Tuesday, June 29, 2021
State of Ohio ex rel. Jay Johnstone v. City of Cincinnati, Case No. 2020-0823
First District Court of Appeals (Hamilton County)
In re Application of Suvon LLC, Case No. 2020-1109
Public Utilities Commission of Ohio
State of Ohio v. Kandale L. Harrison, Case No. 2020-1117
Third District Court of Appeals (Logan County)
State of Ohio v. Edward Maddox, Case No. 2020-1266
Sixth District Court of Appeals (Lucas County)
Was Police Lieutenant with More Than Two Years’ Experience Entitled to Promotion?
State of Ohio ex rel. Jay Johnstone v. City of Cincinnati, Case No. 2020-0823
First District Court of Appeals (Hamilton County)
ISSUE: Did the Cincinnati Civil Service Commission act arbitrarily and capriciously when waiving the requirement that a candidate for the Cincinnati Police Department’s 2016 promotional exam for captain must have two years of service as a lieutenant to take the exam?
BACKGROUND:
The City of Cincinnati announced a mid-November exam in 2016 for the position of police captain in the Cincinnati Police Department. The posting stated that the position required two years of service as a police lieutenant with the city.
Four lieutenants with less than two years of service took issue with the two-year “time-in-grade” requirement and asked to take the exam. The Cincinnati Civil Service Commission considered arguments on the issue at a Nov. 17, 2016 meeting. The commission ruled to allow all lieutenants with more than one year of service in the rank of lieutenant to sit for the captain exam, which had multiple parts and started the next day. The commission stated the decision didn’t “establish precedent” and it would make a final ruling after reviewing additional position statements.
After the exam, a list of those eligible for a promotion to captain was compiled. The first two lieutenants on the list were promoted. Lieutenant Jay Johnstone was third on the list. Johnstone, a lieutenant since 2010, met the original two-year requirement, while one other lieutenant who was promoted had more than one year, but less than two years, of service in the lieutenant grade.
In February 2017, the commission issued a final ruling, which upheld its initial determination to waive the two-year requirement. The ruling concluded that R.C. 124.44, which governs police department promotions and had been amended in 2007, didn’t apply. The commission stated:
“We find that the O.R.C. Section 124.44 amended language is not applicable or determinative for the current dispute, based on its vagueness and lack of any documented testimony, recorded evidence, or court case law, concerning the meaning, interpretation, or application of the 2007 amended language. In addition, while 124.44 clearly states that no police officer may be promoted to a higher ranked position (without one year of service in the next lower rank and passing a competitive promotional examination), this section does not limit or restrict civil service commissions’ discretion to allow individual police officers to participate in an examination process. This decision is set on a one-time basis, under the principles of equity, diversity and equal opportunity, without establishing any precedent or practice for future police promotional examinations.”
Applicant for Captain Takes Legal Action Against City
Johnstone sued in Hamilton County Common Pleas Court in April 2018, asking for a writ of mandamus to order the city to promote him to captain because the commission had illegally waived the two-year requirement for applicants. The court agreed, finding that the commission’s decision was “arbitrary, unreasonable and capricious.” The court ordered Johnstone’s promotion, effective back to April 2017.
The city appealed to the First District Court of Appeals, which affirmed the trial court. The city appealed to the Ohio Supreme Court, which accepted the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast and livestreamed.
City Maintains Commission Permitted to Waive Two-Year Prerequisite for Job
The city states that the commission had the authority to waive the two-year requirement based on language in state law, R.C. 124.44: “… no person in a police department shall be promoted to a position in a higher rank who has not served at least twelve months in the next lower rank.”
The law, amended in 2007, added, “A municipal civil service commission may require a period of service of longer than twelve months for promotion to the rank immediately above the rank of patrol officer.” The police department’s ranks elevate from patrol officer to sergeant to lieutenant to captain, and, with a few intervening steps, up to chief of police. The city notes that the new language regarding the rank “immediately above the rank of patrol officer” refers to sergeants. Based on the law, only sergeant positions can require more than a year of service, the city argues.
