[Cite as State v. Bothuel, 2022-Ohio-2606.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1053

Appellee Trial Court No. CR0201902776

 

v.

Lewis Bothuel DECISION AND JUDGMENT

Appellant Decided: July 29, 2022

* * * * *

Julia R. Bates, Lucas County Prosecuting Attorney, and

Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

* * * * *

MAYLE, J.

{¶ 1} This case is before the court on remand from the Ohio Supreme Court. 

I. Background

{¶ 2} Defendant-appellant, Lewis Bothuel, appealed the February 14, 2020 

judgment of the Lucas County Court of Common Pleas, convicting him of burglary, and 
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sentencing him to an indefinite prison term of a minimum of six years and a maximum of 

nine years. He assigned two errors for our review:

1. The sentencing provisions of Senate Bill 201, otherwise known as 

the Reagan Tokes Act, are unconstitutional.

2. Appellant’s sentence does not achieve the purposes and principles 

of sentencing.

{¶ 3} In a decision journalized on March 19, 2021, we affirmed the trial court 

judgment, however, we dismissed Bothuel’s first assignment of error—challenging the 

constitutionality of the Reagan Tokes Law—on the basis that that assignment was not 

ripe for review pursuant to our decision in State v. Maddox, 6th Dist. Lucas No. CL-19-

1253, 2020-Ohio-4702. State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, 

¶ 18. Recognizing that our decision was in conflict with other Ohio appellate districts, 

we certified a conflict to the Ohio Supreme Court. The motion to certify was allowed. 

State v. Bothuel, 163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267. The case was 

held pending a decision in Maddox. Id. 

{¶ 4} The Ohio Supreme Court determined that challenges to the constitutionality 

of the Reagan Tokes Law are, in fact, ripe for review, and reversed Maddox. State v.

Maddox, Slip Opinion No. 2022-Ohio-764. It, therefore, reversed and remanded Bothuel. 

In re Cases Held for the Decision in State v. Maddox, Slip Opinion No. 2022-Ohio-1352. 

The merits of Bothuel’s first assignment of error are now before the court.
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II. Law and Analysis

{¶ 5} Senate Bill 201—the Reagan Tokes Law—became effective on March 22, 

2019. The Law “significantly altered the sentencing structure for many of Ohio’s most 

serious felonies” by implementing an indefinite sentencing system for non-life, first and 

second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist. 

Ottawa No. OT-19-039, 2020-Ohio-3213, 2020 WL 3032862, ¶ 5, fn. 1. The Law 

specifies that the indefinite prison terms will consist of a minimum term, selected by the 

sentencing judge from a range of terms set forth in R.C. 2929.14(A), and a maximum 

term determined by formulas set forth in R.C. 2929.144. The Law establishes a 

presumptive release date from prison at the end of the minimum term, but the Ohio 

Department of Rehabilitation and Correction (“ODRC”) may rebut the presumption if it 

determines, after a hearing, that one or more factors apply, including that the offender’s 

conduct while incarcerated demonstrates that he continues to pose a threat to 

society. R.C. 2967.271(B), (C)(1), (2) and (3). If ODRC rebuts the presumption, it may 

maintain the offender’s incarceration for a reasonable, additional period of time, 

determined by ODRC, but not to exceed the offender’s maximum prison term. R.C. 

2967.271(D).

{¶ 6} In his first assignment of error, Bothuel challenges the Reagan Tokes Law 

on the basis that (1) it violates the separation-of-powers doctrine; (2) it violates the 
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constitutional right to a trial by jury; and (3) it violates the constitutional right to due 

process. We consider each of Bothuel’s arguments. 

A. Separation of Powers

{¶ 7} Bothuel claims that the Reagan Tokes Law violates the constitutional 

doctrine of separation of powers because it “removes the sentencing enhancement from 

the prerogative of the Judicial Branch and transfers it to the Executive Branch.” It 

compares the Law to the procedure for imposing “bad time” under former R.C. 2967.11, 

which the Ohio Supreme Court found unconstitutional in State ex rel. Bray v. Russell, 89 

Ohio St.3d 132, 729 N.E.2d 359 (2000). Bothuel also contends that the separation-ofpowers problem is further exacerbated by the fact that the reasons for extending a

sentence all depend on determinations that were, in the first place, made by ODRC.

