[Cite as State v. Delvallie, 2022-Ohio-470.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109315 

 v. : 

 

BRADLEY DELVALLIE, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND DECISION EN BANC 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 17, 2022 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-645262-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Catherine M. Coleman and Daniel T. Van, 

Assistant Prosecuting Attorneys, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Paul A. Kuzmins, Assistant Public Defender, for 

appellant. 

 

SEAN C. GALLAGHER, A.J.: 

The Reagan Tokes Law (enacted through S.B. 201) represents the Ohio 

legislature’s first major departure from the so-called “truth in sentencing law,” 

enacted through S.B. 2 in 1996. It embodies a policy determination by the Ohio 
legislature that definite terms under S.B. 2 failed for serious felony offenders. The 

rape and murder of 21-year-old Reagan Tokes by an offender who had served his 

definite sentence, despite perpetual misconduct during his term of imprisonment 

and during his postrelease control, brought the legislature to the nearly unanimous, 

bipartisan conclusion that definite sentences for serious offenders who displayed no 

rehabilitative qualities during their incarceration created an unsafe condition for an 

unsuspecting public. Senate Bill 201 Votes Results, available at 

https://web.archive.org/web/20211117125521/https://www.legislature.ohio.gov/le

gislation/legislation-votes?id=GA132-SB-201 (last visited Jan. 22, 2022) (both 

houses of the legislature voted in favor of enacting S.B. 201 in its final form with a 

single dissenting vote). 

The law reverts Ohio to an indefinite sentencing scheme for the most 

serious offenses under Ohio’s criminal law — a sentencing structure that has been 

in place for well over a century. See State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 

629, 4 N.E. 81 (1885), syllabus. The formulas to impose indefinite sentences under 

the Reagan Tokes Law can be described as complicated and confusing, but that does 

not render them unconstitutional. In the clamor surrounding the Reagan Tokes 

Law’s enactment and the difficulties in deciphering some of its provisions, we have 

seen judges with the stroke of a pen declare the entire 435-page law unconstitutional 

based on the language in, or perceived omissions from, R.C. 2967.271(C) and (D). 
The Reagan Tokes Law under R.C. 2901.011,1 however, is a statutorily defined term 

of art that includes 54 statutory sections, including an amendment of 50 existing 

statutory sections and the adoption of four new statutes. Id. Fifty-three of the 

statutory sections have been deemed unenforceable with no analysis discussing how 

those provisions violate constitutional safeguards or the impact the supposed 

offending provisions from R.C. 2967.271 have on the remaining statutory sections 

known as the Reagan Tokes Law. State v. Sealey, 8th Dist. Cuyahoga No. 109670, 

2021-Ohio-1949, ¶ 45; State v. Daniel, 8th Dist. Cuyahoga No. 109583, 2021-Ohio1963, ¶ 44; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809, ¶ 32 

(the “Reagan Tokes Law” is unconstitutional because R.C. 2967.271 infringes on the 

defendant’s right to a jury under the Sixth Amendment). 

In Sealey, in an appeal filed by the state, the panel declared subsections 

(C) and (D) of R.C. 2967.271 unconstitutional. While it may have been the panel’s 

intent to only find subsections (C) and (D) of R.C. 2967.271 unconstitutional, the net 

effect of the panel’s ruling affirmed the trial court’s holding that the “Reagan Tokes 

Law” is unconstitutional in its entirety. Id. at ¶ 45 (“the trial court’s finding the 

Reagan Tokes Law unconstitutional is affirmed”); see also Daniel (after declaring 

subsections (C) and (D) of R.C. 2967.271 unconstitutional, the panel concluded 

without additional analysis that “the Reagan Tokes Law does not satisfy the 

1 Although R.C. 2901.011 delineates the 54 statutory sections comprising the 

Reagan Tokes Law, S.B. 201 resulted in the amendment to 57 statutory sections, in 

addition to the creation of five new sections. Any references throughout to the Reagan 

Tokes Law in this opinion are limited to the statutory definition as provided under R.C. 

2901.011. 
requirements of due process and, as such, violates [the defendant’s] constitutional 

rights” (Emphasis added.)); but see State v. Wilburn, 8th Dist. Cuyahoga No. 

109507, 2021-Ohio-578, ¶ 18; State v. Gamble, 8th Dist. Cuyahoga No. 109613, 

2021-Ohio-1810, ¶ 6 (overruling the defendant’s assignment of error in which it was 

claimed that the Reagan Tokes Law was unconstitutional). In other words, Sealey

affirmed the trial court’s decision declaring the Reagan Tokes Law to be 

unconstitutional based on the panel’s conclusion that aspects of R.C. 2967.271 were 

deemed unconstitutional — the effect of which rendered the whole of the law 

unenforceable because of the constitutional analysis limited to one provision. But 

see State ex rel. Sunset Estate Properties, L.L.C. v. Lodi, 142 Ohio St.3d 351, 2015-

Ohio-790, 30 N.E.3d 934, ¶ 16 (R.C. 1.50 creates a presumption of severability such 

that the constitutional infirmity of one statute does not impact the validity of the 

entire law). 

Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland 

State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court sua 

sponte determined that the panel decision in Delvallie, 8th Dist. Cuyahoga No. 

109315, 2021-Ohio-1809, conflicts with the following opinions: Gamble, 8th Dist. 

Cuyahoga No. 109613, 2021-Ohio-1810; State v. Simmons, 8th Dist. Cuyahoga No. 

109476, 2021-Ohio-939; and Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio578. We must, therefore, resolve the constitutional validity of R.C. 2967.271 and the 

Reagan Tokes Law in general. 
I. Putting the background of the Reagan Tokes Law into 

perspective 

At the outset, it is important to examine the apparent legislative intent 

behind the law and its effect on Ohio’s criminal justice scheme in light of the 

conflicting conclusions reached in Delvallie, Sealey, and Daniel. 2 

The Reagan Tokes Law offers the chance for Ohio to return to an 

incentive-based, rehabilitative prison process for serious offenders. See, e.g., Siegel, 

Reagan Tokes Act seeks to undo years of definitive sentencing in Ohio, The 

Columbus Dispatch (Oct. 25, 2017) (quoting State Senator Kevin Bacon describing 

the intent behind passing the Reagan Tokes Law), available at 

https://web.archive.org/web/20210818163121/https://www.timesreporter.com/n

ews/20171025/reagan-tokes-act-seeks-to-undo-years-of-definitive-sentencing-inohio (last visited Jan. 22, 2022).3 That process can incentivize socially acceptable 

conduct by offering inmates a tangible way to reduce their overall sentences through 

buying into the social contract — a tacit agreement to live together in accordance to 

the socially established rules of behavior. See id. The Reagan Tokes Law offers 

inmates the opportunity to demonstrate their willingness to reform and in the 

process to receive lesser sentences based on their behavior, instead of serving 

2 The conflicts created by Sealey and Daniel will be resolved in each respective case 

based on the outcome herein. 

3 Since Delvallie relies on the blanket assertion that “the public media is replete 

with reports of attacks by inmates against inmates, inmates against corrections officers, 

and corrections officers against inmates” in declaring the Reagan Tokes Law 

unconstitutional, it only seems fair to review the legislature’s public commentary to 

understand the history of the law. Delvallie at ¶ 68. 
definite terms. Reagan Tokes case spurs Ohio legislation to change incarceration 

guidelines, TrueCrimeDaily.com (May 14, 2018) (“‘The data and evidence has found 

that the indefinite sentencing worked to actually help rehabilitate these offenders 

because they are more incentivized to participate in programming and to not face 

longer prison terms,’ said Ohio State Rep. Kristin Boggs.”), available at 

https://web.archive.org/web/20210818164113/https://truecrimedaily.com/2018/

05/14/reagan-tokes-case-spurs-ohio-legislation-to-change-incarcerationguidelines/ (last visited Jan. 22, 2022). These changes provide the inmate the 

opportunity to reduce the overall prison term below what would be served under the 

pre-S.B. 201 definite sentencing structure. Id. Under the pre-S.B. 201 definite 

sentencing law, Ohio focused on the punitive nature of the imprisonment system. 

The Reagan Tokes Law offers an albeit small, but beginning, step away from that 

draconian approach. 

Back in 1974 when Ohio revamped the Revised Code, there were no 

definite sentences. First-degree felony offenses were imposed using a range — a 

minimum of 4, 5, 6, or 7 years to a maximum of 25 years. 

https://www.supremecourt.ohio.gov/Boards/Sentencing/Materials/2017/May/fel

onyRangeSB2.pdf. Second-degree felony offenses had a minimum of 2, 3, 4, or 5 to 

the maximum of 15 years. Id. Third-degree felony offenses had a range of 1, 1-1/2, 

2, or 3 years to 10 years, and fourth-degree felony offenses had a range of 1/2, 1, 

1-1/2 years, or 2 years up to 5 years. Id., see also H.B. 511. Every inmate was given 

an indefinite range with a parole eligibility date. Inmates ages 18-25 were given 
what was termed as “reformatory” time, while adults over 25 were given 

“penitentiary” time. For example, a reformatory inmate serving an indefinite 5-year 

sentence would become parole eligible after serving 1 year and 10 months. A 

penitentiary inmate with the same 5-year indefinite sentence would be eligible after 

serving 2 full years. 

Definite sentences did not exist in Ohio until S.B. 199, effective July 1, 

1983. That enactment created two nonmandatory determinate prison sentence 

ranges for low-level nonviolent felons, and a three-year mandatory sentence for 

using or possessing a gun while committing a felony. The overall result was eight 

new sentencing ranges added to the original four ranges from the 1974 criminal 

code. 

Assessing and crediting behavior in prison was very much a part of both 

H.B. 511 and S.B. 199 and the parole process in general. Inmates doing reformatory 

time could get up to 12 days per month, prorated for each month, if they obeyed the 

rules of the institution. Good time likewise reduced the time for penitentiary 

inmates by up to 8 days per month, prorated for each month, if they obeyed the rules 

of the institution. 

The so-called truth-in-sentencing scheme known as S.B. 2, became 

effective July 1, 1996. S.B. 2 brought definite sentencing to Ohio for the vast majority 

of crimes and ended parole eligibility for those inmates sentenced to definite terms. 

Many of the behavioral incentives previously in place affecting the parole 

determinations were also lost. In essence, definite sentencing transformed what had 
been a rehabilitative focus underlying prison terms into a purely punitive system. It 

is not a coincidence that the prison population exploded under the weight of the 

definite sentencing structure. It also turned out to be one of the costliest pieces of 

legislation in Ohio history. 

The litigation it spawned went on for decades and often resulted in the 

unending process of transporting inmates back and forth for resentencing hearings, 

largely for judges to make perfunctory findings or to utter magic words. Burt W. 

Griffin and Lewis R. Katz, Sentencing Consistency: Basic Principles Instead Of 

Numerical Grids: The Ohio Plan, 53 Case W.Res.L.Rev. 1, 30-31, 32 (2002) 

(explaining the necessary conclusions needed under the then newly enacted definite 

sentencing scheme leading to appellate reversals of sentences). The results of S.B. 

2 were in the details. Ohio’s prison population topped 50,000 for the first time 

around 2008. Amber G. Damiani,4 Nix The “Fix”: An Analysis On Ohio’s Criminal 

Sentencing Law And Its Effect On Prison Population, 47 Cap.U.L.Rev. 755, 755 

(2019). Many inmates serving these definite terms were subjected to consecutive 

sentences with no option for parole, resulting in what amounted to de facto life 

terms. See State v. Gwynne, 5th Dist. Delaware No. 16 CAA12 0056, 2021-Ohio2378. There has been a slow recognition that the felony sentencing scheme under 

S.B. 2 has become not only more complex, but also more costly — driving up the 

prison population with no mechanisms to assess inmates’ reformative conduct. 

4 The author earned a law degree from Capital University Law School in 2019. 
Siegel, Reagan Tokes Act seeks to undo years of definitive sentencing in Ohio, supra

(“For some offenders, there is no incentive to help yourself or not commit acts 

against other prisoners[.]”). One solution was to increase the Ohio Department of 

Rehabilitation and Correction’s (“ODRC”) and its Adult Parole Authority’s 

participation in the prison process by increasing the use of indefinite sentencing and 

the ability of ODRC to be involved in release options. Nix the “Fix” at 785-786. 

The Reagan Tokes Law appears to be an effort to return Ohio to its 

core sentencing approach, implementing the reformative incentive for offenders 

that was lost to the definite sentencing structure. Griffin and Katz, Sentencing 

Consistency: Basic Principles Instead Of Numerical Grids: The Ohio Plan, 53 Case 

W.Res.L.Rev. 1, 38 (explaining the history Ohio’s implementation of rehabilitative 

sentencing through indefinite sentencing and good time reductions dating back to 

1869 and 1856). The law, for example, includes a provision for “earned reduction of 

minimum prison term” (“ERMPT”) of between 5 percent and 15 percent off the 

minimum term — a sentencing reduction not afforded to nonqualifying felony 

offenders. R.C. 2967.271(F)(1)(b). The law identifies “exceptional conduct or 

adjustment to incarceration” as the basis for awarding the reduction under R.C. 

2967.271(F)(7). In addition, the new law empowers inmates with a presumption of 

release at the end of their minimum term, something unparalleled in Ohio history 

with respect to indefinite sentences and parole eligibility. Inmates never had a 

presumption of release in any other legislative enactment of indefinite prison terms. 
The presumption before the Reagan Tokes Law was always in favor of serving the 

full term. 

Despite the legislature’s incentive-laden approach to criminal justice, 

there has been a broad push by opponents of the law to summarily declare the whole 

of the Reagan Tokes Law unconstitutional while focusing only on aspects of R.C. 

2967.271(B)-(F), which permit the executive branch to “maintain” the indefinite 

portion of the sentence for offenders that flout prison rules and regulations. 

The defendants’ rush to eliminate the entirety of the legislature’s 

departure from a purely punitive prison policy overlooks the reductions afforded 

under the new law, and it might shock those offenders who learn that their sentences 

could have been reduced under R.C. 2967.271(F) to discover that their opportunity 

for a shorter prison term could be declared unconstitutional or unenforceable by 

these appeals. Rather than broadly attacking the new law, one would have thought 

there would be a greater call for more incentive-based sentence reductions for 

inmates like those that are available under this law. 

While it is true some inmates could serve longer terms under the 

Reagan Tokes Law based on the nature of the indefinite prison sentence structure, 

those longer terms are determined by the conduct of the inmate. That policy 

determination is purely within the legislature’s role under the tripartite system of 

government. Permitting the executive agency to review an inmate’s prison conduct 

is a process deeply rooted within the Ohio Revised Code. See, e.g., R.C. 2967.193(A); 

R.C. 2967.13. This idea is also nothing new. It is important to recognize that the 
indefinite prison sentence with the executive branch’s review has been a mainstay 

of Ohio law since time immemorial, and it does not appear that any argument as to 

the constitutional validity of the Reagan Tokes Law challenges R.C. 2929.144 or the 

imposition of the indefinite term. Instead, the primary focus is on R.C. 2967.271(C) 

and (D), which incidentally are modeled on existing Ohio law and rely on the 

currently enacted prison rule infraction system. See R.C. 2967.15; Ohio Adm.Code 

5120-9-08. 

As with all appeals, we must begin with the arguments as presented. 

II. Defendants bear the burden to demonstrate the law is 

unconstitutional 

We find that the Reagan Tokes Law, as defined under R.C. 2901.011, is 

not unconstitutional based on the arguments presented, reaffirming the principles 

established in Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810, Simmons, 

8th Dist. Cuyahoga No. 109476, 2021-Ohio-939, and Wilburn, 8th Dist. Cuyahoga 

No. 109507, 2021-Ohio-578. The decisions reached to the contrary in Delvallie, 

Sealey, and Daniel, are therefore vacated for the following reasons. 

In order to succeed in a constitutional challenge, a defendant must 

demonstrate that the law is unconstitutional beyond a reasonable doubt. State v. 

Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 41, citing State 

v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 12. When 

addressing constitutional challenges, courts must remain mindful that all statutes 

have a strong presumption of constitutionality. Arbino v. Johnson & Johnson, 116 
Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25; Sorrell v. Thevenir, 69 

Ohio St.3d 415, 419, 633 N.E.2d 504 (1994), citing State ex rel. Dickman v. 

Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus; 

Jones v. MetroHealth Med. Ctr., 2017-Ohio-7329, 89 N.E.3d 633, ¶ 63 (8th Dist.). 

Courts in Ohio do not share the responsibility of establishing 

“legislative policies or [second-guessing] the General Assembly’s policy choices. 

‘[T]he General Assembly is responsible for weighing [policy] concerns and making 

policy decisions; [courts] are charged with evaluating the constitutionality of their 

choices.’” Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 

2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch v. Gen. Motors Corp., 117 

Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212, and Arbino at ¶ 113. For 

this reason, the standard to declare a statute unconstitutional is high: 

A party may challenge a statute as unconstitutional on its face or as 

applied to a particular set of facts. A facial challenge to a statute is the 

most difficult to bring successfully because the challenger must 

establish that there exists no set of circumstances under which the 

statute would be valid. The fact that a statute might operate 

unconstitutionally under some plausible set of circumstances is 

insufficient to render it wholly invalid. 

(Emphasis added.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 

N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 

N.E.2d 629 (1944), paragraph four of the syllabus, and United States v. Salerno, 481 

U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also, e.g., State v. Beard, 

2021-Ohio-2512, 177 N.E.3d 591, ¶ 29 (8th Dist.) (defendant failed to demonstrate 

beyond a reasonable doubt that the statutory provision was unconstitutional). 
Defendants challenging the Reagan Tokes Law generally advance 

three claims in support of the due process violation argument, citing the Fourteenth 

Amendment to the United States Constitution and Article I, Section 16, of the Ohio 

Constitution: (1) that the Reagan Tokes Law violates the right to trial by jury or (2) 

that the Reagan Tokes Law violates the separation-of-powers doctrine and (3) that 

R.C. 2967.271(C) and (D), which provide offenders with the right to a hearing before 

imposition of the maximum term imposed under R.C. 2929.144, fail to provide the 

full panoply of constitutional pretrial rights in violation of their due process rights. 

The cases giving rise to our en banc review are no different, offering at least some 

derivation of those arguments, if not a verbatim recitation. 

Importantly, however, no one has demonstrated that the imposition 

of an indefinite term under R.C. 2929.144 and 2929.14 itself violates any 

constitutional provision or that the legislature’s lack of procedural guidance within 

R.C. 2967.271(C) and (D) is integral to the whole of the Reagan Tokes Law. State v. 

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 99 (severance of the 

offending provision is a necessary consideration before declaring the entire 

statutory section unconstitutional). Thus, our starting point should be to presume 

that the indefinite term as imposed by the trial court, if not the 53 remaining 

statutory sections under R.C. 2901.011, are constitutionally sound. State ex rel. 

Sunset Estate Properties, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, at ¶ 6 

(R.C. 1.50 creates a presumption of severability). 
Our review of the constitutional validity of the Reagan Tokes Law is 

not limited to just the general impressions. We cannot look to the vague assertions 

that the “Reagan Tokes Law is unconstitutional” in its entirety as it interweaves itself 

throughout the Revised Code and administrative process. Declaring the Reagan 

Tokes Law unconstitutional or unenforceable invalidates all 54 statutory sections 

listed under R.C. 2901.011. Since we must presume the constitutional validity of 

statutes, we must begin with the defendants’ challenges meant to rebut the 

presumption. 

a. The defendants’ general presumption regarding ODRC’s 

role in the sentencing structure is fundamentally flawed 

There is an overarching issue that appears to permeate every aspect of 

the constitutional challenge against the statutory sections codified as part of the 

Reagan Tokes Law. The defendants’ claims depend solely on the belief that ODRC 

“extends” or “imposes” a prison term under R.C. 2967.271(C) and (D) beyond the 

maximum sentence imposed by the sentencing court. See, e.g., Delvallie, 8th Dist. 

Cuyahoga No. 109315, 2021-Ohio-1809, at ¶ 54. To the contrary, R.C. 2929.144(B) 

provides that the sentencing court must determine the maximum term of 

imprisonment based on a mathematical formula as applied to the minimum term of 

imprisonment imposed under R.C. 2929.14(A)(1)(a) and (A)(2)(a). The sentencing 

court must then impose that maximum sentence as part of the final conviction under 

the unambiguous language of R.C. 2929.144(C) (“The court imposing a prison term 

on an offender [under R.C. 2929.14(A)] for a qualifying felony of the first or second 
degree shall sentence the offender, as part of the sentence, to the maximum prison 

term determined under division (B) of this section” and impose both the minimum 

and maximum terms in the final entry of conviction.). 

Under R.C. 2967.271(D)(1), if ODRC rebuts the presumption of 

release following the minimum term, by considering the inmate’s institutional 

record at a hearing, “the department may maintain the offender’s incarceration in a 

state correctional institution under the sentence after the expiration of the offender’s 

minimum prison term * * *.” (Emphasis added.) Id. “‘Maintain’ is defined as ‘to 

continue in possession of.’” Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-

Ohio-1138, 54 N.E.3d 1196, ¶ 22, quoting Black’s Law Dictionary 1097 (10th 

Ed.2014). “Maintain” can also be defined as 

“1 : to keep in a state of repair, efficiency, or validity : preserve from 

failure or decline * * * 2 a : to sustain against opposition or danger : 

back up : DEFEND, UPHOLD * * * b : to uphold in argument : contend 

for * * * 3 : to persevere in : carry on : keep up : CONTINUE * * * 4 : to 

provide for : bear the expense of : SUPPORT * * * 5 : to affirm in or as 

if in argument : ASSERT, DECLARE * * * 6 : to assist (a party to legal 

action) so as to commit maintenance.” 