The city rejects the decisions of the trial court and the First District ordering Johnstone’s promotion. Each court discussed the commission’s February 2017 final decision, which stated that R.C. 124.44 didn’t apply. In upholding Johnstone’s retroactive promotion, the First District ruled the commission didn’t base its waiver of the two-year requirement on any legal analysis or interpretation, so the commission’s decision was arbitrary. The city counters that the commission – even though it offered a rationale other than the statute – properly waived the two-year requirement, as mandated by R.C. 124.44.
The city notes that the commission has since updated the job prerequisite for ranks higher than sergeant to reflect that only one-year experience in the rank below is necessary to be eligible to take exams for promotions.
Applicant Emphasizes Commission Decision Lacked Legal Basis
Johnstone agrees with the First District’s analysis. He argues the commission clearly stated in its February 2017 decision that it rejected R.C. 124.44 as a reason for waiving the two-year prerequisite. Quoting the decision, he maintains that rather than rely on the statute, the commission exercised its discretion “on a one-time basis” based on “principles of equity, diversity and equal opportunity.” That approach was “nebulous and arbitrary” and shows an absence of any legal analysis or statutory interpretation, Johnstone’s brief states.
Johnstone contends that the city can’t ignore the commission’s “plain language” in the February 2017 decision and then argue for interpreting the plain language of R.C. 124.44 to support its view. The city wants the Court to allow the commission to base its decision “on any reason under the sun” as long as the city can articulate reasonable grounds for it after the fact, he asserts.
“Both the trial court and the First District concluded that the Commission abused its discretion precisely because its decision was untethered to any rational legal analysis or interpretation and lacked any other indicia of a reasoned or principled decision,” his brief concludes. “Review of the Commission’s exercise of its discretion must be grounded in the actual reasons the Commission gave for its decision and not based on alternative reasons it could have or should have applied.”
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the City of Cincinnati: William Hicks, 513.352.3329
Representing Jay Johnstone: George Reul Jr., 513.721.1975
Is New Electric Service Provider Too Closely Connected to Monopoly Power Transmitter?
In re Application of Suvon LLC, Case No. 2020-1109
Public Utilities Commission of Ohio
ISSUES:
- Did the Public Utilities Commission of Ohio violate state law and administrative rules when it denied parties the right to conduct discovery and submit evidence in Suvon LLC’s application to do business as FirstEnergy Advisors and provide retail electric power services?
- Was the commission’s approval of FirstEnergy Advisors’ application against the weight of evidence and clearly unsupported by the record?
BACKGROUND:
Electricity in northern Ohio is primarily transmitted and distributed by three companies, collectively known as FirstEnergy Utilities. Their parent company, which owns electric distribution companies in several states, is FirstEnergy Corp. Under Ohio’s deregulated electricity market, providers of competitive retail electric service must be approved by the Public Utilities Commission of Ohio (PUCO). FirstEnergy Solutions was a provider of retail service. It was owned by FirstEnergy Corp. and was affiliated with the regional monopoly FirstEnergy Utilities. FirstEnergy Solutions filed for Chapter 11 bankruptcy and emerged as Energy Harbor in February 2020 – and the new Energy Harbor was no longer a subsidiary of FirstEnergy Corp. nor affiliated with the FirstEnergy monopolies.
As FirstEnergy Solutions was transitioning during bankruptcy, key employees were moved to a new company, Suvon , doing business as FirstEnergy Advisors. FirstEnergy Advisors moved into the same Akron office building that serves as the headquarters of FirstEnergy Utilities. In January 2020, FirstEnergy Advisors applied to the PUCO to be a provider of retail electric service. Similar to the former FirstEnergy Solutions, FirstEnergy Advisors was listed as a subsidiary of FirstEnergy Corp. and an affiliate of FirstEnergy Utilities.
