[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Maddox, Slip Opinion No. 2022-Ohio-764.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2022-OHIO-764

THE STATE OF OHIO, APPELLEE, v. MADDOX, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Maddox, Slip Opinion No. 2022-Ohio-764.] 

Criminal law—Sentencing—R.C. 2967.271—Reagan Tokes Law—Ripeness—A 

criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is 

ripe for review on the defendant’s direct appeal of his or her conviction and 

prison sentence—Court of appeals’ judgment reversed and cause 

remanded.

(No. 2020-1266—Submitted June 29, 2021—Decided March 16, 2022.)

CERTIFIED by the Court of Appeals for Lucas County, 

No. CL-19-1253, 2020-Ohio-4702. 

_______________________ 

STEWART, J. 

{¶ 1} In this certified-conflict case, we are asked to decide whether a 

criminal defendant’s challenge to the constitutionality of R.C. 2967.271, which is 

a part of the “Reagan Tokes Law” and allows the Ohio Department of 
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2

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, is ripe for review 

on the defendant’s direct appeal of his or her conviction and prison sentence. We 

hold that it is. Accordingly, we reverse the judgment of the Sixth District Court of 

Appeals and remand the matter to that court for it to consider whether the 

challenged provisions are constitutional. 

Facts and Procedural History 

{¶ 2} On September 30, 2019, appellant, Edward Maddox, entered guilty

pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 

162 (1970), to two counts of attempted burglary in violation of R.C. 2923.02(A) 

and R.C. 2911.12(A)(2) and (D), felonies of the third degree, and one count of 

burglary in violation of R.C. 2911.12(A)(2) and (D), a felony of the second degree. 

The trial court sentenced Maddox pursuant to the Reagan Tokes Law to 12-month 

definite prison terms for each of the attempted-burglary counts and an indefinite 

prison term of four to six years for the burglary count. The sentences were ordered 

to be served concurrently. 

{¶ 3} Maddox appealed his convictions to the Sixth District Court of 

Appeals, asserting, among other alleged errors, that it “was plain error for the trial 

court to impose [a] sentence under the Reagan Tokes Law because its provisions 

are unconstitutional nullities.” 2020-Ohio-4702, ¶ 4. Specifically, he argued that 

the sections of the statute that allow DRC to extend his prison term beyond the 

presumptive minimum term violate the United States and Ohio Constitutions, 

including the requirement of separation of powers and his rights to a trial by jury 

and due process of law. Id. at ¶ 5. 

{¶ 4} Effective March 22, 2019, the Reagan Tokes Law established 

indefinite-sentencing provisions for people convicted of non-life-sentence felony 

offenses of the first or second degree. Under R.C. 2967.271(B) through (D), there 
January Term, 2022 

3

is a presumption that the offender will be released on the expiration of his or her 

minimum prison term or earned early-release date, but the statute enables DRC to 

rebut the presumption and keep the offender incarcerated up to the expiration of his 

or her maximum prison term. 

{¶ 5} The court of appeals did not reach the merits of Maddox’s 

constitutional challenge, holding that the issue is not ripe for review because 

Maddox has not yet been subjected to a prison term exceeding his minimum prison 

term. 2020-Ohio-4702 at ¶ 11. Instead, the court held that the appropriate method 

for Maddox to challenge the constitutionality of the presumptive-release sections 

of the law is to file a petition for a writ of habeas corpus if he is not released upon 

the expiration of his four-year minimum term. Id. at ¶ 12. 

{¶ 6} Maddox filed in the Sixth District a motion to certify a conflict 

regarding the ripeness issue, asserting that the court of appeals’ judgment is in 

conflict with the judgments in State v. Leet, 2d Dist. Montgomery No. 28670, 2020-

Ohio-4592, State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, 

State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, and State v. 

Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. The court of 

appeals granted the motion and certified a conflict on the following issue of law: 

Is the constitutionality of the provisions of the Reagan Tokes 

[Law], which allow the Department of Rehabilitation and 

Correction[] to administratively extend a criminal defendant’s 

prison term beyond the presumptive minimum term, ripe for review 

on direct appeal from sentencing, or only after the defendant has 

served the minimum term and been subject to extension by 

application of the [law]? 
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 We determined that a conflict exists and agreed to review the certified question. 

160 Ohio St.3d 1505, 2020-Ohio-6913, 150 N.E.3d 1150. 

Law and Analysis 

{¶ 7} “In order to be justiciable, a controversy must be ripe for review.” 

Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26; 

see also Pack v. Cleveland, 1 Ohio St.3d 129, 438 N.E.2d 434 (1982), paragraph 

one of the syllabus. Article IV, Section 4(B) of the Ohio Constitution provides that 

“[t]he courts of common pleas * * * shall have original jurisdiction over all 

justiciable matters * * * as provided by law,” and this court has stated that “it is the 

duty of every judicial tribunal to decide actual controversies between parties 

legitimately affected by specific facts and to render judgments which can be carried 

into effect.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). 