Ginn v. Stonecreek Dental Care, 12th Dist. Fayette Nos. CA2018-09-018, CA2018-

09-019, and CA2018-11-022, 2019-Ohio-3229, ¶ 54, quoting Webster’s Third New 

International Dictionary 1362 (1993). In short, no definition of “maintain” includes 

the concept of “imposing” or “extending” a sentence. Thus, the defendants’ beliefs 

as to the structure of the maximum sentence are contrary to the plain language of 

R.C. 2929.144 and 2967.271(D). ODRC does not “extend” or “impose” a sentence, 

much less one that exceeds or extends the maximum term imposed by the trial court. 
ODRC simply “maintains” or continues the incarceration of the inmate under the 

term of imprisonment imposed by the trial court. This is not meaningfully distinct 

from Ohio’s current parole system, in which offenders may be kept in prison 

following service of the minimum term for parole eligibility. 

Under the sentencing structure codified in R.C. 2929.144 and 2929.14, 

the trial court imposes the minimum and maximum terms of imprisonment. ODRC, 

as an agency under the executive branch of government, simply enforces the 

judicially imposed sentence and has been delegated the responsibility over the 

release determinations under R.C. 2967.271(C)-(F). This is similar, if not identical, 

to the executive branch’s authority to release offenders from sentences under Ohio’s 

parole system for indefinite life sentences. R.C. 2967.12; 2967.16. The question, 

therefore, is not whether there is a perception that the maximum-term hearing 

infringes on a defendant’s constitutional rights, but whether the sentencing law as 

enacted does. 

The Reagan Tokes Law provisions under R.C. 2929.144 and 2967.271, 

as previously discussed, mirror those from R.C. 2929.02 and 2967.12 through 

2967.16. Both create a system of releasing offenders serving indefinite terms of 

imprisonment. The Reagan Tokes Law, unlike the indefinite life sentencing 

structure under R.C. 2967.16 (final release from indefinite sentence statutory 

section, which requires the executive agency to determine the release on parole and 

then the final release from the prison sentence imposed by the trial court in separate 

stages), creates a presumption of a final release after the minimum term, subject to 
any applicable term of postrelease control. R.C. 2967.271(B). Under the indefinite 

life sentencing structure, ODRC makes the final determination of an inmate’s final 

release from prison. R.C. 2967.16. The Reagan Tokes Law removes that discretion 

and creates a presumption favoring release from the final sentence at the completion 

of the minimum term. R.C. 2967.271(B). That distinction does not alter the core 

sentencing approach of tasking ODRC with reviewing an inmate’s prison status 

while the inmate is serving a judicially imposed prison sentence or tasking ODRC 

with authority over maintaining a prisoner within the indefinite sentence. 

Therefore, the defendants’ request for us to declare the Reagan Tokes 

Law unconstitutional in its entirety, including the indefinite sentencing scheme 

codified under R.C. 2967.271, 2929.144, and 2929.14(A)(1)-(2), necessarily presents 

constitutional implications for indefinite life sentences under Ohio law that cannot 

be ignored. The executive branch makes parole decisions affecting the judicially 

imposed sentences under Ohio sentencing law in general. In light of the legislature’s 

use of the similar procedures as applied to both indefinite life and nonlife sentences, 

declaring the Reagan Tokes Law unconstitutional poses ramifications far beyond 

S.B. 201. 

The legislature has the sole authority to define crimes and establish 

the punishment in Ohio. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 

N.E.2d 328, ¶ 13, quoting Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888 

(1963); State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 2. 

If the legislature returns Ohio to indefinite sentencing for certain felony offenses, or 
even increases sentencing ranges, that is well within its legislative prerogative. Only 

the Ohio electorate can decide the General Assembly’s fate for such a policy decision. 

The General Assembly has determined that for any qualifying offense, as defined 

under R.C. 2929.144(A), the trial court must impose both a minimum and a 

maximum term of imprisonment. R.C. 2929.144(C); 2929.14(A)(1)(a) and 

(A)(2)(a). Under R.C. 2967.271(D), ODRC is required to enforce or maintain that 

imposed sentence through the legislative delegation of authority — a principle that 

represents the bedrock of the Ohio criminal justice system and is analogous to Ohio’s 

current parole revocation system that is entirely managed by ODRC. 

With this background in mind, we can focus on the defendants’ three 

arguments in support of their claims that the Reagan Tokes Law is unconstitutional 

in its entirety. 

b. Defendants’ claims that the indefinite, nonlife sentences 

are analogous to the now-defunct “bad time” law are 

misplaced 

“A fundamental principle of the constitutional separation of powers 

among the three branches of government is that the legislative branch is ‘the 

ultimate arbiter of public policy.’” State v. Blankenship, 145 Ohio St.3d 221, 2015-

Ohio-4624, 48 N.E.3d 516, ¶ 37, citing Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 

880 N.E.2d 420, at ¶ 21; State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite 

Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 

163, ¶ 21. It is the legislature, not the judiciary, that possesses “the power to 

continually create and refine the laws to meet the needs of the citizens of Ohio.” 
Arbino at ¶ 21. “All statutes have a strong presumption of constitutionality.” Id. at 

¶ 25. In order to find that a statute is unconstitutional, courts must determine 

“‘beyond a reasonable doubt that the legislation and constitutional provisions are 

clearly incompatible.’” Id., quoting State ex rel. Dickman, 164 Ohio St. 142, 128 

N.E.2d 59, at paragraph one of the syllabus. Further, all doubts regarding the 

constitutionality of any given statute are resolved in favor of the statute. State v. 

Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 5, quoting State v. 

Gill, 63 Ohio St.3d 53, 55, 584 N.E.2d 1200 (1992). 

Under the Reagan Tokes Law, the trial court sentences the offender to 

the minimum and maximum term, and that sentence must be included in the final 

entry of conviction. R.C. 2929.14; 2929.144. Thus, it is the judicial branch that 

imposes the statutorily required sentence and the only sentencing discretion 

provided to the trial court lies with the length of the minimum term under R.C. 

2929.14(A)(1)(a) and (A)(2)(a). Neither the trial court nor ODRC has authority to 

increase any sentence beyond the maximum term set forth under R.C. 2929.144. 

R.C. 2967.271(B) establishes a presumptive release date at the end of 

the minimum term, and under subdivision (D), the legislature provides ODRC the 

framework required to enforce or “maintain” the maximum sentence imposed by 

the trial court in the final entry of conviction. ODRC may review the offender’s 

prison conduct, which is dependent on the institutional rule infraction system under 

Ohio law unrelated to the Reagan Tokes Law, and rebut that presumption of release 

to enforce, or “maintain” the remaining portion of the offender’s prison term (the 
maximum term) already imposed by the trial court. R.C. 2967.271(D)(1). This is 

similar to a sentencing court’s imposition of an indefinite life sentence that delegates 

authority to the executive branch to make any and all parole determinations and to 

release offenders from their judicially imposed sentences after the minimum period 

is served. R.C. 2967.12; 2967.16. Tellingly, the defendants are unable to 

demonstrate how ODRC imposes a new sentence by exercising its statutorily 

mandated power to review an inmate’s prison status following the imposition of the 

maximum term by the sentencing court. 

It is important to remember that the separation-of-powers doctrine, 

as derived from the federal Constitution, “has no express provision which prohibits 

the officials of one branch of government from exercising functions of the other 

branches.” Geraghty v. United States Parole Comm., 719 F.2d 1199, 1210 (3d 

Cir.1983), citing Springer v. Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72 

L.Ed. 845 (1928) (upholding parole determinations by the executive branch). “The 

Constitution does not require three airtight departments of government.” Id., citing 

Nixon v. Admr. of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 

(1977). “Ohio, unlike other jurisdictions, [also lacks] a constitutional provision 

specifying the concept of separation of powers * * *.” State v. Warner, 55 Ohio St.3d 

31, 43-44, 564 N.E.2d 18 (1990), citing State v. Harmon, 31 Ohio St. 250 (1877), and 

State, ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464 (1929). Similar 

to the federal Constitution, Ohio’s separation-of-powers doctrine “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.” Id. There is no explicit rule prohibiting the delegation of authority as 

between the coequal branches of government. Id. 

The defendants’ argument with respect to the separation of powers 

analogizes the Reagan Tokes Law’s indefinite, nonlife sentencing scheme to Ohio’s 

“bad time” law under former R.C. 2967.11, which provided the executive branch the 

power to keep a prisoner in jail beyond the sentence imposed by the trial court. State 

ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000). In Bray’s 

situation, the trial court sentenced him to serve eight months in prison in the final 

entry of conviction. Id. at 133. During Bray’s incarceration, he assaulted a prison 

guard and the Ohio Parole Board imposed an additional 90-day term to be served 

following the conclusion of the judicially imposed, eight-month sentence. Id. It was 

the additional 90-day term that violated the separation-of-powers doctrine because 

only the judiciary has the power to impose a sentence. Id. 

It has long been understood that “‘when the power to sanction is 

delegated to the executive branch, a separation-of-powers problem is avoided if the 

sanction is originally imposed by a court and included in its sentence.’” State v. 

Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, ¶ 23; Hernandez v. 

Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-20; State v. 

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

89 Ohio St.3d 504, 512-513, 733 N.E.2d 1103 (2000). Under the sentencing scheme 

established by the Reagan Tokes Law, the judiciary imposes the sentence that is 
enforced by ODRC — in complete compliance with the separation-of-powers 

doctrine. Again, at the risk of belaboring the point, the defendants are unable to 

identify any statutory section that permits ODRC to “impose” a sentence beyond that 

which is imposed by the trial court. Simmons, 2021-Ohio-939, 169 N.E.3d 728, at 

¶ 13; Wilburn, 2021-Ohio-578, 168 N.E.3d 873, at ¶ 26. This is fatal to their cause. 

The defendants’ claims blur the distinction between imposing a 

sentence and executing or, in statutory parlance, “maintaining,” the judicially 

imposed sentence. Understandably, the “bad time” law was deemed to violate the 

separation-of-powers doctrine because it divested the sentencing court of its 

authority to impose the final sentence. The executive branch was tasked with 

imposing a sentence beyond that which was imposed by the trial court. Simmons, 

Wilburn. R.C. 2929.144 shares nothing in common with the “bad time” law at issue 

in Bray. Any application of Bray to the indefinite, nonlife felony sentencing scheme 

is misplaced. Under R.C. 2929.144, the trial court imposes the maximum term in 

the final entry of conviction such that ODRC is merely tasked with implementation 

of the imposed sentence. This complies with constitutional mandates. “The 

determination of guilt in a criminal matter and the sentencing of a defendant 

convicted of a crime are solely the province of the judiciary.” (Emphasis added.) 

Bray, at 136, citing Peters, 43 Ohio St. at 648, 4 N.E. 81. Bray is not relevant to the 

current discussion. 

The Reagan Tokes Law does not violate any separation-of-powers 

safeguard because the executive branch has always possessed the authority to 
determine parole, parole revocation, or sentencing-release matters under an 

indefinite sentencing scheme after the trial court imposes the minimum and 

maximum terms. See R.C. 2967.12 and 2967.16 (executive branch authorized to 

grant final release of the offender following adherence to the terms of parole). R.C. 

2929.144, 2929.14(A)(1)(a) and (A)(2)(a), and R.C. 2967.271 do not stray from the 

sentencing structure already in place under Ohio law. 

Keeping an offender in prison under R.C. 2929.144 past the minimum 

term is no different than keeping an offender in prison under an indefinite life 

sentence after the offender becomes eligible for parole. The executive branch’s 

decision releasing an offender from, or maintaining an offender in, an indefinite 

sentence has been part of the Ohio criminal justice system from time immemorial. 

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

parole board’s unilateral authority to release an offender from the maximum 

indefinite sentence). According to the Ohio Supreme Court, “the granting and 

revocation of parole are matters traditionally handled by administrative officers.” 

Woods, 89 Ohio St.3d at 514, 733 N.E.2d 1103. The indefinite sentencing scheme 

enacted under the Reagan Tokes Law does not violate the separation-of-powers 

doctrine under either Ohio or federal law. 

c. Release determinations by the executive branch do not 

violate the right to a jury trial 

Further, R.C. 2967.271(C) and (D) do not violate the right to a jury 

trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 
(2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). 

Neither Simmons nor Wilburn addressed the defendant’s arguments with respect to 

Apprendi and an offender’s right to a jury trial, so this court sitting en banc must 

address that argument since it lies at the heart of the conflict between Gamble, 2021-

Ohio-1810, 173 N.E.3d 132, at ¶ 41, and Delvallie, 2021-Ohio-1809, 173 N.E.3d 544, 

at ¶ 32. 

The trial court, under R.C. 2929.144 and 2929.14, is statutorily 

required to impose the minimum and maximum terms upon the offender being 

found guilty of the qualifying felony offense — similar to an offender being sentenced 

to life with the possibility of parole under the indefinite life sentencing structure. 

The trial court lacks discretion to impose any term beyond the maximum under any 

provision of the Reagan Tokes Law. In Apprendi, the Supreme Court held that, in 

order to sentence a defendant to a term of imprisonment in excess of the statutory 

maximum, the factual circumstances justifying the enhanced sentence must be 

found by the jury beyond a reasonable doubt. Id.; see also Alleyne v. United States, 

570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne is similar. 

In Alleyne, the Supreme Court concluded that the element of the 

offense included brandishing a firearm that raised the level of the offense from one 

subject to a 5-year term to one subject to a 7-year term, and therefore, brandishing 

a firearm was an element of the offense that must be determined by the trier of fact. 

Id. at 114. That conclusion is simply irrelevant to the Reagan Tokes Law. No 

provision under the Reagan Tokes Law authorizes a sentencing court, or ODRC for 
that matter, to impose a sentence beyond the maximum set forth in the sentencing 

statutes or to elevate the minimum term beyond the ranges set forth in R.C. 

2929.14(A)(1)(a) and (A)(2)(a). R.C. 2929.144 and 2929.14(A)(1)(a)-(A)(2)(a) 

provide no discretion to the trial court in imposing the maximum term based on the 

offender having pleaded or been found guilty of the underlying qualifying felony 

offense. The only discretion lies with the imposition of the minimum term, which is 

no different than the discretion to sentence within the definite sentencing range for 

nonqualifying felony offenses. 

In declaring R.C. 2967.271(C) and (D) to be unconstitutional, the 

defendants heavily rely on Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 

470, which is ironic in light of the lack of discussion of the severance doctrine at the 

heart of the Foster decision. In Foster, it was concluded that Ohio’s sentencing 

structure of permitting the trial court to impose a consecutive sentence resulting in 

a term of imprisonment beyond the minimum based on the issuance of findings 

violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 

(2004). Foster was superseded by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 

L.Ed.2d 517 (2009), as recognized in State v. Sergent, 148 Ohio St.3d 94, 2016-

Ohio-2696, 69 N.E.3d 627, ¶ 35. In Ice, the Supreme Court concluded that a state 

court’s discretion to impose consecutive sentences did not violate the right to a jury 

trial under the Sixth Amendment because throughout history the jury played no role 

in that sentencing decision. Ice at 167-168. The sole limitation was that a trial court 

cannot impose a sentence “beyond the prescribed statutory maximum” based on 
consideration and determination of facts not considered by the jury. Id. at 167. 

“Instead, specification of the regime for administering multiple sentences has long 

been considered the prerogative of state legislatures[,]” even those prerogatives that 

in effect lengthen the offender’s sentence. Id. at 168. The rationale underlying 

Foster’s decision to declare the finding requirement for consecutive sentencing to be 

unconstitutional, which was based on the notion that the consecutive sentence 

increased the offender’s minimum prison time, did not stand the test of time. 

Any reliance on Foster seems to focus on the claim that any 

consideration of facts not determined by the trier of fact violates Apprendi per se. 

There is no basis for that conclusion under Ohio or federal law. In fact, Ohio’s 

sentencing structure in general depends on judicial consideration of facts beyond 

that which is considered by the trier of fact. R.C. 2929.11; 2929.12; 2929.14 

(providing for a sentencing range upon nonqualifying felony offenses). Under the 

defendants’ broadly stated rationale, therefore, Ohio would be returned to the preOregon v. Ice days in which any and all sentencing considerations violate the 

offender’s constitutional rights, and such a conclusion would necessarily impact 

Ohio’s complete sentencing structure that relies on judicial determinations to 

sentence within ranges. 

Again, the trial court must impose a minimum and a maximum 

indefinite term under R.C. 2929.14 and 2929.144. The only discretion lies with the 

length of the minimum term, and therefore, the trial court is not imposing a 

sentence “in excess of the maximum” term as expressly prohibited under Apprendi. 
And the trial court is also not imposing a sentence beyond the minimum term 

prescribed by statute based on any findings of facts. Any discussion of sentencing 

discretion to impose a term that exceeds the minimum term can only be based on 

the overturned rationale espoused in Foster. Accordingly, that argument is 

misplaced. 

Neither R.C. 2929.144 nor 2929.14(A)(1)(a) and (A)(2)(a) run afoul of 

Apprendi or its progeny. Despite this, it has been suggested that the plurality 

decision in United States v. Haymond, 588 U.S.___, 139 S.Ct. 2369, 2373, 204 

L.Ed.2d 897 (2019), supports application of Apprendi to R.C. 2967.271(C) and (D). 

In Haymond, however, the defendant was convicted of possessing child 

pornography, for which the district judge imposed an indefinite prison term of zero 

to 10 years under 18 U.S.C. 2252(b)(2) and a period of supervised release of between 

5 years and life under 18 U.S.C. 3583(k). Id. at 2373. During the period of 

supervised release, the defendant was found in possession of child pornography. Id. 

In addition to returning the offender to serve the original sentence, the trial court 

imposed a new mandatory minimum term of 5 years under 18 U.S.C. 3583(k) — 

making the sentence 5 to 10 years instead of the zero to 10 years originally imposed. 

It was the resentencing under the aggravating factor that the Supreme Court 

declared unconstitutional in violation of Apprendi principles since a jury did not 

make the additional finding of fact to authorize an enhanced minimum term. Id. at 

2378. Importantly, the Supreme Court did not declare that retaining the inmate in 

prison during the zero to 10-year indefinite term originally imposed implicated 
constitutional concerns but, instead, relied on the fact that the minimum term of 

imprisonment was increased based on a finding of fact that occurred in the 

postconviction process. Id. 

Haymond does not stand for the proposition that a state court cannot 

impose an indefinite sentence based on the executive branch’s parole or release 

determinations. Any offender sentenced upon a qualifying felony must receive a 

minimum term under R.C. 2929.14(A)(1)(a) and (A)(2)(a), and a maximum term 

under R.C. 2929.144. To place that in perspective, such a sentence is equivalent to 

the original sentence imposed in the Haymond case, a sentence that was not 

questioned by the Supreme Court or by any party to the case. Any reliance on 

Haymond is misplaced. 

R.C. 2967.271(C) and (D) do not violate Apprendi or its progeny. 

d. Defendants’ final claim that R.C. 2967.271 fails to provide 

the full panoply of trial rights is contrary to black-letter 

law 

The defendants’ last claim deals with R.C. 2967.271(C) and (D). 

According to the defendants, R.C. 2967.271(C) and (D), which provide offenders 

with the right to a hearing before imposition of the maximum term imposed under 

R.C. 2929.144, has not provided the full panoply of constitutional rights afforded to 

a defendant in the criminal process, an issue left unaddressed in both Simmons and 

Wilburn and first arising in the conflict created by Gamble and Delvallie. 

In support of that claim, the defendants in Gamble, Delvallie, and 

Daniel in particular, provide a single paragraph of analysis: 
Finally, while R.C. 2967.271 provides for a hearing before the 

additional prison time is imposed, the statute provides no structure as 

to how the hearing will be conducted or what rights the defendant will 

have at a hearing. Fourteenth Amendment due process as well as the 

Sixth Amendment and Article I, Section 10 of the Ohio Constitution 

recognize certain core rights as fundamental to the trial process. In 

addition to the right to trial by jury (discussed in Part II, and 

incorporated herein), these trial rights include: 

• The presumption of innocence and the requirement that proof 

by the prosecution rise to the level of proof beyond a reasonable 

doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 106, 825 L.Ed.2d 

368 (1970). 

• The right to counsel and to the appointment of counsel if 

indigent. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 

L.Ed.2d 799 (1963). 

• The right to confront witnesses. Crawford v. Washington, 541 

U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

• The right to call witnesses and require their presence via 

subpoena. Washington v. Texas, 388 U.S.14, 87 S.Ct. 1920, 18 

L.Ed.2d 1019 (1967). 

• The right to offer testimony. In re Oliver, 333 U.S. 257, 68 S.Ct. 

499, 92 L.Ed. 682 (1948). 

Nowhere in the statute are these rights enunciated. Nor is there an 

applicable provision in the Ohio Administrative Code that the defense 

has been able to locate that expressly applies to these proceedings. 

The premise of the defendants’ due process claim is misplaced. 

It has never been concluded that inmates are due preconviction 

constitutional rights during enforcement of judicially imposed sentences. 

Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) 

(hereinafter “Morrissey”) (“We begin with the proposition that the revocation of 

parole is not part of a criminal prosecution and thus the full panoply of rights due a 
defendant in such a proceeding does not apply”); Rose v. Haskins, 21 Ohio St.2d 94, 

95, 255 N.E.2d 260 (1970); State ex rel. Sweet v. Capots, 10th Dist. Franklin No. 

