Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 01-27-2021
Case Style:
STATE OF OHIO v. AUSTIN R. HALFHIL
Case Number: 20CA7
Judge: Michael D. Hess
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
Plaintiff's Attorney: James K. Stanley, Meigs County Prosecutor
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Athens, OH - Criminal defense attorney represented Austin R. Halfhill with appealing his sentence for aggravated vehicular homicide and operating a vehicle while under the influence of alcohol or drugs (OMVI).
The Meigs County grand jury indicted Halfhill on nine counts, including
three OMVI counts, first-degree misdemeanors; two counts of aggravated vehicular
homicide, first-degree felonies; two counts of aggravated vehicular homicide, seconddegree felonies; and two counts of vehicular manslaughter, first-degree misdemeanors.
The charges arose from an accident in which Halfhill struck a motorcycle, killing both
riders. In a negotiated plea agreement, Halfhill pleaded guilty to two counts of
aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), first-degree
felonies, and one count of OMVI in violation of R.C. 4511.19(A)(1)(a), a first-degree
misdemeanor. Pursuant to the plea agreement, the trial court dismissed the remaining
counts. The parties did not reach an agreement as to sentencing.
Meigs App. No. 20CA7 3
{¶5} At the sentencing hearing, Halfhill filed a sentencing memorandum in
which he asked the trial court to strike as unconstitutional the indefinite sentencing
provisions of the recently enacted Reagan Tokes Law, Am.Sub.S.B. No 201, effective
March 22, 2019. The trial court rejected his argument and found Reagan Tokes Law
constitutional and sentenced Halfhill to an indefinite term of eight years minimum to
twelve years maximum on one of the aggravated vehicular homicide counts, eight years
on the other aggravated vehicular homicide count, and 180 days of local jail time for
OMVI. The trial court ordered the aggravated vehicular homicide sentences to run
consecutive to one another and concurrent with the OMVI sentence for an aggregate
prison term of sixteen to twenty years.
II. ASSIGNMENT OF ERROR
{¶6} Halfhill assigns the following error for our review:
AS AMENDED BY THE REAGAN TOKES ACT (SB 201, EFF. 3/22/19),
THE REVISED CODE’S SENTENCES FOR FIRST AND SECOND
DEGREE QUALIFYING FELONIES VIOLATE THE CONSTITUTIONS OF
THE UNITED STATES AND THE STATE OF OHIO.
{¶7} Halfhill contends that the Reagan Tokes Law violates the separation of
powers doctrine, due process, and his right to a jury trial.
III. REAGAN TOKES LAW
{¶8} The Reagan Tokes Law requires that a court imposing a prison term
under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second-degree felony committed on
or after March 22, 2019, impose a minimum prison term under that provision and a
maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). There is
a presumption that 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
Meigs App. No. 20CA7 4
earned early release date, whichever is earlier.” R.C. 2967.271(B). A presumptive
earned early release date is a date determined under procedures described in R.C.
2967.271(F) which allow the sentencing court to reduce the minimum prison term under
certain circumstances. R.C. 2967.271(A)(2). The ODRC may rebut the presumption if
it determines at a hearing that one or more statutorily numerated factors applies. R.C.
2967.271(C). If ODRC rebuts the presumption, it may maintain the offender’s
incarceration after the expiration of the minimum prison term or presumptive earned
early release date for a reasonable period of time, determined and specified by ODRC,
that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D)(1).
{¶9} Halfhill maintains that the Reagan Tokes Law violates the separation of
powers doctrine, due process and his right to a jury trial because R.C. 2967.271(C)(1)
allows ODRC to extend a prison sentence if it determines, among other things, that the
offender committed an unprosecuted violation of the law. He asserts that when the
Reagan Tokes Law is compared to former R.C. 2967.11 (the “bad time” law), which
allowed the parole board to extend an offender’s stated prison term under certain
circumstances, “the net results are indistinguishable.” Halfhill argues that in State ex
rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), the Supreme Court of
Ohio held that former R.C. 2967.11 violated the separation of powers doctrine because
trying, convicting, and sentencing inmates for crimes committed while incarcerated is
not an exercise of executive power. He also argues that due process requires that the
decision to restrict an individual’s freedom be made by a judge and that he has a right to
a trial by jury on the question of whether his minimum sentence should be increased.
