[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Maddox , Slip Opinion No. 2022-Ohio-764.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2022-O HIO -764

T HE S TATE OF O HIO , A PPELLEE , v . M ADDOX , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e 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 cha llenge 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 appeal s’ judgment reversed and cause
remanded. (No. 2020-1266—Submitted June 29, 2021— Decided March 16, 2022.)
C ERTIFIED by the Court of Appeals for Lucas County, No. CL-19-1253, 2020-Ohio-4702.

_______________________ S TEWART , 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 ofS UPREME C OURT OF O HIO

2 Rehabilitation and Correction (“DRC”) to administratively exten d an incarcerated person’s prison term beyond his or her minimum prison term or p resumptive earned early-release date but not beyond his or her maximum prison ter m, is ripe for review on the defendant’s direct appeal of his or her conviction and p rison sentence. We hold that it is. Accordingly, we reverse the judgment of the S ixth District Court of Appeals and remand the matter to that court for it to consider whether the challenged provisions a re 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 attemp ted burglary in violation of R.C. 2923.02(A) and R.C. 2911.12(A)(2) and (D), felonies of the third degree, a nd one count of burglary in violation of R.C. 2911.12(A)(2) and (D), a felony o f the second degree. The trial court sentenced Maddox pursuant to the Reagan Tokes L aw to 12-month definite prison terms for each o f the attempted-burglary counts and an indefinite prison term of four to six years for the burglary count. The s entences were ordered to be served concurrently. {¶ 3} Maddox appealed his convictions to the Sixth District Court of Appeals, asserting, among other a lleged errors, that it “was pl ain error for the trial court to impose [a] sentence under the Reagan Tokes Law because its provisions
are unconstitutional nullities.” 2020-Ohio-4702, ¶ 4. Specifi cally, 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 Con stitutions, including the requirement of sepa ration of powers and his right s 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 provisi ons for people convicted of non-li fe-sentence felony
offenses of the first or s econd degree. Under R.C. 2967.271(B) through (D), thereJanuary Term, 2022

3 is a presumption that the offender will be released on the expi ration of his or her minimum prison term or earned ea rly-release date, but the statu te 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 fo r review because Maddox has not yet been subjected to a prison term exceeding hi s minimum prison term. 2020-Ohio-4702 at ¶ 11. Ins tead, the court held that th e appropriate method for Maddox to challenge the constitu tionality of the presumptiv e-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 Distric t a motion to certify a confli ct regarding the ripeness issue, a sserting that the court of appea ls’ 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 cou rt of appeals granted the motion and certified a conf lict on the foll owing 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 presumptiv e minimum term, ripe for revie w on direct appeal from sentencing, or only after the defendant h as served the minimum term and been subject to extension by application of the [law]?S UPREME C OURT OF O HIO

4 We determined that a conflict ex ists 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 rev iew.”
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 Cons titution provides that “[t]he courts of common pleas * * * shall have original jurisdi ction over all justiciable matters * * * as pr ovided by law,” and this court h as 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 ripene ss may be derived from the conc lusion that “judicial machinery should be conserved fo r problems which are real or pr esent and imminent, not squandered on problems which are abstract or hypo thetical 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 Ac tion for Judicial Review , 68 Harv.L.Rev. 1122, 1122 (1955). {¶ 8} Ripeness is distinct from standi ng, 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 injur y is sufficiently
‘imminent’ to establish standi ng, the constitutional requiremen ts of the ripeness
doctrine will necessar ily be satisfied.” Id . at 1428. Then, “only the prudential justiciability concerns of ripeness can act to bar consideratio n of the claim.” Id

. The prudential-justiciability concerns include (1) whether the claim is fit for judicial decision and (2) whether withholding court considerati on will causeJanuary 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 pr udential-justiciability question is met when “[t]he issue presented in th[e] case is pu rely 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 constituti onal challenge is ripe on dire ct appeal of his convictions and pr ison sentence because he has be en 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 pro cess of law under the Fifth, Sixth, and Fourteenth Amendments to the United States Co nstitution and their parallel Ohio provisions. He also asserts that the poten tial maximum punishment for an offense influe nces pretrial practice, plea ba rgaining, 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 p erson shall be released from service of the sentence on the expiratio n of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. (C) The presumption establis hed under division (B) of this section is a rebuttable presum ption that the department of rehabilitation and correction may rebut as provided in this div ision. Unless the department rebuts the presumption, the offender shal l be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptiveS UPREME C OURT OF O HIO

