[Cite as State v. Guyton, 2020-Ohio-3837.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :         CASE NO. CA2019-12-203

                                                   :              OPINION
     - vs -                                                        7/27/2020
                                                   :

 TREMEL GUYTON,                                    :

        Appellant.                                 :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CRI2019-05-0826


Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High St., 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 S. Second St., #305, Hamilton, Ohio 45011, for appellant


        S. POWELL, J.

        {¶ 1} Appellant, Tremel Guyton, appeals from his conviction in the Butler County

Court of Common Pleas after he pled guilty to single counts of aggravated possession of

drugs, possession of heroin, and having weapons while under disability. For the reasons

outlined below, we affirm.

        {¶ 2} On December 10, 2019, Guyton entered a plea agreement and pled guilty to
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aggravated possession of drugs, a first-degree felony that included a forfeiture specification,

possession of heroin, a second-degree felony, and having weapons while under disability,

a third-degree felony. After engaging Guyton in the necessary plea colloquy, the trial court

found Guyton's plea was knowingly, intelligently, and voluntarily entered. The plea colloquy

included the following exchange between the trial court and Guyton:

              THE COURT: Do you understand that regardless of whether or
              not you qualify or receive any type of good-time credit, you'll be
              released from prison when you have finished your minimum
              term unless the Ohio Department of Rehabilitation and
              Corrections ["ODRC"] determines that you must remain in
              prison for bad conduct? Do you understand that?

              THE DEFENDANT: Yes.

              THE COURT: Do you understand that the Court is not involved
              in this decision of whether or not you have – whether or not
              you're guilty of this bad conduct that I just discussed with you?

              THE DEFENDANT: Yes.

              THE COURT: That'll be a determination for someone within
              [ODRC]. Do you understand that?

              THE DEFENDANT: Yes.

       {¶ 3} The trial court also notified Guyton that there "is a rebuttable presumption of

your release at the expiration of your minimum term" that ODRC can rebut and "maintain

your incarceration * * * subject to [ODRC] procedures." When asked if he understood and

still wanted to "go forward with the plea agreement," Guyton responded, "Yes."

       {¶ 4} After finding Guyton's guilty plea was knowingly, intelligently, and voluntarily

entered, the trial court proceeded to sentencing and sentenced Guyton to an indefinite term

of nine to 13-and-one-half years in prison for aggravated possession of drugs, a mandatory

seven years in prison for possession of heroin, and 36 months in prison for having weapons




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while under disability.1 The trial court then notified Guyton that the sentence imposed for

possession of heroin, as well as the sentence imposed for having weapons while under

disability, would be served concurrently to the indefinite prison sentence imposed for

aggravated possession of drugs. The trial court also notified Guyton that he would be

subject to a mandatory five-year postrelease control term upon his release from prison and

that he would be required to forfeit $7,489 as illegal proceeds from his aggravated

possession of drugs.

        {¶ 5} After imposing its sentence, which the trial court noted was in accordance with

the newly enacted Reagan Tokes Law, Am.Sub.S.B. No. 201, effective March 22, 2019, the

trial court asked the parties if there were any questions regarding the sentence that had just

been imposed. To this, Guyton's trial counsel set forth a general objection challenging the

constitutionality of the Reagan Tokes Law and its newly enacted indefinite sentencing

structure. Specifically, as Guyton's trial counsel stated:

                [F]or appellate purposes, a[n] objection with regard to the * * *
                Reagan Tokes Act for any potential Constitutional issues there
                may be here and in the future. Obviously, that matter has not
                been litigated, but to just notice that it's preserved for Mr. Guyton
                under --.

To this, the trial court responded and stated, "It will be noted to preserve." Guyton now

appeals, raising the following single assignment of error for review.

        {¶ 6} THE TRIAL COURT IMPROPERLY PRESUMED THAT OHIO REVISED

CODE 2967.271 IS CONSTITUTIONAL.

