[Cite as State v. Manion, 2020-Ohio-4230.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. Craig R. Baldwin, J.
                                               Hon. Earle E. Wise, Jr., J.
 -vs-
                                               Case No. 2020 AP 03 0009
 HAROLD E. MANION, III

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Tuscarawas County
                                               Court of Common Pleas, Case No. 2019
                                               CR 08 0349


 JUDGMENT:                                     Dismissed

 DATE OF JUDGMENT ENTRY:                       August 25, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 AMANDA K. MILLER                              LINDSEY K. DONEHUE-ANGLER
 Assistant Prosecuting Attorney                217 N. 8th Street
 Tuscarawas County                             Cambridge, Ohio 43725
 125 East High Avenue
 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2020 AP 03 0009                                                        2


Hoffman, P.J.
          {¶1}     Appellant Harold Manion, III, appeals the judgment entered by the

Tuscarawas County Common Pleas Court convicting him of aggravated burglary (R.C.

2911.11), burglary (R.C. 2911.12), possessing criminal tools (R.C. 2923.24), and two

counts of violating a protection order (R.C. 2919.27), following his pleas of guilty, and

sentencing him to an aggregate minimum prison term of eight years and an aggregate

indefinite maximum prison term of ten and one-half years. Appellee is the state of Ohio.

                                          STATEMENT OF THE CASE1

          {¶2}     On August 12, 2019, Appellant was indicted by the Tuscarawas County

Grand Jury on one count of aggravated burglary, one count of burglary, one count of

possessing criminal tools, and two counts of violating a protection order. On February

24, 2020, Appellant entered guilty pleas to all charges, and was convicted.

          {¶3}     The case proceeded to sentencing. Appellant was sentenced pursuant to

Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act. Counts one, two, and

three merged as allied offenses of similar import, and the State elected sentencing on

count one, aggravated burglary. Counts four and five also merged as allied offenses, and

the State elected sentencing on count four of violating a protection order. The court

sentenced Appellant to a minimum of seven years and a maximum of ten and one-half

years on the aggravated burglary conviction. The court sentenced Appellant to thirty-six

months incarceration for violating a protection order, to be served concurrently with the

aggravated burglary sentence.                 The court sentenced Appellant to twelve months




1   A rendition of the facts is not necessary for our resolution of the issues raised on appeal.
Tuscarawas County, Case No. 2020 AP 03 0009                                                  3


incarceration for the time he had remaining under post-release control, for an aggregate

sentence of eight to ten and one-half years incarceration.

       {¶4}   It is from the February 25, 2020, judgment of the Tuscarawas County

Common Pleas Court Appellant prosecutes this appeal, assigning as error:



              THE REAGAN TOKES ACT VIOLATES THE CONSTITUTIONS OF

       THE UNITED STATES AND THE STATE OF OHIO.



                                              I.

       {¶5}   In his assignment of error, Appellant challenges the presumptive release

feature of R.C. 2967.271, arguing it violates his constitutional rights to trial by jury, equal

protection, and due process of law, and further violates the constitutional requirement of

separation of powers.

       {¶6}   R.C. 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
Tuscarawas County, Case No. 2020 AP 03 0009                                              4


     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.
Tuscarawas County, Case No. 2020 AP 03 0009                                            5


              (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
Tuscarawas County, Case No. 2020 AP 03 0009                                            6


     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) of this section or this division prior

     to the expiration of the offender's maximum prison term imposed as part of

     the offender's non-life felony indefinite prison term, the offender shall be

     released upon the expiration of that maximum term.
Tuscarawas County, Case No. 2020 AP 03 0009                                              7


      {¶7}    Appellant argues the portions of the statute which allow the Department of

Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond

his presumptive minimum prison term violate the United States and Ohio Constitutions.

However, Appellant has not yet been subject to the application of these provisions, as he

has not yet served his minimum term, and therefore has not been denied release at the

expiration of his minimum term of incarceration.

      {¶8}    The Ohio Supreme Court discussed the concept of ripeness for review in

State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 1998-Ohio-366, 694

N.E.2d 459:



              Ripeness “is peculiarly a question of timing.” Regional Rail

      Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42

      L.Ed.2d 320, 351. 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 Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87

      S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:

              “The basic principle of ripeness may be derived from the conclusion

      that ‘judicial machinery should be conserved for problems which are real or

      present and imminent, not squandered on problems which are abstract or

      hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on

      jurisdiction that is nevertheless basically optimistic as regards the prospects

      of a day in court: the time for judicial relief is simply not yet arrived, even
Tuscarawas County, Case No. 2020 AP 03 0009                                                8


       though the alleged action of the defendant foretells legal injury to the

       plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings

       Twice (1965), 65 Colum. L.Rev. 867, 876.



       {¶9}   Id. at 89, 694 N.E.2d at 460.

       {¶10} In State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, the

defendant argued because the Parole Board, pursuant to R.C. 2967.28, could extend his

sentence by up to an additional five years for violation of post-release control, the statute

was unconstitutional. The Eighth District Court of Appeals concluded because McCann

was not currently the subject of such action by the Parole Board, the issue was not yet

ripe for review. Id. at ¶6.

       {¶11} Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut

the presumption Appellant will be released after serving his eight year minimum sentence

and potentially continue his incarceration to a term not exceeding ten and one-half years,

Appellant has not yet been subject to such action by the DRC, and thus the constitutional

issue is not yet ripe for our review.

       {¶12} In State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000),

the Ohio Supreme Court held the former R.C. 2967.11, which allowed executive branch

officials to try, convict, and add bad time to a prisoner’s term for a criminal violation

occurring during the course of the prisoner's stated term of incarceration, violated the

constitutional doctrine of separation of powers and was therefore unconstitutional The

case involved three prisoners who had been subject to application of the “bad time”

provision. One prisoner had filed a writ of habeas corpus in the Court of Appeals for
Tuscarawas County, Case No. 2020 AP 03 0009                                                9


Warren County, which denied the writ, and he appealed. A second prisoner filed a writ

of habeas corpus in the Court of Appeals for Trumbull County, which granted the writ,

and the State appealed. A third prisoner filed an original petition for a writ of habeas

corpus in the Ohio Supreme Court. Although the Bray court did not specifically discuss

the necessity of the use of a writ of habeas corpus to challenge the constitutionality of the

bad time provisions of the statute, the court ruled on the merits of the writs, finding the

statute violated the constitutional doctrine of separation of powers. Id. at 136, 729 N.E.2d

at 362.    We thus infer the appropriate method for Appellant to challenge the

constitutionality of the presumptive release portions of R.C. 2967.271 is by filing a writ of

habeas corpus if he is not released at the conclusion of his eight year minimum term of

incarceration.

       {¶13} We find the issues raised in this appeal are not yet ripe for review. The

assignment of error is overruled.

       {¶14} The appeal is dismissed.



By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