93AP-340, 1993 Ohio App. LEXIS 5200, 9 (Oct. 26, 1993). Importantly, and despite 

the defendants’ claims to the contrary, there is no inherent right to counsel during a 

parole revocation hearing, which is analogous to the maximum-term hearing 

according to the defendants who extensively claimed as much during oral argument 

on this matter. State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, 

77 N.E.3d 909, ¶ 26. 

The Reagan Tokes Law is not unconstitutional based on the claims 

presented by the defendants.

III. The dissents’ conclusions do not provide a basis to declare 

the Reagan Tokes Law unconstitutional in its entirety 

Having addressed the merits of the arguments presented by the 

defendants, our analysis generally would be complete. The dissents build upon the 

panel discussions in Delvallie, Sealey, and Daniel to essentially claim that R.C. 

2967.271(C) and (D) must either enumerate the rights afforded to an inmate during 

the maximum-term hearing or include an express delegation of authority to the 

executive branch to promulgate the rules. In the absence of either, according to the 

dissents, the statute is unconstitutional and any sentencing under R.C 2929.144 

(maximum term) and R.C. 2929.14(A)(1)(a) and (A)(2)(a) (minimum term) must be 

declared void. Neither the Ohio nor federal Constitution mandates such a 

requirement. This issue, solely based on Morrissey, was raised in Delvallie, Daniel, 
and Sealey and, therefore, should be addressed inasmuch as the en banc’s resolution 

in favor of the constitutional validity of the Reagan Tokes Law overrules those 

decisions. Since appellate courts are required to provide reasons in support of a 

decision under App.R. 12(A)(1)(c), an explanation behind vacating Delvallie, Daniel, 

and Sealey is required. 

In Morrissey, the Supreme Court set forth the minimum 

requirements required at a parole revocation hearing, again the existing sentencing 

structure the defendants claimed to be applicable to the Reagan Tokes Law. 

Although Delvallie, Daniel, and Sealey present a thorough discussion of the creation 

of a liberty interest, we need not entertain that discussion. See, e.g., Sealey, 8th Dist. 

Cuyahoga No. 109670, 2021-Ohio-1949, at ¶ 11-20. Because this is a facial challenge 

to a statute, whether a liberty interest exists over an inmate’s right to be released 

from a prison term is not relevant to the constitutional validity of the conviction 

itself because that liberty interest does not arise until after the offender is sentenced 

and his conviction deemed final. Morrissey at 480. “[T]he minimum requirements 

of due process,” upon determining the existence of a liberty interest in an inmate’s 

release from a prison term, include the following for parole revocation proceedings: 

(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, 408 U.S. at 489. Any violation of Morrissey requires a court of review 

to remand the matter for a hearing to be conducted in conformity with the 

procedural requirements. 5 State ex rel. Womack v. Sloan, 152 Ohio St.3d 32, 2017-

Ohio-8708, 92 N.E.3d 836, ¶ 6, citing Scarberry v. Turner, 139 Ohio St.3d 111, 2014-

Ohio-1587, 9 N.E.3d 1022, ¶ 13 (“[t]he remedy for an alleged Morrissey due-process 

violation is a new hearing, not immediate release from confinement.”). Further, the 

legislature may delegate policy-making or rulemaking authority to an executive 

agency in compliance with all constitutional requirements. Morrissey at 490. 

According to Morrissey, if “the procedures followed by the Parole Board are found 

to meet the standards laid down in this opinion that, too, would dispose of the due 

process claims for these cases.” (Emphasis added.) Id.; see also Sealey at ¶ 41; 

Daniel, 8th Dist. Cuyahoga No. 109583, 2021-Ohio-1963, at ¶ 41. Both Sealey and 

Daniel at ¶ 41, recognize that the legislature may delegate authority to ODRC to draft 

the procedural rules to satisfy Morrissey, but disregard the legislature’s delegation 

of authority under R.C. 5120.01 to accomplish the task. 

5 The question left unanswered by this en banc proceeding in which this court is 

solely considering the constitutional validity of the sentences imposed under the Reagan 

Tokes Law, and not the procedures with which ODRC conducts its maximum term 

hearings in carrying out the sentence as imposed by the trial court, is whether ODRC 

Policy 105-PBD-15 provides the minimum procedural protections afforded under 

Morrissey. See Section IV. below. In light of the fact that the remedy provided by a 

Morrissey violation is limited to a remand for a constitutionally adequate hearing 

process, as opposed to vacating the sentence, we need not address the question of whether 

ODRC’s maximum term hearing policy is constitutionally sound. That answer does not 

impact the validity of the imposed sentence. The Morrissey question will be left for a later 

date when properly raised by the inmate in the proper jurisdiction. Id.
Any reliance on Morrissey to declare the Reagan Tokes Law 

unconstitutional and to preclude sentencing under R.C. 2929.144 and 

2929.14(A)(1)(a) and (A)(2)(a) is misplaced, and as discussed in further detail 

below, is premature since the remedy for a Morrissey violation is to remand for a 

hearing in compliance with the Supreme Court’s guidance, not to vacate the 

sentence or to declare the entire law unconstitutional. Sloan at ¶ 6. 

The issue must be addressed in terms of the delegation of authority to 

ODRC to provide the procedural rules and safeguards as required under R.C. 

2967.271 and 5120.01. In other words, inasmuch as the panels in Sealey and Daniel

argued that R.C. 2967.271(C) and (D) are silent as to the Morrissey procedural 

requirements of the maximum-term hearing, the question that poses is whether the 

legislature has properly delegated its authority to craft the procedural safeguards to 

ODRC rendering R.C. 2967.271 facially constitutional. See O’Neal v. State, 2020-

Ohio-506, 146 N.E.3d 605, ¶ 32 (10th Dist.) (defendant challenged the legislature’s 

delegation of authority to ODRC to draft its policy), aff’d by O’Neal v. State, Slip 

Opinion No. 2021-Ohio-3663. To ignore the delegation of authority principles at 

play with respect to the Morrissey analysis cannot be described as anything short of 

an attempt to hide an elephant in a mousehole. See State ex rel. Hogan Lovells U.S., 

L.L.P. v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2021-Ohio-1762, ¶ 71, citing 

Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 

1 (2001). 
a. Neither the Reagan Tokes Law nor R.C. 2967.271 violates 

a prisoner’s due process rights because the legislature has 

delegated authority to ODRC to provide the Morrissey

safeguards 

By and large, S.B. 201 was not created out of whole cloth. The 

legislature borrowed from other aspects of the Ohio Revised Code to craft the 

indefinite sentences and the release determinations. In the broad push to declare 

the Reagan Tokes Law unconstitutional or unenforceable, it is easy to lose sight of 

the havoc that such a conclusion would bring to every other aspect of the sentencing 

and sentencing enforcement laws and regulations, which rely on the same process 

and procedures codified as part of the Reagan Tokes Law. In light of the Sealey and 

Daniel conclusions that R.C. 2967.271 violates Morrissey, the first question in need 

of resolution is whether the legislature can delegate authority to ODRC through R.C. 

2967.271 to draft the procedural safeguards mandated under Morrissey. 

The short answer is it can, and ODRC complied. R.C. 5120.01; ODRC 

Policy 105-PBD-15, Section F, available at https://drc.ohio.gov/policies/paroleboard (last visited Nov. 11, 2021). Under that delegation of authority, ODRC may be 

authorized to establish rules and policies given the agency’s experience and on-theground presence. Nix The “Fix”: An Analysis On Ohio’s Criminal Sentencing Law 

And Its Effect On Prison Population, 47 Cap.U.L.Rev. 755, 786 (2019); Cleveland 

Metro. Bar Assn. v. Davie, 133 Ohio St.3d 202, 2012-Ohio-4328, 977 N.E.2d 606, 

¶ 42 (citing ODRC policy). 
No constitutional provision requires the legislature to expressly set 

forth each and every right afforded to an offender at every stage of proceedings 

created by statutory process. AMOCO v. Petroleum Underground Storage Tank 

Release Comp. Bd., 89 Ohio St.3d 477, 480, 2000-Ohio-224, 733 N.E.2d 592 (the 

General Assembly may delegate rulemaking authority to an executive agency); State 

v. Schreckengost, 30 Ohio St.2d 30, 32, 282 N.E.2d 50 (1972); O’Neal, 2020-Ohio506, 146 N.E.3d 605, at ¶ 50 (10th Dist.) (“the General Assembly constitutionally 

may delegate authority to promulgate rules, policies, and regulations to subordinate 

boards and agencies”), citing Princeton City School Dist. Bd. of Edn. v. Ohio State 

Bd. of Edn., 96 Ohio App.3d 558, 560, 645 N.E.2d 773 (1st Dist.1994), and Belden, 

143 Ohio St. at 342, 55 N.E.2d 629. For that, the legislature is free to delegate 

authority to the executive branch. Warner, 55 Ohio St.3d at 43-44, 564 N.E.2d 18, 

citing Harmon, 31 Ohio St. 250, and State, ex rel. Bryant, 120 Ohio St. 464. 

In Sealey, for example, the panel relied on Wilkinson v. Austin, 545 

U.S. 209, 226, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), and Wolff v. McDonnell, 418 

U.S. 539, 563, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in particular to demonstrate the 

existence of a liberty interest. Sealey, 8th Dist. Cuyahoga No. 109670, 2021-Ohio1949, at ¶ 12-14. That reliance, however, fails to address the fact that both cases 

involved reviewing the rules or policies established by the executive agency in 

separate actions initiated under 42 U.S.C. 1983. See generally Wilkinson and Wolff. 

In other words, in both cases, the Supreme Court was reviewing policies and 

procedures of an executive agency for constitutional compliance. In Wilkinson, in 
the habeas corpus petitions brought by several inmates, the Supreme Court 

reviewed two versions of ODRC Policy 111-07 (Aug. 31, 1998). Wilkinson at 215. In 

Wolff, on behalf of himself and other inmates of the Nebraska Penal and 

Correctional Complex, Lincoln, Nebraska, an inmate filed a complaint under 42 

U.S.C. 1983 challenging several of the practices, rules, and regulations of the 

complex. Wolff at 542. As both of those cases teach, the legislature is not required 

to codify all rules and procedures under the statutory provision but instead can defer 

to the executive agency’s establishment of its own rules or procedures to safeguard 

constitutional concerns, which must be challenged through the appropriate 

mechanisms. 

Although R.C. 2967.271 omits language authorizing ODRC to draft 

rules and procedures for the maximum-term hearings, the drafters are presumed to 

understand the entirety of the Revised Code. Under R.C. 5120.01, “all duties” 

conferred upon ODRC by the legislature “shall be performed under the rules and 

regulations that the director prescribes.” The use of the term “policy” by ODRC will 

be discussed in greater detail below. That said, R.C. 2967.271 “does not exist in a 

vacuum. It is a creature of the Revised Code, it is subservient to the Revised Code, 

and it necessarily incorporates the Revised Code.” Bibler v. Stevenson, 150 Ohio 

St.3d 144, 2016-Ohio-8449, 80 N.E.3d 424, ¶ 15. Thus, the drafters have a 

presumed awareness of R.C. 5120.01 and the requirement that any statutory process 

creating a duty for ODRC to undertake must have procedures established to carry 

out the function. It need not be reiterated throughout every other statutory section 
creating an obligation for ODRC to act, although such a redundancy could be 

considered a “best practices” approach to avoid the necessity of scouring the Revised 

Code for the enabling language. See, e.g., O’Neal at ¶ 31; State v. Tanner, 2d Dist. 

Clark No. 2020-CA-9, 2020-Ohio-5413, ¶ 17; State v. Emch, 9th Dist. Summit No. 

20372, 2002-Ohio-3861, ¶ 21. 

But such an approach is unnecessary. The Revised Code contains 

other sections that provide neither the express procedures for conducting a hearing 

nor an express delegation of authority for the executive branch to promulgate those 

policies, rules, or procedures. For example, under R.C. 2971.04, the legislature has 

tasked the parole board to conduct a hearing to determine whether to terminate 

control over the offender after the offender has served the minimum term under 

R.C. 2971.03 (sentencing of sexually violent offender with predator specification). 

R.C. 2971.04. Contrary to the dissent’s assertion otherwise, R.C. 2971.04 is silent as 

to any delegation of authority to promulgate rules, regulations, or policies detailing 

the procedures or means of carrying out the hearing, similar to R.C. 2967.271. The 

only express delegation of authority within R.C. 2971.04(A) is found in the 

declaration that the parole board may follow ODRC’s guidelines as established 

under R.C. 5120.49 for the purposes of the parole board making its determination 

following the hearing. Under R.C. 5120.49, ODRC “by rule adopted under Chapter 

119. of the Revised Code, shall prescribe standards and guidelines to be used by the 

parole board in determining * * *” whether to terminate the parole board’s control 

over the indefinite term. As far as establishing the hearing procedures themselves 
with the plain language of the statute, R.C. 2971.04(A) does not include all due 

process procedural requirements; only the inmate’s right to present evidence before 

the parole board is statutorily established.6 No other Morrissey requirement was 

mandated, such as the written conclusions in support of the denial of release and 

the disclosure of the contents of the risk assessment report submitted directly to the 

parole board. 

Despite the lack of express delegation of policy-making authority 

under R.C. 2971.04 to establish all missing procedural requirements for the hearing 

itself, ODRC has promulgated ODRC Policy 105-PBD-11, for the express purpose of 

“establish[ing] a standard procedure for the parole board to efficiently and 

consistently carry out its duties pursuant to Ohio Revised Code (ORC) section 

2971.04.” As part of that policy, the ODRC has promulgated the specific hearing 

procedures, beyond simply permitting the inmate to present evidence, controlling 

the means and manner in which the hearing occurs. This includes a provision that 

permits the inmate’s counsel to be present during the hearing, among other 

6 Thus, if the dissent’s assertion that R.C. 2971.04 contains an express delegation 

of authority based on the presence of one of the six Morrissey requirements, then R.C. 

2967.271 should also pass constitutional muster according to the dissent’s theory. Under 

R.C. 2967.271(C), the ODRC undertakes the hearing to decide the release question 

through its parole board based on evidence presented to the inmate from the prison 

infraction process. Morrissey, 408 U.S. at 489. ODRC and its parole board have 

traditionally been considered a “neutral and detached” hearing body such that R.C. 

2967.271(C) at least contains an express delegation of authority satisfying less than all of 

the Morrissey requirements, similar to R.C. 2971.04 that contains the requirement of the 

inmate’s presence to present evidence at the hearing. Woods, 89 Ohio St.3d at 514, 2000-

Ohio-171, 733 N.E.2d 1103. 
procedures not covered under the express language of the statute, a provision not 

expressly required under R.C. 2971.04. ODRC Policy 105-PBD-11 VI. E. 

This is similar to the legislature’s decision in drafting R.C. 2967.271 to 

permit ODRC to draft the Morrissey procedures under the general grant of authority 

under R.C. 5120.01 required to implement R.C. 2967.271(C) and (D), as contrasted 

against the legislature’s specific requirement that ODRC promulgate rules under 

R.C. 2967.271(F) (the director of ODRC “by rule shall specify both of the following 

for offenders serving a non-life felony indefinite prison term * * *.”). Both R.C. 

2967.271 and 2971.04 follow the same pattern. The legislature is presumed to 

understand the law, and under Morrissey, there is no requirement for the legislature 

or the executive branch to codify statutory or administrative rules in enacting 

procedures compliant with the Morrissey guidelines. Wilkinson, 545 U.S. at 228, 

125 S.Ct. 2384, 162 L.Ed.2d 174 (holding that Ohio’s “new policy” promulgated 

under ODRC Policy 111-07 provided constitutionally valid procedures ensuring the 

protection of the inmate’s liberty interest). 

Since R.C. 2971.04 is similar to R.C. 2967.271 in that there are no 

express guidelines provided by the legislature and no express delegation of policymaking authority to establish the hearing procedures, R.C. 2971.04 is potentially 

impacted under the dissents’ stated rationale for declaring R.C. 2967.271 to be 

unconstitutional and contrary to the unanimous conclusions reached by the 

Supreme Court in Wilkinson. It is for this reason that constitutional challenges must 

be narrow and precise. The damage caused by broad theories as advanced in 
Delvallie, Sealey, and Daniel could be devastating as more statutes must fall prey to 

the overly broad constitutional analysis. 

Furthermore, the net effect of the conclusions reached in the 

dissenting opinions, if those were to be adopted by this court, is a declaration that 

the Ohio legislature may not delegate authority to the executive agency through 

separate provisions of the Ohio Revised Code, but must instead provide detailed 

rules and policies within the statutory section that creates the particular process, 

otherwise that statutory provision is unconstitutional. Beyond the damage to other 

statutory sections, such a broad declaration is in essence declaring that R.C. 5120.01 

is a nullity, invalidating other policies that guide the ODRC’s substantive 

responsibilities over tasks mandated by law: Clemency Procedure: Death Penalty 

Cases (105-PBD-01) (“The purpose of this policy is to establish a standard procedure 

for considering clemency in death penalty cases.”); Kellogg Hearings (105-PBD-02) 

(“The purpose of this policy is to establish a standard procedure for providing 

mitigation hearings to those recommissioned offenders affected by the consent 

decree in Kellogg, et al. v. Shoemaker, et al., (1996), 927 F. Supp 244.”); Parole 

Board Release Consideration Hearings (105-PBD-03) (“The purpose of this policy is 

to foster consistent parole board hearing procedures designed to promote public 

confidence and safety, as well as fair and objective decision-making, and to establish 

procedures for transferring eligible inmates to transitional control.”); Request for 

Reconsideration and Amendments to Parole Board Actions (105-PBD-04) (“The 

purpose of this policy is to institute a fair and equitable process for the 
reconsideration of Parole Board decisions and the amendment of Parole Board 

actions.”); Clemency Procedure: Non-Death Penalty Cases (105-PBD-05) (“The 

purpose of this policy is to establish a standard procedure for the application, 

processing, review, hearing and decision-making steps of the clemency process in 

non-death penalty cases.”); Full Board Hearing (105-PBD-06); Post Release Control 

Screening and Assessment (105-PBD-08) (“The purpose of this policy is to establish 

uniform guidelines and procedures for assessing offenders for post release control 

(PRC); imposing conditions of PRC supervision; and reducing the duration of 

supervision.”); Violation Hearing Process (105-PBD-09); Sexually Violent Predators 

(105-PBD-11); Statutory Notice (105-PBD-13); 80% Court Release (105-PBD-14); 

Additional Term Hearing (105-PBD-15) — all of which are solely promulgated under 

R.C. 5120.01. Available at https://drc.ohio.gov/policies/parole-board. 

On this latter point, much emphasis is placed on Morrissey, 408 U.S. 

at 489, as it pertains to Ohio’s parole revocation statute, R.C. 2967.15, and that 

section’s compliance with the Morrissey requirements. Morrissey itself does not 

even require the legislature to codify the procedural details, nor does it require the 

executive agency to formally draft rules in compliance with Morrissey. See, e.g., 

Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384, quoting Morrissey (“Because the 

requirements of due process are ‘flexible and cal[l] for such procedural protections 

as the particular situation demands,’ we generally have declined to establish rigid 

rules and instead have embraced a framework to evaluate the sufficiency of 

particular procedures.”). After opining that a state’s statutory standards may 
provide the constitutional compliance with the Morrissey decision, the Supreme 

Court also concluded that “if the procedures followed by the Parole Board are found 

to meet the standards laid down in this opinion that, too, would dispose of the due 

process claims for these cases.” (Emphasis added.) Morrissey, 408 U.S. at 490. 

Thus, the Supreme Court acknowledges that the executive agency’s policies or 

procedures may satisfy due process concerns in addition to the statutory procedures, 

and those types of policy in Ohio arise from the legislature’s delegation of authority 

to the executive branch. 

Morrissey does not stand for the proposition that the legislature needs 

to codify the procedural protections into an unmalleable statutory scheme. On the 

contrary, “once it is determined that the Due Process Clause applies, ‘the question 

remains what process is due.’ The answer to that question is not to be found in the 

Ohio statute.” Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 

1487, L.Ed.2d 494 (1985), quoting Morrissey. This is because Morrissey speaks of 

the procedural requirements in general terms and not to any specific state statutory 

requirements. Witzke v. Pullins-Govantes, 397 F.Supp.3d 975, 980 

(E.D.Mich.2019); Gonzalez v. Fife, W.D.Wash. No. C07-5278, 2008 U.S. Dist. 

LEXIS 46956, at 23-24 (June 17, 2008), citing Morrissey (finding statutory 

procedures inadequate is not a finding that the statute is invalid based on 

Morrissey). Although the constitutional protections can be enacted through 

statutory language, there is no requirement to do so. See, e.g., Kell v. United States 

Parole Comm., 26 F.3d 1016, 1022 (10th Cir.1994) (concluding that the statutes and 
federal regulations were not violated and that no additional protections were 

afforded under Morrissey); Vanes v. United States Parole Comm., 741 F.2d 1197, 

1199 (9th Cir.1984) (noting that the Morrissey protections were prescribed by 

statute, regulation, and local procedures). 