Meigs App. No. 20CA7 5
{¶10} The state contends both that Halfhill lacks standing1 to challenge the
constitutionality of the Reagan Tokes Law and that his constitutional challenge is not
ripe for review because he has not been injured by its allegedly unconstitutional
provision as ODRC has not maintained his incarceration beyond his minimum prison
term. Alternatively, the state argues that the law is constitutional and cites a number of
Second and Twelfth District decisions that have found the Reagan Tokes Law to be
constitutional.
{¶11} The constitutionality of a statute presents a question of law we review de
novo. Hayslip v. Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272, ¶ 27 (4th Dist.). However,
“[i]t is well settled that this court will not reach constitutional issues unless absolutely
necessary.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9.
To determine the necessity of a constitutional analysis, therefore, we must first decide
whether the issue is ripe for review.
{¶12} At least eight appellate districts have had the opportunity to address the
constitutionality of the Reagan Tokes Law. In our district and in the Eighth and Eleventh
District Courts of Appeals, when the defendant fails to raise constitutional objections in
the trial court, the appellate courts refuse to conduct a plain error analysis of the issue.
State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 40 (“we decline to
1 As Halfhill correctly argues in his reply brief, although the state contends Halfhill lacks “standing” the
proper question is one of “ripeness” rather than “standing.” See Wells Fargo Bank, N.A. v. Horn, 142 Ohio
St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 8 (2015) (“Generally speaking, standing is ‘[a] party's right
to make a legal claim or seek judicial enforcement of a duty or right.’ Black's Law Dictionary 1625 (10th
Ed.2014). ‘It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the
court unless he has, in an individual or representative capacity, some real interest in the subject matter of
the action.’”). “Ripeness ‘is peculiarly a question of timing.’” State ex rel. Elyria Foundry Co. v. Indus.
Comm., 82 Ohio St.3d 88, 89, 1998-Ohio-366, 694 N.E.2d 459. Thus, while Halfhill undoubtedly has
standing to challenge his sentence, because he has not yet been subject to the ODRC actions, the
question is whether the constitutionality of Reagan Tokes Law is ripe for review.
Meigs App. No. 20CA7 6
construct a plain error argument on his behalf, particularly when R.C. 2967.271(C)(1)
has not been and might never be applied to him, and he has not responded to the
state’s standing argument”); State v. Young, 8th Dist. Cuyahoga No. 108868, 2020-
Ohio-4135, ¶ 21 (“Young failed to raise a constitutional challenge to the Reagan Tokes
Act in the trial court, and we decline to address the issue for the first time on appeal”);
State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 12, 19 (“Given the
lack of presentment to the trial court and the absence of plain error arguments, we
decline to address the constitutionality of the Reagan Tokes Act as to this case”); State
v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258, ¶ 47-57 (declining to
address constitutionality of Reagan Tokes Act for the first time on appeal); State v.
Ferguson, 11th Dist. Lake No. 2020-L-0431, 2020-Ohio-5578, ¶ 13 (defendant failed to
raise it at the trial level, appellate court declined to address it).
{¶13} Recently, when the issue was properly preserved for appeal, we held that
a defendant’s constitutional challenge to the Reagan Tokes Law was not ripe for review.