The application prompted concern by several competitors and consumer advocates, who received PUCO permission to intervene in the case. Among the intervenors was the Northern Ohio Public Energy Council (NOPEC), which is the largest governmental retail energy aggregator certified in Ohio and serves about 500,000 customers in 19 northern Ohio counties. NOPEC states that it competes against FirstEnergy Advisors for customers who are seeking to lower electricity rates by aggregating their electric usage load with others in their communities. The Office of the Ohio Consumers’ Counsel (OCC), which represents more than 2 million customers in the FirstEnergy Utilities monopoly service territories, also intervened.
Company Management and Name Draw Objections
Shortly after FirstEnergy Advisors applied, NOPEC and OCC jointly requested that the PUCO suspend the application and conduct a hearing. The groups noted their principal concerns were that state law and commission rules would be violated if the application were approved. The groups maintain that two of the three FirstEnergy Advisors managers also held top positions at FirstEnergy Corp. and FirstEnergy Utilities. Listed as a manager of FirstEnergy Advisors, Chuck Jones was also the chief executive officer of the parent FirstEnergy Corp. and president of the FirstEnergy Utilities. Steve Strah, another FirstEnergy Advisors manager, was also a FirstEnergy Corp. senior vice president and a director of FirstEnergy Utilities. NOPEC and OCC maintained the rules don’t allow for common management of the monopoly transmission companies and the competitive retail service companies.
NOPEC and OCC also objected to the use of the name FirstEnergy Advisors, stating that the name blurs the distinction between the transmission companies and the separate retail affiliate, which would confuse customers.
Under state law, the PUCO has 30 days to approve a retail service provider application, but can suspend the application for “good cause,” giving it 90 days to rule. The day after the intervenors raised issues, the application was suspended. A week later, NOPEC served FirstEnergy Advisors with discovery requests. FirstEnergy Advisors didn’t respond to discovery requests from NOPEC or those subsequently submitted by the consumers’ counsel.
In March, FirstEnergy Advisors asked the PUCO for a protective order to prevent discovery by the intervenors. NOPEC responded with a request that the PUCO compel FirstEnergy Advisors to provide the requested information.
The commission didn’t rule on the discovery matters or conduct a hearing. In April 2020, the PUCO received a two-paragraph review and recommendation from its staff suggesting approval of the application. The commission approved the recommendation, and told NOPEC and OCC that their concerns with FirstEnergy Advisors’ structure and name would best be addressed by another ongoing case -- a 2018 audit of the defunct FirstEnergy Solutions and the three monopoly FirstEnergy Utilities.
NOPEC and OCC appealed to the Supreme Court, which is obligated to hear appeals of PUCO decisions. Because of the coronavirus health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast live and livestreamed.
Company Can’t Comply with Code of Conduct Rules, Local Governments Assert
NOPEC maintains the PUCO must affirm that FirstEnergy Advisors is “fit and capable” of complying with the commission’s rules, and that it isn’t able to do so because the management arrangement makes the company unfit to do business. The public energy council notes the PUCO itself questioned whether the sharing of senior officers between the FirstEnergy retailer and its monopoly affiliates violates the PUCO’s Code of Conduct. But rather than address the issue in this case, the commission “punts” the matter to the ongoing “corporate separation” audit case, NOPEC notes. The council argues the audit case isn’t the appropriate case for the examination of FirstEnergy Advisors because the new retailer isn’t even part of the audit. The ongoing audit case involves the examination of the three transmission utilities and the bankrupted defunct retail affiliate, the group notes.
By deferring decisions to the audit case, the PUCO approved FirstEnergy Advisors’ application without allowing NOPEC to conduct discovery and offer evidence to demonstrate the retailer couldn’t comply with commission rules. The commission’s approval of the application based on the two-paragraph staff recommendation violates R.C. 4903.09, NOPEC argues, because there are no findings in the record to determine that FirstEnergy Advisors’ management is fit and capable of complying with PUCO rules. While commission states it reviewed the full multi-page application and the additional supporting materials FirstEnergy Advisors was required to provide, NOPEC argues the commission fails to note what specifically in the application or materials indicates that the company is fit.