We do not and cannot review the constitutional validity of statutes in 

a vacuum, especially when the challenged provisions rely on statutory language and 

procedures codified throughout the Revised Code. R.C. 2967.271(C) and (D) do not 

contain the policies and procedures under which the maximum-term hearings will 

be conducted. As discussed above, nothing requires the legislature to provide this 

detail. See R.C. 2967.15. In deeming R.C. 2967.271(C) and (D) constitutionally 

infirm, the panels in Delvallie, Sealey, and Daniel have tacitly declared that the 

legislature cannot delegate authority to an executive agency or that the legislature is 

required to codify the details of any statutorily created hearing process. 

Since Morrissey does not preclude the legislature from delegating 

authority to ODRC to promulgate the Morrissey procedural safeguards in lieu of 

codifying the procedures within the statutory text or through a formal 

administrative rulemaking or policy-making process, the next question involves the 

impact of ODRC Policy 105-PBD-15 on R.C. 2967.271(C) and (D) on Delvallie, 

Sealey, and Daniel’s conclusions. 
b. Administrative rules or policies, like statutes and 

ordinances, have the force of law and must be 

independently challenged 

ODRC Policy 105-PBD-15 was expressly promulgated under R.C. 

5120.01 and, therefore, must be considered as filling in the legislative gaps left by 

R.C. 2967.271. Rodriguez v. United States Parole Comm., 594 F.2d 170, 173 (7th 

Cir.1979); O’Neal, Slip Opinion No. 2021-Ohio-3663, ¶ 57, quoting Northwestern 

Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282, 289, 750 N.E.2d 

130 (2001). When the legislature delegates authority to an agency instead of 

codifying the rule itself, the resulting administrative rule or regulation is an 

extension of the statute for all intents and purposes. Rodriguez at 173; O’Neal at 

¶ 57. The dissent gives an undue weight to the fact that Rodriguez relied on the word 

“rule” rather than “policy.” First and foremost, Ohio draws no distinction between 

the legal enforcement of an administrative rule as compared to a policy. O’Neal at 

¶ 59 (“the great majority of directives that agencies issue, whether formally 

promulgated or not, fill in legislative gaps by solving matters that have not been 

specified by statutes.”). But regardless, in Rodriguez, for example, the federal court 

was determining whether an administrative regulation enacted by the Parole 

Commission during the inmate’s incarceration could be retroactively applied against 

the habeas petitioner. Id. at 173. The regulation at issue was enacted under the now 

repealed 18 U.S.C. 4203(a)(1), which was similar to R.C. 5120.01 in that the 
legislature authorized the administrative body “to adopt ‘rules and regulations’ as 

are necessary to carry out a national parole policy.” Id. 

R.C. 5120.01 authorizes ODRC Policy 105-PBD-15 under ODRC’s 

authority to promulgate “rules and regulations.” Although ODRC Policy 105-PBD15 is self-described as a policy, the Ohio Supreme Court does not draw a distinction 

between an administrative rule and a policy enacted through R.C. 5120.01 for the 

purposes of reviewing the policy. In Davie, 133 Ohio St.3d 202, 2012-Ohio-4328, 

977 N.E.2d 606, at ¶ 42, for example, the Ohio Supreme Court was discussing ODRC 

Policy 105-PBD-06(VI)(E)(4) (eff. July 8, 2011), which authorized a non-attorney 

representative to communicate with the parole board orally and in writing on behalf 

of another inmate. Id. at ¶ 39. Importantly for our purposes, in reference to ODRC 

policy, the Ohio Supreme Court concluded that neither a statute nor an 

“administrative rule” could override the Ohio Supreme Court’s authority over the 

regulation of attorney conduct. Id. at ¶ 40. Thus, the Ohio Supreme Court 

concluded that ODRC policy, treated as an administrative rule, could not override 

its authority over the practice of law, instead of simply declaring that a policy issued 

under R.C. 5120.01 is of no legal force or effect. 

We cannot draw any conclusions from ODRC’s chosen nomenclature, 

especially since R.C. 5120.01 expressly authorizes ODRC to draft “rules or 

regulations” governing “all duties” conferred upon ODRC by the legislature. For our 

purposes, the use of the term “administrative policy” is synonymous with 

“administrative rule” for the purposes of Morrissey, although there are different 
requirements for enactment of rules or policies. To conclude otherwise simply 

elevates form over substance at the expense of Supreme Court precedent. See 

Wilkinson, 545 U.S. at 228, 125 S.Ct. 2384, 162 L.Ed.2d 174 (holding that Ohio’s 

“new policy” promulgated under ODRC Policy 111-07 provided constitutionally valid 

procedures ensuring the protection of the inmate’s liberty interest despite the lack 

of a statutorily codified procedure). Since Sealey and Daniel, in particular, both rely 

on Morrissey, the sole concern is whether ODRC promulgated the procedures 

satisfying the guidelines set forth therein. Morrissey does not require a statutory 

procedure or one promulgated through formal agency rulemaking. 

Accordingly, as the Tenth District has concluded, “[a]dministrative 

policies are a means of accomplishing a legislative end.” (Emphasis added.) O’Neal, 

2020-Ohio-506, 146 N.E.3d 605, at ¶ 33 (10th Dist.), quoting Burden v. Ohio Dept. 

of Job & Family Servs., 10th Dist. Franklin No. 11AP-832, 2012-Ohio-1552, ¶ 21, and 

Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 47, 554 N.E.2d 97 (1990).7 

When agencies promulgate policies and regulations to fill legislative 

gaps, “courts * * * must give due deference to an administrative 

interpretation formulated by an agency that has accumulated 

substantial expertise, and to which the General Assembly has delegated 

the responsibility of implementing the legislative command.” 

7 While concerns about enactments by rule, regulation, or policy may be relevant 

for a detailed procedure involving the imposition of capital punishment and the protocols 

surrounding it, any questions involving the enactment of ODRC Policy 105-PBD-15 

ultimately go to what due process that policy affords inmates. No defendant to date has 

challenged the enactment of ODRC Policy 105-PBD-15 on any grounds, constitutional or 

otherwise. 
(Emphasis added.) Id., quoting Northwestern Ohio Bldg. & Constr. Trades Council, 

92 Ohio St.3d at 287, and Swallow v. Indus. Comm. of Ohio, 36 Ohio St.3d 55, 57, 

521 N.E.2d 778 (1988). 

ODRC Policy 105-PBD-15 need not be formally adopted as a “rule” in 

order to fill the gaps left by R.C. 2971.271(C)-(D). O’Neal at ¶ 33. As was expressly 

concluded in O’Neal, “[p]olicies promulgated by administrative agencies are valid 

and enforceable * * *” under the executive agency’s rulemaking authority. 

(Emphasis added.) O’Neal, at ¶ 34, 51, citing Williams v. Spitzer Autoworld Canton, 

L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410, ¶ 18, and Hoffman v. 

State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶ 17. 

“‘[T]he power of an administrative agency to administer a * * * program necessarily 

requires the formulation of policy and the making of rules to fill any gap left, 

implicitly or explicitly, by the legislature.’” O’Neal at ¶ 33, quoting Northwestern at 

287, and Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). 

Without the policies or rules, ODRC would be derelict in failing to administer its 

obligations under both R.C. 2967.271(C) and (D) and R.C. 5120.01. When executive 

or administrative agencies establish policies or regulations “to fill legislative gaps, 

‘courts * * * must give due deference to an administrative interpretation formulated 

by an agency that has accumulated substantial expertise, and to which the General 

Assembly has delegated the responsibility of implementing the legislative 

command.’” Id., quoting Northwestern at 289 and Swallow, 36 Ohio St.3d at 57, 

521 N.E.2d 778. 
The Tenth District’s conclusions in O’Neal were affirmed by the Ohio 

Supreme Court. “‘As the United States Supreme Court has noted, “[t]he power of an 

administrative agency to administer a * * * program necessarily requires the 

formulation of policy and the making of rules to fill any gap left, implicitly or 

explicitly,” by the legislature.’” (Emphasis added.) O’Neal, Slip Opinion No. 2021-

Ohio-3663, at ¶ 57, quoting Northwestern at 289, and Morton v. Ruiz, 415 U.S. 199, 

231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). Not “all legislative gaps must be filled 

with formal rulemaking.” Id. at ¶ 58. In fact, a “great majority of directives that 

agencies issue, whether formally promulgated or not, fill in legislative gaps by 

solving matters that have not been specified by statutes.” Id. at ¶ 59. 

Thus, ODRC Policy 105-PBD-15, must be considered as filling the 

legislative procedural gaps left by the codified language of the statute being 

challenged as unconstitutional based on the legislative omissions. ODRC’s policy is 

expressly meant to safeguard an inmate’s due process rights in light of the 

legislature’s decision to delegate authority to ODRC to conduct the hearing under 

R.C. 2967.271(C) and (D) and to establish constitutionally valid procedures under 

R.C. 5120.01. 

Contrary to the black-letter law discussed in O’Neal, it has been 

suggested that ODRC policy is not akin to a rule or a regulation and, therefore, 

cannot be enforced or even discussed. As previously discussed, any difference 

between describing ODRC Policy 105-PBD-15 as a “policy” or a “rule” is not one of 

distinction for the purposes of applying Morrissey, which only requires the 
executive branch to implement procedures under the Morrissey guidelines. In 

order to avoid the implications of the delegation of authority and the effect of ODRC 

Policy 105-PBD-15, the dissent claims that “an administrative policy” is not to be 

enforced as an extension of the statute, citing Oko v. Mohr, 11th Dist. Ashtabula No. 

2011-A-0045, 2012-Ohio-1450, and State ex rel. Estate of Sziraki v. Admr., Bur. of 

Workers’ Comp., 10th Dist. Franklin No. 10AP-267, 2011-Ohio-1486. 

In Oko, the panel opined that the policy being discussed was 

promulgated under R.C. 5120.01 and constituted a policy, to be differentiated from 

an “administrative rule.” Id. at ¶ 16. First and foremost, R.C. 5120.01 authorizes 

ODRC to promulgate “rules and regulations,” not “policies.” Thus, any “policy” 

promulgated under R.C. 5120.01 is statutorily considered a “rule” or “regulation.” 

Regardless, the relator in Oko referred to the policy as an “Administrative Rule.” 

The court disagreed with that characterization, but that difference did not impact 

the conclusion that the policy in question did not require ODRC to issue the prisoner 

a second prison identification number. Id. In other words, the court reviewed the 

particular policy and determined that it did not provide for the relief the relator 

requested. If the policy was not enforceable, the court could have merely declared 

that as a policy, it was to be disregarded in its entirety. Id. Instead, it reviewed the 

policy on its merits and concluded the policy did not afford the relator his requested 

relief. Oko’s offhand statement in dicta does not support a conclusion that ODRC 

Policy 105-PBD-15 can be ignored. 
Similarly, in Sziraki, the panel adopted a magistrate’s decision in 

which it was concluded that an isolated statement on the Bureau of Workers’ 

Compensation’s website did not constitute a “rule” and in making that declaration, 

the magistrate referred to the statement as a “policy.” Id. at Appendix. The relator 

in that writ action was attempting to argue that a statement on the Bureau of 

Workers’ Compensation’s website should be enforced as a legal requirement. Id. 

The magistrate’s decision, as adopted by the panel, declined to enforce the statement 

from the website as a controlling policy or procedure that the legislature authorized 

the agency to promulgate under its rulemaking authority. Id. Thus, the Sziraki

Court, at most, concluded that the statement on the website did not carry the force 

of law. 

There is no dispute that ODRC Policy 105-PBD-15 was established 

under R.C. 5120.01 and is not simply a statement on ODRC’s website like the 

“policy” at issue in Sziraki that was not promulgated under R.C. 5120.01. It should 

go without saying that an isolated statement on a website from an unknown author 

is distinguishable from the Ohio legislature’s delegation of authority under R.C. 

5120.01 to the director of ODRC to promulgate binding “rules and regulations” to 

govern “all duties” the legislature tasks ODRC to undertake. Id. 

Neither Oko nor Sziraki is applicable. Nothing within those two case 

decisions stands for the proposition that a “policy” duly enacted through ODRC’s 

authority under R.C. 5120.01 is to be disregarded or is otherwise unenforceable for 

the purposes of applying Morrissey when considering statutory text. Any overly 
broad declaration that a “policy” enacted under R.C. 5120.01 fails to carry the weight 

of law has far-ranging implications for ODRC’s delegated authority to act, impacting 

ODRC’s ability to function. O’Neal, 2020-Ohio-506, 146 N.E.3d 605, at ¶ 29 (10th 

Dist.) (R.C. 5120.01 grants broad executive powers to ODRC to promulgate rules and 

regulations necessary to carry out its functions). 

At this juncture of the proceedings, it should be enough to 

acknowledge that Sealey’s and Daniel’s due process analysis, regarding the omission 

of codified procedures in reliance on Morrissey, fail due to the existence of ODRC 

Policy 105-PBD-15 that must be considered as part of R.C. 2967.271(C) and (D), 

filling the legislative procedural gaps. See, e.g., Wilkinson, 545 U.S. at 220, 125 S.Ct. 

2384, 162 L.Ed.2d 174 (reviewing the Rev.Stat. 1979, 42 U.S.C. 1983 action to 

determine the constitutional validity of the procedural rules established by ODRC’s 

statutorily authorized rulemaking authority); see also Wolff, 418 U.S. at 551, 94 S.Ct. 

2963, 41 L.Ed.2d 935 (1974) (reviewing prison regulations for constitutional 

compliance under Morrissey in 42 U.S.C. 1983 action). Since the dissents have 

concluded that R.C. 2967.271 is silent as to the Morrissey procedural safeguards, we 

must at least acknowledge that the silence is based on the legislature’s delegation of 

authority to ODRC to craft the policies and procedures under which the maximumterm hearings are conducted. The legislature may delegate authority to the 

executive branch to promulgate those procedural safeguards under prevailing 

constitutional analysis, so the omission of the Morrissey requirements in R.C. 

2967.271 cannot be the basis of declaring the Reagan Tokes Law unconstitutional. 
c. The dissents’ conclusions challenge statutory provisions that 

extend beyond the Reagan Tokes Law 

The Morrissey minimum parole revocation hearing requirements, 

specifically identified in the dissenting opinions, are not enumerated in Ohio’s 

parole revocation statute, R.C. 2967.15. Instead, those requirements are enacted or 

enforced under the executive agency’s authority to establish policies, rules, or 

regulations separate from the Ohio Revised Code. Under R.C. 2967.15(B), “the adult 

parole authority shall grant the person a hearing in accordance with rules adopted 

by the department of rehabilitation and correction under Chapter 119 of the Revised 

Code.” Certainly, there cannot be any suggestion that Ohio’s parole revocation 

statute is unconstitutional since R.C. 2967.15 is silent as to the Morrissey minimum 

requirements and solely relies on ODRC’s policy-making authority. See, e.g., Wilson 

v. State, 101 Ohio App.3d 487, 493, 655 N.E.2d 1348 (4th Dist.1995) (concluding 

that the prisoner failed to demonstrate that R.C. 2967.15 was unconstitutional 

beyond a reasonable doubt). 

But that is exactly the conclusion that must be reached based on the 

dissents’ analysis declaring R.C. 2967.271(C) and (D) unconstitutional based on the 

failure to enumerate the Morrissey procedural requirements in the statutory section 

instead of relying on the delegation of authority to ODRC to promulgate the 

procedural rules or policies. In declaring R.C. 2967.271(C) and (D) unconstitutional, 

the dissents rely on an argument that would similarly impact R.C. 2967.15, which 

also fails to delineate the policies and procedures to be used at the parole revocation 
hearing, among other provisions of the Ohio Revised Code. This is not the only 

administrative rule, regulation, policy, or procedure that is impacted by such a broad 

declaration. 

In Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809, at ¶ 66, 

for example, the panel declared that the Reagan Tokes Law deprives inmates of their 

due process rights because R.C. 2967.271 was vague. In Delvallie, the panel opined 

that 

public media is replete with reports of attacks by inmates against 

inmates, inmates against corrections officers, and corrections officers 

against inmates. Does the statute advise, for example, that if attacked 

by a definite term inmate with nothing to lose, the offender best run 

like the wind because involvement in an altercation, assuming he 

survives, could cost him his release? 

Id. at ¶ 68. Delvallie then claimed that R.C. 2967.271(C) and (D) are 

unconstitutional because of the lack of due process concerning the prison rule 

infraction system. 

The challenge to the prison rule infraction system as a reason to 

invalidate the Reagan Tokes Law cannot be viewed in isolation. No provision of the 

Reagan Tokes Law creates a new prison rule infraction system permitting ODRC to 

unilaterally act without recourse or procedural guidance. Ohio Adm.Code 

5120-9-08 sets forth an inmate’s rights and the procedures the Rules Infraction 

Board are to follow in imposing any and all institutional infractions upon the 

inmates. See, e.g., Oko v. Lake Erie Corr. Inst., 11th Dist. Ashtabula No. 2010-A-
0002, 2010-Ohio-2821, ¶ 3 (overruling a constitutional challenge to the decision by 

the Rules Infraction Board). 

R.C. 2967.271(C) and (D) simply rely on the results of those 

proceedings, which are conducted under an Ohio Administrative Code section that 

has not been challenged and, importantly, is not part of the Reagan Tokes Law itself. 

The maximum-term hearing simply borrows from the results of that rules infraction 

proceeding, and Delvallie’s claim that the infraction system is constitutionally 

infirm impacts the current provisions of the Ohio Revised Code well beyond our 

current review. R.C. 2967.271(C) (relying on the results of the rules infraction 

board); ODRC Policy 105-PBD-15, Section VI. B. 1-3. Any challenges to the 

infraction system must be advanced through a separate writ action when the 

infraction has been declared and impacts the duration of confinement. State ex rel. 

Larkins v. Wilkinson, 79 Ohio St.3d 477, 479, 683 N.E.2d 1139 (1997) (writ of 

mandamus will not lie “absent evidence that the challenged institutional action 

would affect the inmate’s duration of confinement”), citing Samuels v. Mockry, 77 

F.3d 34, 37 (2d Cir.1996); Lane v. Russell, 109 Ohio App.3d 470, 473, 672 N.E.2d 

684 (12th Dist.1996). Delvallie’s claims with respect to the prison infraction system 

have no bearing on the Reagan Tokes Law. More to the point, if we were to accept 

Delvallie’s conclusion, Ohio Adm.Code 5120-9-08 is likewise to be declared 

unconstitutional since that creates the framework Delvallie questions. 

Any conclusion that R.C. 2967.271(C) and (D) deprive offenders of 

their due process rights is solely based on reviewing R.C. 2967.271 to the exclusion 
of ODRC rules, policies, or procedures established under R.C. 5120.01. ODRC Policy 

105-PBD-15. Through R.C. 2967.271(C) and (D), the legislature tasked ODRC with 

conducting hearings to determine enforcement of the maximum term imposed 

under R.C. 2929.144, the notice for which occurs under R.C. 2967.12, the notice 

statute for parole hearings. The legislature further authorized the director of ODRC 

to establish policies, rules, and procedures in compliance with its statutory duties 

based on the legislature’s delegation of authority to the executive agency. R.C. 

5120.01; ODRC Policy 105-PBD-15, Section I. R.C. 2967.271 is not unconstitutional 

based on a Morrissey violation. 

IV. The State’s Claim as to the Ripeness of Reviewing the Validity 

of the Imposed Sentences is Overruled 

And finally, there is a distinction that must be addressed between 

challenging the imposition of a sentence by claiming the statute authorizing the 

sentence is constitutionally infirm and appealing the lack of due process for the 

specific manner in which the sentence for a particular inmate is later carried out. 

These appeals, being considered en banc, deal with the first question, and that is the 

only question at this stage that is ripe for our review. 

a. Distinguishing the claims that are ripe for review from the 

claims implicating ODRC’s rulemaking authority 

We are tasked with determining whether the sentence as constructed 

under the Reagan Tokes Law is valid, and that question can only be raised in a direct 

appeal. If the sentence, as imposed, is valid at this stage, an inmate has the later 

right to challenge the actual process or procedures that particular inmate will be 
subjected to when the sentence is actually carried out by the executive branch. The 

remedy to a second claim, when it becomes ripe, will not be to invalidate the 

sentence or conviction, but instead the remedy will be only to require a 

constitutionally sound proceeding through which the defendant’s sentence can be 

completed. Sloan, 152 Ohio St.3d 32, 2017-Ohio-8708, 92 N.E.3d 836, at ¶ 6, citing 

Scarberry, 139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, at ¶ 13 (“[t]he 

remedy for an alleged Morrissey due-process violation is a new hearing, not 

immediate release from confinement.”). 

This cannot be overemphasized. The appropriate mechanism to 

challenge the validity of policies, rules, regulations, or protocols established by the 

executive is through a separate declaratory judgment or habeas action seeking to 

preclude ODRC from enforcing them, which only occurs at the actual time when 

those policies, rules, regulations, or protocols are being applied against the inmate. 

See, e.g., O’Neal, 2020-Ohio-506, 146 N.E.3d 605, at ¶ 3 (10th Dist.); Kellogg v. 

Shoemaker, 46 F.3d 503 (6th Cir.1995); Rodriguez, 594 F.2d 170, 173 (7th Cir.1979); 

State v. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 15, fn. 3. Any 

claims implicating the deprivation of due process rights impacted by ODRC’s 

published policy with respect to the maximum-term hearing process are not ripe for 

review in a direct appeal because that hearing has not taken place. See, e.g., 

Wilkinson, 545 U.S. at 220, 125 S.Ct. 2384, 162 L.Ed.2d 174 (reviewing the Rev.Stat. 