“ ‘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.” ’ ” State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 

89, 694 N.E.2d 459 (1988), quoting Comment, Mootness and Ripeness: The 

Postman Always Rings Twice, 65 Colum.L.Rev. 867, 876 (1965), quoting Davis, 

Ripeness of Governmental Action for Judicial Review, 68 Harv.L.Rev. 1122, 1122 

(1955). 

{¶ 8} Ripeness is distinct from standing, but both doctrines require that “an 

injury in fact be certainly impending.” Natl. Treasury Emps. Union v. United 

States, 101 F.3d 1423, 1427 (D.C.Cir.1996). “[I]f a threatened injury is sufficiently 

‘imminent’ to establish standing, the constitutional requirements of the ripeness 

doctrine will necessarily be satisfied.” Id. at 1428. Then, “only the prudential 

justiciability concerns of ripeness can act to bar consideration of the claim.” Id. 

The prudential-justiciability concerns include (1) whether the claim is fit for 

judicial decision and (2) whether withholding court consideration will cause 
January Term, 2022 

5

hardship to the parties. Hill v. Snyder, 878 F.3d 193, 213 (6th Cir.2017), citing

Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 153, 87 S.Ct. 1507, 18 L.Ed.2d 

681 (1967), abrogated in part on other grounds, Califano v. Sanders, 430 U.S. 99, 

97 S.Ct. 980, 51 L.Ed.2d 192 (1997). The first prong of the prudential-justiciability 

question is met when “[t]he issue presented in th[e] case is purely legal, and will 

not be clarified by further factual development.” Thomas v. Union Carbide 

Agricultural Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). 

{¶ 9} Maddox argues that his constitutional challenge is ripe on direct 

appeal of his convictions and prison sentence because he has been sentenced under 

a statute that he has claimed violates the separation-of-powers requirement of the 

Ohio Constitution and his rights to a trial by jury and due process of law under the 

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and 

their parallel Ohio provisions. He also asserts that the potential maximum 

punishment for an offense influences pretrial practice, plea bargaining, and the 

decision whether to go to trial. 

{¶ 10} R.C. 2967.271 provides, in 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
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6

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 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 
January Term, 2022 

7

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 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
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8

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. 

 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. 

{¶ 11} In short, the statute provides that an offender must be released on his 

or her presumptive release date unless DRC rebuts the presumption and extends the 

period of incarceration, not to exceed his or her maximum prison term. We hold 

that Maddox’s challenge to the statute’s constitutionality is ripe for review on direct 

appeal because (1) he has been sentenced under the statute, (2) no further factual 

development is necessary for a court to analyze the challenge, and (3) delaying 

review would result in duplicative litigation, forcing Maddox and similarly situated 

people to endure potential violations of their constitutional rights in order to 

challenge the law. See Abbott Laboratories at 149. 

{¶ 12} The United States Supreme Court has held that a constitutional 

challenge to a statute is ripe for review when the claimant is merely threatened with 

prosecution under the statute and the statute arguably curtails his or her 
January Term, 2022 

9

constitutional rights. Steffel v. Thompson, 415 U.S. 452, 462-464, 94 S.Ct. 1209, 

39 L.Ed.2d 505 (1974). In Steffel, the petitioner had been warned twice by police 

to stop distributing handbills opposing American involvement in Vietnam on the 

sidewalk outside of a shopping center. Id. at 455-456. He was threatened with 

arrest under a Georgia criminal-trespass law. Id. at 456-457. In response to the 

threat, he brought an action for injunctive and declaratory relief in federal district 

court, claiming that the application of the statute to his conduct violated his rights 

under the First and Fourteenth Amendments to the United States Constitution. Id.

at 454-455. 

{¶ 13} The district court denied all relief and dismissed the action, finding 

“ ‘the rudiments of an active controversy between the parties * * * lacking.’ ” 

(Ellipsis added in Steffel.) Id. at 456, quoting sub nom. Becker v. Thompson, 334 

F.Supp. 1386, 1389-1390 (N.D.Ga.1971). The petitioner appealed the district 

court’s denial of declaratory relief, and the court of appeals affirmed the district 

court’s judgment. Id. at 456-457. The Supreme Court reversed, holding that “it is 

not necessary that petitioner first expose himself to actual arrest or prosecution to 

be entitled to challenge a statute that he claims deters the exercise of his 

constitutional rights.” Id. at 459. 

{¶ 14} In the case before us, Maddox has already been sentenced under a 

statute that he has claimed infringes on his constitutional rights, including his rights 

to a trial by jury and due process of law. See 2020-Ohio-4702 at ¶ 5. Moreover, 

Maddox argues that preventing a defendant from challenging the constitutionality 

of his or her sentence until habeas corpus is available allows the state to leverage 

the specter of the Reagan Tokes Law and potential maximum punishment during 

plea negotiations—without having to defend the law’s constitutionality until well 

after the defendant has been imprisoned. 