6 earned early release date, whichever is earlier. The departmen t 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 ap ply: (a) During the offender’s incarceration, the offender
committed institutional rule infra ctions that involved compromi sing 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 violati on of law that was not prosecuted, and the infractions or violations
demonstrate that the offende r 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, demons trate that the offender contin ues to pose a threat to society. (2) Regardless of the security level in which the offender is
classified at the time of the h earing, the offender has been pl aced by the department in extended rest rictive housing at any time with in 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 presumptio n established under division (B) of this section, the department may maintain the offender’s incarceration in a state correctionalJanuary Term, 2022

7 institution under the sentence after the expiration of the offe nder’s minimum prison term or, for offenders who have a presumptive earned early release date, after the offender’s presumptive ear ned early release date. The departme nt may maintain the offender’s incarceration under this division for an additional period of incarceration determined by the department. The additional per iod 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 t he expiration of the offender’s minimum prison term plus the additional period of incarcerati on specified by the department as provided under that division or , for offenders who have a presumptive earned early releas e date, on the expiration of the additional period of incarceration to be served after the offen der’s presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttable presumption that th e department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this section, a nd 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 depar tment rebuts the presumption at the hearing, the offender shall be re leased from service of the sentence on the expiration of the offender’ s minimum prison term plus the additional period of incarcerationS UPREME C OURT OF O HIO

8 specified by the department or, for offenders who have a presumptive earned early releas e date, on the expiration of the additional period of incarceration to be served after the offen der’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 re buttal 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 release d under division (C) of this section or t his division prior to the expi ration of the offender’s maximum prison term imposed as part of the offender’s non-life felony indefin ite prison term, the offender shall be released upon the expirati on of that maximum term.

{¶ 11} In short, the statute provides th at an offender must be release d on his or her presumptive release date unless DRC rebuts the presumpti on and extends the period of incarceration, not to exceed his or her maximum priso n term. We hold that Maddox’s challenge to the statute’s constitutionality is r ipe 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 a nd similarly situated people to endure potential viola tions of their constitutional r ights 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 herJanuary 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 rel ief in federal district court, claiming that the applica tion of the statute to his cond uct violated his rights
under the First and Fourteenth Amendments to the United States Constitution. Id.
at 454-455. {¶ 13} The district court denied all re lief and dismissed the action, finding
“ ‘the rudiments of an active c ontroversy 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 re versed, holding that “it is not necessary that petitioner firs t expose himself to actual ar rest or prosecution to be entitled to challenge a statute that he claims deters the ex ercise 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 rig hts, 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 punis hment during plea negotiations—without having to defend the law’s constituti onality until well after the defendant has been imprisoned. {¶ 15} In reaching its decision below, the Sixth District relied on ou r decision in State ex rel. Bray v. Russell , 89 Ohio St.3d 132, 729 N.E.2d 359 (2000),S UPREME C OURT OF O HIO

10 to “infer [that] the appropriate method for [Maddox] to challen ge the constitutionality of the presumptive release portions of R.C. 2 967.271 is by filing a writ of habeas corpus if he is not released at the conclusion o f 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 t o unilaterally
extend an inmate’s sentence be yond the sentence imposed by the trial court if the prisoner committed certain vio lations while in prison. Bray at 134-135. This court
held that former R.C. 2967.11 viol ated 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 challe nge their additional prison time other than through habeas corpus, because the trial courts did not impose that prison time, precl uding any remedy through direct a ppeal. {¶ 16} In contrast, Maddox and other defe ndants who have been sentence d under the Reagan Tokes Law have received the entirety of their sentences and the sentences have been journalized. T herefore, 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 (holdi ng that an appeal
of an indefinite sentence on c onstitutional grounds is permitte d under Ohio law). {¶ 17} While the state counters, and the third dissenting opinion agre es, that Maddox has not suffered any harm under the statute because he h as not yet been denied release at the expiration of his minimum prison term, Ma ddox argues that having to wait until t hat happens to seek ha beas corpus to chal lenge the law would deny indigent defendants the a ssistance of counsel because habe as corpus is a civil proceeding in which no right to appointed counsel exists. Madd ox also contends that doing so would needlessly c onsume judicial resources becau se 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 u nconstitutionalJanuary Term, 2022