The PUCO also requires the regulated monopolies to abide by a code of conduct, and a provision of the conduct code seeks to prevent the monopolies from market power abuses through its affiliation with retail providers, NOPEC explains. It notes the independent auditor in the ongoing audit case had warned about the potential abuse by the use of the name FirstEnergy Solutions before the company went bankrupt. By sharing the key managers, it would be impossible for the monopoly utility to avoid providing an unfair advantage to the affiliate, NOPEC argues, and the retailers shouldn’t share the name of the regulated companies.
Consumer Advocate Shares Concerns
In a separate brief, the consumers’ counsel makes many of the same arguments as NOPEC against the approval of FirstEnergy Advisors’ application. The office maintains the use of the FirstEnergy name will provide an unfair advantage over other providers, which is a detriment to consumers. By not allowing OCC and the others to conduct meaningful discovery, the commission prevented the presentation of evidence that could conclude the application was insufficient, OCC states. The consumers’ counsel asks the Supreme Court to remand the case to the commission so that full due process rights can be extended to the intervenors and a thorough hearing on the matter be conducted.
The consumers’ counsel argues the commission ignored important issues affecting consumers and retail competition by relying solely on information FirstEnergy Advisors provided and a brief staff recommendation. Approval is manifestly against the weight of the evidence, the office asserts, because the commission took no evidence other than a staff summary report. The consumers’ counsel maintains the PUCO took a severely narrow view of the requirement that it assesses whether the retail provider is “managerially, financially, and technically fit and capable of performing the service it intends to provide.”
Part of the fitness requirement is the ability to comply with “all” commission rules, the office explains. OCC argues the risk of an unfair competitive advantage and abuse of power in the market has been elevated by the recent federal investigation of the passage of House Bill 6, which proposed to provide nearly $1 billion in ratepayer subsidies to operate two northern Ohio nuclear power plants previously owned by FirstEnergy. FirstEnergy Advisor managers Chuck Jones and Dennis Check have been terminated by FirstEnergy Corp. in the wake of the scandal.
The consumers’ counsel argues it is unfair to allow FirstEnergy Advisors to compete in the marketplace while issues of corporate separation and abuse of the trade name are addressed in a separate audit case. The office maintains the application proceeding is the proper place and a hearing on the application should take place.
No Hearing Necessary, Commission Maintains
The commission explains that its charge was to determine if FirstEnergy Advisors had the managerial, technical, and financial capabilities to be retail energy supplier, and that it had the discretion to allow discovery by intervenors and the discretion to hold a hearing. It chose not to take those discretionary steps because the lengthy application submitted by FirstEnergy Advisors and additional supporting materials answered the narrow question of whether the company had the necessary managerial, technical, and financial capabilities, the PUCO states.
The concerns raised by NOPEC and OCC are better suited for the corporate separation audit case, in which issues about shared corporate officers and use of trade names are being examined, the commission states. The PUCO noted that in November 2020 it issued a request for proposals for auditors to examine the time period leading up to passage of H.B. 6, and to examine the additional information provided to federal regulators regarding FirstEnergy Corp.’s compliance with corporate separation rules.
The PUCO also noted that granting use of a trade name similar to the regulated monopoly has been routinely approved for other brokers, including those for providers in the monopoly transmission territories of AEP Ohio, Duke Energy, and the former Dayton Power & Light companies. The approval of FirstEnergy Advisors would be no different, the commission asserts, noting all of the retail suppliers are under strict conditions to provide consumers with disclaimers stating the retailer is a separate company from the transmission providers.