{¶ 15} In reaching its decision below, the Sixth District relied on our 

decision in State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), 
SUPREME COURT OF OHIO

10 

to “infer [that] the appropriate method for [Maddox] 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 four-year 

minimum term of incarceration,” 2020-Ohio-4702 at ¶ 12. But Bray is 

distinguishable from this case, because it involved prisoners’ challenges to former 

R.C. 2967.11, Ohio’s “bad time” statute, which authorized DRC to unilaterally 

extend an inmate’s sentence beyond the sentence imposed by the trial court if the 

prisoner committed certain violations while in prison. Bray at 134-135. This court 

held that former R.C. 2967.11 violated the separation-of-powers doctrine, because 

it stripped the trial courts of their authority to impose final sentences on defendants. 

Id. at 136. Thus, the prisoners in Bray had no way to challenge their additional 

prison time other than through habeas corpus, because the trial courts did not 

impose that prison time, precluding any remedy through direct appeal. 

{¶ 16} In contrast, Maddox and other defendants who have been sentenced 

under the Reagan Tokes Law have received the entirety of their sentences and the 

sentences have been journalized. Therefore, a direct appeal is the appropriate way 

to challenge the constitutionality of the provisions at issue. See State v. Patrick, 

164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 22 (holding that an appeal 

of an indefinite sentence on constitutional grounds is permitted under Ohio law). 

{¶ 17} While the state counters, and the third dissenting opinion agrees, that 

Maddox has not suffered any harm under the statute because he has not yet been 

denied release at the expiration of his minimum prison term, Maddox argues that 

having to wait until that happens to seek habeas corpus to challenge the law would 

deny indigent defendants the assistance of counsel because habeas corpus is a civil 

proceeding in which no right to appointed counsel exists. Maddox also contends 

that doing so would needlessly consume judicial resources because of the 

duplicative and piecemeal litigation that would result. And he asserts that “[it] 

makes no sense to ‘wait-and-see’ if the [Reagan Tokes Law] is unconstitutional 
January Term, 2022 

11 

until after an inmate is held-over because a Byzantine system that postpones 

adjudication until after someone is physically restrained under an extensive 

sentence results in the worst legal harm—loss of liberty that cannot be retroactively 

remedied.” We agree. 

{¶ 18} Additionally, appellate courts throughout Ohio have already 

considered the constitutionality of R.C. 2967.271 in direct appeals and have 

reached different conclusions. In the cases from the Second and Twelfth Districts 

cited above, the courts held that the statute is constitutional. See generally Leet, 2d 

Dist. Montgomery No. 28670, 2020-Ohio-4592; Ferguson, 2d Dist. Montgomery 

No. 28644, 2020-Ohio-4153; Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio4150; Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. The Third 

District has also held that the law is constitutional. See, e.g., State v. Hacker, 3d 

Dist. Logan No. 8-20-01, 2020-Ohio-5048. In contrast, and as the Sixth District 

did in this case, the Fourth and Fifth Districts have held that the constitutionality 

issue was not ripe for review. See, e.g., State v. Buckner, 5th Dist. Muskingum 

Nos. CT2020-0023 and CT 2020-0024, 2020-Ohio-7017, ¶ 8-10; State v. Ramey, 

4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733, ¶ 2. The Eighth 

District has found the constitutionality issue ripe for review, but it previously 

reached opposite conclusions regarding the constitutionality of the statute, creating 

an intra-district conflict. See State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 

2022-Ohio-470, ¶ 4. The court of appeals resolved that conflict in an en banc 

decision and determined that the presumptive-release provisions of the statute are 

constitutional. Id. at ¶ 103. 

{¶ 19} As demonstrated by the appellate courts that have already considered 

the constitutionality issue, we hold that a challenge to the constitutionality of R.C. 

2967.271 is fit for review on a defendant’s direct appeal of his or her conviction 

and prison sentence, because no additional factual development is necessary, see 

Abbott Laboratories, 387 U.S. at 149, 87 S.Ct.1507, 18 L.Ed. 681, thus satisfying 
SUPREME COURT OF OHIO

12 

the first prong of the prudential-ripeness test. We further hold that to refrain from 

reviewing whether R.C. 2967.271 is constitutional would cause hardship to 

Maddox and others who are similarly situated, thus satisfying the second prong of 

the prudential-ripeness test. See Abbott Laboratories at 149. 

{¶ 20} Finally, the first dissenting opinion asserts that “there is no conflict 

between the Sixth District’s judgment and those of the courts of appeals listed in 

its order certifying a conflict,” as the cases listed in the order did not address the 

issue of ripeness. Dissenting opinion of Kennedy, J., ¶ 26. This position elevates 

form over substance. Because the appellate courts in those cases decided the 

constitutional question, they implicitly found the issue ripe for consideration. 

Similarly, the second dissenting opinion acknowledges that “[w]hile it could be 

argued that the courts in the conflict cases implicitly concluded that the 

constitutional challenges to the law were ripe for review, it could also be argued 

that those courts did not consider the ripeness question because it was not raised in 

those appeals.” Dissenting opinion of Fischer, J., ¶ 31. However, while this case 

was pending in this court, both the Second and Twelfth Districts explicitly affirmed 

their previously implicit positions that the constitutionality of the statute is ripe for 

review on direct appeal. See State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 

2021-Ohio-4027, ¶ 18; State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 

2021-Ohio-1353, ¶ 11, fn. 1 (“We find that by previously upholding R.C. 

