State v. Daniel

• Decision Date: 10 June 2021
• Docket Number: No. 109583,109583
• Court: Ohio Court of Appeals
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Keiwaun DANIEL, Defendant-Appellant.

173 N.E.3d 184

STATE of Ohio, Plaintiff-Appellee,

v.Keiwaun DANIEL, Defendant-Appellant.

No. 109583

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: June 10, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Ashley Gilkerson Elias, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, for appellant.

JOURNAL ENTRY AND OPINION

LISA B. FORBES, P.J.:

{¶ 1} Keiwaun Daniel ("Daniel") appeals his three-to-four-year prison sentence, challenging the constitutionality of the Reagan Tokes Law, as well as the no-contact order that the court imposed as part of his sentence. After reviewing the facts of the case and pertinent law, we find that the Reagan Tokes Law violates Daniel's right to due process of law. We also find that the court erred by imposing a no-contact order in this case. Daniel's prison sentence is reversed, the no-contact order is vacated, and this case is remanded to the trial court for resentencing.

I. Facts and Procedural History

{¶ 2} On January 29, 2020, Daniel entered a guilty plea to robbery in violation of R.C. 2911.02(A)(1), a second-degree felony, with a one-year firearm specification. On February 13, 2020, the court held a sentencing hearing at which it stated that "[t]his Court has found in the past that Reagan Tokes is unconstitutional" but nonetheless sentenced Daniel to an indefinite prison term under the Reagan Tokes Law. The court sentenced Daniel to two-to-three years in prison for the robbery and one year in prison for the firearm specification, to run consecutively, for a minimum prison sentence of three years and a maximum prison sentence of four years. The court also imposed a no-contact order with the victim. It is from this sentence that Daniel appeals.

II. Law and Analysis

A. Standard of Review

{¶ 3} 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.

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. In the instant case, the state challenges the trial court's finding that the Reagan Tokes Law is unconstitutional as written.

{¶ 4} 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.

B. Constitutionality of the Reagan Tokes Law

{¶ 5} 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).

{¶ 6} 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.

{¶ 7} In the case at hand, the trial court's journal entry declaring the Reagan Tokes Law unconstitutional included the following language: "This court adopts the analysis of Judge Tom Heekin in State of Ohio v. William O'Neal , Case No. B 1903562, Hamilton County Court of Common Pleas." Upon review, we find the Reagan Tokes Law unconstitutional, although for reasons other than the analysis set forth in State v. O'Neal, Hamilton C.P. No. B 1903562, 2019 WL 7670061 (Nov. 20, 2019).

1. Due Process

{¶ 8} 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).

{¶ 9} 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.").

{¶ 10} It is with that context in mind that we 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).

2. Is There a Liberty Interest in the Reagan Tokes Law?

{¶ 11} 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 state-created system of good-time credits). To analyze whether there is a liberty interest in the Reagan Tokes Law, we look first to United States Supreme Court authority, then to Ohio law for guidance.

{¶ 12} 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, 94 S.Ct. 2963. 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, 94 S.Ct. 2963. 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.

{¶ 13} 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...