Two men in prison are challenging the power of corrections officials to extend their sentences under the Reagan Tokes Act. Their appeals, which will be heard by the Supreme Court of Ohio next week, argue the Tokes Act is unconstitutional.

The Tokes Act became law after Reagan Tokes, a 21-year-old student, was abducted, raped, and murdered in 2017 by a man on parole. At issue in the appeals is part of the law that permits the Department of Rehabilitation and Corrections (DRC) to keep an offender in prison past the minimum term in the offender’s sentence.

In 2021, the Supreme Court accepted the appeals of Christopher Hacker and Danan Simmons Jr., but held the cases for a decision in State v. Maddox. The Court’s Maddox decision in March 2022 permitted offenders to appeal sentences imposed under the Tokes Act before the DRC requests an extension of the minimum sentence. Following the ruling, Hacker’s and Simmons’ cases moved forward on the Court’s docket. The Court currently is holding more than 60 cases for decisions in these two cases.

One Man Given Sentencing Range; Other Receives Definite Sentence
In Logan County in 2019, Hacker pled guilty to aggravated burglary. He received a six-to-nine-year prison sentence on the burglary charge. The Third District Court of Appeals upheld the constitutionality of the sentence.

Simmons was sentenced in Cuyahoga County to five years for having a weapon illegally, drug trafficking, and drug possession. The trial court didn’t sentence Simmons to a range of years under the Tokes Act, concluding that the law is unconstitutional. However, the Eighth District Court of Appeals overturned the ruling and ordered the case back to the trial court for resentencing.

When the minimum number of years in a sentence is reached, it is presumed that the offender will be released from prison. However, through a Tokes Act provision, the DRC can contest the presumed release date in certain circumstances. At a hearing before the Parole Board, the DRC must establish one of three criteria. The DRC can show, for example, that the offender violated a prison rule or a law, demonstrating that the offender isn’t rehabilitated and remains a threat to society. If the DRC prevails at the hearing, the offender remains in prison longer than the minimum prison term.

Men Raise Concerns About Separation of Powers, Due Process, and Jury Fact-Finding
Hacker argues the law infringes on the separation of powers between the judicial and executive branches because the DRC, instead of the courts, decides the length of an offender’s sentence. Simmons agrees, contending that the DRC is acting unconstitutionally as prosecutor, judge, and jury when seeking to keep offenders in prison. Hacker and Simmons maintain that the agency extends sentences based on events and facts not considered by a judge.

They also assert that the law doesn’t give offenders proper notice of the conduct that could lengthen their sentences. Nor does the law ensure procedural protections – such as rights to be present at the hearing, to have an attorney, and to call witnesses – that are necessary for due process, they state.

Amicus briefs were submitted in Hacker’s case by the Ohio Public Defender’s Office and Edward Maddox, the subject of the Supreme Court’s earlier decision on the Tokes Act. The public defender has asked to share the time allotted to Hacker for oral arguments.

State Argues Extensions Fall Within Sentence Range, Offenders Have Procedural Protections
The Ohio Attorney General’s Office and the Cuyahoga County Prosecutor’s Office both contend that the power to sentence offenders remains with the judiciary in the Tokes Act. The executive branch decides an offender’s release date within the indefinite sentencing range imposed by the trial court, they maintain. They argue these distinct responsibilities don’t violate the separation of powers.

They also assert that DRC rules explain improper conduct and its consequences, giving offenders adequate notice of the actions that could lead to a longer prison sentence within a sentencing range. And the procedural concerns that Hacker and Simmons point to don’t apply to Parole Board hearings, the state maintains.

The state maintains that Hacker and Simmons each forfeited the claim that a jury or judge didn’t determine the facts that lengthen a sentence because it wasn’t presented in the lower courts.

In Hacker’s appeal, the Cuyahoga County Prosecutor’s Office and Ohio Prosecuting Attorneys Association submitted amicus briefs. The association also filed an amicus brief in Simmons’ case, as did the attorney general’s office, which will present arguments with the Cuyahoga County prosecutor to the Court.

Oral Argument Details
On Jan. 10, the Court will hear three cases. On Jan. 11, the Court will consider State v. Hacker, State v. Simmons, and a death penalty appeal.

Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and broadcast live on the Ohio Channel, where they are archived.

In addition to the highlights covered here, the Court’s Office of Public Information released detailed articles today about each case, available through the case-name links.

Tuesday, Jan. 10
Will Dispute
A Mercer County farmer stated in his will that when he died, he would leave the farm to his brother, who helped to farm the land. The rest of his estate would be split evenly between his brother and sister. In 2016, the brother died, and in 2019, the farmer died. The sister maintained that since her brother died before the farm passed to him, the farm property should be split evenly between her and her brother’s children. The brother’s children argue that under the state “anti-lapse” law, the farm property belongs solely to them as if their father inherited it and passed it to them. In Diller v. Diller, co-executor, et al., the Court will consider if a 2012 rewrite of the anti-lapse law directs the farm property to be split by the farmer’s sister and her brother’s children.

Land Bank Transfers
Three county governments foreclosed on properties in 2017 for unpaid taxes. A bank owned or had a mortgage on the properties. Instead of selling the land, recouping the taxes, and providing any funds raised above the taxes owed to the bank, the counties transferred the properties to county land banks. In State ex rel. US Bank v. Cuyahoga County and two other cases, combined for oral arguments, the Court will consider if the land bank’s taking ownership of the property without paying the fair market value to the bank violates the federal and state constitutions.

Pandemic Closure Orders
In the early days of the COVID-19 pandemic, the state imposed a 120-day rule to stop the carryout sale of beer, wine, and liquor by 10 p.m. An Akron bar defied the law, and the Ohio Liquor Control Commission revoked the establishment’s liquor permits. The bar appealed through a state-mandated administrative procedure, and lost. As that appeal was pending, the bar sought a writ of mandamus to declare the temporary rule unconstitutional. In Highland Tavern v. Gov. DeWine et al., the Court will consider the constitutionality of the rule and whether the tavern had the right to challenge the law through a separate lawsuit outside of the appeals process.

Wednesday, Jan. 11
Death Penalty Appeal
In State v. Nicholson, a Cuyahoga County man argues that the evidence doesn’t support his murder convictions and sentence of death. He was found guilty of killing his girlfriend’s 17-year-old son and 19-year-old daughter in the driveway of the Garfield Heights home where they all lived. He maintains that the daughter pointed a gun at him and he acted in self-defense. The state counters that the girlfriend and her children suffered years of physical and psychological abuse by the man, and the evidence against him was overwhelming.