2967.271 as constitutional, we have implicitly determined that a defendant’s 

constitutional challenge to the Reagan Tokes Law is ripe for review”), citing 

Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. 

{¶ 21} We conclude that a defendant’s challenge to the provisions of the 

Reagan Tokes Law is fit for judicial review on the defendant’s direct appeal of his 

or her conviction and prison sentence, and we further conclude that withholding 

judicial consideration of the issue will cause hardship to such a defendant. We 

therefore hold that the issue of the constitutionality of an indeterminate sentence 
January Term, 2022 

13 

imposed under R.C. 2967.271 ripens at the time of sentencing and that the law may 

be challenged on direct appeal. 

Conclusion 

{¶ 22} We answer the certified question in the affirmative and hold that a 

criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is ripe for 

review on the defendant’s direct appeal of his or her conviction and prison sentence. 

Accordingly, we reverse the judgment of the Sixth District Court of Appeals and 

remand the matter to that court for it to consider the merits of Maddox’s 

constitutional challenge. 

 Judgment reversed 

 and cause remanded. 

O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur. 

KENNEDY, J., dissents, with an opinion. 

FISCHER, J., dissents, with an opinion. 

DEWINE, J., dissents, with an opinion. 

_________________ 

KENNEDY, J., dissenting.

{¶ 23} Because the Sixth District Court of Appeals’ order certifying a

conflict does not point to any judgment from another court of appeals with which 

its judgment in fact conflicts on a question of law, I dissent and would dismiss this 

matter as having been improvidently certified. 

{¶ 24} Article IV, Section 3(B)(4) of the Ohio Constitution provides that 

“[w]henever the judges of a court of appeals find that a judgment upon which they 

have agreed is in conflict with a judgment pronounced upon the same question by 

any other court of appeals of the state, the judges shall certify the record of the case 

to the supreme court for review and final determination.” 

{¶ 25} Construing this language, we have explained that “there must be an 

actual conflict between appellate judicial districts on a rule of law before 
SUPREME COURT OF OHIO

14 

certification of a case to the Supreme Court for review and final determination is 

proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613 N.E.2d 1032 

(1993), paragraph one of the syllabus. We will therefore dismiss a certified-conflict 

case if, upon review, we discover that the matter is not properly before this court 

because no actual conflict on a rule of law exists. E.g., State v. Pettus, 163 Ohio 

St.3d 55, 2020-Ohio-4836, 168 N.E.3d 406, ¶ 6. 

{¶ 26} In this case, there is no conflict between the Sixth District’s

judgment and those of the courts of appeals listed in its order certifying a conflict. 

In none of the cases cited by the Sixth District did the appellate court articulate the 

rule of law that a challenge to R.C. 2967.271, which is a part of the “Reagan Tokes 

Law,” is ripe for review on direct appeal from the judgment of conviction. None 

of those cases even addressed the issue of ripeness. Because a conflict between the 

judgments of different appellate districts on the same rule of law is required before 

a conflict may be certified to this court, the conflict question certified by the Sixth 

District is not properly before us. 

{¶ 27} I recognize that “[r]ipeness is a justiciability doctrine,” Natl. Park 

Hospitality Assn. v. Dept. of Interior, 538 U.S. 803, 807, 123 S.Ct. 2026, 155 

L.Ed.2d 1017 (2003), and that it is a threshold consideration for a court, Thomas v. 

Union Carbide Agricultural Prods. Co., 473 U.S. 568, 579, 105 S.Ct. 3325, 87 

L.Ed.2d 409 (1985). But as we have long understood, “ ‘[a] reported decision, 

although a case where the question might have been raised, is entitled to no 

consideration whatever as settling * * * a question not passed upon or raised at the 

time of the adjudication.’ ” (Brackets and ellipsis added in Payne.) State v. Payne, 

114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 11, quoting State ex rel. 

Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952), paragraph one of the

syllabus. We therefore should not assume from an appellate court’s silence that it 

actually adopted a rule of law that is in conflict with a judgment of another court of 

appeals. 
January Term, 2022 

15 

{¶ 28} For these reasons, I would dismiss this matter as having been 

improvidently certified. Because the majority does not, I dissent. 

_________________ 

FISCHER, J., dissenting.

{¶ 29} I respectfully dissent. While I do not necessarily question the 

substantive analysis set forth in the majority opinion or the other dissenting 

opinions, I conclude that this case is not the proper vehicle for this court to consider 

the conflict question. 

{¶ 30} This appeal presents multiple procedural hurdles that render it less 

than ideal for addressing the ripeness question. First, the trial court did not consider 

the constitutionality of R.C. 2967.271, as appellant, Edward Maddox, did not 

challenge the law’s constitutionality at the trial-court level.