1979, 42 U.S.C. 1983 action to determine the constitutional validity of the procedural 

rules established by ODRC’s statutorily authorized rulemaking authority). This type 
of post-sentencing review is a challenge against how the defendant’s sentence is 

carried out, as contrasted with a direct appeal that challenges the imposition of a 

sentence. 

On this point, the state, in its general claim that these issues are not 

ripe for review, appears to be confusing challenges to the imposition of a sentence, 

State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 22 (the 

constitutional validity of the imposed indefinite sentence is immediately 

appealable), with the ripeness of the due process claims against an executive 

agency’s enforcement of rules, policies, regulations, or protocols the agency uses to 

carry out the defendant’s sentence. Kepling at ¶ 15, fn. 3 (noting the state’s ripeness 

claim is “in effect” targeting a declaratory judgment action under R.C. Chapter 2721 

that is not ripe for review in a direct appeal). This requires a more thorough 

discussion, but in fairness, at oral argument the state conceded the difference 

between the ripeness of appeals challenging the imposition of the sentence and 

claims challenging the means in which the sentence is carried out that are not ripe 

for review in a direct appeal — in apparent agreement with the following. 

In Patrick, for example, the Ohio Supreme Court concluded that an 

appeal of an indefinite sentence imposed for aggravated murder or murder based on 

constitutional challenges to the imposed sentence may be considered in the direct 

appeal despite statutory limitations. Patrick at ¶ 22. Although not directly on point, 

Patrick is instructive. In essence, Patrick maintains that an offender sentenced to 

serve an indefinite term of imprisonment may challenge the constitutional validity 
of the sentence itself, including challenges to the sentencing structure upon which 

the sentence is based, in the direct appeal. This is no different from the conclusion 

reached in Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, for example, 

in which the panel generally concluded that the defendant’s constitutional 

challenges to the indefinite term imposed under R.C. 2929.144 and 2929.14(A)(1)(a) 

or (A)(2)(a) are immediately appealable. 

However, there are limits to the type of arguments that can be 

addressed within the scope of a direct appeal. The general ripeness paradigm as 

recognized in Wilburn and other cases from this district dealing with the issue in the 

Reagan Tokes Law context, is necessarily limited to constitutional challenges 

against the sentence imposed or the validity of the statute authorizing the sentence. 

Our view here is not in conflict with Wilburn or with Gamble where we exhaustingly 

discussed ripeness of the imposition of a nonlife indefinite sentence. See, e.g., 

Wilburn at ¶ 10-18; Gamble, 8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810, at 

¶ 6-28. In this context, the defendants advanced claims challenging the validity of 

the sentencing structure underlying the final sentence imposed — hypothetically 

speaking, if the defendants’ arguments were accepted, the result would be a remand 

for a new sentencing in which a “valid” sentence is imposed after the 

unconstitutional sentencing provision was severed from the Revised Code. It is that 

remedy that defines the boundaries of what claims are acceptable to bring in a direct 

appeal. 
The remedy to correct Morrissey problems is not to invalidate the 

sentence or declare the law to be unconstitutional, but instead the remedy is to 

require a constitutionally sound proceeding through which the defendant’s sentence 

can be completed, whether by statute, rule, regulation, or a policy of the executive 

agency. See Sloan, 152 Ohio St.3d 32, 2017-Ohio-8708, 92 N.E.3d 836, at ¶ 6, citing 

Scarberry, 139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, at ¶ 13 (“[t]he 

remedy for an alleged Morrissey due-process violation is a new hearing, not 

immediate release from confinement.”). A conviction is not vacated because the 

hearing process itself lacked the constitutional safeguards — the remedy is to 

conduct a new hearing that is compliant with all constitutional requirements. 

At this stage of the proceedings, we are not tasked with reviewing the 

validity of the process by which ODRC carries out the defendant’s sentence; we are 

solely reviewing the validity of the statutes that authorize the sentences already 

imposed. R.C. 2967.271’s silence as to the detailed procedures for the hearing is not 

a basis to declare the Reagan Tokes Law unconstitutional. Although in time, 

individual inmates may challenge ODRC’s policies that dictate the procedures 

ODRC must follow in carrying out the sentence under R.C. 2967.271, those 

challenges cannot be raised until the underlying sentence itself has been declared 

constitutionally sound and after the procedure is applied to deprive the offender of 

a constitutional right during the service of the sentence. It is a two-step process. In 

this district’s previous decisions, Wilburn and Gamble in particular, the ripeness of 
the claims advanced against the sentence was addressed, but no defendant 

attempted to challenge the procedures that ODRC uses in carrying out the sentence. 

For our en banc purposes, a defendant cannot extend the scope of the 

permissible argument challenging the sentence itself into one attacking the 

administrative rules or regulations, under R.C. 5120.01 parlance, establishing the 

procedures to maintain the offenders within the prison system — a proposition that 

was first implicated by the sua sponte discussion of the Morrissey requirements 

from Delvallie, Sealey, and Daniel, which necessarily implicates the legislature’s 

authority to delegate rulemaking authority to ODRC to promulgate ODRC Policy 

105-PBD-15.8 See Wilkinson, 545 U.S. at 220, 125 S.Ct. 2384, 162 L.Ed.2d 174. 

Those Morrissey claims solely depend on reviewing the administrative rules, 

policies, procedures, or protocols enacted by the executive branch, and are only 

cognizable through separate action, such as one for declaratory or habeas relief, 

since the claims depend on conditions or arguments that may or may not occur 

during the offender’s prison service. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-

Ohio-6888, at ¶ 15, fn. 3; O’Neal, 2020-Ohio-506, 146 N.E.3d 605, at ¶ 3 (10th Dist.). 

On this point, O’Neal is instructive. 

8 There has been much emphasis on the fact that the policy was not effective until 

March 2020, after the defendants filed their appeals. Since the Reagan Tokes Law 

became effective in March 2019, the earliest ODRC would have been required to conduct 

a maximum-term hearing was two years after the enactment of the Reagan Tokes Law, 

the shortest possible minimum term under R.C. 2929.14(A). This highlights the necessity 

of clarifying what is ripe for review in a direct appeal as contrasted against what must be 

raised through a postconviction proceeding challenging the executive agency’s 

enforcement of its policies. 
In O’Neal, two inmates filed complaints seeking declaratory and 

injunctive relief to determine the validity of execution procedures ODRC drafted to 

enforce a sentence of death imposed by the trial court. Id. at ¶ 3. ODRC maintains 

an execution protocol setting forth comprehensive and detailed procedures to be 

utilized in carrying out court-ordered executions in Ohio. In other words, ODRC 

established procedural rules or policies governing its enforcement of a judicially 

imposed sentence. Id. at ¶ 2. Although O’Neal is not directly on point, the case 

illustrates the compartmentalization of the challenges against the imposition of the 

sentence (the defendants’ claims in this en banc proceeding) from challenges 

advanced against the procedures the executive branch uses to enforce those 

sentences (the dissents’ reliance on Morrissey). A defendant cannot challenge 

ODRC’s enforcement of its rules, policies, procedures, or protocols, which are 

necessary to ODRC’s enforcing a judicially imposed sentence, in a direct appeal of 

the criminal action. See generally id. Any such claims are not cognizable in the 

direct criminal appeal because those claims cannot arise until ODRC attempts to 

enforce its rules, policies, procedures, or protocols against the inmate. Id. Thus, the 

inmate’s claims against the enforcement of ODRC rules, policies, procedures, or 

protocols are only cognizable in a separate action and are outside the scope of a 

direct appeal. Id. 

It is for this reason that we can summarily reject any claim that the 

direct appeals of the imposed nonlife, indefinite sentence are not ripe for review. A 

defendant has the right to appeal the constitutional validity of the imposed sentence 
in a direct appeal. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952;

Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, at ¶ 10-18. However, any 

due process claims against the executive branch’s rulemaking or policy-making 

authority implicating the inmate’s service of a sentence are not generally ripe for 

review in that direct appeal. See generally, Kepling at ¶ 15, fn. 3; O’Neal. 

In other words, the lack of expressly delineated procedures within 

R.C. 2967.271 is not a basis to declare the statutory section unconstitutional because 

the legislature delegated authority for ODRC to promulgate a rule and regulation 

expressly detailing the procedural requirements of the hearing through R.C. 

5120.01. Whether those rules comply with Morrissey is an issue left for another day 

when properly advanced by the defendants.

Further, and in light of Delvallie, 8th Dist. Cuyahoga No. 109315, 

2021-Ohio-1809, in which the panel created a conflict in this district with Gamble, 

8th Dist. Cuyahoga No. 109613, 2021-Ohio-1810, and Wilburn (both finding the 

constitutional challenges to the sentences imposed under R.C. 2929.144 and 

2929.14(A)(1)(a) and (A)(2)(a) to be ripe for review in the direct appeal of the 

sentence imposed but without merit), we can reject the state’s claim that a 

defendant’s challenge as to the validity of the imposed sentence is not ripe for 

review. The constitutional implications of the defendants serving sentences 

imposed under the Reagan Tokes Law have been decided and further have been 

addressed by the state’s appeal of the trial court’s failure to impose an indefinite 

sentence in Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939. Since the 
state was required to appeal the trial court’s declaration that the statute was 

unconstitutional in Simmons, the issue is squarely before this court. Regardless, the 

ripeness issue with respect to challenging the imposition of the sentence was 

thoroughly analyzed in Gamble at ¶ 6-28 and need not be rehashed. The en banc 

question posed does not invalidate the ripeness analysis presented in Gamble. 

It suffices that seeking to invalidate a sentence that was imposed as 

being in violation of the Constitution differs from seeking to challenge the 

procedural rules for release determination under R.C. 2967.271. Id. Only the former 

may be challenged in the direct appeal. Id. The latter is not ripe for review until 

properly challenged in a writ or declaratory judgment action. Id.

V. Conclusion

Based on the foregoing, the defendants, including Delvallie, have not 

sufficiently met their burden to prove the whole of the Reagan Tokes Law to be 

unconstitutional beyond a reasonable doubt. The panel decisions Delvallie, Daniel, 

and Sealey are hereby vacated. The opinion issued in Gamble is not in conflict with 

the foregoing and, therefore, remains the decision in that case. As a result of the 

foregoing, Delvallie’s sole assignment of error is overruled and his conviction is 

affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 
conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

____________________________________ 

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE 

FRANK D. CELEBREZZE, JR., and CORNELIUS J. O’SULLIVAN, JR., JJ., 

CONCUR; 

EILEEN A. GALLAGHER, KATHLEEN ANN KEOUGH, and MICHELLE J. 

SHEEHAN, JJ., CONCUR WITH SECTIONS II. AND V. OF THE MAJORITY 

OPINION AND CONCUR IN JUDGMENT ONLY WITH THE REMAINDER;

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE 

OPINION); 

LISA B. FORBES, J., DISSENTS (WITH SEPARATE OPINION); EILEEN T. 

GALLAGHER, EMANUELLA D. GROVES, MARY EILEEN KILBANE, and ANITA 

LASTER MAYS, JJ., CONCUR; 

ANITA LASTER MAYS, J., DISSENTS IN PART AND CONCURS IN PART (WITH 

SEPARATE OPINION); EMANUELLA D. GROVES and MARY EILEEN KILBANE, 

JJ., CONCUR. 

MARY J. BOYLE, J., CONCURRING IN JUDGMENT ONLY: 

Consistent with my dissenting opinion in the original panel decision 

in State v. Gamble, 2021-Ohio-1810,173 N.E.3d 132 (8th Dist.) and as several of our 

sister districts have held, I maintain that challenges in a direct appeal under the 
Reagan Tokes Act9 are not yet ripe for review. I would therefore not reach the en 

banc question of constitutionality. 

“[C]onstitutional questions are not ripe for review until the necessity 

for a decision arises on the record before the court.” State v. Spikes, 129 Ohio 

App.3d 142, 147, 717 N.E.2d 386 (11th Dist.1998), citing Christensen v. Bd. of 

Commrs. on Grievances & Discipline, 61 Ohio St.3d 534, 535, 575 N.E.2d 790 

(1991). In order to determine whether an issue is ripe for judicial review, “‘the court 

must weigh (1) the likelihood that the alleged future harm will ever occur, (2) the 

likelihood that delayed review will cause hardship to the parties, and (3) whether the 

factual record is sufficiently developed to provide fair adjudication.’” Gamble at 

¶ 20, quoting Stewart v. Stewart, 134 Ohio App.3d 556, 558, 731 N.E.2d 743 (4th 

Dist.1999), citing Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 

1665, 140 L.Ed.2d 921 (1998).10 

In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, 

the defendant argued that because the parole board had the power under R.C. 

2967.28 to extend his sentence by up to an additional five years for violation of 

postrelease control, the statute was unconstitutional. We concluded that because the 

defendant in McCann was not currently the subject of such action by the parole 

board, the issue was not yet ripe for review. Id. at ¶ 6. 

9 In its en banc brief, the state correctly notes that the constitutional challenge is 

more accurately framed as a challenge to R.C. 2967.21 rather than the entire Reagan 

Tokes Act. 

10 Throughout the appeals before this court, the state has maintained its position 

that issues under the Reagan Tokes Act are not ripe in a defendant’s direct appeal. 
Several of our sister districts have relied upon our decision in 

McCann, in determining that challenges to sentencing under the Reagan Tokes Act 

are not ripe for review until a defendant has been held past his or her minimum 

sentence. See, e.g., State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177, 

¶ 20; State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227; 

State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230; 

State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631; State v. 

Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702. 

Other districts have not addressed the ripeness issue, but have 

implicitly determined that the matter was ripe by proceeding to the merits of the 

appeal. See, e.g., State v. Henderson, 12th Dist. Warren No. CA2020-11-072, 2021-

Ohio-3564; State v. Hacker, 2020-Ohio-5048, 161 N.E.3d 112 (3d Dist.); State v. 

Keith, 2d Dist. Montgomery No. 28805, 2021-Ohio-518. 

The Supreme Court of Ohio has certified a conflict among the 

districts on the following question: 

Is the constitutionality of the provisions of the Reagan Tokes Law, 

which allow the Department of Rehabilitation and Correctio[n] 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 Act? 

 

See State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150. 

Oral arguments in Maddox were held on June 29, 2021, and a 

decision has not yet been released. Pending the decision in Maddox, the Supreme 
Court has held consideration of other cases that were appealed on Reagan Tokes 

grounds,11 to wit: State v. Singh, 165 Ohio St.3d 1424, 2021-Ohio-3730, 175 N.E.3d 

568; State v. Moran, 164 Ohio St.3d 1440, 2021-Ohio-3233, 173 N.E.3d 1230; State 

v. Stenson, 164 Ohio St.3d 1455, 2021-Ohio-3438, 174 N.E.3d 801; State v. Slye, 164 

Ohio St.3d 1419, 2021-Ohio-2923, 172 N.E.3d 1041; State v. Hunter, 163 Ohio St.3d 

1515, 2021-Ohio-2615, 171 N.E.3d 340; State v. Hodgkin, 164 Ohio St.3d 1403, 2021-

Ohio-2742, 172 N.E.3d 165; State v. Mills, 163 Ohio St.3d 1515, 2021-Ohio-2615, 171 

N.E.3d 339; State v. Stevens, 163 Ohio St.3d 1493, 2021-Ohio-2270, 169 N.E.3d 

1274; State v. Sinkhorn, 164 Ohio St.3d 1419, 2021-Ohio-2923, 172 N.E.3d 1042; 

State v. Noble, 163 Ohio St.3d 1493, 2021-Ohio-2270, 169 N.E.3d 1286; State v. 

Crawford, 163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267; State v. 

Simmons, 163 Ohio St.3d 1492, 2021-Ohio-2270, 169 N.E.3d 1273; State v. 

Doughty, 163 Ohio St.3d 1492, 2021-Ohio-2270, 169 N.E.3d 1284; State v. Bothuel, 

163 Ohio St.3d 1490, 2021-Ohio-2097, 169 N.E.3d 1267; State v. Ludwig, 163 Ohio 

St.3d 1439, 2021-Ohio-1896, 168 N.E.3d 1197; State v. Beatty, 163 Ohio St.3d 1439, 

2021-Ohio-1896, 168 N.E.3d 1196; State v. Jones, 162 Ohio St.3d 1421, 2021-Ohio1201, 166 N.E.3d 10; State v. Stone, 162 Ohio St.3d 1420, 2021-Ohio-1201, 166 

N.E.3d 9; State v. Ferguson, 162 Ohio St.3d 1410, 2021-Ohio-961, 165 N.E.3d 333;

State v. Dames, 162 Ohio St.3d 1410, 2021-Ohio-961, 165 N.E.3d 333; State v. Wolfe, 

161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 482; State v. Cochran, 161 Ohio 

11 As of November 4, 2021. 
St.3d 1450, 2021-Ohio-534, 163 N.E.3d 592; State v. Hacker, 161 Ohio St.3d 1449, 

2021-Ohio-534, 163 N.E.3d 585. 

Returning to the conflict cases before us, none of the three factors 

used to determine ripeness weighs in favor of the claims of a defendant who has not 

yet been subject to the provisions of Reagan Tokes. First, the likelihood of harm 

occurring is completely unknown at this time. It is possible that none of the 

conditions in R.C. 2967.271(C) will occur, and there may never be a question as to 

whether the sentence would be extended beyond the minimum term. At the time of 

a defendant’s direct appeal of sentencing, there is only the potential for a defendant 

to be subjected to the maximum prison term. “Generally, a claim is not ripe if the 

claim rests upon ‘future events that may not occur as anticipated, or may not occur 

at all.’” McLaughlin v. McLaughlin, 4th Dist. Athens No. 06CA14, 2007-Ohio-260, 

¶ 12, quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 

406 (1998). 

Moreover, while a party is not required to await the consummation 

of threatened injury to obtain preventive relief, the injury must be ‘“certainly 

impending.’” Thomas v. Union Carbide Agricultural Prods. Co., 473 U.S. 568, 581-

582, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), quoting Regional Rail Reorganization 

Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), citing 

Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923). 

“‘The ripeness doctrine is motivated in part by the desire “to prevent the courts, 

through avoidance of premature adjudication, from entangling themselves in 
abstract disagreements over administrative policies * * *.” Abbott Labs. v. Gardner

(1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681.’” State v. Freer, 8th Dist. 

Cuyahoga No. 89392, 2008-Ohio-1257, ¶ 29, quoting State ex rel. Elyria Foundry 

Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1998). 

Like the defendant in McCann, supra, criminal defendants 

challenging the provisions of Reagan Tokes raise issues with the process that may

extend their sentence. In McCann, the defendant argued that the postrelease 

control statute violated his right to a jury trial by allowing the parole board to extend 

his sentence. A challenge to Reagan Tokes is in the same vein — it is the ODRC that 

will decide whether the defendant must serve the maximum sentence rather than 

only the minimum sentence, and it is the process through which this determination 

is made by the ODRC that defendants claim is unconstitutional. 

The ODRC is permitted to rebut the presumption of a defendant’s 

minimum sentence and keep a defendant in prison for an additional period not to 

exceed the maximum term imposed by the sentencing judge. R.C. 2967.271(C). The 

statute provides that the presumption may be rebutted if the ODRC determines at a 

hearing any of the following: 

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

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

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

institutional rule infractions that involved compromising the security of 

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

state correctional institution or its inmates, or physical harm or the 

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

its inmates, or committed a violation of law that was not prosecuted, and 
the infractions or violations demonstrate that the offender has not been 

rehabilitated. 

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

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

this section, demonstrate that the offender continues to pose a threat to 

society. 

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

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

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

date of the hearing. 

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

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

level. 

When reviewing appeals from sentencing, it is impossible for us to 

know whether any of the above conditions will occur and rebut the presumption of 

the minimum sentence. Thus, a criminal defendant raising challenges to Reagan 

Tokes in his or her direct appeal is not currently subject to any action by the ODRC 

related to extending his or her sentence, and he or she may very well never be. This 

is the very epitome of a failure to demonstrate ripeness. 

The Third District has come to a similar conclusion regarding due 

process challenges to Reagan Tokes: 

[A]t this point, we cannot even determine whether the ODRC will ever 

have occasion to hold a hearing to determine whether Kepling should 

be held beyond his presumptive release date. Similarly, we cannot now 

determine whether the ODRC will provide Kepling with adequate 

notice and an opportunity to be heard if a hearing to hold Kepling 

beyond his presumptive release date is ever held. Further, as the 

appellant notes in his brief, we also cannot now know what 

administrative protections will be in place in the future to guide the 

ODRC. 
[This argument] “rests on contingent future events that may not occur 

as anticipated or may never occur at all.” [State v.] Loving, [180 Ohio 

App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4 (10th Dist.)]. For this 

reason, we conclude that the arguments that Kepling raises on appeal 

that do not raise a facial challenge to the Reagan Tokes Law are not yet 

ripe for consideration. * * * 

State v. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 14-15. The 

Kepling Court declined to consider the due process constitutional arguments on this 

basis. See also State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 15 

(“This argument does not address a penalty that Crawford has already received but 

is based on contingent events that may or may not arise in the future. Thus, this 

issue is not yet ripe for our consideration.”). 

The Eleventh District has also determined that challenges to Reagan 

Tokes were not ripe for review, likening them to challenges to Ohio’s former “bad 

time” laws and to optional postrelease control. On appeal from sentencing, these 

challenges were held not to be ripe, because the offender only had the “‘potential to 

be subjected to extended prison time or postrelease control.’” (Emphasis sic.) State 

v. Lavean, 11th Dist. Lake No. 2020-L-045, 2021-Ohio-1456, ¶ 10, quoting State v. 