{¶ 8} The state responds that the Reagan Tokes Law is different from the bad-time 

statute because unlike former R.C. 2967.11, ODRC is not permitted to extend an 

offender’s prison term beyond the maximum term originally imposed by the sentencing 

court. It argues that the discretion afforded ODRC under the Law is consistent with the

authority granted to the Adult Parole Authority to grant parole and to impose postrelease 

control. The state emphasizes that the trial court—not ODRC—is responsible for 

determining whether to impose a prison term, selecting the length of the minimum 

sentence, deciding whether to order sentences to be served concurrently or consecutively, 
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and pronouncing and imposing the indefinite sentence based on the selected minimum 

term and the resulting maximum term.

{¶ 9} We considered whether the Reagan Tokes Law violates the constitutional 

doctrine of separation of powers in State v. Gifford, 6th Dist. Lucas No. L-21-1201, 

2022-Ohio-1620 (and more recently in State v. Stenson, 6th Dist. Lucas No. L-20-1074, 

2022-Ohio-2072 and State v. Eaton, 6th Dist. Lucas No. L-21-1121). As we recognized

in those cases, “the doctrine of separation of powers is ‘implicitly embedded in the entire 

framework of those sections of the Ohio Constitution that define the substance and scope 

of powers granted to the three branches of state government.’” Bray at 134, quoting 

S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). “The 

legislative has the sole right and power to enact laws, the judiciary to declare their 

meaning and application, and the executive to enforce their execution.” Chesnut v.

Shane’s Lessee, 16 Ohio 599, 621 (1847). “‘The essential principle underlying the policy 

of the division of powers of government into three departments is that powers properly 

belonging to one of the departments ought not to be directly and completely administered 

by either of the other departments, and further that none of them ought to possess directly 

or indirectly an overruling influence over the others.’” Bray at 134, quoting State ex rel.

Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473, 166 N.E. 407 (1929).

{¶ 10} In connection with its role in declaring the “meaning and application” of 

laws, the judiciary is solely responsible for determining guilt and sentencing a defendant 
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who has been convicted of a crime. Id. at 136. Like the defendant in Gifford, Bothuel

argues that because R.C. 2967.271 permits ODRC to rebut the presumption that an 

offender will be released after serving his or her minimum sentence, the statute deprives 

the judiciary of its exclusive authority and instead authorizes ODRC to increase an 

offender’s sentence, thereby undermining judicial power and vesting this authority in the 

ODRC. We disagree.

{¶ 11} Under the Reagan Tokes Law, the trial court imposes both a minimum and 

maximum sentence. R.C. 2929.14 and 2929.144. As we emphasized in Gifford, while 

R.C. 2967.271(C) and (D) permit ODRC to “maintain” an offender’s incarceration for 

“additional”—and “reasonable”—periods beyond the prisoner’s presumptive minimum 

term, ODRC is not permitted to “increase” the prisoner’s sentence beyond the maximum 

sentence imposed by the trial court. In this way, the Law is different than other 

legislation struck down by the Ohio Supreme Court as violating separation of powers, 

such as the “bad time” statute (former R.C. 2967.11), which allowed ODRC to extend an 

offender’s prison term beyond the original sentence imposed by the court for misconduct 

committed during incarceration. Here, any additional period of incarceration “shall not 

exceed the offender’s maximum prison term.” R.C. 2967.271(D). As such, the authority 

granted to ODRC under the Reagan Tokes Law is more comparable to the authority 

granted to the parole board under the postrelease control statute, R.C. 2967.28, which the 
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Ohio Supreme Court upheld in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 

(2000). 

{¶ 12} As we summarized in Gifford, the Ohio Supreme Court in Woods 

recounted the evolution of Ohio’s sentencing statutes. It explained that Ohio enacted 

truth-in-sentencing laws, Senate Bill 2, to ensure that sentences imposed by trial judges

were the sentences served, unless altered by the judge. “This was primarily 

accomplished by two methods: eliminating indefinite sentences and eliminating parole.” 

Id. at 508. The court described that before S.B. 2, offenders rarely served the time to 

which they were sentenced because (1) indefinite sentences were prescribed for most 

serious felonies, (2) upon entering a correctional institution, an offender’s sentence was 

automatically reduced by 30 percent for good behavior, and (3) the parole board

“reviewed all prison sentences for disparity among offenders and attempted to abate 

inequities.” Id. at 508. Under S.B. 2, offenders were sentenced to definite sentences, 

good time was significantly reduced and had to be earned, and the parole board no longer 

had authority to determine how long an offender stayed in prison. 