{¶ 31} Second, there is a viable argument that no conflict exists between the 

Sixth District Court of Appeals’ decision in this case and the conflict cases from 

the other districts. None of the conflict cases contains any analysis of the ripeness 

question. While it could be argued that the courts in the conflict cases implicitly 

concluded that the constitutional challenges to the law were ripe for review, it could 

also be argued that those courts did not consider the ripeness question because it 

was not raised in those appeals. Because the conflict cases contain no discussion 

of the ripeness question, I am not convinced that there is an actual conflict of law 

at issue in this case. 

{¶ 32} As noted in the majority opinion, the constitutionality of R.C.

2967.271 has been the subject of numerous appeals throughout this state. See 

majority opinion at ¶ 18. Given the procedural problems noted above, I would 

dismiss this appeal as having been improvidently certified and would address the 

ripeness question in a case better suited to our review. 

_________________ 

 
SUPREME COURT OF OHIO

16 

DEWINE, J., dissenting. 

{¶ 33} This court’s authority is limited. We may decide only cases in which 

someone has suffered an injury in fact. Thus, a claim is not ripe for our review 

when it is premised “on contingent events that may never occur at all.” State ex 

rel. Jones v. Husted, 149 Ohio St.3d 110, 2016-Ohio-5752, 73 N.E.3d 463, ¶ 21 

(“Jones III”) (lead opinion). 

{¶ 34} This case presents precisely such a claim. Edward Maddox is 

serving a prison sentence that by law is presumed to end after no more than four 

years. There is a possibility, however, that Maddox could engage in conduct that 

would allow prison authorities to extend his prison term beyond his presumptive 

release date and a possibility that prison authorities will do so. Maddox wants to 

challenge the constitutionality of the statutory scheme allowing for that possibility

now. The problem is that under our precedent Ohio courts are not permitted to 

decide speculative claims like the one that Maddox has raised. The majority, 

though, misreads federal caselaw on ripeness and, based on its misunderstanding, 

decides that Maddox’s claim should be decided now. 

I. Maddox presumably will be released from prison after serving no more 

than four years

{¶ 35} Maddox was sentenced to an indefinite prison term of four to six 

years for burglary under R.C. 2967.271, which is a part of the “Reagan Tokes Law.” 

Under Ohio’s statutory scheme, trial courts are required to impose an indefinite 

prison sentence consisting of a minimum and a maximum term for certain felonies, 

including second-degree felonies such as Maddox’s burglary offense. See R.C. 

2929.14(A)(2)(a). It is presumed that a “person shall be released from service of 

the sentence on the expiration of the offender’s minimum prison term or on the 
January Term, 2022 

17 

offender’s presumptive earned early release date, whichever is earlier.” R.C. 

2967.271(B).1

{¶ 36} Thus, Maddox presumably will be released after serving no more 

than four years. Id. However, if certain conditions are met, the Ohio Department 

of Rehabilitation and Correction (“DRC”) may rebut that presumption following a 

hearing. R.C. 2967.271(C). DRC may rebut Maddox’s presumptive release date if 

it finds that (1) during his incarceration, Maddox violated the law or the prison’s 

safety or security rules and his behavior while in prison shows that he has not been 

rehabilitated and remains a threat to society, (2) Maddox was placed in extended 

restrictive housing within the year preceding the date of the hearing, or (3) at the 

time of the hearing, Maddox is classified at a security level of three or higher. R.C. 

2967.271(C)(1) through (3). If DRC rebuts the presumption, it may hold Maddox 

in prison for a “reasonable” additional period not exceeding the maximum term. 

R.C. 2967.271(D)(1). 

{¶ 37} Maddox’s claim that his sentence is invalid is based on prison 

authorities’ possible extension of his release date beyond the presumptive minimum 

term. The question we must decide is whether the possibility of Maddox’s serving 

a sentence longer than his presumptive minimum term is a sufficient injury to allow 

him to challenge the possible extension of his prison term now.

II. We decide only cases in which someone has suffered an actual injury; a 

possibility of future harm is not enough

{¶ 38} The Ohio Constitution vests the “judicial power of the state” in this 

court and the inferior courts. Ohio Constitution, Article IV, Section 1. Although 

the language of our Constitution does not mirror the “cases” and “controversies” 

1. A “presumptive earned early release date” comes into play when prison officials recommend to 

the trial court that an offender be released prior to the expiration of the minimum term based on 

“[the offender’s] exceptional conduct while incarcerated or the offender’s adjustment to 

incarceration.” R.C. 2967.271(F)(1). 
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language of the United States Constitution, see United States Constitution, Article 

III, Section 2, our Constitution is generally understood to impose similar 

constraints, see Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). 

Judicial power is the power to decide “specific cases affecting the interests of 

persons or property.” Stanton v. State Tax Comm., 114 Ohio St. 658, 671-672, 151 

N.E. 760 (1926). Thus, Ohio courts may decide only “actual controversies between 

parties legitimately affected by specific facts.” Fortner at 14. And they must 

“refrain from giving opinions on abstract propositions” or issuing “premature 

declarations or advice upon potential controversies.” Id.; see also Travis v. Pub. 

Util. Comm., 123 Ohio St. 355, 359, 175 N.E. 586 (1931). 