Spikes, 129 Ohio App.3d 142, 145, 717 N.E.2d 386 (11th Dist.1998). 

This court has recently decided the case of State v. Sealey, 2021-

Ohio-1949, 173 N.E.3d 894 (8th Dist.). In Sealey, the trial court refused to sentence 

the defendant under Reagan Tokes, finding it to be unconstitutional. The trial court 

did not provide any explanation as to what aspect of the law it had determined to be 
unconstitutional. The state appealed, and the Sealey panel affirmed, holding 

Reagan Tokes to be unconstitutional on due process grounds. 

While Sealey did not specifically address the question of ripeness, 

Sealey did present a ripe issue. Because the trial court did not sentence the 

defendant to the minimum and maximum sentence provided for by Reagan Tokes, 

the issue was already present and justiciable, and there were no contingent events 

that had to occur prior to review. Sealey can therefore be distinguished from the 

instant cases where defendants were properly sentenced to minimum and 

maximum sentences under Reagan Tokes and raise issues with the process that 

triggers the maximum sentence — a process that is contingent upon certain factors 

and may never occur in many cases. 

The second factor in analyzing ripeness asks whether delayed review 

will cause hardship to the parties. This question may also be answered in the 

negative because, as noted by the Fourth District, a defendant subject to the 

provisions of Reagan Tokes may have his or her claims addressed via a writ for 

habeas corpus: 

[A] petition for a writ of habeas corpus was the procedure by which the 

defendants in Bray challenged the constitutionality of the “bad time” 

statute, R.C. 2967.11. The defendants were sentenced, served their 

prison terms, and then were sanctioned with bad time penalties that 

were added to the maximum sentence imposed by the trial court. Each 

defendant filed a petition for a writ of habeas corpus, alleging that they 

were unlawfully restrained because R.C. 2967.11 was unconstitutional. 

Similarly, in Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 

N.E.2d 1103, an inmate, Woods, challenged the post-release control 

statute, R.C. 2967.28, on the grounds that it violated the separation of 

powers doctrine and due process. Woods was sentenced to ten months 
in prison and then placed on post-release control for three years. After 

a number of violations, Woods was sanctioned to serve one hundred 

and eighty days in a community based correctional facility. Woods filed 

a petition for a writ of habeas corpus arguing that the post-release 

control statute was unconstitutional. The Supreme Court of Ohio held 

that the post-release control statute was constitutional. As in Bray, the 

Court did not specifically discuss the necessity of the use of a petition 

for a writ of habeas corpus to challenge the constitutionality of the postrelease control statute, the Court ruled on the merits, finding the 

statute constitutional. Thus, as with Bray and as recognized by the 

Fifth District in Downard and Minion, we find that a habeas corpus 

petition is the appropriate method for Ramey to challenge the 

constitutionality of the Reagan Tokes Law when — if ever — the ODRC 

holds him beyond the minimum sentence. 

State v. Ramey, 4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733, 

¶ 21. 

With regard to the third ripeness factor, the factual record in direct 

appeals raising Reagan Tokes constitutional challenges is not sufficiently developed 

for us to provide fair adjudication. Because the defendants in the conflict cases have 

not been subject to any determination by the ODRC, there is nothing in the record 

that would allow us to assess whether the process of such determination violates a 

defendant’s constitutional rights. 

Finally, while Delvallie argues that the ripeness argument cannot 

survive the Supreme Court of Ohio decisions in Harper, Henderson, and Hudson, 

these decisions, along with this court’s recent en banc opinion in State v. Stansell,

8th Dist. Cuyahoga No. 109023, 2021-Ohio-2036, also do not prevent a defendant 

from raising a Reagan Tokes challenge after his or her direct appeal. The above cases 

involved challenges to the sentence imposed and the obligation to raise any errors 
in such imposition at the direct appeal. But a defendant’s claimed Reagan Tokes 

constitutional violations do not arise from the imposition of the sentence. When 

sentenced pursuant to Reagan Tokes, a defendant will have been properly sentenced 

to both a minimum and maximum term under the statute. Any claimed 

constitutional violations relate solely to the process by which the ODRC may make 

the determination of whether to keep him beyond the minimum sentence and 

trigger the maximum sentence. A defendant may raise issues with the ODRC 

process of triggering the maximum sentence at the time such actions actually occur 

and not before, when the challenges are not yet ripe. 

Thus, in accordance with the law of several of our sister districts, I 

maintain that this issue is not ripe for judicial review. However, because the Reagan 

Tokes Act decisions accepted by this court for en banc review present a clear conflict, 

I am duty-bound under App.R. 26(A)(2) to consider the issues presented. I resolve 

that conflict in favor of finding the Reagan Tokes Act to be constitutional and concur 

in judgment only. 

 LISA B. FORBES, J., DISSENTING WITH SEPARATE OPINION: 

I dissent from the majority because the presumption of release 

established in R.C. 2967.271(B) and (C) creates a liberty interest of which inmates 

may not be deprived without due process of law, but R.C. 2967.271 does not contain 
any due process safeguards. Consequently, I would find R.C. 2967.271(C) and (D) 

unconstitutional. 

I. Standard of Review 

The constitutionality of a statute presents questions of law, which are 

“reviewed de novo, independently and without deference to the trial court’s 

decision.” Andreyko v. Cincinnati, 153 Ohio App.3d 108, 112, 2003-Ohio-2759, 791 

N.E.2d 1025 (1st Dist.). Our review must be conducted in light of the notion that 

statutes “enjoy a strong presumption of constitutionality.” State v. Romage, 138 

Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. 

In the instant case, the defendant brings a facial challenge to the 

Reagan Tokes Law and the trial court’s imposition of his prison sentence under it. 

A party may challenge a statute as unconstitutional on its face or as 

applied to a particular set of facts. A facial challenge to a statute is the 

most difficult to bring successfully because the challenger must 

establish that there exists no set of circumstances under which the 

statute would be valid. The fact that a statute might operate 

unconstitutionally under some plausible set of circumstances is 

insufficient to render it wholly invalid. 

(Citations omitted.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 

N.E.2d 1165, ¶ 37. 

The Ohio Supreme Court has held that “[w]hen determining whether 

a law is facially invalid, a court must be careful not to exceed the statute’s actual 

language and speculate about hypothetical or imaginary cases.” Wymsylo v. Bartec, 

Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21, citing Washington 

State Grange v. Washington State Republican Party, 552 U.S. 442, 449-450, 128 
S.Ct. 1184, 170 L.Ed.2d 151 (2008). Furthermore, “[r]eference to extrinsic facts is 

not required to resolve a facial challenge.” Wymsylo at ¶ 21. 

II. Constitutionality of the Reagan Tokes Law 

The Reagan Tokes Law sets forth an indefinite sentencing scheme 

for certain qualifying first- and second-degree felonies committed on or after 

March 22, 2019. R.C. 2967.271. Under this scheme, courts sentence a defendant to 

a minimum and maximum prison term, with a presumption that the defendant 

“shall be released from service of the sentence on the expiration of the offender’s 

minimum prison term * * *.” R.C. 2967.271(B). This presumption that the “offender 

shall be released” may be rebutted by the Ohio Department of Rehabilitation and 

Correction (“DRC”) “only if the department determines, at a hearing, that one or 

more of the following applies”: 

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

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

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

institutional rule infractions that involved compromising the security 

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

of a state correctional institution or its inmates, or physical harm or the 

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

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

and the infractions or violations demonstrate that the offender has not 

been rehabilitated. 

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

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

of this section, demonstrate that the offender continues to pose a threat 

to society. 

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

the time of the hearing, the offender has been placed by the department 
in extended restrictive housing at any time within the year preceding 

the date of the hearing. 

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

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

level. 

R.C. 2967.271(C). 

In other words, an inmate will be released at the end of his or her 

minimum prison term (“presumptive release date”) unless the DRC takes action. 

A. Due Process 

Under the Fourteenth Amendment to the United States 

Constitution, the states shall not “deprive any person of life, liberty, or property, 

without due process of law.” See also Fifth Amendment to the United States 

Constitution; Ohio Constitution Article I, Section 16. The United States Supreme 

Court has recognized that “the convicted felon does not forfeit all constitutional 

protections by reason of his conviction and confinement in prison. He retains a 

variety of important rights that the courts must be alert to protect.” Meachum v. 

Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). “Inmates retain, for 

example, the right to be free from racial discrimination, * * * the right to due process, 

* * * and * * * certain protections of the First Amendment * * *.” Shaw v. Murphy, 

532 U.S. 223, 228-229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001). 

The liberty interests protected under the Due Process Clause become 

limited to “the most basic” when the claimant is a prison inmate. Hewitt v. Helms, 

459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (“We have repeatedly said 

both that prison officials have broad administrative and discretionary authority over 
the institutions they manage and that lawfully incarcerated persons retain only a 

narrow range of protected liberty interests.”). 

It is with that context in mind that I turn to the United States 

Supreme Court’s two-step analysis for constitutional challenges based on due 

process violations: “We first ask whether there exists a liberty or property interest 

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

followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 

216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). 

B. Is There a Liberty Interest in the Reagan Tokes Law? 

I recognize that the lead opinion assumes that R.C. 2967.271(B) 

creates a liberty interest. Because of the significance of the implications that flow 

from the liberty interest, I fully analyze the issue and conclude that R.C. 2967.271(B) 

does create a liberty interest. 

A “liberty interest may arise from the Constitution itself, by reason 

of guarantees implicit in the word ‘liberty’” or “from an expectation or interest 

created by state laws or policies * * *.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 

S.Ct. 2384, 162 L.Ed.2d 174 (2005), citing Vitek v. Jones, 445 U.S. 480, 493-494, 

100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in avoiding involuntary 

psychiatric treatment) and Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 

2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding the withdrawal of statecreated system of good-time credits). To analyze whether there is a liberty interest 
in the Reagan Tokes Law, I look first to United States Supreme Court authority, then 

to Ohio law for guidance. 

In Wolff, prison inmates in Nebraska challenged a state statute that 

authorized each penal facility to reduce an inmate’s “good-time credit” if the inmate 

engaged in “flagrant or serious misconduct.” Id. at 545-546. The United States 

Supreme Court found that the state of Nebraska “itself has not only provided a 

statutory right to good time but also specifies that it is to be forfeited only for serious 

misbehavior.” Id. at 557. Therefore, the court held, “the prisoner’s interest has real 

substance and is sufficiently embraced within the Fourteenth Amendment ‘liberty’ 

to entitle him to those minimum procedures appropriate under the circumstances 

and required by the Due Process Clause to insure that the state-created right is not 

arbitrarily abrogated.” Id. 

In a different setting, a California parole statute created a liberty 

interest by providing that the prison board ‘“shall set a release date unless it 

determines that * * * consideration of the public safety requires a more lengthy 

period of incarceration.’” Swarthout, 562 U.S. at 216-217, 131 S.Ct. 859, 178 L.Ed.2d 

732, quoting Cal. Penal Code Ann. 3041(b). When a state “creates a liberty interest, 

the Due Process Clause requires fair procedures for its vindication — and * * * courts 

will review the application of those constitutionally required procedures.” 

Swarthout at 220. 

Further guidance is found in Wilkinson. The United States Supreme 

Court made clear that inmates may have “a protected, state-created liberty interest 
in avoiding restrictive conditions of confinement” depending not on the particular 

language of the regulations regarding the conditions “but the nature of those 

conditions themselves ‘in relation to the ordinary incidents of prison life.’” 

Wilkinson, 545 U.S. at 223, 125 S.Ct. 2384, 162 L.Ed.2d 174, quoting Sandin v. 

Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Sandin Court 

stated that “[t]he time has come to return to the due process principles” focusing on 

“the nature of the deprivation” rather than based on “the language of a particular 

regulation * * *.” Id. at 481-483. 

As courts throughout Ohio have reviewed the constitutionality of the 

Reagan Tokes Law, many look to case law dealing with parole revocation and parole 

eligibility for guidance. Compare State v. Guyton, 12th Dist. Butler No. CA2019-12-

203, 2020-Ohio-3837, ¶ 17 (“The hearings conducted by the [DRC] under 

R.C. 2967.271(C) are analogous to parole revocation proceedings, probation 

revocation proceedings, and postrelease control violation hearings * * *”) with State 

v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17 (“requiring a 

defendant to remain in prison beyond the presumptive minimum term is akin to the 

decision to grant or deny parole * * *” rather than parole revocation). 

The distinction between parole eligibility and parole revocation is 

significant when discussing due process because the liberty interest in parole 

revocation — which entails taking someone’s freedom away — is much greater than 

the liberty interest in parole eligibility — which typically entails the hope or 

anticipation of freedom. See Greenholtz v. Inmates of Nebraska Penal & Corr. 
Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (“There is a crucial 

distinction between being deprived of a liberty one has, as in [revocation of] parole, 

and being denied a conditional liberty that one desires[,]” as in “discretionary parole 

release from confinement” or parole eligibility.). See also Wolff, U.S. 539 at 560, 94 

S.Ct. 2963, 41 L.Ed.2d 935 (“Simply put, revocation proceedings determine whether 

the parolee will be free or in prison, a matter of obvious great moment to him.”). 

In Ohio, parole revocation, unlike parole eligibility, “implicates a 

liberty interest which cannot be denied without certain procedural protections.” 

State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652 N.E.2d 746 (1995). See 

also R.C. 2967.15(B). However, there is no presumption of release on parole in Ohio, 

thus there is no liberty interest at stake in parole eligibility proceedings. Ohio 

Adm.Code 5120:1-1-07(A) states that “[a]n inmate may be released on or about the 

date of his eligibility for release, unless the parole board * * * determines that he 

should not be released on such date for” various reasons. (Emphasis added.) Ohio 

Adm.Code 5120:1-1-07(C) states that “[t]he consideration of any single factor, or any 

group of factors, shall not create a presumption of release on parole * * *.” This court 

has held that a “prisoner who is denied parole is not thereby deprived of ‘liberty’ if 

state law makes the parole decision discretionary. Under R.C. 2967.03, the parole 

decision is discretionary.” State v. Ferguson, 8th Dist. Cuyahoga No. 82984, 2004-

Ohio-487, ¶ 9-10. Compare Swarthout, 562 U.S. at 216-217, 131 S.Ct. 859, 178 

L.Ed.2d 732, quoting Cal. Penal Code Ann. 3041(b) (the prison board ‘“shall set a 
release date unless it determines that * * * consideration of the public safety requires 

a more lengthy period of incarceration.’”). 

Unlike Ohio’s parole eligibility proceedings, the Reagan Tokes Law 

includes an express presumption of release: “When an offender is sentenced to a 

nonlife 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 * * *.” R.C. 2967.271(B). That presumption of release is 

repeated in R.C. 2967.271(C): “Unless the [DRC] rebuts the presumption, the 

offender shall be released from service of the sentence on the expiration of the 

offender’s minimum prison term* * *.” A liberty interest may arise “from an 

expectation or interest created by state laws or policies.” Wolff at 557. The plain 

language of the Reagan Tokes Law creates an expectation of release. 

I would find that, like the Nebraska statute in Wolff and the 

California statute in Swarthout, the Reagan Tokes Law creates a liberty interest. I 

would also find that, like the nature of the deprivation found in Wilkinson and 

Sandin, Ohio prison inmates have an inherent liberty interest in being released from 

confinement on their presumptive release date under the Reagan Tokes Law. I agree 

with the Twelfth District Court of Appeals’ opinion in Guyton, 12th Dist. Butler No. 

CA2019-12-203, 2020-Ohio-3837, that the presumptive release date mandate is 

more akin to parole revocation proceedings than parole eligibility proceedings. The 

liberty interest at stake here is the inmate’s freedom. 
C. What Process is Due? 

Concluding — not assuming — the creation of a liberty interest, I turn 

my attention to what process is due in light of that liberty interest. “Our courts have 

long recognized that due process requires both notice and an opportunity to be 

heard.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, 

¶ 13. “[T]he fundamental requisite of due process of law is the opportunity to be 

heard in a meaningful time and in a meaningful manner.” Woods v. Telb, 89 Ohio 

St.3d 504, 514, 733 N.E.2d 1103 (2000). Additionally, in the criminal context, the 

accused is entitled to fair notice of what conduct is “punishable.” State v. Philpotts, 

2019-Ohio-2911, 132 N.E.3d 743 (8th Dist.). “This refers to the principle that due 

process requires criminal statutes to be written clearly so that individuals are 

provided with a fair warning that a certain conduct is within the statute’s 

prohibition.” Id. at ¶ 44. 

“It is axiomatic that due process ‘is flexible and calls for such 

procedural protections as the particular situation demands.’” Greenholtz, 442 U.S. 

at 12, 99 S.Ct. 2100, 60 L.Ed.2d 668, quoting Morrissey v. Brewer, 408 U.S. 471, 

481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In considering what process is due to 

protect the liberty interest created by the Reagan Tokes Law, I am mindful that the 

United States Supreme Court recognized that: 

Lawful imprisonment necessarily makes unavailable many rights and 

privileges of the ordinary citizen, a “retraction justified by the 

considerations underlying our penal system.” Price v. Johnston, 334 

US. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). But though his 

rights may be diminished by the needs and exigencies of the 

institutional environment, a prisoner is not wholly stripped of 
constitutional protections when he is imprisoned for crime. There is 

no iron curtain drawn between the Constitution and the prisons of this 

country. * * * Prisoners may * * * claim the protections of the Due 

Process Clause. They may not be deprived of life, liberty, or property 

without due process of law. 

Wolff, 418 U.S. at 555-556, 94 S.Ct. 2963, 41 L.Ed.2d 935. 

To analyze what process is due, the United States Supreme Court has 

provided a framework requiring consideration of three factors: 

First, the private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest through 

procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; and finally, the Government’s 

interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute procedural 

requirement would entail. 

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See 

also Wilkinson, 545 U.S. at 224-225, 125 S.Ct. 2384, 162 L.Ed.2d 174. 

The Mathews factors should be balanced. In removing an individual 

from free society for a parole violation, as in Morrissey, or revoking good-time 

credits based on some specific serious misbehavior, as in Wolff, “more formal, 

adversary-type procedures” might be useful; on the other hand, “where the inquiry 

draws more on the experience of prison administrators, and where the State’s 

interest implicates the safety” of others, more informal, nonadversarial procedures 

are more appropriate. Wilkinson at 229. 

Applying the Mathews factors to the Reagan Tokes Law, I would find 

that the private interest is an inmate’s freedom; the risk of erroneous deprivation is 

high, even taking into consideration the diminished protection afforded a prison 
inmate; and the government’s interest in running prisons is strong and its resources 

are scarce. 

As explained by the Morrissey Court “the minimum requirements of 

due process” include the following for parole revocation proceedings: 

(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, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484. The Morrissey due 

process safeguards have been applied to proceedings other than parole revocation. 

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying 

Morrissey’s due process requirements regarding parole revocation hearings to 

probation violation hearings); Woods, 89 Ohio St.3d 504, 733 N.E.2d 1103 (applying 

Morrissey’s due process requirements to postrelease control violation hearings). 

In the context of prison discipline, the Wolff Court held that inmates 

facing a reduction of their good-time credit must be provided “advance written 

notice of the claimed violation and a written statement of the factfinders as to the 

evidence relied upon and the reasons for the disciplinary action taken.” Wolff, 418 

U.S. at 563, 94 S.Ct. 2963, 41 L.Ed.2d 935. Specifically, the court held that “written 

notice of the charges must be given to the disciplinary-action defendant in order to 

inform him of the charges and to enable him to marshal the facts and prepare a 
defense.” Id. at 564. Additionally, “the inmate facing disciplinary proceedings 

should be allowed to call witnesses and present documentary evidence in his defense 

when permitting him to do so will not be unduly hazardous to institutional safety or 

correctional goals.” Id. at 566. The Wolff Court concluded that “some, but not all, 

of the procedures specified in Morrissey * * * must accompany the deprivation of 

good time by state prison authorities,” although the procedures are “not graven in 

stone.” Id. at 571-572. 

In the context of a statutorily created liberty interest in parole, the 

Swarthout Court found the due process “procedures required are minimal.” 

Swarthout, 562 U.S. at 220, 131 S.Ct. 859, 178 L.Ed.2d 732. The prisoners at issue 

received adequate process when “[t]hey were allowed to speak at their parole 

hearings and to contest the evidence against them, were afforded access to their 

records in advance, and were notified as to the reasons why parole was denied.” Id. 

at 221. 

D. Does the Reagan Tokes Law Satisfy the Requirements of Due 

Process? 

Next, I turn to whether the procedures identified in R.C. 2967.271 for 

rebutting the presumptive release date and extending the prison term are sufficient 

to protect inmates’ due process rights in light of the guidance as discussed in this 

opinion. 

For the reasons that follow, I disagree with the holdings in both 

Wilburn and Simmons, where this court determined that the Reagan Tokes Law 

provides adequate due process safeguards, including “notice and an opportunity to 
be heard.” Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939, at ¶ 21, citing 

Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, at ¶ 36. In Wilburn and 

Simmons, this court supported its conclusion by referring to R.C. 2967.271(C)(1), 

(2), and (3); R.C. 2967.271(E); and various provisions of the Ohio Administrative 

Code, none of which provide any due process protections to defendants in the 

rebuttable presumption hearings. See Wilburn at ¶ 31-36, and Simmons at ¶ 21. The 

lead opinion relies on an internal policy that became effective approximately 16 

months after Delvallie’s sentencing. This policy is similarly insufficient to save 

R.C. 2967.271(C) and (D) in this facial challenge to the statute, as will be discussed 

in response to the lead opinion. 