        {¶ 7} In his single assignment of error, Guyton argues that the Reagan Tokes Law,

specifically R.C. 2967.271, is unconstitutional in that it "allows prison officials and not the

sentencing court" to "justify the imposition of additional time of incarceration," thereby



1. We note that at the time of sentencing Guyton was already serving an indefinite term of three to four-and-
one-half years in prison for a different charge originating out of Hamilton County, Ohio.
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violating his due process rights guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of the Ohio Constitution. Guyton also

argues that it is a violation of his constitutional right to due process to allow ODRC, rather

than the sentencing court, to determine whether "a rule infraction warrants a longer stay in

prison." This is because, according to Guyton, it is "illogical" to exclude the sentencing

court from participating in the "rebuttable presumption of serving a minimum sentence"

scenario set forth in R.C. 2967.271(C) when R.C. 2967.271(F) requires the sentencing court

to hold a hearing in circumstances where the director of the ODRC recommends the

sentencing court grant a reduction in the minimum prison term imposed on a specified

offender "due to the offender's exceptional conduct while incarcerated or the offender's

adjustment to incarceration." We disagree.

       {¶ 8} It is well established that "we are to presume that the state statute is

constitutional, and the burden is on the person challenging the statute to prove otherwise

beyond a reasonable doubt." State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17;

State v. Cook, 83 Ohio St.3d 404, 409 (1998) ("statutes enjoy a strong presumption of

constitutionality"); State v. Brownfield, 12th Dist. Butler No. CA2012-03-065, 2013-Ohio-

1947, ¶ 8 ("the party asserting that a legislative enactment is unconstitutional must prove

that the legislative enactment is unconstitutional beyond a reasonable doubt in order to

prevail"). "An appellate court's standard of review when examining the constitutionality of

a statute is de novo." (Emphasis deleted.) State v. McGuire, 12th Dist. Preble No. CA2000-

10-011, 2001 Ohio App. LEXIS 1826, *11 (Apr. 23, 2001), citing Liposchak v. Bureau of

Workers' Compensation, 138 Ohio App.3d 368, 385 (7th Dist.2000), citing Ohio Historical

Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993). Therefore, we must

independently review the constitutionality of the Reagan Tokes Law, specifically R.C.

2967.271, while at the same time presuming it to be constitutional. Id. at *12.

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{¶ 9} As relevant here, R.C. 2967.271(B) states:

      (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.

{¶ 10} Also relevant is R.C. 2967.271(C), which states:

      (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.


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      {¶ 11} As noted above, Guyton argues that it is a violation of his constitutional right

to due process to allow the ODRC, rather than the sentencing court, to determine whether

"a rule infraction warrants a longer stay in prison." However, upon review, Guyton has failed

to set forth any argument demonstrating how the language found R.C. 2967.271 violates

his constitutional right to due process mandating he be provided with notice and the

opportunity to be heard. State v. Ritchie, 12th Dist. Warren No. CA2017-11-155, 2018-

Ohio-4256, ¶ 69 ("[a]t minimum, due process requires notice and the opportunity to be

heard"). Guyton in fact specifically acknowledges as part of his appellate brief that "an

inmate is afforded notice and a hearing" under R.C. 2967.271(C) where ODRC may rebut

the presumption as set forth in R.C. 2967.271(B) that the inmate will be released from prison

upon the expiration of his or her minimum prison term or presumptive earned early release

date, whichever is earlier. This is confirmed by R.C. 2967.271(E), which states:

             [ODRC] 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} Guyton also argues that it is "illogical" to exclude the sentencing court from

participating in the "rebuttable presumption of serving a minimum sentence" scenario under

R.C. 2967.271(C) when R.C. 2967.271(F) requires the sentencing court to hold a hearing

in circumstances where the director of the ODRC recommends the sentencing court grant

a reduction in the minimum prison term imposed on a specified offender "due to the

offender's exceptional conduct while incarcerated or the offender's adjustment to

incarceration." But, despite Guyton's claims, we find nothing "illogical" about the differing

requirements set forth by the General Assembly in R.C. 2967.271(C) and 2967.271(F) as

those provisions address radically different factual scenarios; one dealing with


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circumstances where the inmate has already completed his or her minimum prison term

imposed by the trial court, whereas the other deals with instances where the inmate has

not. Therefore, while Guyton may feel it is "illogical" to require the sentencing court to hold

a hearing in circumstances where the director of the ODRC would like to release an inmate

before that inmate had completed even the minimum prison term imposed by the trial court,

neither this court nor the General Assembly agree.