State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2, 2020-Ohio-6733. In Ramey,
the defendant raised the same constitutional challenges to the Reagan Tokes Law as
Halfhill raises. We analyzed decisions from other appellate districts and found that some
districts held that the constitutionality of Reagan Tokes Law was not ripe for review and
other districts reviewed the statute and found it constitutional. Ramey at ¶ 20. The Fifth
District Court of Appeals has held that constitutional challenges to the Reagan Tokes
Law are not yet ripe for review because the appellant has not yet been subject to the
application of those provisions. It determined that the appropriate method to challenge
the constitutionality of the Reagan Tokes Law is by filing a petition for a writ of habeas
Meigs App. No. 20CA7 7
corpus if the defendant is not released at the conclusion of the minimum term of
incarceration. State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio4227, ¶ 7-12; State v. Manion, 5th Dist. Tuscarawas No. 2020AP030009, 2020-Ohio4230, ¶ 7-12; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631,
¶ 13-16; but see State v. Cochran, 5th Dist. Licking No. 2019CA122, 2020-Ohio-5329, ¶
25-63 and State v. Wolfe, 5th Dist. Licking No. 2020CA21, 2020-Ohio-3501, ¶ 41-81
(Gwin, J., dissenting in both Cochran and Wolfe and finding the question of the
constitutionality of Reagan Tokes Law ripe for review and finding the law constitutional).
{¶14} The Fifth District determined that the issue was not ripe for review
because the 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.” Downard at ¶ 7; Manion at ¶ 7.
In discussing the ripeness issue, the appellate court explained:
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 though the alleged action
Meigs App. No. 20CA7 8
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.
Id. at 89, 694 N.E.2d at 460.
Downard at ¶ 8-9; Manion at ¶ 8-9.
{¶15} The Fifth District Court of Appeals also noted that, in analyzing an
analogous constitutional challenge to R.C. 2967.28 (which allows the Parole Board to
impose sanctions for violations of post-release control), the Eighth District Court of
Appeals concluded that because the defendant “was not currently the subject of such
action by the Parole Board, the issue was not yet ripe for review.” Id. at ¶ 10, citing
State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171, ¶ 6. The appellate
court in Downard and Manion analogized the appellant before them to the appellant in
McCann and found:
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.
Downard at ¶ 11; Manion at ¶ 11.
{¶16} While Ramey’s appeal was pending in our court, the Sixth District Court of
Appeals issued a series of decisions adopting the Fifth District’s analysis in Downard
and finding that the constitutionality of Reagan Tokes Law was not ripe for review. See
State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702, ¶ 7 -14; State v.
Velliquette, 2020-Ohio-4855, __N.E.3d__, ¶ 29 (6th Dist.); State v. Montgomery, 6th
Dist. Lucas No. L-19-1202, 2020-Ohio-5552, ¶ 25. In both Velliquette and Montgomery,
the Sixth District recognized that its decision was in conflict with decisions in the Second
Meigs App. No. 20CA7 9
and Twelfth District Courts of Appeals, which found the Reagan Tokes Law
constitutional without addressing the ripeness issue. The Sixth District Court of Appeals
certified the conflict to the Supreme Court of Ohio for review. Velliquette at ¶ 32.
We therefore sua sponte certify a conflict to the Supreme Court of Ohio,
pursuant to Article IV, Section 3(B)(4), Ohio Constitution. As this case
concerns the same conflict at issue in Maddox, we certify the same
question for review:
Is the constitutionality of the provisions of the Reagan Tokes
Act, which allow the Department of Rehabilitation and
Corrections to administratively extend a criminal defendant's
prison term beyond the presumptive minimum term, ripe for
review on direct appeal from sentencing, or only after the
defendant has served the minimum term and been subject to
extension by application of the Act?
Montgomery at ¶ 25. The Velliquette matter is currently pending in the Supreme Court
of Ohio, Case No. 2020-1243.
{¶17} Although the Fourth, Fifth, Sixth, Eighth, and Eleventh District Courts of
Appeals have either refused to conduct a plain error analysis of the constitutional
challenge or found the issue not yet ripe for review, the Second, Third, and Twelfth
District Courts of Appeals have upheld the Reagan Tokes Law as constitutional without
addressing the ripeness issue. State v. Ferguson, 2d Dist. Montgomery No. 28644,
2020-Ohio-4153 (specifically discussing the State v. Oneal, infra decision from the
Hamilton County Court of Common Pleas); State v. Barnes, 2d Dist. Montgomery No.
