STATEMENT OF FACTS AND THE CASE {¶2} Cochran was indicted for a violation of R.C. 2925.03 and R.C. 2925.11, felonies of the second degree, and the case was scheduled for a jury trial on October 22, 2019. The facts surrounding the offenses that led to his arrest and indictment are not needed for the disposition of this appeal and are omitted. When Cochran appeared for his trial, he notified the court, prior to the commencement of any proceedings, that he decided to change his plea to guilty. At the opening of the hearing the court explained, "[w]e were informed that it would be a Change of Plea and Sentencing." The parties agreed that was correct and the court proceeded to conduct a colloquy with Cochran.
{¶3} We know that the trial court recognized that Cochran's sentence would be affected by the Reagan-Tokes Act (R.C. 2967.271) because the prosecutor described the jointly recommended sentence as three years and the judge corrected him by stating, "It can't be three years because it's a Reagan Tokes Act case." Later during the plea hearing the trial court explains to Cochran that the recommended sentence is three to four and one half years and that "I'll explain more of that to you in a little bit greater detail here in just a minute."
{¶4} The trial court proceeded with the colloquy and provided Cochran information required by R.C. 2929.19(B)(2)(c) as part of the explanation of Cochran's rights and the consequence of entering a guilty plea. The court asked the prosecutor to describe the facts of the case and, after Cochran agreed with the facts, the trial court found Cochran guilty on both counts. The trial court asked defense counsel if there was "any reason why sentencing should not proceed at this point" and the following exchange occurred:
MR. DALSANTO: Your Honor, I do understand there's a joint recommendation in this case, but for the reasons that I stated in chambers -- uh -- I would ask that the Court consider ordering a Pre-Sentence Investigation in this case. Thank you.
THE COURT: Mr. -- um --
MR. CASE: We have no objection --
THE COURT: -- Case.
MR. CASE: -- Your Honor.
THE COURT: Okay. Alright. Then I'll order a PSI. I will revoke bond, defer sentencing, order a PSI, and Mr. DalSanto if you'll stop back in the Court uh -- Chambers, get a date --
MR. DALSANTO: Yes, Your Honor.
THE COURT: -- right now, we'll get you back on the calendar.
{¶5} Cochran returned to the trial court on November 15, 2019 and the trial court opened the hearing by stating, "The case is scheduled for a sentencing hearing." The court reviewed the prior proceedings, commented that Cochran had appeared before the court on October 22, 2019 and entered guilty pleas and that sentencing was deferred for a PSI. The trial court asked defense counsel if there was any reason that sentencing should not proceed and, upon receiving counsel's response, he inquired as to the parties' position on sentencing, considered their responses, and engaged in a conversation with Cochran. The trial court rejected the joint recommendation and imposed a term of four to six years.
{¶6} Cochran filed a notice of appeal and submitted three assignments of error:
{¶7} "I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO."
{¶8} "II. JEREMY COCHRAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
{¶9} "III. THE TRIAL COURT SENTENCED COCHRAN TO AN INDEFINITE PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN VIOLATION OF COCHRAN'S RIGHTS TO DUE PROCESS."
{¶10} In his first Assignment of Error, Cochran challenges the presumptive release feature of R.C. 2967.271, arguing it violates his constitutional right to due process of law. In his second Assignment of Error, Cochran argues his trial counsel was ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court. We will address these assignments of error together.
{¶11} Revised Code 2967.271 provides in pertinent part:
(B) When an offender is sentenced to a non-life felony indefinite prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier.
(C) The presumption established under division (B) of this section is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies:
(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:
(a) During the offender's incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.
(b) The offender's behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of 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.
(D)(1) If the department of rehabilitation and correction, pursuant to division (C) of this section, rebuts the presumption established under division (B) of this section, the department may maintain the offender's incarceration in a state correctional institution under the sentence after the expiration of the offender's minimum prison term or, for offenders who have a presumptive earned early release date, after the offender's presumptive earned early release date. The department may maintain the offender's incarceration under this division for an additional period of incarceration determined by the department. The additional period of incarceration shall be a reasonable period determined by the department, shall be specified by the department, and shall not exceed the offender's maximum prison term.
(2) If the department maintains an offender's incarceration for an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department as provided under that division or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttable presumption that the department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the offender's incarceration in a state correctional institution for an additional period determined as specified in division (D)(1) of this section.
Unless the department rebuts the presumption at the hearing, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date as specified by the department.
The provisions of this division regarding the establishment of a rebuttable presumption, the department's rebuttal of the presumption, and the department's maintenance of an offender's incarceration for an additional period of incarceration apply, and may be utilized more than one time, during the remainder of the offender's incarceration.
If the offender has not been released under division (C) o
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