R.C. 2967.271(C) does not set forth any procedures for the rebuttable 

presumption hearing, and most importantly, it does not require that the hearing be 

meaningful. The only guidance the statute gives is (a) the DRC may rebut the 

presumption of release, and (b) the DRC decides whether it has done so. See 

generally Columbus-Suburban Coach Lines v. Pub. Utils. Comm., 20 Ohio St.2d 

125, 127, 254 N.E.2d 8 (1969) (“In determining legislative intent it is the duty of this 

court to give effect to the words used, not to delete words used or insert words not 

used.”). 

Subsections (1), (2), and (3) of R.C. 2967.271(C) set forth behavior 

and circumstances that may serve as the basis for the DRC to rebut the presumption 

of release. For example, the DRC may rely on certain prison rule infractions 

committed by the offender while incarcerated as part of the rebuttable presumption 
hearing. Ohio Adm.Code 5120-9-06 defines DRC “disciplinary violations * * * of 

institutional or departmental rules and regulations,” and Ohio Adm.Code 5120-9-

08 and 5120-9-10 set forth disciplinary procedures for adjudicating prison rule 

infractions and restrictive housing assignments. However, how — if at all — those 

administrative rules overlap with or apply to the Reagan Tokes Law rebuttable 

presumption hearing is wholly unexplained by the Reagan Tokes Law. See R.C. 

2967.271(C)(1)(a). Importantly, nothing in R.C. 2967.271(C) limits the DRC’s 

consideration of an inmate’s prison rule infractions to infractions that have gone 

through the administrative process outlined in the Ohio Administrative Code. 

Moreover, the DRC may rebut the presumption of release based on 

the inmate having “committed a violation of law that was not prosecuted.” 

R.C. 2967.271(C)(1)(a). The statute does not provide that the inmate be notified that 

he or she is being accused of committing a violation of law that has not been 

prosecuted or be present at the rebuttable presumption hearing, much less that he 

or she be given an opportunity to defend against the allegation of such unprosecuted 

crime. 

Furthermore, if a rule infraction or an unprosecuted crime is relied 

on by the DRC to rebut the presumption of release, the DRC must also establish that 

the “offender has not been rehabilitated” and that the “offender continues to pose a 

threat to society.” R.C. 2967.271(C)(1)(a) and (b). Again, the statute is silent on 

whether the offender will be provided information about the factual basis the DRC 

intends to rely on to establish either of these necessary elements for rebuttal, and 
the statute makes no provision for the offender to be given an opportunity to rebut 

the DRC’s assertions. 

If the DRC determines that the DRC has rebutted the presumption of 

release pursuant to R.C. 2967.271(C), the DRC “may maintain the offender’s 

incarceration * * * after the expiration of the offender’s minimum prison term * * * 

for an additional period of incarceration determined by the [DRC] and shall not 

exceed the offender’s maximum prison term.” R.C. 2967.271(D). There are no 

guidelines whatsoever concerning how the DRC makes its decisions under 

subsection (D). Additionally, R.C. 2967.271(D) does not provide for a hearing 

separate from the rebuttable presumption hearing required under subsection (C). 

R.C. 2967.271(E) does not protect prison inmates’ due process rights. 

Subsection (E) states that the DRC “shall provide notices of hearings to be conducted 

under division (C) or (D) of this section in the same manner, and to the same 

persons, as specified in section 2967.12 and Chapter 2930 of the Revised Code with 

respect to hearings to be conducted regarding the possible release on parole of an 

inmate.”12 R.C. 2967.12 addresses individuals and entities to whom notice shall be 

given in the event the adult parole authority recommends a pardon or commutation, 

or grants parole. R.C. Chapter 2930 outlines victims’ rights. Specifically, subsection 

(E) provides for notice of the Reagan Tokes Law rebuttable presumption hearings 

12 A rebuttable presumption hearing is required under the Reagan Tokes Law only 

under subsection (C). Subsection (D) does not provide for a hearing, other than the 

potential for subsequent subsection (C) rebuttable presumption hearings should the DRC 

decide to extend the inmate’s stay in prison beyond the presumptive release date after the 

initial rebuttable presumption hearing. 
to be given to the prosecuting attorney from the inmate’s case; the judge or presiding 

judge of the court in which the inmate was indicted; the victims or victims’ 

representatives of the crimes of which the inmate was convicted; and certain law 

enforcement agencies. Nothing in subsection (E) provides notice of the rebuttable 

presumption hearing to the inmate. 

In Wilburn, this court held that the Reagan Tokes Law provides a 

“hearing at which an inmate can appear and present statements on his behalf.” 

Wilburn, 8th Dist. Cuyahoga No. 109507, 2021-Ohio-578, at ¶ 32, citing Greenholtz

442 U.S. at 15, 99 S.Ct. 2100, 60 L.Ed.2d 668. See also Simmons, 8th Dist. 

Cuyahoga No. 109476, 2021-Ohio-939, at ¶ 21. But, as discussed, nothing in 

R.C. 2967.271(C) or (E) establishes that the inmate can appear and present 

statements on his or her behalf at the rebuttable presumption hearing. 

While R.C. 2967.271 provides for a rebuttable presumption hearing, 

nothing in the statute requires that this hearing be meaningful. There is no 

provision in the Reagan Tokes Law that the inmate be made aware of the evidence 

the DRC intends to use to rebut the presumption, “be heard in person,” be allowed 

“to present witnesses and documentary evidence,” or be allowed “to confront and 

cross-examine” witnesses. Morrissey, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 

484. Nothing in the statute provides that the inmate will receive notice of the 

allegations with ample time to “give the charged party a chance to marshal the facts 

in his defense and to clarify what the charges are * * *.” Wolff, 418 U.S. at 564, 94 

S.Ct. 2963, 41 L.Ed.2d 935. Nothing requires the determinations to be made by 
independent, neutral, and detached decisionmakers. No provision requires the 

factfinders to explain their determinations. In other words, the Reagan Tokes Law 

does not provide the due process safeguards set forth in Morrissey, Wolff, and their 

progeny. 

The Reagan Tokes Law, as written, does not afford inmates a 

meaningful hearing, which is the fundamental element of due process required by 

the liberty interest the statute itself creates. In other words, without looking at 

extrinsic facts or speculating about hypothetical or imaginary scenarios, which is not 

proper in the analysis of a facial challenge to the constitutionality of a statute, the 

Reagan Tokes Law is incompatible with constitutional due process. I am mindful 

that the analogy of Reagan Tokes Law proceedings and parole revocation or prison 

discipline proceedings may not be perfectly on point. Such is the nature of analogies. 

However, I conclude that the Reagan Tokes Law triggers more than the minimum 

due process protections. The Morrissey and Wolff requirements should serve as 

guidelines for Reagan Tokes Law proceedings. Of particular concern is how these 

proceedings will impact inmates who suffer from mental-health and substanceabuse issues. But failing to provide an inmate the right to present a defense — any 

defense at all — flies in the face of well-established due process jurisprudence at its 

very core. 

The Ohio legislature knows how to include due process safeguards in 

statutes. For example, in R.C. 2967.28(E)(5)(d), the legislature authorized the DRC 

to adopt rules in accordance with Chapter 119 of the Revised Code that “[e]stablish 
standards to be used by the adult parole authority in imposing further sanctions” for 

postrelease control violations, “including standards that * * * [e]nsure procedural 

due process to an alleged violator * * *.” As another example, the legislature 

expressly specified due process protections in R.C. 2971.04,13 which addresses 

parole board termination of its control over certain offenders’ service of their prison 

terms. That statute itself provides “The offender has the right to be present at any 

hearing held under this section. At the hearing, the offender and the prosecuting 

attorney may make a statement and present evidence as to whether the parole board 

should terminate its control over the offender’s service of the prison term * * *.” 

I conclude in this dissent that subsections (C) and (D) are 

unconstitutional. However, I stop short of delineating the procedural safeguards 

necessary to align the statute’s proceedings with the Fourteenth Amendment to the 

United States Constitution and Article I, Section 16, of the Ohio Constitution. See 

generally Sandin, 515 U.S. at 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (noting the 

negative effects of involving the “courts in the day-to-day management of prisons, 

often squandering judicial resources with little offsetting benefit to anyone. In doing 

so, it has run counter to the view expressed in several of our cases that federal courts 

13 The lead opinion opines that because this dissent finds an express delegation of 

authority in R.C. 2971.04, “R.C. 2967.271 should also pass constitutional muster * * *.” 

This is a non sequitur. R.C. 2967.271 is different from R.C. 2971.04 precisely in that it 

does not include an express delegation of rulemaking authority. The lead opinion also 

claims that “[u]nder R.C. 2967.271(C), the [DRC] undertakes the hearing to decide the 

release question through its parole board based on evidence presented to the inmate from 

the prison infraction process.” However, the words “parole”; “board”; “based”; 

“evidence”; and “presented” are not in R.C. 2967.271(C). R.C. 2967.271(C) contains no 

procedural mandates. 
ought to afford appropriate deference and flexibility to state officials trying to 

manage a volatile environment”). What process is due is a malleable concept, and 

one I think better left to the legislature to sort out. Courts cannot simply rewrite a 

statute to make it constitutional. Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio1860, 929 N.E.2d 415, ¶ 54. 

III. Response to the Lead Opinion 

Finally, a few words in response to the lead opinion. In the case at 

hand, Delvallie disputes the constitutionality of the Reagan Tokes Law in this facial 

challenge. When reviewing a facial challenge, courts “must be careful not to exceed 

the statute’s actual language * * *.” Wymsylo, 132 Ohio St.3d 167, 2012-Ohio-2187, 

970 N.E.2d 898, at ¶ 21. This principal is important to bear in mind in this en banc 

proceeding. While I share the lead opinion’s appreciation for a public policy that 

incentivizes good behavior and rehabilitation of inmates, that laudable goal is not 

sufficient to save an unconstitutional statute. 

A. R.C. 2967.271 (C) and (D) — and Not the Entire Reagan Tokes 

Law — are Unconstitutional 

The lead opinion repeatedly mischaracterizes this dissenting opinion 

as attempting to declare the entire Reagan Tokes Law unconstitutional and 53 

statutory sections unenforceable “with no analysis.” This is simply not accurate. 

Rather, this dissent cites the specific offending statutory provisions, 

concludes that subsections (C) and (D) of R.C. 2967.271 are unconstitutional, and 

analyzes due process in general, what constitutes a liberty interest, what process is 

due, and whether the Reagan Tokes Law’s procedures for denying inmates their 
liberty interest in being released from prison on their presumptive release date 

satisfy due process requirements. 

A reviewing court need not declare an entire statutory scheme 

unconstitutional to conclude that a particular statute is unenforceable. A digression 

to introduce an analogy is apropos at this time. If a car’s transmission or engine 

fails, this car may be undriveable. Does this mean that the entire car is broken? Not 

necessarily. A faulty engine or transmission, by itself, is nothing more than a faulty 

engine or transmission. However, this faulty component is integral enough to the 

whole that its failure may render the car unusable. Just like the statute at issue in 

the case at hand, the unconstitutionality of R.C. 2967.271(C) and (D), which cannot 

be severed, render the indefinite sentences imposed under the Reagan Tokes Law 

“unusable” — not unconstitutional, but inoperable. 

The lead opinion further assumes that because Sealey affirmed the 

trial court’s holding that the Reagan Tokes Law is unconstitutional, the Sealey panel 

necessarily did so using the same reasoning that the trial court used. Specifically, 

the lead opinion states as follows: “While it may have been the panel’s intent to only 

find subsections (C) and (D) of R.C. 2967.271 unconstitutional, the net effect of the 

panel’s ruling affirmed the trial court’s holding that the ‘Reagan Tokes Law’ is 

unconstitutional in its entirety.” Ante at ¶ 3. This is simply not accurate. Sealey’s

clear, autonomous, and precise reasoning declared R.C. 2967.271(C) and (D) 

unconstitutional. It is well-established that “[i]t is the duty of the reviewing court to 

affirm the judgment if it can be supported on any theory, although a different theory 
from that of the trial court.” Newcomb v. Dredge, 105 Ohio App. 417, 424, 152 

N.E.2d 801 (2d Dist.1957). “This is so because reviewing courts affirm and reverse 

judgments, not the reasons for the judgments.” Geneva v. Fende, 11th Dist. 

Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶ 33. 

B. No Policy is at Issue Here, and a Policy Does Not Have the Force 

and Effect of Law 

The lead opinion posits that the Reagan Tokes Law is constitutional 

because DRC Policy 105-PBD-15 rescues the statute by providing due process 

protections. This argument fails. 

First, DRC Policy 105-PBD-15 is not being appealed in this case. That 

policy was not in effect at the time the parties brought this appeal, it was not in effect 

at the time the parties submitted their briefs, and it was not in effect at the time the 

parties participated in oral argument in this case. It is not before this court to 

consider whether the DRC policy provides due process protections that are absent 

from the statute. See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 

888. 

Second, a policy is not a rule. The lead opinion repeatedly 

mischaracterizes DRC Policy 105-PBD-15 as an administrative “rule,” which has the 

force of law, when, in fact, it is a policy, which does not have the force of law. 

Importantly, the legislature did not delegate, or even attempt to delegate, any 

rulemaking authority in R.C. 2967.271. 

The Ohio Supreme Court has held that an administrative rule “issued 

pursuant to statutory authority has the force and effect of law * * *.” Kroger Grocery 
& Baking Co. v. Glander, 149 Ohio St. 120, 125, 77 N.E.2d 921 (1948). An 

administrative rule, promulgated pursuant to R.C. Chapter 119, goes through 

extensive review and comment prior to being afforded the authority of law. 

Administrative rulemaking is subject to the conditions set out in 

R.C. 119.01 to 119.13. Generally, these conditions require that notice be 

given of a public hearing to be held on a proposed rule, where persons 

affected thereby may comment and present evidence pertaining to the 

unreasonable or unlawful effect of the rule. R.C. 119.03(A). The rule is 

then reviewed by the Joint Committee on Agency Rule Review, which 

may, under certain circumstances, recommend that the General 

Assembly adopt a resolution invalidating the rule. R.C. 119.03(I). 

Assuming that the rule is not invalidated at this point, it is still subject 

to invalidation at the next regular session of the General Assembly. 

R.C. 119.03(I)(2)(b). If the rule is not invalidated at that session, then 

the agency may issue an order adopting the rule. R.C. 119.03(D). 

Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 567, 697 N.E.2d 198 (1998), fn. 2. 

See also R.C. 111.15. 

An example of a legislative delegation of rulemaking authority can be 

found in R.C. 2967.15(B), which governs parole revocation hearings: 

Except as otherwise provided in this division, prior to the revocation by 

the adult parole authority of a person’s pardon, parole, or other release 

and prior to the imposition by the parole board or adult parole 

authority of a new prison term as a post-release control sanction for a 

person, the adult parole authority shall grant the person a hearing in 

accordance with rules adopted by the department of rehabilitation 

and correction under Chapter 119. of the Revised Code. 

(Emphasis added.) 

Unlike the parole revocation statute, the Reagan Tokes Law’s 

provisions at R.C. 2967.271 do not contain an R.C. Chapter 119 — or any — express 

delegation of rulemaking authority. 
Agency policies,14 on the other hand, do not have the same force and 

effect as laws. See Oko v. Mohr, 11th Dist. Ashtabula No. 2011-A-0045, 2012-Ohio1450, ¶ 16 (“Relator * * * cites to the [DRC’s] “Reception Admission Procedure” as 

an Administrative Rule. It is not such a rule but instead is a policy issued by the 

[DRC] pursuant to R.C. 5120.01 * * *”); State ex rel. Estate of Sziraki v. Admr., Bur. 

of Workers’ Comp., 10th Dist. Franklin No. 10AP-267, 2011-Ohio-1486 (noting that 

a Bureau of Workers’ Compensation policy “is not an administrative rule and was 

not promulgated pursuant to either the BWC’s or the commission’s rule-making 

authority. As such, this policy does not have the same effect as law”). 

The proposition that not every agency directive has the force and 

effect of law is further supported by the Ohio Supreme Court’s recent decision in 

O’Neal v. State, Slip Opinion No. 2021-Ohio-3663 (Oct. 19, 2021). At issue in O’Neal

is 01-COM 11, which is “a written execution protocol * * * that sets forth the specific 

process by which DRC personnel are to carry out death sentences by lethal 

injection.” Id. at ¶ 1. The O’Neal Court found that, “[i]n adopting 01-COM-11, DRC 

did not follow Ohio’s procedures for formal rulemaking set forth in R.C. 111.15.”15

14 Executive policies may be made with or without delegation; they may be 

enforceable or unenforceable; they may be constitutional or unconstitutional. But they 

never have the force and effect of law. It remains, however, that no policy is being 

challenged in this en banc proceeding. 

15 “R.C. Chapter 119, the Ohio Administrative Procedure Act, applies to most state 

administrative agencies, and R.C. 111.15 specifies the rulemaking procedure for most 

agencies not covered by R.C. Chapter 119.” State ex rel. Ryan v. State Teachers Ret. Syst., 

71 Ohio St.3d 362, 366, 653 N.E.2d 1122 (1994). The O’Neal Court stated that “[w]e will 

* * * look to our precedents in applying R.C. 119.01(C) to help us construe R.C. 115.15(A).” 

O’Neal at ¶ 26. 
"Id. at ¶ 4. In O’Neal, the Ohio Supreme Court reviewed whether 01-COM-11 is a 

rule subject to statutory rule-making requirements. Id. at ¶ 6-7. Put another way, 

“the dispositive issue is whether the execution protocol constitutes a ‘rule’ as defined 

in R.C. 111.15(A)(1).” Id. at ¶ 23. 

The O’Neal Court held that “o1-COM-11 is neither a rule having 

general and uniform application nor an internal-management rule and that it is an 

order dealing with the duties of DRC’s employees. Therefore, DRC was not required 

to file 01-COM-11 pursuant to R.C. 111.15.” Id. at ¶ 62. Thus, the court, as a matter 

of law, drew a clear distinction between a rule and something that is not a rule. 

To further explain this distinction, the court continued: “An action 

that establishes a new policy or standard is a rule under R.C. 119.01(C); one that 

implements or interprets a pre-existing rule or statute is not.” Id. at¶ 27. 

Furthermore, the O’Neal decision concluded that an agency action is 

not a rule just because it was adopted under the authority of R.C. 5120.01. “[W]e 

* * * reject the argument that R.C. 5120.01 requires that all of DRC’s duties be 

carried out pursuant to formally promulgated rules.” Id. at ¶ 55. 

Nothing in O’Neal supports the lead opinion. Nothing in O’Neal has 

any bearing on the constitutionality of R.C. 2967.271(C) or (D) as enacted by the 

legislature. 

The lead opinion’s conclusory statement that “[f]or our purposes, the 

use of the term ‘administrative policy’ is synonymous with ‘administrative rule’” is 

simply not an accurate statement of the law. In fact, the lead opinion correctly notes 
that “there are different requirements for enactment of rules or policies.” The 

difference is substantive, material, and relevant to the discussion at hand. The 

policy that the lead opinion desperately clings to is not at issue or being challenged 

in this case, and it has absolutely no bearing on whether R.C. 2967.271(C) and (D) 

are constitutional. In fact, any substantive analysis of whether DRC Policy 105-PBD15 comports with due process safeguards is not ripe for review and is nothing more 

than an advisory opinion at this point. “It is, of course, well settled that this court 

will not indulge in advisory opinions.” N. Canton v. Hutchinson, 75 Ohio St.3d 112, 

114, 661 N.E.2d 1000 (1996). 

The lead opinion relies on Rodriguez v. United States Parole Comm., 

594 F.2d 170, 173 (7th Cir.1979), which holds as follows: “When Congress has 

delegated to an agency the authority to make a rule instead of making the rule itself, 

the resulting administrative rule is an extension of the statute for purposes of the 

clause.” Id. at 173. This holding, of course, does not apply to the Reagan Tokes Law 

because, in relation to R.C. 2967.271(C), the legislature has not delegated 

rulemaking authority and the DRC has not made a rule. 

C. R.C. 2967.271(C) and (D) Fail to Satisfy the Requirements of 

Due Process Either Expressly Within the Statute or by 

Delegation of Rulemaking Authority 

I agree with the lead opinion that the legislature may expressly write 

constitutional safeguards into a statute, or the legislature may delegate rulemaking 

authority to an executive agency, who, in turn, must promulgate rules “to safeguard 

constitutional concerns.” Ante at ¶ 59. The lead opinion also correctly concludes 
that “R.C. 2967.271(C) and (D) do not contain the policies and procedures under 

which the maximum-term hearings will be conducted.” Ante at ¶ 68. Furthermore, 

as the lead opinion aptly points out, “R.C. 2967.271 omits language authorizing [the 

DRC] to draft rules and procedures for the maximum-term hearings * * *.” Ante at 

¶ 60. 

To put it another way, R.C. 2967.271(C) and (D) provide no due 

process safeguards and are, as a result, unconstitutional. The Ohio legislature 

knows how to include due process safeguards in statutes. See, e.g., R.C. 2967.15 

(governing parole revocation and expressly delegating Chapter 119 rule making 

authority to the DRC); R.C. 2971.04 (governing the parole board’s control over 

sexually violent offenders and providing express due process safeguards within the 

statute). The lead opinion mischaracterizes this dissenting opinion by stating that 

its 

net effect * * * is a declaration that the Ohio legislature may not delegate 

authority to the executive agency through separate provisions of the 

Ohio Revised Code, but must instead provide detailed rules and 

policies within the statutory section that creates the particular process, 

otherwise that statutory provision is unconstitutional. 