11 until after an inmate is held-ove r because a Byzantine system t hat postpones adjudication until after someone is physically restrained under an extensive sentence results in the worst legal harm—loss of liberty that c annot be retroactively remedied.” We agree. {¶ 18} Additionally, appella te courts throughout Ohio have already considered the constitutionality of R.C. 2967.271 in direct app eals and have
reached different conclusions. I n the cases from the Second an d 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. CA 2019-12-203, 2020-Ohio-3837. The Thi rd
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 t he 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 a ppeals resolved that conflic t in an en banc
decision and determined that th e presumptive-release provisions of the statute are
constitutional. Id. at ¶ 103. {¶ 19} As demonstrated by the appellate courts that have already consi dered the constitutionality issue, we hold that a challenge to the co nstitutionality of R.C. 2967.271 is fit for review on a defendant’s direct appeal of hi s 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 satisfyingS UPREME C OURT OF O HIO

12 the first prong of the prudential-ripeness test. We further ho ld that to refrain from reviewing whether R.C. 2967.271 is constitutional would cause h ardship to Maddox and others who are similarly situated, thus satisfying t he second prong of the prudential-ripeness test. See Abbott Laboratories at 149. {¶ 20} Finally, the first dissenting opi nion asserts that “there is no conflict between the Sixth District’s j udgment and those of the courts o f appeals listed in its order certifying a conflict,” as the cases listed in the or der did not address the issue of ripeness. Dissenti ng opinion of Kennedy, J., ¶ 26. T his position elevates form over substance. Because the appellate courts in those cas es decided the constitutional question, they implicitly found the issue ripe f or consideration. Similarly, the second dissenting opinion acknowledges that “[w] hile it could be argued that the courts in the conflict cases implicitly conclud ed that the constitutional challenges to the law were ripe for review, it c ould also be argued that those courts did not consider the ripeness question becaus e it was not raised in those appeals.” Dissenting opinion of Fischer, J., ¶ 31. Howe ver, while this case was pending in this court, both the Second and Twelfth District s 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 uphol ding R.C. 2967.271 as constitutional, we have implicitly determined that a defendant’s constitutional challenge to the Reagan Tokes Law is ripe for re view”), citing Guyton , 12th Dist. Butler No. C A2019-12-203, 2020-Ohio-3837. {¶ 21} We conclude that a defendant’s c hallenge to the provisions of t he Reagan Tokes Law is fit for judi cial 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 in determinate sentenceJanuary Term, 2022

13 imposed under R.C. 2967.271 ripens at the time of sentencing an d that the law may be challenged on direct appeal.
Conclusion {¶ 22} We answer the certified question in the affirmative and hold th at 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 convictio n and prison sentence. Accordingly, we reverse the judgm ent of the Sixth District Cour t of Appeals and
remand the matter to that court for it to consider the merits o f Maddox’s constitutional challenge. Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and D ONNELLY and B RUNNER , JJ., concur.

K ENNEDY , J., dissents, with an opinion.

F ISCHER , J., dissents, with an opinion.

D E W INE , J., dissents, with an opinion.

_________________ K ENNEDY , J., dissenting. {¶ 23} Because the Sixth District Court of Appeals’ order certifying a conflict does not point to any j udgment from another court of a ppeals with which its judgment in fact conflicts on a question of law, I dissent and would dismiss this matter as having been impr ovidently certified. {¶ 24} Article IV, Section 3(B)(4) of the Ohio Constitution provides t hat “[w]henever the judges of a cou rt of appeals find that a judgme nt upon which they have agreed is in c onflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certi fy the record of the case to the supreme court for revi ew and final dete rmination.” {¶ 25} Construing this language, we have explained that “there must be an actual conflict between appellate judicial districts on a rule of law beforeS UPREME C OURT OF O HIO

14 certification of a case to the S upreme Court for review and fin al determination is proper.” Whitelock v. Gilbane Bldg. Co ., 66 Ohio St.3d 594, 613 N.E.2d 1032 (1993), paragraph one of the sylla bus. We will therefore dismi ss a certified-conflict case if, upon review, we discover that the matter is not proper ly 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 S ixth District did the appell ate 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 d istricts on the same rule of law is required before a conflict may be certified to this court, the conflict questio n certified by the Sixth District is not pr operly 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 f or 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] rep orted decision, although a case where the questi on might have been raised, is e ntitled to no
consideration whatever as settling * * * a question not passed upon or raised at the time of the adjudication.’ ” (Br ackets and ellipsis added in Payne .) State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 11, quoti ng 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 cou rt’s silence that it actually adopted a rule of law t hat is in conflict with a judgm ent of another court of appeals.January Term, 2022

15 {¶ 28} For these reasons, I would dismis s this matter as having been improvidently certified. Becau se the majority does not, I diss ent.

