State v. Wilburn

• Decision Date: 04 March 2021
• Docket Number: No. 109507,109507
• Citation: 168 N.E.3d 873
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Ronald WILBURN, Defendant-Appellant.
• Court: Ohio Court of Appeals

168 N.E.3d 873

STATE of Ohio, Plaintiff-Appellee,

v.Ronald WILBURN, Defendant-Appellant.

No. 109507

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

RELEASED AND JOURNALIZED: March 4, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Amanda Hall, Assistant Prosecuting Attorney, for appellee.

Edward F. Borkowski, Jr., for appellant.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant Ronald Wilburn appeals his sentence, contending that the law under which he was sentenced — the Reagan Tokes Law — is unconstitutional. Finding no merit to the appeal, we affirm.

I. Background and Procedural History

{¶ 2} Wilburn was indicted in Cuyahoga C.P. No. CR-19-644827 on one count of burglary in violation of R.C. 2911.12(A)(2), and one count of theft in violation of R.C. 2913.02(A)(1). He was indicted in Cuyahoga C.P. No. CR-19-644828 on two counts of felonious assault in violation of R.C. 2903.11(A)(1) ; two counts of felonious assault in violation of R.C. 2903.11(A)(2) ; one count of domestic violence in violation of R.C. 2919.25(A) ; and one count of endangering children in violation of R.C. 2919.22(A).

{¶ 3} Wilburn entered into a plea agreement with the state and pleaded guilty in CR-19-644827 to burglary, a second-degree felony, and to an amended count of aggravated assault, a fourth-degree felony, in CR-19-644828. The remaining counts in both cases were nolled.

{¶ 4} The trial court sentenced Wilburn in CR-19-644827 to a minimum term of two years in prison and a maximum term of three years, to be served concurrent with 12 months’ incarceration in CR-19-644828. The trial court overruled defense counsel's objection that the Reagan Tokes Law, under which Wilburn was sentenced in CR-19-644827, was unconstitutional.¹ This appeal followed.

II. Law and Analysis

{¶ 5} In his single assignment of error, Wilburn contends that the indefinite sentencing scheme established by the Reagan Tokes Law is unconstitutional because it violates constitutional guarantees of separation of powers and due process.² Thus, he asserts that his sentence in CR-19-644827 should be vacated, and the matter remanded for a new sentencing hearing under the pre-S.B. 201 statutes.

{¶ 6} The Reagan Tokes Law was enacted in 2018 and became effective on March 22, 2019. See R.C. 2901.011. Under the law, qualifying first- and second-degree felonies committed on or after March 22, 2019, are subject to the imposition of indefinite sentences. The law specifies that these terms will consist of a minimum term selected by the sentencing judge from a range of terms set forth in R.C. 2929.14(A) and a maximum term determined by formulas set forth in R.C. 2929.144.

{¶ 7} The law establishes a presumptive release date at the end of the minimum term. R.C. 2967.271(B). The Ohio Department of Rehabilitation and Correction ("ODRC") may rebut that presumption, however, and keep the offender in prison for an additional period not to exceed the maximum term imposed by the trial judge. R.C. 2967.271(C). In order to rebut the presumption, the ODRC must conduct a hearing and determine whether one or more of the following factors apply:

(1) (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, [and] (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)(1), (2), and (3).

{¶ 8} A party seeking constitutional review of a statute may either present a facial challenge to the statute as a whole or challenge the statute as applied to a specific set of facts. Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. Wilburn has raised a facial challenge to the Reagan Tokes Law. To successfully present such a challenge, he 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.

{¶ 9} When addressing constitutional challenges we 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. Thus, "if at all possible, statutes must be construed in conformity with the Ohio and the United States Constitutions." State v. Collier , 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991).