Ante at ¶ 65. As explained, that is not the “net effect” of this dissenting opinion, 

which makes no such “declaration.” 

Interestingly, the lead opinion suggests that R.C. 2967.271 passes 

constitutional muster because other Revised Code sections are also silent on due 

process issues. For example, according to the lead opinion, R.C. 2971.04 neither 

provides “the express procedures for conducting a hearing nor an express delegation 
of authority for the executive branch to promulgate those policies, rules, or 

procedures.” Ante at ¶ 61. This is simply not accurate. Among the procedural 

safeguards expressly written into R.C. 2971.04 are the following: 

The parole board shall not terminate its control over the offender’s 

service of the prison term unless it finds at a hearing that the offender 

does not represent a substantial risk of physical harm to others. * * * 

Prior to determining whether to terminate its control over the 

offender’s service of the prison term, the parole board shall request the 

department of rehabilitation and correction to prepare pursuant to 

section 5120.61 of the Revised Code an update of the most recent risk 

assessment and report relative to the offender. The offender has the 

right to be present at any hearing held under this section. 

At the hearing, the offender and the prosecuting attorney may make a 

statement and present evidence as to whether the parole board should 

terminate its control over the offender’s service of the prison term. In 

making its determination as to whether to terminate its control over 

the offender’s service of the prison term, the parole board may follow 

the standards and guidelines adopted by the department of 

rehabilitation and correction under section 5120.49 of the Revised 

Code and shall consider the updated risk assessment and report 

relating to the offender prepared by the department pursuant to section 

5120.61 of the Revised Code in response to the request made under this 

division and any statements or evidence submitted by the offender or 

the prosecuting attorney. 

The lead opinion’s statement that “R.C. 2971.04 is silent as to any 

delegation of authority to promulgate rules * * *” ante at ¶ 61, is both correct and 

irrelevant given that the statute itself mandates due process protections required to 

be afforded to the offender. Delegation is not needed when you do it yourself. 

D. Extending a Prison Term Beyond the Presumptive Release 

Date Does Not Extend the Prison Term Beyond the Maximum 

Sentence Imposed 

The lead opinion states that “an overarching issue that appears to 

permeate every aspect” of a Reagan Tokes constitutionality challenge is “the belief 
that the [DRC] ‘extends’ or ‘imposes’ a prison term under R.C. 2967.271(C) and (D) 

beyond the maximum sentence imposed by the sentencing court.” Ante at ¶ 23. This 

statement is an overgeneralization. This author concludes that R.C. 2967.271(C) 

and (D) are unconstitutional, while recognizing that extending a prison term beyond 

the presumptive release date does not extend the prison term beyond the maximum 

sentence imposed. These two schools of thought can coexist. 

E. Conclusion 

The protected liberty interest created by Reagan Tokes Law is the 

expectation of release from prison on the presumptive release date. In other words, 

the nature of the deprivation at issue is freedom. “Freedom from imprisonment — 

from government custody, detention, or other forms of physical restraint — lies at 

the heart of the liberty that [the constitution] protects.” Zadvydas v. Davis, 533 U.S. 

678, 690, 121 S.Ct.2491, 150 L.Ed.2d 653 (2001). 

[I]t is clear that a convict does not lose all his constitutional rights once 

he enters the prison population; constitutional rights of a fundamental 

nature, adapted to the context and penologic purposes of the 

imprisonment, are still available to him. * * * The extension of 

fundamental fairness to prison inmates is not in any way inconsistent 

with appropriate penologic considerations; indeed, it may well be that 

the grant of basic constitutional rights to prisoners will enhance, rather 

than impede, legitimate penologic ends. 

In re Lamb, 34 Ohio App.2d 85, 87-88, 296 N.E.2d 280 (8th Dist.1973). 

As written, the Reagan Tokes Law does not satisfy the requirements 

of due process and, as such, subsections (C) and (D) are unconstitutional. 
ANITA LASTER MAYS, J., DISSENTS IN PART AND CONCURS IN PART WITH 

SEPARATE OPINION: 

I respectfully dissent from the majority opinion’s finding that the 

indefinite sentencing scheme under R.C. 2967.271 of the Reagan Tokes Law is 

constitutional, but I concur that the question of constitutionality is ripe for review. 

To that end, the issue has been argued and awaits an opinion is State v. Maddox, 

160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150. The certified question in 

Maddox: 

Is the constitutionality of the provisions of the Reagan Tokes Law, 

which allow the Department of Rehabilitation and Correctio[n] 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 Act? 

Maddox at 1151. 

I agree with the argument in Maddox that 

[it] makes no sense to “wait and see” if the Tokes law is unconstitutional 

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

postpones adjudication until after someone is physically restrained 

under an extended sentence results in the worst legal harm — loss of 

liberty that cannot be retroactively remedied. 

Maddox brief, p. 4. 

I. Due Process 

I concur in toto with the opinion of the dissent that the Reagan Tokes 

Law at R.C. 2967.271 violates the right to due process of law as was previously 

discussed at length by this author of the original opinion in Delvallie, 8th Dist. 

Cuyahoga No. 109315, 2021-Ohio-1809. Additionally advanced by Delvallie, I 
would also determine that the Reagan Tokes Law violates the Sixth Amendment 

right to trial by jury and the separation-of-powers doctrine. 

II. Right to Trial by Jury 

The right to trial by jury is protected by the Sixth Amendment of the 

United States Constitution and Article I, Section 5, of the Ohio Constitution. The 

Ohio Supreme Court recently reiterated: 

The Sixth Amendment provides that “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial, by an 

impartial jury.” This entitles criminal defendants “to a jury 

determination of any fact on which the legislature conditions an 

increase in their maximum punishment.” Ring [v. Arizona], 536 U.S. 

[584,] 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 [(2002)]. See also Hurst 

[v. Florida, 577] U.S. [92], 136 S.Ct. 616, 619, 193 L.Ed.2d 504 [2016] 

(“The Sixth Amendment requires a jury, not a judge, to find each fact 

necessary to impose a sentence of death”). Ohio’s death-sentence 

scheme satisfies this right. 

State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 19. 

 The Sixth Amendment applies to both “the factfinding necessary to 

increase a defendant’s sentence by two years” and “the factfinding necessary to put 

him [or her] to death.” Ring v. Arizona, 536 U.S. 584, 609. 122 S.Ct. 2428, 153 

L.Ed.2d 556 (2002). 

 Delvallie relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 

2531, 159 L.Ed.2d 403 (2004), that held the Sixth Amendment prohibits a trial judge 

“from making any finding necessary for the imposition of a particular sentence unless 

that finding was reflected in the jury’s verdict.” Appellant’s brief, p. 5. The Blakely 

Court explained that the prohibition does not apply solely to sentences that exceed 

the legislated statutory maximum limit. “[T]he relevant ‘statutory maximum’ is not 
the maximum sentence a judge may impose after finding additional facts.” Id. at 

303-304. It is “the maximum he [or she] may impose without any additional 

findings.” Id. at 304. When a judge inflicts punishment that the jury’s verdict alone 

does not allow, the jury has not found all the facts “‘which the law makes essential to 

the punishment.’” Id., quoting 1 J. Bishop, Criminal Procedure § 87, p 55 2d ed. 

1872. Thus, “the judge exceeds his [or her] proper authority.” Id. at 303-304. 

In the instant case, Delvallie’s presumptive minimum will be increase by 

facts not determined by a jury but in fact by the executive branch. In Alleyne v. United 

States, 570 U.S. at 103, 133 S.Ct. 2151, 186 L.Ed.2d 314, the defendant was convicted 

of robbery with a firearm specification. The minimum mandatory term for the 

firearm increased by two years if it was demonstrated that Alleyne brandished the 

firearm during the act. 

Renowned legal scholar Erwin Chemerinsky, currently Dean of the 

University of California at Berkeley School of Law, sagely suggests that “Apprendi 

and its progeny should be seen as establishing a simple proposition: under the Sixth 

Amendment, it is wrong to convict a person of one crime and sentence that person 

for another.” Erwin Chemerinsky, Making Sense of Apprendi and its Progeny, 

McGeorge Law Review, Vol. 37, p. 532 (2006). That is precisely the impact of the 

Reagan Tokes Law. 

I find that the Reagan Tokes Law poses a wholly distinguishable 

situation. “[A]ny increase in a defendant’s authorized punishment contingent on 

the finding of a fact” requires a jury and proof beyond a reasonable doubt “no 
matter” what the government chooses to call the exercise. United States v. 

Haymond, 588 U.S. , 139 S.Ct. 2369, 2379, 204 L.Ed.2d 897 (2019), quoting 

Ring, 536 U. S., at 602, 122 S.Ct. 2428, 153 L.Ed.2d 556. “Any fact that, by law, 

increases the penalty for a crime is an ‘element’ that must be submitted to the jury 

and found beyond a reasonable doubt.” Alleyne, 570 U.S. 99, 109 S.Ct. 2151, 186 

L.Ed.2d 314. The “fact” in this case would be whether, after Delvallie is sentenced 

and incarcerated, he allegedly violates an ODRC rule before his presumptive 

minimum term expires. 

The Reagan Tokes Law expressly provides for a minimum term that is 

presumed to be sufficient punishment for the crime committed. An offender will be 

sentenced to serve additional time based on unknown future violations of ODRC 

rules, acts that have yet to be committed, to be solely adjudicated by the ODRC. The 

facts are not submitted to a jury and determined beyond a reasonable doubt. 

I would determine that the Reagan Tokes Law violates the Sixth 

Amendment right to trial by jury. The United States Supreme Court made it clear 

that a Sixth Amendment violation occurs when the facts considered in enhancing the 

minimum or maximum sentence have not been considered by the jury. The 

presumed minimum sentence is enhanced under Reagan Tokes. 

I am reminded that “the Sixth Amendment by its terms is not a 

limitation on judicial power, but a reservation of jury power.” Blakely, 542 U.S. 296, 

308, 124 S.Ct. 2531, 159 L.Ed.2d 403. “It limits judicial power only to the extent that 

the claimed judicial power infringes on the province of the jury.” Id. I am not 
presented here with judicial factfinding based on sentencing factors as is permitted 

where a sentence is rendered within an authorized range as offered by the state, citing 

State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 947, ¶ 13. 

“[T]he relevant inquiry is one not of form, but of effect — does the 

required finding expose the defendant to a greater punishment than that authorized 

by the jury’s guilty verdict?” (Fn. omitted.) Apprendi, at 530 U.S. at 476, 494, 120 

S.Ct. 2348, 147 L.Ed.2d 435. Clearly, it does. It also bears repeating that 

consideration of sentencing factors allows the trial court to consider factors to 

determine the term of punishment for acts that were committed and convicted prior 

to sentencing. That is not the case under the Reagan Tokes Law. Instead, the role of 

the jury is usurped not by the trial court, but by the ODRC based on conduct wholly 

unrelated to Delvallie’s convictions and prophetic punishment. 

III. Separation of Powers 

I would also find that the Reagan Tokes Law constitutes the 

legislative delegation of judicial powers to the executive branch of government. The 

Ohio Supreme Court explained: 

“The people possessing all governmental power, adopted constitutions 

completely distributing it to appropriate departments.” Hale v. State, 

55 Ohio St. 210, 214, 45 N.E. 199, 200 (1896). They vested the 

legislative power of the state in the General Assembly (Section 1, 

Article II, Ohio Constitution), the executive power in the Governor 

(Section 5, Article III, Ohio Constitution), and the judicial power in the 

courts (Section 1, Article IV, Ohio Constitution). They also specified 

that “the general assembly shall [not] * * * exercise any judicial power, 

not herein expressly conferred.” Section 32, Article II, Ohio 

Constitution. 
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 462, 

715 N.E.2d 1062 (1999). 

The courts “‘possess all powers necessary to secure and safeguard 

the free and untrammeled exercise of their judicial functions and cannot be directed, 

controlled or impeded therein by other branches of the government.’” State v. 

Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001), quoting State ex rel. 

Johnston v. Taulbee, 66 Ohio St. 2d 417, 423 N.E.2d 80 (1981), paragraph two of the 

syllabus, approving and following State ex rel. Foster v. Lucas Cty. Bd. of Commrs., 

16 Ohio St.2d 89, 242 N.E.2d 884 (1968), paragraph two of the syllabus. “‘It is 

indisputable that it is a judicial function to hear and determine a controversy 

between adverse parties, to ascertain the facts, and, applying the law to the facts, to 

render a final judgment.’” Id., quoting Fairview v. Giffee, 73 Ohio St. 183, 190, 76 

N.E. 865 (1905). 

The Ohio Supreme Court, in State ex rel. Bray v. Russell, 89 Ohio 

St.3d 132, 729 N.E.2d 359 (2000), declared former R.C. 2967.11, known as the “badtime statute” unconstitutional. The statute allowed the parole board to punish a rule 

violation by extending the stated prison term. Pertinent here, the court explained 

that “[p]rison discipline is an exercise of executive power and nothing in this opinion 

should be interpreted to suggest otherwise.” Id. at 136. “However, trying, 

convicting, and sentencing inmates for crimes committed while in prison is not an 

exercise of executive power.” Id. 
Delvallie contends that both the bad-time provision addressed in 

Bray and the Reagan Tokes Law “provide for the executive branch prison system to 

tell an inmate that the sentence imposed by the judge is not enough and that the 

inmate will be serving a longer sentence as a result of an executive agency’s 

determination.” Appellant’s brief, p. 9. The state counters that Woods v. Telb, 89 

Ohio St.3d 504, 733 N.E.2d 1103 (2000), and State ex rel. Atty. Gen. v. Peters, 43 

Ohio St. 629, 647, 4 N.E. 81 (1885), govern. 

Woods involved a challenge to former R.C. 2967.28 and the ODRC’s 

management of postrelease-control (“PRC”) violations. The court determined the 

PRC statute was constitutional and did not violate the separation of powers or due 

process clauses of the federal and state constitutions. Woods distinguished PRC 

from bad time on the ground that PRC is part of the “original judicially imposed 

sentence.” Id. at 512. The court explained that PRC “sanctions are sanctions aimed 

at behavior modification in the attempt to reintegrate the offender safely into the 

community, not mere punishment for an additional crime, as in bad time.” Id. 

Unlike Bray and the Reagan Tokes Law, PRC is not imposed based 

on behavior that took place during the offender’s incarceration. I do not find that 

Delvallie’s reliance on Bray is misplaced. In Bray, the prisoners were sentenced to 

additional terms of incarceration for acts committed in prison during their term of 

incarceration. 
Under the Reagan Tokes Law, a defendant is sentenced to a 

“minimum prison term” that the court may choose from the listed term choices in 

the statute: 

(1) “Offender’s minimum prison term” means the minimum prison 

term imposed on an offender under a non-life felony indefinite prison 

term, diminished as provided in section 2967.191 or 2967.193 of the 

Revised Code or in any other provision of the Revised Code, other than 

division (F) of this section, that provides for diminution or reduction of 

an offender’s sentence. 

R.C. 2967.271(A)(1). R.C. 2967.271(B) adds “there shall be a presumption” that the 

offender will be released “on the expiration of the offender’s minimum prison term 

or on the offender’s presumptive earned early release date, whichever is earlier.” Id. 

The law also includes an early release mechanism at 

R.C. 2967.271(F). An offender may be granted early release that shall be for five to 

fifteen percent of the offender’s presumptive minimum term “determined in 

accordance with rules adopted by the department under division (F)(7) of this 

section.” R.C. 2967.271(F)(1)(b). Early release is labeled the “[o]ffender’s 

presumptive earned early release date.” R.C. 2967.271(A)(2). 

The ODRC develops the rules for what is required for a reduction 

recommendation, including offense levels. ODRC assembles supporting 

information and makes a recommendation to the sentencing court to receive 

approval for early release. A court hearing is conducted, and the prosecutor and 

victim, if any, may present information. Documents and reports may also be 
submitted. If the court determines that the early release presumption has not been 

rebutted by the presence of the cited factors, the reduction will be granted. 

Under R.C. 2967.271(F)(5), the court must provide the offender with 

notice of approval or denial of early release to the ODRC within 60 days. If the court 

denies the reduction, “[t]he court shall specify in the notification the reason or 

reasons for which it found that the presumption was rebutted and disapproved the 

recommended reduction.” R.C. 2967.271(F)(5). Notably, the statute does not 

provide for notice to the offender, participation by the offender, submission of 

information by the offender, or appeal of the decision. 

 The Reagan Tokes Law specifies that the ODRC “shall” release the 

offender on the presumptive release date unless ODRC unilaterally determines that 

the offender is guilty of committing one of the acts cited in R.C. 2967.271(B) during 

his or her incarceration. Clearly, the presumptive minimum term is deemed to be 

punishment commensurate with the crime committed. The sentencing court, based 

on the facts underlying the convictions that were authorized by the jury within the 

limits set forth by the legislature, imposed the presumed minimum date. 

R.C. 2967.271(C) outlines the ODRC’s minimum-sentencepresumption-rebuttal process and includes an overview of the broad range of 

behaviors that may be employed to rebut an offender’s presumptive release date. 

Under R.C. 2967.271(D), the ODRC promulgates the rules, has unfettered discretion 

to determine what charges to initiate against the offender, investigates the charges, 

serves as the adjudicator and factfinder and determines how far beyond the 
presumed release date the offender shall remain in prison. The ODRC will set a 

reconsideration date for release and this process may occur multiple times but may 

not exceed the maximum sentence. 

The R.C. 2971.271(F) early release provision is based on factors 

similar to those employed by the ODRC to rebut the presumptive minimum term 

release. This bolsters the conclusion proffered by Reagan Tokes Law opponents that 

the maximum term is a sanction for acts that the ODRC determines violate the rules 

and regulations of the institution or other illegal acts. 

As stated in Bray, “[p]rison discipline is an exercise of executive 

power and nothing in this opinion should be interpreted to suggest otherwise.” 

Bray, 89 Ohio St.3d at 136, 729 N.E.2d 359. “[T]rying, convicting, and sentencing 

inmates for crimes committed while in prison is not an exercise of executive power.” 

Bray at 136. Imposition of the rather elaborate protocol under the Reagan Tokes 

Law does not alter the fact that the ODRC executive branch is “trying, convicting, 

and sentencing inmates for crimes committed while in prison.” Id. 

“The reason the legislative, executive, and judicial powers are 

separate and balanced is to protect the people, not to protect the various branches 

of government.” Bray at 135. 

 Recently recognized in State v. Hursey, Franklin C.P. No. 20 CR 

004459, 2021 Ohio Misc. LEXIS 101 (Aug. 6, 2021), “[t]he separation of powers 

violation raised by S.B. 201’s indeterminate sentencing scheme is not prospectively 

cured by the court acknowledging its mechanics at sentencing.” Hursey at ¶ 11. 
Hursey observed that courts that hold the separation-of-powers doctrine is not 

violated “appear to be predicating that conclusion by analogy to the somewhat 

different setting of post-release control, and the sentencing colloquy that trial courts 

caution defendants about PRC violations.” Id. at ¶ 12. 

 The court explained the salient fallacy of the position: 

That analogy from a different context is inapposite for several reasons. 

As an initial matter, when a defendant commits a new crime while on 

post release control, that new crime is prosecuted in the ordinary 

course, adjudicated by judge and jury, and then sentenced as a function 

of the court’s core judicial function. By contrast, when a defendant 

serving an indeterminate sentence under [the Reagan Tokes Law] is 

accused of committing a new crime while in prison, every aspect of the 

resulting prosecution, adjudication, and sentencing can remain with 

ODRC, resulting in years of new incarceration for a wholly new crime, 

imposed by jailer without resort to judge. 

Hursey at ¶ 12. 

In addition, the Hursey court recognized that: 

the prophylactic caution that the sentencing court provides on the front 

end about [the Reagan Tokes Law’s] indeterminate sentencing 

mechanism in no way meaningfully involves a judge in the eventual 

subsequent imposition of a longer-than-minimum sentence. To begin 

with, the Court exercises no discretion about any part of the initial 

sentence aside from setting that original minimum sentence. The 

maximum sentence the court recites is determined solely as a function 

of mathematics, and under the current law, the court has no discretion 

whether any part of that longer sentence might be imposed or avoided, 

in whole or in part, on the facts before it at sentencing of the original 

crime. Nor, obviously, is the Court able to give any meaningful 

consideration to whatever additional alleged violations or crimes might 

someday be used by the executive to add years of additional sentencing 

later on facts that have not yet transpired. All the Court is doing in that 

colloquy is acknowledging that under [the Reagan Tokes Law], some 

part of the executive branch might unilaterally intrude into a core 

judicial function on facts not yet known, and not then subject to judicial 

review. 
Hursey, Franklin C.P. No. 20 CR 004459, 2021 Ohio Misc. LEXIS 101, at ¶ 12-13. 

 “[T]he Court is merely apprising the defendant that under S.B. 201, 

a Separation of Powers violation may someday occur for any alleged violation or 

crime to which the Defendant is subsequently accused while incarcerated.” Hursey

at ¶ 13. “Nothing about such a notice could possibly cure the violation when it later 

happens.” Id. at ¶ 14. 

I find that the Reagan Tokes Law violates the separation-of-powers 

doctrine.