       {¶ 13} In so holding, we note that in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011

(1970), the United States Supreme Court concluded that, "[w]here revocation of public-

assistance benefits is at issue, the fundamental requisite of due process is the opportunity

to be heard at a meaningful time, in a meaningful manner." Ellis v. Ge, 1st Dist. Hamilton

No. C-990775, 2000 Ohio App. LEXIS 4471, *13 (Sept. 29, 2000). Shortly thereafter, in

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972), the United States Supreme Court

set forth the minimum due process requirements that a trial court must follow in parole

revocation proceedings. Then, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973),

the United States Supreme Court extended its holding in Morrissey to also apply to

probation revocation proceedings.

       {¶ 14} As stated by the United States Supreme Court in Gagnon, in both parole and

probation revocation proceedings, due process requires:

              (a) Written notice of the claimed violations of [probation or]
              parole; (b) disclosure to the [probationer or] 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
              fact-finders as to the evidence relied on and reasons for
              revoking [probation or] parole.

(Brackets sic.) Gagnon at 786, quoting Morrissey at 489. These standards were then

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adopted by the Ohio Supreme Court in State v. Miller, 42 Ohio St.2d 102, 104 (1975).

       {¶ 15} Later, in Woods v. Telb, 89 Ohio St.3d 504 (2000), the Ohio Supreme Court

determined that the postrelease control statute, R.C. 2967.28, did not violate the petitioner's

minimum due process rights set forth by the United States Supreme Court in Morrissey. In

so holding, the Ohio Supreme Court stated:

              In addition to finding a violation of the separation of powers
              doctrine, the court of appeals went on to find that the petitioner
              had not been afforded the due process protections set forth in
              [Morrissey]. Even assuming that the determination of a post-
              release control violation was made by a neutral decision maker,
              the court of appeals held that the mere fact that the [Ohio Adult
              Parole Authority] is performing the functions that were not
              contemplated by the trial court in its sentence denies an
              offender his due process rights. Again, we respectfully
              disagree.

Id. at 513.

       {¶ 16} The Ohio Supreme Court explained its rationale by noting that "[a]ll of

petitioner's post-release control violation hearings were conducted by a neutral and

detached Parole Board hearing officer," and not petitioner' own parole officer. Id. at 514.

"Morrissey and Goldberg require no more.         Accordingly, we hold the petitioner's due

process rights were not violated." Id.

       {¶ 17} The hearings conducted by the ODRC under R.C. 2967.271(C) are analogous

to parole revocation proceedings, probation revocation proceedings, and postrelease

control violation hearings at issue in Morrissey, Gagnon, and Woods. This is because, as

noted by the state as part of its appellate brief, "[a]ll three situations concern whether a

convicted felon has committed violations while under the control and supervision of the

[ODRC]." Therefore, because due process does not require the sentencing court to conduct

parole revocation proceedings, probation revocation proceedings, or postrelease control

violation hearings, we likewise conclude that due process does not require the sentencing


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court to conduct a hearing under R.C. 2967.271(C) to determine whether the ODRC has

rebutted the presumption set forth in R.C. 2967.271(B). This is confirmed by the United

States Supreme Court's decisions in Goldberg, Morrissey, and Gagnon, as well as the Ohio

Supreme Court's decisions in Miller and Woods. Accordingly, because the Reagan Tokes

Law, specifically R.C. 2967.271, does not run afoul of an offender's due process rights

guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and

Article I, Section 16 of the Ohio Constitution, Guyton's single assignment of error lacks merit

and is overruled.

       {¶ 18} Judgment affirmed.


       M. POWELL, P.J., and PIPER, J., concur.




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