{¶ 39} The ripeness doctrine flows from the constitutional limitation of our 

authority to the exercise of the judicial power. See Natl. Park Hospitality Assn. v. 

Dept. of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). It 

has also been said to encompass “ ‘prudential reasons for refusing to exercise 

jurisdiction.’ ” Id., quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57, 

113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), fn.18; but see Susan B. Anthony List v. 

Driehaus, 573 U.S. 149, 167, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (questioning 

the “continuing vitality of the prudential ripeness doctrine”).

{¶ 40} As constitutional commands, ripeness and mootness can be viewed

as “time dimensions of standing.” Wright & Miller, Federal Practice & Procedure,

Section 3532.1 (3d Ed.2017). For a claim to be ripe, there must have been an 

“injury in fact.” Susan B. Anthony List at 158-159; State ex rel. Walgate v. Kasich, 

147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 23 (lead opinion). To meet 

that requirement, a harm “must be ‘concrete and particularized’ and ‘actual or 

imminent, not “conjectural” or “hypothetical.” ’ ” Susan B. Anthony List at 158, 

quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 

L.Ed.2d 351 (1992), quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 

1717, 109 L.Ed.2d 135 (1990). An allegation of future injury may satisfy the 
January Term, 2022 

19 

ripeness requirement, but that bar is high and the injury must be “ ‘certainly 

impending’ ” or there must be a “ ‘substantial risk’ that the harm will occur.” Id., 

quoting Clapper v. Amnesty Internatl. USA, 568 U.S. 398, 409, 414, 133 S.Ct. 1138, 

185 L.Ed.2d 351 (2013), fn. 5. In contrast, “[a] claim is not ripe if it rests on 

contingent events that may never occur at all.” Jones III, 149 Ohio St.3d 110, 2016-

Ohio-5752, 73 N.E3d 463, at ¶ 21; see also Trump v. New York, ___ U.S. ___, ___, 

141 S.Ct. 530, 535, 208 L.Ed.2d 365 (2020), quoting Texas v. United States, 523 

U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (to be justiciable, a claim 

must be “ ‘ripe’—not dependent on ‘contingent future events that may not occur as 

anticipated, or indeed may not occur at all’ ”). 

{¶ 41} The Jones trilogy of cases illustrates this point. Those cases 

involved the signature requirements for a ballot initiative sought to be placed before 

Ohio voters. Jones III at ¶ 1-11. After local boards of elections had conducted an 

initial review of the signatures, the Ohio secretary of state directed the boards to 

rereview certain aspects of the part-petitions and to recertify the results. Id. at 

¶ 1-5. 

{¶ 42} Proponents of the ballot initiative filed suit, challenging the secretary 

of state’s authority to order a rereview of the signatures. State ex rel. Husted v. 

Jones, 144 Ohio St.3d 1472, 2016-Ohio-457, 45 N.E.3d 240 (“Jones I”); Jones III

at ¶ 5. But the case became moot when the secretary of state determined that 

notwithstanding the fact that a number of the signatures had been invalidated on 

rereview, there remained sufficient signatures to certify the matter to the ballot. 

Jones III at ¶ 9. The Ohio Manufacturers’ Association (“OMA”) then filed its own 

action, alleging that thousands of invalid signatures had been verified and seeking 

to block the initiative from appearing on the ballot. Ohio Manufacturers’ Assn. v. 

Ohioans for Drug Price Relief Act, 149 Ohio St.3d 250, 2016-Ohio-5377, 74 

N.E.3d 399, ¶ 1-2 (“OMA”); Jones III at ¶ 10. 
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{¶ 43} In response to the OMA’s action, the initiative’s proponents filed a 

mandamus complaint in this court, seeking to restore signatures that were 

invalidated on rereview so as to avoid the possibility that the OMA’s challenge 

would reduce the validated signatures to a number below the threshold for 

certification to the ballot. State ex rel. Jones v. Husted, 146 Ohio St.3d 1412, 2016-

Ohio-3390, 5 N.E.3d 658 (“Jones II”); Jones III, 149 Ohio St.3d 110, 2016-Ohio5752, 73 N.E3d 463, at ¶ 11. This court summarily dismissed Jones II “as 

premature.” Id. We later explained that we had dismissed Jones II as unripe 

because the proponents’ “claims were contingent upon future events that might or 

might not occur.” Jones III at ¶ 21. 

{¶ 44} After Jones II was dismissed, the “contingent events” did in fact 

come to pass. In OMA, this court determined that a number of the signatures at 

issue were invalid, causing the initiative to fall below the threshold of signatures 

required for the initiative to be certified to the ballot. OMA at ¶ 46 (lead opinion). 

At that point, the proponents’ claims became ripe. See Jones III at ¶ 22. Thus, in 

Jones III, this court considered the merits of the proponents’ challenge to the 

invalidation of the signatures on rereview. Id. at ¶ 30-53. 

{¶ 45} The case at bar is akin to Jones II. At the time of Jones II, there 

remained enough valid signatures to certify the ballot initiative at issue. So it was 

speculative whether the initiative’s proponents would suffer any injury as a result 

of the invalidation of any signatures on rereview. Similarly, it is speculative 

whether Maddox’s prison term will be extended beyond his presumptive release 

date. As was the case for the proponents in Jones II, Maddox’s claim relies on 

contingent events that may never occur. 