Company Backs Commission Decision
The Court permitted FirstEnergy Advisors to intervene in the case to argue on its own behalf. The company largely agrees with the PUCO’s arguments and notes the commission has regularly approved the use of shared employees between electric transmission companies and affiliated retail sales units. FirstEnergy Advisors maintains its competitor, NOPEC, has cited no examples of how FirstEnergy Advisors has violated the code of conduct by using shared employees or how it is using its trade name unfairly to gain business. The company argues the opponents aren’t entitled to a hearing on mere speculation that the FirstEnergy companies or employees are violating the rules regarding competitive retail service. They company asserts its should be able to continue to be a service provider.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of the Consumers’ Counsel: Angela O’Brien, 614.466.9531
Representing the Northeast Ohio Public Energy Council: Glenn Krassen, 216.523.5404
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, 614.466.4395
Representing Suvon LLC: Trevor Alexander, 614.223.9363
Could Officer Use Warrant Without Judge’s Signature to Detain Suspected Drug Dealer?
State of Ohio v. Kandale L. Harrison, Case No. 2020-1117
Third District Court of Appeals (Logan County)
ISSUES:
- Is an arrest warrant that isn’t signed by a judge or other authorized official invalid?
- Does an officer’s good-faith belief that an unsigned arrest warrant is valid act as an exception to the rule that would exclude evidence collected as a result of an invalid arrest warrant?
BACKGROUND:
In February 2018, the Logan County Drug Task Force arranged for an informant to purchase cocaine from Kandale Harrison in a Bellefontaine store parking lot. Two weeks after officers observed the drug purchase, they obtained a search warrant allowing a GPS tracking device to be placed on Harrison’s vehicle.
Two weeks after placing the tracking device on Harrison’s SUV, Detective Brent Joseph of the Logan County’s Sheriff Office prepared a four-page document to submit to the Bellefontaine Municipal Court. The first page was a complaint stating Harrison violated state law by selling cocaine. The second page was a warrant form prepared for the municipal court. The third and fourth pages were an affidavit containing Joseph’s sworn statement that the task force recorded and documented Harrison selling cocaine to an informant.
Joseph presented the packet to the municipal clerk of court, who notarized the detective’s statement on the first page which was the complaint. She then signed her name. The clerk took the documents to the municipal court judge, telling Joseph the judge was not immediately available but that he could come back to pick up the warrant.
Later that day, Joseph returned. The complaint had a stamped box on it that stated the judge had found probable cause to issue the arrest warrant. The stamped box had a line stating “hearing held,” and the date it was submitted was handwritten on the line even though the judge hadn’t held a hearing. The judge initialed the box. Joseph picked up the packet, which included the blank warrant page.
Five days later, Joseph and another officer used the tracking device to observe Harrison returning to Logan County after what they suspected were drug sales in nearby cities. Harrison’s vehicle was pulled over, and he was arrested. A search of Harrison and his vehicle turned up cash, drugs, and a stolen gun.
A grand jury indicted Harrison on nine counts, including trafficking cocaine and other drugs, and engaging in a pattern of corrupt activity.
Arrest Procedures Challenged
At an April 2019 hearing, Harrison, representing himself, sought a motion to suppress the evidence. He argued the arrest warrant was invalid because it was blank and not signed by the judge. As the matter was pending, the presiding judge left office, and a visiting judge continued hearing the matter in September 2019.
During the hearings, the municipal clerk explained a process developed by the Logan County Drug Task Force and the municipal court regarding arrest warrants. Because suspects were searching the court’s records online to determine if they were wanted by law enforcement, the municipal court judge and clerk agreed not to sign arrest warrants and enter the information into the court’s computer database until after the arrest occurred. Joseph testified that under the process, the judge’s initials and stamp on the complaint indicating probable cause, which accompanied the blank warrant, led officers to believe the warrant was valid.
The trial court criticized the process, which has since been changed, and ruled the warrant was invalid. The court granted Harrison’s request to suppress all evidence derived from the search after his arrest.
The Logan County Prosecutor’s Office appealed the decision to the Third District Court of Appeals, which reversed the trial court’s decision.
Harrison appealed the Third District’s decision to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast and livestreamed.