{¶ 13} The Ohio Supreme Court explained that before S.B. 2, offenders were 

subject to parole if they were convicted of first- or second-degree felonies or third- or 

fourth-degree felonies that involved an act of violence, or if they had previously been 

convicted of a crime of violence. Instead of parole, S.B. 2 introduced “post-release 

control.” Similar to parole, a period of postrelease control is required for all offenders 
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imprisoned “for first- or second-degree felonies, felony sex offenses, or a third-degree 

felony, not a felony sex offense, in which the offender caused or threatened to cause 

physical harm to a person.” Id., citing R.C. 2967.28(B). Postrelease control may also be 

required at the discretion of the Parole Board for offenders imprisoned for other felonies. 

Id., citing R.C. 2967.28(C).

{¶ 14} The Ohio Supreme Court recognized that R.C. 2967.28 gives the parole 

board significant discretion to impose conditions of release “designed to protect the 

public and to promote the releasee’s successful reintegration into the community.” Id., 

citing Ohio Adm.Code 5120:1–1–17(A). R.C. 2967.28(D) sets forth factors for the APA 

to consider in determining whether to impose postrelease control and what conditions to 

impose. It even permits the board to impose residential sanctions including a prison term. 

{¶ 15} Ultimately, the Ohio Supreme Court reversed the decision of this court—

which had found that the postrelease control statute violated the separation of powers 

doctrine because the delegation of powers to the Adult Parole Authority usurped judicial 

authority—after it concluded that the delegation of power to the APA is no different for 

postrelease control than it was under the former system of parole. It compared the two 

systems.

{¶ 16} Under the parole system, the Ohio Supreme Court explained, a sentencing 

court imposed an indefinite sentence with the possibility of parole. It could control the 

maximum length of the prison sentence, but had no power over when parole might be 
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granted or what conditions of parole would be imposed. Similarly, under postrelease 

control, the sentencing court imposes a sentence from the options available under the 

sentencing scheme, informs the offender that he or she may be subject to a period of 

postrelease control, and advises him or her that a violation of the conditions of 

postrelease control could result in additional time up to 50 percent of the original 

sentence. 

{¶ 17} In Woods, the defendant argued that the postrelease control statute was 

similar to the bad time statute that was found unconstitutional in Bray. But the Ohio 

Supreme Court found that unlike bad time—where a crime committed while incarcerated 

resulted in an additional sentence not imposed by the trial court—the imposition of 

postrelease control is part of the judicially-imposed sentence. Also, it explained, 

postrelease control sanctions are aimed at behavior modification to facilitate reintegration

into the community rather than mere punishment for an additional crime, as was the case

with the bad-time statute. The court acknowledged that the sentencing judge has no 

control over how much time an offender may serve on postrelease control, but it observed 

that this was also true for parole. It noted that “for as long as parole has existed in Ohio, 

the executive branch * * * has had absolute discretion over that portion of an offender’s 

sentence.” Id. at 512, citing State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N.E. 81

(1885). It concluded that “the APA’s discretion in managing post-release control does
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not impede the function of the judicial branch,” therefore, the statute did not violate the

separation of powers doctrine. Id. at 512.

{¶ 18} As we recognized in Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio1620, since Woods, a unanimous decision of the Ohio Supreme Court reaffirmed the

holding and reasoning in that case, recognizing that a trial court’s imposition of

postrelease-control in its original sentence “avoids any potential separation-of-powers

problem.” Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶

19, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19.

{¶ 19} Moreover, it is important to note that Woods is not the first time that the

Ohio Supreme Court has recognized the role of the executive branch in determining the

circumstances under which a properly-sentenced offender should be released from prison. 

In McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334, 337 (1964), the Ohio 

Supreme Court recognized that “[t]he granting of parole and the final release of prisoners 

is the function of the Pardon and Parole Commission * * * as is the supervision of those 

on parole * * *. It emphasized that “[w]hether a prisoner should be released before he 

has served his maximum sentence is an administrative not a judicial matter.” Id. 