{¶ 46} So far, Maddox has suffered no injury under the provisions of the 

Reagan Tokes Law that allow prison authorities to extend a presumptive minimum 

sentence. As it stands now, Maddox will be released after he serves his minimum 

sentence. Several things must occur in order for Maddox’s release date to be 
January Term, 2022 

21 

extended beyond that point. First, Maddox must engage in certain proscribed 

conduct, be placed in restrictive housing during a specific time, or be classified at 

a security level of three or higher at the time of any hearing on the extension of his 

sentence. See R.C. 2967.271(C)(1) through (3). Second, prison authorities must in 

fact hold a hearing on the matter. Id. Third, at the hearing, prison authorities must 

rebut the presumption that Maddox should be released at the end of his minimum 

sentence. Id. These are all “contingent events that may never occur.” Jones III, 

149 Ohio St.3d 110, 2016-Ohio-5752, 73 N.E3d 463, at ¶ 21. 

{¶ 47} Furthermore, whether Maddox’s prison term will be extended 

beyond its minimum is in large measure up to Maddox. It is up to him to decide 

whether he will engage in conduct that violates the law or the safety- or securityrelated prison rules. And whether Maddox will be classified at a high security level 

or placed in restrictive housing largely depends on his conduct while he is in prison. 

So, it is hard to see how Maddox has suffered an injury in fact from something that 

hasn’t happened yet, that may never happen, and that is largely within his control. 

{¶ 48} Under our precedent, Maddox has not established that he has 

suffered an actual injury sufficient to allow him to challenge the possibility that his 

sentence will be extended in the future. 

III. The majority misapplies federal precedent

{¶ 49} The majority reaches a contrary result by applying a two-part test for 

determining prudential ripeness that is derived from the United States Supreme 

Court’s decision in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 153, 87 

S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated in part on other grounds, Califano 

v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1997). Under this test, a 

court must consider whether a case is “fit for judicial resolution” and whether 

withholding judicial review will cause hardship to the parties. Id.; see also Hill v. 

Snyder, 878 F.3d 193, 213 (6th Cir.2017). 
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22 

{¶ 50} There’s a big problem, though. Since Abbott was decided, the 

United States Supreme Court has made clear that the Abbott test applies only when 

determining prudential ripeness and that constitutional standards for justiciability 

must be met before one even gets to considerations of prudential ripeness. See

Susan B. Anthony List, 573 U.S. at 157-158, 167, 134 S.Ct. 2334, 189 L.Ed.2d 246; 

Trump, ___ U.S. at ___, 141 S.Ct. at 535, 208 L.Ed.2d 365; see also Common 

Cause v. Trump, 506 F.Supp.3d 39, 56 (D.D.C.2020) (referring to the Abbott test 

as “the canonical test for prudential ripeness”). 

{¶ 51} Federal courts have explained that “[c]onstitutional ripeness turns on 

whether the plaintiff has established ‘an injury-in-fact that is imminent or certainly 

impending.’ ” Common Cause at 45, quoting Am. Petroleum Inst. v. Environmental 

Protection Agency, 683 F.3d 382, 386 (D.C.Cir.2012). Once constitutional 

ripeness is established, determining prudential ripeness requires the court to 

balance “ ‘the fitness of the issues for judicial decision’ against ‘the hardship to the 

parties of withholding judicial consideration.’ ” Id., quoting Abbott, 387 U.S. at 

148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681. Remarkably though, the majority here 

skips right over the constitutional-ripeness requirement and simply looks to the 

prudential-ripeness factors. 

{¶ 52} The Supreme Court’s decision in Susan B. Anthony List illustrates 

the problem with the majority’s approach. That case involved a pre-enforcement 

challenge to an Ohio statute prohibiting certain “false statements” from being made 

during an election campaign. Id. at 152. The Sixth Circuit Court of Appeals had 

affirmed the federal district court’s dismissal of the case on ripeness grounds after 

considering three factors: (1) the likelihood that the alleged harm would come to 

pass, (2) whether the factual record was sufficiently developed, and (3) the hardship 

to the parties if judicial relief were denied. Id. at 156. In reversing the Sixth Circuit, 

the Supreme Court made clear that the essential inquiry was the constitutional 

“injury-in-fact requirement.” Id. at 158. After concluding that the claim met that 
January Term, 2022 

23 

standard, the court mentioned only in passing the prudential-ripeness factors that 

the majority finds all important in this case. See id. at 167. 

{¶ 53} In Susan B. Anthony List, the court questioned whether the Abbott

factors for determining prudential ripeness should continue to be considered, noting 

that they are in tension with its recent pronouncement that federal courts are 

obligated to hear cases within their jurisdiction. Nevertheless, the court found it 

unnecessary to “resolve the continuing vitality of the prudential ripeness doctrine 

in th[at] case because the ‘fitness’ and ‘hardship’ factors [were] easily satisfied.” 