_________________ F ISCHER , J., dissenting. {¶ 29} I respectfully dissent. While I do not necessarily question th e substantive analysis set forth in the majority opinion or the o ther dissenting opinions, I conclude that this cas e is not the proper vehicle f or this court to consider the conflict question. {¶ 30} This appeal presents multiple pro cedural hurdles that render it less than ideal for addressing the ripeness question. First, the tr ial court did not consider the constitutionality of R.C. 2967.271, as appellant, Edward Ma ddox, did not challenge the law’s constitutionality at the trial-court level. {¶ 31} Second, there is a viable argument that no conflict exists betw een the Sixth District Court of Appeals’ decision in this case and the conflict cases from
the other districts. None of t he conflict cases contains any a nalysis of the ripeness question. While it could be ar gued that the courts in the conf lict cases implicitly concluded that the constitutional challenges to the law were ri pe 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 co ntain no discussion of the ripeness question, I am not convinced that there is an a ctual 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 th is 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.

_________________S UPREME C OURT OF O HIO

16 D E W INE , 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 r ipe 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 enga ge 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 allowin g for that possibility now. The problem is that under our precedent Ohio courts are n ot 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 relea sed from prison after servin g no more than four years {¶ 35} Maddox was sentenced to an indefinite prison term of four to si x 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 imp ose an indefinite prison sentence consisting of a minimum and a maximum term for certain felonies, including second-degree felonies such as Maddox’s burglary offe nse. See R.C. 2929.14(A)(2)(a). It is presumed that a “person shall be relea sed from service of the sentence on the expiration of the offender’s minimum prison term or on theJanuary 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 presump tion 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 hi s behavior while in prison shows that he has not been
rehabilitated and remains a thr eat to society, (2) Maddox was p laced in extended restrictive housing within the yea r preceding the date of the h earing, or (3) at the time of the hearing, Maddox is classified at a security level o f 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 th e 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 o f Maddox’s serving a sentence longer than his presumptive minimum term is a suffic ient injury to allow him to challenge the possible ex tension of his prison term now.

II. We decide only cases in which someone has suffered an actu al injury; a possibility of future harm is not enough {¶ 38} The Ohio Constitution vests the “judicial power of the state” i n this
court and the inferior courts. Ohio Constitution, Article IV, Section 1. Although the language of our Constitution does not mirror the “cases” an d “controversies”

1. A “presumptive earned early release date” comes into play w hen prison officials recommend to the trial court that an offender be released prior to the expir ation 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).S UPREME C OURT OF O HIO

18 language of the United States Constitution, see United States Constitution, Article III, Section 2, our Constitution is generally understood to imp ose 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 con troversies between parties legitimately affected by specific facts.” Fortner at 14. And they must “refrain from giving opinions on abstract propositions” or issu ing “premature declarations or advice upon pot ential 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 refus ing 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) (qu estioning the “continuing vitality of the pr udential ripeness doctrine”). {¶ 40} As constitutional commands, ripeness and mootness can be viewed
as “time dimensions of sta nding.” Wright & Miller, Federal Practice & Procedure , Section 3532.1 (3d Ed.2017). For a claim to be ripe, there mus t 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 op inion). To meet that requirement, a harm “must b e ‘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 alle gation of future injury m ay satisfy theJanuary 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 h arm 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 ju sticiable, a claim must be “ ‘ripe’—not dependent on ‘contingent future events tha t 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 requireme nts for a ballot initiative sou ght 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 d irected the boards to rereview certain aspects of the part-petitions and to recertify the results. Id. at ¶ 1-5. {¶ 42} Proponents of the ba llot 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 d etermined that notwithstanding the fact that a number of the signatures had be en invalidated on rereview, there remained sufficient signatures to certify the m atter to the ballot.

Jones III at ¶ 9. The Ohio Manufacturers’ Association (“OMA”) then file d 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.S UPREME C OURT OF O HIO

20 {¶ 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 thr eshold 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 eve nts 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 th reshold 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 m erits of the proponents’ challenge to the
invalidation of the si gnatures 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 initiati ve at issue. So it was speculative whether the initiative’s proponents would suffer an y injury as a result of the invalidation of any signatures on rereview. Similarly, it is speculative whether Maddox’s prison term w ill be extended beyond his presum ptive release
date. As was the case for the proponents in Jones II , Maddox’s claim relies on contingent events th at may never occur. {¶ 46} So far, Maddox has suffered no injury under the provisions of t he Reagan Tokes Law that allow prison authorities to extend a pres umptive minimum sentence. As it stands now, Maddox will be released after he s erves his minimum sentence. Several things must occur in order for Maddox’s rele ase date to beJanuary Term, 2022

21 extended beyond that point. Fir st, Maddox must engage in certa in proscribed conduct, be placed in restric tive housing during a specific tim e, or be classified at a security level of three or hi gher at the time of any hearing on the extension of his

sentence. See R.C. 2967.271(C)(1) through (3). Second, prison authorities m ust 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 whet her Maddox will be classified at a high security level or placed in restrictive housi ng 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 ne ver 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 contrar y result by applying a two-part t est 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 resolut ion” 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).S UPREME C OURT OF O HIO

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 standar ds for justiciability must be met before one even gets to considerations of prudentia l 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 t urns on whether the plaintiff has estab lished ‘an injury-in-fact that i s 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 establishe d, determining pruden tial ripeness requir es the court to
balance “ ‘the fitness of the i ssues for judicial decision’ aga inst ‘the hardship to the parties of withholding judi cial 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 si mply looks to the prudential-ripeness factors. {¶ 52} The Supreme Court’s decision in Susan B. Anthony List illustrates the problem with the majority’s a pproach. That case involved a pre-enforcement challenge to an Ohio statute prohibiting certain “false stateme nts” 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) t he likelihood that the alleged harm would come to pass, (2) whether the factual reco rd 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 tha t the essential inquiry was the constitutional “injury-in-fact requirement.” Id. at 158. After concluding that the claim met thatJanuary Term, 2022

23 standard, the court mentioned only in passing the prudential-ri peness 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 pruden tial ripeness should continue to be considered, noting that they are in tension with its recent pronouncement that fed eral courts are obligated to hear cases within their jurisdiction. Nevertheles s, the court found it unnecessary to “resolve the continuing vitality of the prudenti al ripeness doctrine in th[at] case because the ‘fitness’ and ‘hardship’ factors [we re] 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 s hakiest of foundations. It finds dispositiv e a test for prudential rip eness from federal caselaw that the United States Supreme Court has called into qu estion. Yet, the majority neglects to engage in the threshold constitutional inq uiry that the United States Supreme Court has found to be determinative. {¶ 55} Tellingly, the very case that the majority cites as justificati on for skipping to the prudential-ripe ness factors actually demonstrat es 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 t hreatened injury is sufficient ly “imminent” to establish standing, the constitutional requi rements of the ripeness doctr ine will necessarily be satisfied.’ ” Majority opinion at ¶ 8, quoting Natl. Treasury Emps. Union at 1428. From this the majority implies that no analysis of const itutional ripeness is necessary. But the majority mi sses the point—whether one refer s to the inquiry as one of standing or of constitutional ripeness, an injury must b e 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 injur y in fact be certainly impending.” Id. at 1427. Thus, the court in Natl. Treasury did what this courtS UPREME C OURT OF O HIO

24 should have done and analyzed c onstitutional ripeness before it analyzed prudential ripeness. See id. at 1430-1431. That case involved a challenge by a public unio n 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 exerc ised 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 w as not ripe. Id. at 1430. The same rationale applies here. DRC has not yet attemp ted to extend Maddox’s sentence, and nothing in t he record suggests a concret e threat that it will do so. The alleged injury is not s ufficiently imminent to be r ipe. {¶ 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 fac ts 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 t respass for his refusal to stop distributing the handbills after being warned n ot to do so. Id. at 455- 456. The petitioner sought to cha llenge the statu te in questio n, 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 prosec ution could not be characterized as “imaginary or speculative” and that the petiti oner had standing to challenge the constituti onality 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) (no ting that
in Steffel , “[t]he imminent threat of state criminal prosecution and the consequent deterrence of the plaintiff’s exercise of constitutionally prot ected rights established a case or controversy”). Maddox, in contrast, has not shown an y present injury.January Term, 2022

25 He doesn’t allege that he has b een 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 Ma ddox’s challenge to the possible extens ion of his sentence beyond the minimum term rests upon “contingent events that may never occur,” we lack authorit y 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 otherwi se.

_______________ Julia R. Bates, Lucas County Pros ecuting Attorney, and Alyssa B reyman, Assistant Prosecuting Attorney, for appellee. Mayle, L.L.C., Andrew R. Mayle, a nd Ronald J. Mayle, for appell ant. Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor Gen eral, Michael J. Hendershot, Chief De puty Solicitor General, and Dian e R. Brey, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Att orney General Dave

Yost. Timothy Young, Ohio Public Defende r, and Craig Jaquith, Assista nt Public Defender, urging reversal for amic us curiae Office of the Ohio Public Defender. Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defende r, urging reversal for amicus c uriae Law Office of the Hamilton County Public Defender.
Anzelmo Law and James A. Anzelm o, urging reversal for amicus cu riae
Anzelmo Law.

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