[Cite as State v. Downard, 2020-Ohio-4227.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. Patricia A. Delaney, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. CT2019-0079
 DAMON K. DOWNARD

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Muskingum County
                                               Court of Common Pleas, Case No.
                                               CR2019-0370


 JUDGMENT:                                     Dismissed

 DATE OF JUDGMENT ENTRY:                       August 26, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 D. MICHAEL HADDOX                             JAMES A. ANZELMO
 Prosecuting Attorney                          446 Howland Drive
 Muskingum County, Ohio                        Gahanna, Ohio 43230

 TAYLOR P. BENNINGTON
 Assistant Prosecuting Attorney
 Muskingum County, Ohio
 27 North Fifth Street
 P.O. Box 189
 Zanesville, Ohio 43701
Muskingum County, Case No. CT2019-0079                                                             2


Hoffman, P.J.
          {¶1}     Appellant Damon K. Downard appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him of robbery (2911.02(A)(1)) and

assault on a peace officer (2903.13(A)) following his pleas of guilty, and sentencing him

to an aggregate minimum prison term of nine years and an aggregate indefinite maximum

prison term of thirteen years. Appellee is the state of Ohio.

                                          STATEMENT OF THE CASE1

          {¶2}     On July 10, 2019, Appellant was indicted by the Muskingum County Grand

Jury on one count of aggravated robbery, a first degree felony, and one count of assault

on a peace officer, a fourth degree felony. On September 18, 2019, Appellant entered

guilty pleas to an amended charge of robbery, a second degree felony, and assault on a

peace officer, a fourth degree felony, and was convicted of both charges.

          {¶3}     The case proceeded to sentencing on September 23, 2019. Appellant was

sentenced pursuant to Am.Sub.S.B. No. 201, otherwise known as the Reagan Tokes Act.

On the robbery conviction, the trial court sentenced Appellant to a stated minimum prison

term of eight years. The trial court sentenced Appellant to a stated prison term of twelve

months for assault on a peace officer. The trial court ordered the sentences to be served

consecutively, for an aggregate minimum prison term of nine years and an aggregate

indefinite maximum prison term of thirteen years.

          {¶4}     It is from the September 25, 2019, judgment of the Muskingum County

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




1   A rendition of the facts is not necessary for our resolution of the issues raised on appeal.
Muskingum County, Case No. CT2019-0079                                                        3


              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.

              II. DAMON DOWNARD 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.



                                                 I., II.

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

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

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

of powers. In his second assignment of error, Appellant argues his trial counsel was

ineffective by failing to raise the constitutionality of R.C. 2967.271 in the trial court.

       {¶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.
Muskingum County, Case No. CT2019-0079                                                   4


            (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
Muskingum County, Case No. CT2019-0079                                                 5


     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
Muskingum County, Case No. CT2019-0079                                                 6


     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) 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.
Muskingum County, Case No. CT2019-0079                                                   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
Muskingum County, Case No. CT2019-0079                                                     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 nine year minimum sentence

and potentially continue his incarceration to a term not exceeding thirteen 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
Muskingum County, Case No. CT2019-0079                                                     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

assignments of error are overruled.

       {¶14} The appeal is dismissed.




By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