28613, 2020-Ohio-4150 (conducting a plain error review of the constitutionality of the
Reagan Tokes Law and rejecting the reasoning in State v. Oneal, Hamilton C.P. No. B
1903562, 2019 WL 7670061 (Nov. 20, 2019), the only known case finding the Reagan
Tokes Law unconstitutional); State v. Leet, 2d Montgomery No. 28670, 2020-Ohio4592; State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359, ¶ 29, 32
Meigs App. No. 20CA7 10
(court acknowledged the state’s ripeness challenge but found “we need not address
these arguments because we recently upheld the constitutionality of the Reagan Tokes
Act” in Ferguson, supra); State v. Hacker, 2020-Ohio-5048, __N.E.3d__ (3d Dist.)
(conducting a de novo review of the constitutionality of the Reagan Tokes Law and
rejecting the reasoning in State v. Oneal); State v. Guyton, 12th Dist. Butler No.
CA2019-12-203, 2020-Ohio-3837; State v. Morris, 12th Dist. Butler No. CA2019-12-205,
2020-Ohio-4103, ¶ 10. These courts noted critical distinctions between the “bad time”
statute and the Reagan Tokes Law. See Ramey, 2020-Ohio-6733, ¶ 19 (discussing
Barnes, Ferguson, and Guyton).
{¶18} In Ramey, although we found the analyses of the Second, Third, and
Twelfth District Courts of Appeals persuasive, we did not reach the merits of Ramey’s
constitutional challenge because, like the analysis of the Fifth District Court of Appeals,
we found that it was not yet ripe for review:
Ramey has not yet been subject to the application of the provisions, has
not served his minimum time, and therefore has not been denied release
at the expiration of his minimum term of incarceration. We have historically
practiced restraint in addressing challenges to sentencing issues which
are not yet ripe for review. See State v. Edwards, 4th Dist. Jackson No.
06CA5, 2006-Ohio-6288, ¶ 27; State v. Sparks, 4th Dist. Washington No.
03CA21, 2003-Ohio-6300, ¶ 1 (“Sparks contends that the trial court
violated his right to due process and usurped the authority of the Ohio
Adult Parole Authority * * * by sentencing him to a period of post-release
control. Because we find that Sparks has not yet been sentenced to any
period of post release control, we find that his appeal is not yet ripe for
judicial review.”). This is particularly true where constitutional challenges
are raised; appellate courts will not reach constitutional issues unless
“absolutely necessary.” State v. Breidenbach, 4th Dist. Athens No.
10CA10, 2010-Ohio-4335, ¶ 12. If the provisions of the Reagan Tokes
Law which give the ODRC authority to keep Ramey incarcerated until he
has served his maximum prison term are unconstitutional, Ramey can
challenge those by a petition for a writ of habeas corpus – if, after he has
served his minimum prison term, the ODRC acts to maintain him beyond
it. See Bray, supra; Downard, supra; Minion, supra.
Meigs App. No. 20CA7 11
Id. at ¶ 20.
{¶19} As discussed in Ramey, a petition for a writ of habeas corpus was the
procedure by which the defendants in Bray, infra, and Woods, infra, challenged the
constitutionality of the “bad time” statute, R.C. 2967.11, and the post-release control
statute, R.C. 2967.28. Ramey at ¶ 21 (discussing State ex rel. Bray v. Russell, 89 Ohio
St.3d 132, 729 N.E.2d 359 (2000), in which the Supreme Court of Ohio determined that
the “bad time” statute violated the separation of powers doctrine and was
unconstitutional and discussing Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733
N.E.2d 1103, in which an inmate filed a petition for a writ of habeas corpus arguing that
the post-release control statute, R.C. 2967.28, was unconstitutional as it violated the
separation of powers doctrine and due process). Thus, like Ramey, we find that a
habeas corpus petition is the appropriate method for Halfhill to challenge the
constitutionality of the Reagan Tokes Law when – if ever – the ODRC holds him beyond
the minimum sentence.
{¶20} We find the constitutional challenge raised by Halfhill in his sole
assignment of error is not yet ripe for review. The assignment of error is overruled
Outcome: We overrule the assignment of error. The appeal is dismissed.
Plaintiff's Experts:
Defendant's Experts:
Comments: