357, ¶19. {¶60} Under the Reagan Tokes Law, the judge imposes both a minimum and a maximum sentence. Judicia l 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, orGuernsey County, Case No. 21CA000016 21

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 impose d 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 Wolf f '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. {¶61} It is evident that Apprendi and its progeny have no application in a prison disciplinary setting where the D RC does not have the authority to extend the inmate's sentence beyond the maximum sentence imposed by the trial judge. We find that appellant’s right to a jury trial was thus not violated. Right to Equal Protection not violated {¶62} Appe llant further contends that his right to equal protection was violated. However, we concur with the court in State v. Hodgkin , 12 th Dist. Warren No. CA2020

- 08

- 048, 2021

- Ohio

- 1353 at footnote 2, appeal allowed, 2021

- Ohio

- 2742, 164 Ohio St. 3d 1403, 172 N.E.3d 16 5:

As for the equal protection argument, the fact that prisoners do not receive the full panoply of rights afforded those accused of crimes is not an equal protection violation. See State ex rel. Bray v. Russell , 12th Dist. Warren No. CA98

- 06

- 068, 1998 WL 778373, 1998 Ohio App. LEXIS 5377 (Nov. 9, 1998). There is a fundamental difference between normal society and prison society. Id. Rules designed to govern those functioning in a freeGuernsey County, Case No. 21CA000016 22

society cannot automatically be applied to the very different situation presented in a prison. 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. Id. Furthermore, an equal protection claim arises only when similarly situated individuals are treated differently. In other words, laws are to operate equally upon persons who are identified in the same class. It is axiomatic that the entire Ohio penal syste m is based upon classifying and treating each felony degree differently. {¶63} We find that Reagan Tokes does not violate appellant’s right to equal protection.

Conclusion
{¶64} Accordingly, we find that the Reagan Tokes Law is constitutional. 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 Appeals also determined the law was constitutional in State v. Guyton , 12th Dist. Butler No. CA2019

- 1 2

- 203, 2020

- Ohio

- 3837, and State v. Morris , 12th Dist. Butler No. CA2019

- 12

- 205,
2020

- Ohio

- 4103. M oreover, in State v. Delvallie , 8th Dist. Cuyahoga No. 109315, 2022

- Ohio

- 470, the court, sitting en banc, held that the Reagan Tokes Law is constitutional i n that it does not violate the separation

- of

- powers doctrine and does not violate either a defendant's right to a jury trial or due process of law.Guernsey County, Case No. 21CA000016 23

{¶65} Appellant’s first assignment of error is, therefore, overruled.
II {¶66} Appellant, in his second assignment of error, argues that his trial counsel was ineffective in failing to move for a waiver of court costs at the time of sentencing since appellant was indigent. We disagree.

In order to prevail on an ineffective

- assistance

- of

- counsel claim, a defe ndant must prove that counsel's performance was deficient and that the defendant was prejudiced by counsel's deficient performance. Bradley , 42 Ohio St.3d at 141

- 142, 538 N.E.2d 373; Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Thus, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See Bradley 1 at paragraphs two and three of the syllabus. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Id. at 142, 538 N.E.2d 373, quoting Strickland 2 at 694, 10 4 S.Ct. 2052.

State v. Davis , 159 Ohio St.3d 31, 2020

- Ohio

- 309, 146 N.E.3d 560 at paragraph 10. {¶67} The Supreme Court of Ohio held “* * *when trial counsel fails to request that the trial court waive court costs on behalf of a defendant who has previously been found to be indigent, a determination of prejudice for purposes of an ineffective

- assistance

- of

counsel analysis depends upon whether the facts and circumstances presented by the

1 State v. Bradl e y , 42 Ohio St.3d 136, 38 N.E.2d 378. 2 Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 22052, 80 L.Ed 2 nd 674.Guernsey County, Case No. 21CA000016 24

defendant establish that there is a reasonable probability that the trial co urt would have granted the request to waive costs had one been made.” State v. Davis , 159 Ohio St.3d 31, 2020

- Ohio

- 309, 146 N.E.3d 560, ¶ 16

. {¶68} In the case sub judice, at the arraignment, the trial court found appellant to be entitled to court appointed counsel due to his indigency. At the plea hearing, the trial court noted that it had previously found appellant to be indigent and had appointed

c ounsel for appellant. The trial court then asked appellant if anything had changed in his financial circumstances for the better since counsel was appointed and appellant responded in the negative. The trial court, in waiving the mandatory fine in this ca se, stated that it did not “have any information that you have the ability to pay that. The fine is waived. You will pay the court costs, not the part of your court appointed attorney. I don’t have any indication you will have the ability to pay for your a ttorney fees in this matter.” Transcript at 52. {¶69} Based on the foregoing, we find that there is not a reasonable probability that the trial court would have granted the request to waive costs had one been made. The trial court, in this matter, sua sponte wai ved the mandatory fine and counsel fees and clearly chose not to waive the court costs. {¶70} Appellant’s second assignment of error is, therefore, overruled.Guernsey County, Case No. 21CA000016 25

{¶71} Accordingly, the judgment of the Guernsey County Court of Common Pleas is affirmed. By: Baldwin , J. Wise, Earle , P.J. and Wise, John , J. concur.