{¶ 20} Here, there are strong similarities between the authority of the judicial and

executive branches under the Reagan Tokes Law and their authority under the systems of

parole and postrelease control that the Ohio Supreme Court upheld in Woods and

supported in McDougle. Under the Reagan Tokes Law, the trial court imposes a
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minimum sentence and a maximum sentence. While ODRC may rebut the presumption

that an offender will be released after service of his or her minimum sentence (or on the

presumptive earned early release date) if it demonstrates any of the circumstances

enumerated in R.C. 2967.271(C), under no circumstances may it maintain an offender’s

incarceration beyond the maximum term imposed by the sentencing court. As such, the

executive agency does not impede the function of the judicial branch, and the 

constitutional doctrine of separation of powers is not violated. See Gifford at ¶ 36.

B. Right to Trial by Jury

{¶ 21} Bothuel argues that the Reagan Tokes Law violates the constitutional right 

to a trial by jury. He claims that under U.S. Supreme Court authority—Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 

584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)—any finding of fact upon which an offender’s 

authorized punishment may be increased must be found by a jury beyond a reasonable 

doubt. He maintains that because under the Reagan Tokes Law an increase in 

punishment beyond the presumptive sentence is dependent on findings made by ODRC—

not a jury—the Law violates the right to a jury trial. The state does not specifically 

respond to this argument.

{¶ 22} The right to a trial by jury is protected by the Sixth Amendment of the 

United States Constitution and Article I, Section 5, of the Ohio Constitution. In
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Apprendi, the U.S. Supreme Court held that “[o]ther than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the prescribed statutory maximum 

must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 492. In Ring, 

the Court held that the presence or absence of aggravating factors required for imposition 

of the death penalty must be found by a jury. Id. at 609. And in Blakely, the Court held 

that the right to a trial by jury was violated where the defendant was subject to a prison 

term of three years more than the statutory maximum based on a finding of “deliberate 

cruelty” made by the trial judge and not a jury. Id. at 305.

{¶ 23} Under the Reagan Tokes Law, there are no circumstances under which 

ODRC may increase punishment beyond the maximum term permitted by statute or 

imposed by the sentencing court. Any additional term of incarceration imposed under the 

Law may not exceed the maximum term imposed by the sentencing court. See R.C. 

2967.271(D)(1) (“The additional period of incarceration * * * shall not exceed the 

offender’s maximum prison term.”). The Law, therefore, does not run afoul of the 

principals announced in Apprendi, Ring, or Blakely and does not violate the constitutional 

right to a trial by jury.

C. Due Process

{¶ 24} Finally, Bothuel claims that the Reagan Tokes Law violates the right to due 

process. He argues that the statute fails to give adequate notice of what it takes to trigger 

“additional” prison time and fails to define what it means to “pose a threat to society” or 
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to “not be[] rehabilitated.” He also argues that offenders’ security classes and placement 

in restrictive housing are matters of prison administration that are virtually unreviewable, 

yet under R.C. 2967.271(A)(2) and (3) constitute triggering events that allow offenders’ 

prison terms to be extended beyond the minimum sentence. And Bothuel contends that 

the statute provides no structure for how additional-term hearings will be conducted and 

what rights offenders will have at those hearings. 

{¶ 25} The state responds to some, but not all, of these arguments. It claims that 

the presumption of release after service of the minimum term is analogous to parolerelease decisions and it claims that only minimal process is due offenders under the 

Reagan Tokes Law. It emphasizes that R.C. 2967.271(C) permits a hearing before 

ODRC may rebut the presumption of release and disagrees that the Law fails to provide 

the requisite due-process protections.

{¶ 26} We begin by addressing Bothuel’s claim that the statute provides no 

structure for how additional-term hearings will be conducted and what rights offenders 

will have at those hearings. 

{¶ 27} As we recently recognized in State v. Stenson, 6th Dist. Lucas No. L-20-

1074, 2022-Ohio-2072, the Fifth and Fourteenth Amendments to the U.S. Constitution 

and Article I, Section 16 of the Ohio Constitution guarantee procedural due process. 

“The Due Process Clause applies when government action deprives a person of liberty or 

property[.]” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 
14.

U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). If due process applies, the question 

becomes what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 

L.Ed.2d 484 (1972). “[D]ue process is flexible and calls for such procedural protections 

as the particular situation demands.” Id. At a minimum, due process requires an 

opportunity to be heard at a meaningful time and in a meaningful manner. State v.

Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, ¶ 8, citing Mathews v.

Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

{¶ 28} In Stenson, we concluded that because the Reagan Tokes Law creates a 

presumption of release after service of an offender’s minimum sentence, it creates a 

liberty interest implicating due process rights. See Stenson at ¶ 25, citing Greenholtz at

12; See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 

(1974) (finding that inmates had liberty interest in state-created right to good-time credit, 

the extinguishment of which entitled them to due process to insure that the right “is not 

arbitrarily abrogated”). Having concluded that a liberty interest exists, we proceeded in 

Stenson to determine what process is due under the circumstances. 

{¶ 29} We recognized in Stenson that courts that have considered what process is 

due under the additional-term provisions of the Reagan Tokes Law often draw analogies 

between the Law and either (1) probation or parole release decisions, or (2) probation or 

parole revocation decisions. We acknowledged that neither release nor revocation

decisions afford a defendant the “full panoply of rights due” in a criminal prosecution, 
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however, the U.S. Supreme Court has determined that the latter requires greater 

procedural safeguards than the former. Stenson at ¶ 26, quoting Morrissey at 480;

Greenholtz, at 10. 

{¶ 30} As we observed in Stenson, the Court concluded in Morrissey, where 

parole revocation was at issue, that due process required “(a) written notice of the 

claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) 

opportunity to be heard in person and to present witnesses and documentary evidence; (d) 

the right to confront and cross-examine adverse witnesses (unless the hearing officer 

specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ 

hearing body such as a traditional parole board, members of which need not be judicial 

officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied 

on and reasons for revoking parole.” Morrissey at 489. It concluded in Greenholtz,

where parole release was at issue, that due process was afforded where an offender was 

given an opportunity to be heard, and in the case of denial of parole, information was 

provided concerning in what respects the offender fell short of qualifying for parole. Id. 

at 16.

{¶ 31} The U.S. Supreme Court explained in Greenholtz its rationale for 

differentiating between release and revocation decisions. In a parole revocation decision, 

the Court explained, an offender is threatened with the deprivation of the liberty he has; 

in a parole release decision, the offender merely desires liberty. The U.S. Supreme Court 
16.

recognized that parole-revocation determinations actually require two decisions: 

“whether the parolee in fact acted in violation of one or more conditions of parole and 

whether the parolee should be recommitted either for his or society’s benefit.” Id. at 9. It 

emphasized that the first step in a parole revocation decision “involves a wholly 

retrospective factual question.” Id. at 9. Parole release decisions, on the other hand, are 

“more subtle and depend[] on an amalgam of elements, some of which are factual but 

many of which are purely subjective appraisals by the Board members based upon their 

experience with the difficult and sensitive task of evaluating the advisability of parole 

release.” (Internal citations and quotations omitted.) Id. at 9-10. “Unlike the revocation 

decision,” when the board reviews a parole eligibility decision, “there is no set of facts 

which, if shown, mandate a decision favorable to the individual.” Id. at 10. To the 

contrary, the parole release decision is “subjective” and “predictive,” and the statute 

“vests very broad discretion” in the parole board. Id. at 13.

{¶ 32} We noted in Stenson that the Reagan Tokes Law creates a presumption that 

an offender will be released after service of his or her minimum sentence. But we also 

observed that it does not provide for a “purely subjective appraisal” whether release is 

advisable after service of the minimum sentence. Rather, under R.C. 2967.271(B) and 

(C), an Ohio offender must be released after service of the minimum sentence unless 

ODRC makes the purely factual finding that (1) the offender is a security level three or 

higher at the time of the hearing, or (2) the offender was placed in extended restrictive 
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housing within the year preceding the hearing—classifications and decisions made 

pursuant to ODRC’s own detailed sets of policies and procedures—or (3) during his 

incarceration, the offender committed rule violations that involved compromising the 

security of the institution, compromising the safety of the staff or inmates, or physical 

harm or the threat of physical harm to the staff or, or committed a violation of law that 

was not prosecuted, and the infractions show that the offender has not been rehabilitated, 

and the offender’s behavior while incarcerated demonstrates that he or she continues to 

pose a threat to society.

{¶ 33} As we emphasized in Stenson, in this way, the Reagan Tokes Law 

functions unlike the merely discretionary decision to release an offender on parole and 

more like a parole revocation decision. It requires two determinations under R.C. 