Susan B. Anthony List, 573 U.S. at 167, 134 S.Ct. 2334, 189 L.Ed.2d 246. 

{¶ 54} Fair to say, then, that today’s majority opinion rests on the shakiest 

of foundations. It finds dispositive a test for prudential ripeness from federal 

caselaw that the United States Supreme Court has called into question. Yet, the 

majority neglects to engage in the threshold constitutional inquiry that the United 

States Supreme Court has found to be determinative. 

{¶ 55} Tellingly, the very case that the majority cites as justification for 

skipping to the prudential-ripeness factors actually demonstrates how far the 

majority has gone off track. See majority opinion, ¶ 8, citing Natl. Treasury Emps. 

Union v. United States, 101 F.3d 1423 (D.C.Cir.1996). The majority pulls from 

that case this quote: “ ‘[I]f a threatened injury is sufficiently “imminent” to establish 

standing, the constitutional requirements of the ripeness doctrine will necessarily 

be satisfied.’ ” Majority opinion at ¶ 8, quoting Natl. Treasury Emps. Union at 

1428. From this the majority implies that no analysis of constitutional ripeness is 

necessary. But the majority misses the point—whether one refers to the inquiry as 

one of standing or of constitutional ripeness, an injury must be sufficiently 

imminent for it to be judiciable. 

{¶ 56} Indeed, the Natl. Treasury court was explicit that “ripeness * * * 

shares the constitutional requirement of standing that an injury in fact be certainly 

impending.” Id. at 1427. Thus, the court in Natl. Treasury did what this court 
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24 

should have done and analyzed constitutional ripeness before it analyzed prudential 

ripeness. See id. at 1430-1431. That case involved a challenge by a public union 

to the federal Line Item Veto Act, former 2 U.S.C. 691 and 692. Natl. Treasury 

Emps. Union at 1425. At the time of suit, the President had not yet exercised the 

line-item veto or even had the opportunity to do so. Id. at 1431. Because there was 

no threat of “imminent” injury, the court held that the claim was not ripe. Id. at 

1430. The same rationale applies here. DRC has not yet attempted to extend 

Maddox’s sentence, and nothing in the record suggests a concrete threat that it will 

do so. The alleged injury is not sufficiently imminent to be ripe. 

{¶ 57} The majority also relies heavily on Steffel v. Thompson, 415 U.S. 

452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), a case involving facts very different 

from what we have here. In Steffel, the petitioner had twice been stopped by the 

police outside of a shopping mall and threatened with criminal prosecution for 

distributing handbills opposing the Vietnam War. Id. at 455. The petitioner’s 

companion had already been arrested and charged with criminal trespass for his 

refusal to stop distributing the handbills after being warned not to do so. Id. at 455-

456. The petitioner sought to challenge the statute in question, claiming that it 

“deter[red] the exercise of his constitutional rights.” Id. at 459. The Supreme Court 

held that in those circumstances, the alleged threats of prosecution could not be 

characterized as “imaginary or speculative” and that the petitioner had standing to 

challenge the constitutionality of the statute. Id.

{¶ 58} The court in Steffel determined that the injury-in-fact requirement 

had been met because the imminent threat of enforcement of the statute deterred 

the petitioner from exercising his constitutional rights. See id.; see also Calderon 

v. Ashmus, 523 U.S. 740, 749, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (noting that 

in Steffel, “[t]he imminent threat of state criminal prosecution and the consequent 

deterrence of the plaintiff’s exercise of constitutionally protected rights established 

a case or controversy”). Maddox, in contrast, has not shown any present injury. 
January Term, 2022 

25 

He doesn’t allege that he has been deterred from doing anything that he has the 

right to do; he has merely pointed to the possibility of injury in the future should 

certain speculative events come to pass. 

IV. Conclusion 

{¶ 59} By law, there is a presumption that Maddox will serve only the 

minimum prison term to which he has been sentenced. Because Maddox’s 

challenge to the possible extension of his sentence beyond the minimum term rests 

upon “contingent events that may never occur,” we lack authority to review that 

claim now. Jones III, 149 Ohio St.3d 110, 2016-Ohio-5752, 73 N.E3d 463, at ¶ 21. 

I would affirm the judgment of the court of appeals dismissing Maddox’s appeal. I 

respectfully dissent from the majority’s decision to do otherwise. 

_______________ 

Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, 

Assistant Prosecuting Attorney, for appellee. 

Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, for appellant. 

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, 

Michael J. Hendershot, Chief Deputy Solicitor General, and Diane R. Brey, Deputy 

Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave 

Yost. 

Timothy Young, Ohio Public Defender, and Craig Jaquith, Assistant Public 

Defender, urging reversal for amicus curiae Office of the Ohio Public Defender. 

Raymond T. Faller, Hamilton County Public Defender, and Krista M. 

Gieske, Assistant Public Defender, urging reversal for amicus curiae Law Office of 

the Hamilton County Public Defender. 

Anzelmo Law and James A. Anzelmo, urging reversal for amicus curiae 

Anzelmo Law. 

_________________