A. Ripeness for Review

{¶ 10} Wilburn contends that the portions of the Reagan Tokes Law that allow the ODRC to administratively extend his prison term beyond his presumptive minimum prison term are unconstitutional. The state argues that Wilburn has not yet served his minimum sentence, however, and the ODRC has not yet denied him release at the expiration of his minimum term of incarceration. Thus, the state asserts that Wilburn has not yet been subject to the possible application of the provisions of the Reagan Tokes Law that he challenges and, therefore, his constitutional challenges are not ripe for review.

{¶ 11} The Second, Third, and Twelfth District Courts of Appeals have implicitly decided that a defendant's constitutional challenge to the Reagan Tokes Law is ripe for review by upholding the statute as constitutional without addressing the ripeness issue. See, e.g., State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, 2020 WL 5743293 ; State v. Hacker , 3d Dist., 2020-Ohio-5048, 161 N.E.3d 112 ; State v. Guyton , 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, 2020 WL 4279793.

{¶ 12} Other districts have expressly held that a defendant's constitutional challenge to the Reagan Tokes Law is not ripe for review. See, e.g., State v. Ramey , 4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733, 2020 WL 7395499 ; State v. Halfhill , 4th Dist. Meigs No. 20CA7, 2021-Ohio-177, 2021 WL 247851 ; State v. Cochran , 5th Dist. Licking No. 2019CA00122, 2020-Ohio-5329, 2020 WL 6779731 ; State v. Wolfe , 5th Dist. Licking No. 2020CA00021, 2020 -Ohio- 5501, 2020 WL 7054428 ; State v. Maddox , 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, 2020 WL 5834857 ; State v. Velliquette , 6th Dist., 2020-Ohio-4855, 160 N.E.3d 414 ; State v. Montgomery , 6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552, 2020 WL 7090198.³ These courts concluded that the defendants’ constitutional challenges to the Reagan Tokes Law were not ripe for review because the appellants had not served their minimum term of imprisonment and thus had not yet been subject to the application of the law.

{¶ 13} We find, however, that the well-reasoned dissents in Cochran and Wolfe offer the better analysis regarding why a defendant's challenge to the constitutionality of the Reagan Tokes Law is indeed ripe for review, even if that defendant has not yet been subject to the provisions of the law that could extend the defendant's presumptive minimum prison term.

{¶ 14} "Ripeness ‘is peculiarly a question of timing.’ " State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1998), quoting Regional Reorganization Act Cases , 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). Three factors guide the ripeness inquiry: ‘ "(1) the likelihood that the harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings." ’ Cochran at ¶ 28 (Gwin, J., dissenting); Wolfe at ¶ 44 (Gwin, J., dissenting), both quoting Berry v. Schmitt , 688 F.3d 290, 298 (6th Cir. 2012).

{¶ 15} Even when the direct application of a statute is open to a charge of remoteness because of a lengthy, built-in time delay before the statute takes effect, such as in this case, ‘ "ripeness may be found as long as the statute's operation is inevitable (or nearly so)." ’ Cochran, 5th Dist. Licking No. 2019CA00122, 2020-Ohio-5329 at ¶ 28 (Gwin, J., dissenting); Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501 at ¶ 44 (Gwin, J., dissenting), both quoting Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1010 (1st Cir. 1995). See also Signorelli v. Evans , 637 F.2d 853 856-857 (2d Cir. 1980) (if the injury is "clearly impending," the plaintiffs need not await consummation of the injury to bring their suit). As noted in Cochran and Wolfe , it is inevitable that every defendant in the state of Ohio who is convicted of a first- or second-degree felony for offenses occurring after March 22, 2019, will be sentenced under the Reagan Tokes Law. Cochran at ¶ 30 (Gwin, J., dissenting); Wolfe at ¶ 46 (Gwin, J., dissenting). Further,

[i]t is a virtual certainty that a number of those individuals, perhaps a significantly large number, will have the [O]DRC extend his or her incarceration beyond the presumed release date. This is not an abstract or hypothetical case; rather, it is a virtual certainty to occur. Under Reagan Tokes, the question is not if a defendant will be denied his

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