2967.271(C)(1): (1) did the offender, during his incarceration, commit certain rule 

violations or unprosecuted crimes?—“wholly retrospective factual question[s]”; and (2) 

does this behavior demonstrate that the offender still poses a threat to society? Id. at 8. 

For these reasons, we concluded in Stenson that the liberty interest at stake under the 

Reagan Tokes Law is more akin to the liberty interest at stake in a parole revocation 

decision rather than a parole release decision. Id. at ¶ 30. See also Eaton, 6th Dist. Lucas 

No. L-21-1121 (Mayle, J., concurring).

{¶ 34} Because the Reagan Tokes Law creates a liberty interest more akin to 

probation revocation decisions, we found in Stenson that this means that the type of 
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process due in Morrissey is due under the additional-term provisions of the Law. Here, 

however—as in Stenson—ODRC has not sought to extend Bothuel’s term beyond the 

presumptive minimum sentence. Bothuel’s challenge to the Reagan Tokes Law is 

necessarily a facial challenge. “To prevail on a facial constitutional challenge, the 

challenger must prove the constitutional defect, using the highest standard of proof, 

which is also used in criminal cases, proof beyond a reasonable doubt.” State ex rel.

Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-

Ohio-5512, 857 N.E.2d 1148, ¶ 21, citing State ex rel. Dickman v. Defenbacher, 164 

Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. “A facial challenge 

to a legislative act is the most difficult to mount successfully, since the challenger must 

establish that no set of circumstances exists under which the act would be valid.” State v.

Coleman, 124 Ohio App.3d 78, 80, 705 N.E.2d 419 (10th Dist.1997), citing United States

v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 69 (1987). “The fact that a 

statute might operate unconstitutionally under some plausible set of circumstances is 

insufficient to render it wholly invalid.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-

Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing id.

{¶ 35} As we observed in Stenson, in considering the process due a parolee whose 

parole is being revoked, the U.S. Supreme Court in Morrissey, 408 U.S. at 488, 92 S.Ct. 

2593, 33 L.Ed.2d 484, acknowledged that most states have enacted legislation setting 

forth procedural requirements for parole revocation hearings, but others have done so by 
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judicial decision. Although the legislation in the present case does not involve parole 

revocation, Morrissey is instructive because it necessarily implies that the specific 

procedural requirements applicable to protect a particular liberty interest need not be set 

forth in the legislation itself. In other words, Morrissey suggests that the Reagan Tokes 

Law may not be found to be unconstitutional, on its face, as violating due process merely 

because the specific procedures for invoking an additional period of incarceration are not 

set forth in the Law itself.

{¶ 36} Here, the Reagan Tokes Law states simply that ODRC may rebut the 

presumption of release at a “hearing.” R.C. 2967.271(C) and (D). It provides no details 

concerning the type or timing of notice that must be provided to the offender, the 

procedures for the hearing (including pre-hearing disclosure of evidence, the type of 

evidence and witnesses that may be presented, or the offender’s right to confront and 

cross-examine adverse witnesses), or the manner in which the offender must be apprised 

of ODRC’s decision. But given that this is a facial challenge to the Law, it cannot be said 

at this juncture that the Law “cannot be applied constitutionally in any circumstances.” 

As we commented in Stenson, should the Law ultimately be applied in a manner that is 

unconstitutional, an offender would not be precluded from challenging the Law as 

applied. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 230, 125 S.Ct. 2384, 162 L.Ed.2d 

174 (2005) (“If an inmate were to demonstrate that the New Policy did not in practice

operate in [a constitutionally-permissible] fashion, resulting in a cognizable injury, that
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could be the subject of an appropriate future challenge.”). See also Eaton, 6th Dist. 

Lucas No. L-21-1121 (Mayle, J., concurring).

{¶ 37} Accordingly, we find that the Reagan Tokes Law does not, on its face, 

violate the constitutional right to due process as it concerns the procedures for additionalterm hearings. We next turn to whether the Law provides adequate notice of what 

conduct may trigger an additional term under the Law.

{¶ 38} R.C. 2967.271(C) provides that ODRC may rebut the presumption of 

release from prison after serving the minimum prison term (or on the presumptive early 

release date) if it 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 
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this section, demonstrate that the offender continues to pose a threat to 

society.

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

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

department in extended restrictive housing at any time within the year 

preceding the date of the hearing.

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

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

level.

{¶ 39} As previously recognized in this decision, security classifications and the 

decision to place an offender in extended restrictive housing—triggers under R.C. 

2967.271(C)(2) and (3)—are the subject of detailed sets of policies and procedures. See, 

e.g., ODRC Procedure 53-CLS-01 and 55-SPC-02; Ohio Administrative Code 5120-9-10 

and 5120-9-11. 

{¶ 40} As for R.C. 2967.271(C)(1), the statute really requires ODRC to 

demonstrate three things to rebut the presumption of release: (1) the offender committed 

an institutional rule infraction that involves compromising security, compromising safety,

causing physical harm, or threatening physical harm, or committed a violation of law that 

was not prosecuted, and (2) the infractions or violations demonstrate that the offender has 
22.

not been rehabilitated; and (3) the offender’s behavior while incarcerated demonstrates

that he or she continues to pose a threat to society.

{¶ 41} “‘[T]he first essential of due process of law’ is the accused’s right to fair 

notice of the proscribed conduct.” State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶ 

33 (4th Dist.), quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 

L.Ed. 322 (1926). The Ohio Revised Code provides notice of what constitutes a violation 

of law, while the inmate rules of conduct are enumerated in Ohio Administrative Code 

5120-9-06. Detailed disciplinary procedures for rule infractions—which include 

provisions for challenging a claimed rule infraction and appealing an adverse decision—

are set forth in Ohio Administrative Code 5120-9-08. Thus, it cannot be said that an 

offender lacks notice of what constitutes a rule infraction or a violation of law.

{¶ 42} As for what it means to “pose a threat to society” (R.C. 2967.271(C)(1)(b)) 

or what constitutes proof that an offender “has not been rehabilitated” (R.C. 

2967.271(C)(1)(a)), it is true that R.C. 2967.271 does not define these terms. 

Nevertheless, we find that these phrases are not so vague as to render the statute facially 

infirm. 

{¶ 43} “A facial challenge requires that the challenging party * * * show that the 

statute is vague not in the sense that it requires a person to conform his conduct to an 

imprecise but comprehensible normative standard, but rather in the sense that no standard 

of conduct is specified at all.” (Internal quotations omitted.) State v. Carrick, 131 Ohio 
23.

St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 15, quoting State v. Anderson, 57 Ohio 

St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 

614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Here, a standard is specified in the statute. 

We, therefore, find that Bothuel’s facial challenge fails. Again, however, this does not 

preclude Bothuel from advancing an as-applied challenge should he one day be able to 

show “‘that application of the statute in the particular context in which he has acted, or in 

which he proposes to act, [is] unconstitutional.’” Id. at ¶ 16, quoting State v. Lowe, 112 

Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of

Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) 

(Scalia, J., dissenting). 

{¶ 44} Accordingly, we find Bothuel’s first assignment of error not well-taken.

III. Conclusion

{¶ 45} We reject Bothuel’s challenges to the constitutionality of the Reagan Tokes 

Law. We conclude that the Law does not violate the separation-of-powers doctrine or the 

right to a jury trial and does not, on its face, deprive offenders of their right to due 

process. We, therefore, find Bothuel’s first assignment of error not well-taken.

{¶ 46} We affirm the February 14, 2020 judgment of the Lucas County Court of 

Common Pleas. Bothuel is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.
24.

State of Ohio

v. Lewis Bothuel

L-20-1053

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________

JUDGE

Christine E. Mayle, J. 

CONCUR. ____________________________

 JUDGE

Gene A. Zmuda, J. ____________________________

CONCURS AND WRITES JUDGE

SEPARATELY.

ZMUDA, J.

{¶ 47} I agree with the majority’s disposition of Bothuel’s first assignment of 

error. I write separately, because I find that the Reagan Tokes Law does not facially 

violate a defendant’s constitutional right to due process, and thus Bothuel’s first 

assignment of error is not well-taken, based upon the reasoning I articulated in this 

court’s lead opinion in State v. Eaton, 6th Dist. Lucas No. L-21-1121. I disagree with the 

majority’s determination that the Reagan Tokes Law creates a liberty interest akin to 
25.

probation revocation, but this disagreement does not yield a different conclusion on the 

ultimate question of constitutionality in this case. Therefore, I concur.

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.