Unsigned Warrant Invalid, Suspect Asserts
Harrison cites the Ohio Supreme Court’s 1991 State v. Williams decision, which held that a search warrant without the required signature was void ab initio, and any evidence obtained using the warrant must be suppressed. He explains the Third District disregarded the Williams decision because of the particular arrangement the Bellefontaine judge and clerk made with drug task force. Because the judge provided the officer with an indication that she intended to sign the warrant once the arrest was made, the officer’s warrant was valid, the appellate court ruled. Harrison states the appellate court is not free to ignore the precedent stated in Williams and there is no need to adopt a different rule or modify the longstanding rule.
The appellate court reversed the trial court’s decision to suppress the evidence by finding the arresting officers were acting in good faith because they had a reasonable belief the warrant was valid. In 1984, the U.S. Supreme Court initially recognized a good-faith exception to the exclusionary rule.
Harrison argues the Ohio Supreme Court has applied the exclusion in a similar fashion to the federal courts. The U.S. Supreme Court outlined four instances in which the good-faith exception shouldn’t be applied and one is when a warrant on its face is deficient. Because the warrant was unsigned, it was invalid from the beginning and is deficient, Harrison asserts. The good-faith exception can’t be applied in his case, he concludes. Harrison maintains the trial court’s reasoning was consistent with the Williams decision and correctly rejected the prosecution’s good-faith exception argument. The Supreme Court should affirm the trial court’s decision, he argues.
Arrest Was Proper, Prosecutor Maintains
The prosecutor’s office argues the Williams decision doesn’t apply because that case was about search warrants, not an arrest warrant, which is at issue here. Search warrants deal with privacy interests, and arrest warrants relate to liberty interests, the prosecutor explains.
Liberty interests and the protections of them can be diminished in many instances, allowing for officers to make arrests without warrants, the office notes. Citing R.C. 2935.03(B), the prosecutor states police officers can make felony arrests in public places at any time and without a warrant. Harrison was arrested while driving on a public road, and the arrest and subsequent search were valid even without a warrant because the detective had already established that Harrison committed a felony weeks before by selling cocaine, the prosecutor argues.
The prosecutor maintains Joseph sought an arrest warrant out of an abundance of caution and filed all the correct paperwork to receive one. Joseph believed he had a valid warrant based on the municipal court’s procedure and punishing him for following the procedure would be a “gross miscarriage of justice,” the office maintains.
The prosecutor also asserts the good-faith exception applies. The prosecutor notes that the Ohio Rules of Criminal Procedure don’t require a judge’s signature on the warrant page. The common practice is for a judge or other authority to sign the warrant because this provides evidence that a judge or magistrate reviewed the document and found probable cause, the office states. However, there are other ways to prove probable cause was established, and in this case, that was achieved when the judge stamped the complaint indicating probable cause and initialed it, the prosecutor asserts. Because the stamp was on one the documents packaged to secure the warrant, the warrant wasn’t defective, the prosecutor argues. And since the warrant wasn’t defective, even if it was missing information, the good-faith exception should apply, the office concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Kandale Harrison: Tina McFall, 937.593.6591
Representing the State of Ohio from the Logan County Prosecutor’s Office: Eric Stewart, 937.599.7272
Must Defendants Serve Minimum Prison Term Before Challenging Reagan Tokes Law?
State of Ohio v. Edward Maddox, Case No. 2020-1266
Sixth District Court of Appeals (Lucas County)
ISSUE: Can the constitutionality of the provisions of the Reagan Tokes Law be reviewed by courts on direct appeal from sentencing or only after the defendant serves the minimum prison term and the sentence is extended based on the law’s provisions?
BACKGROUND:
In September 2019, Edward Maddox entered an Alford plea in Lucas County Common Pleas Court to two counts of attempted burglary and one count of burglary – all felonies. The trial court explained that the second-degree burglary charge was subject to an indefinite sentence based on the Reagan Tokes Law, which took effect on March 22, 2019. The law presumes that an offender will be released once the minimum prison term is served but gives the Department of Rehabilitation and Correction (DRC) the authority to keep the offender in prison up to the stated maximum term.
The court found Maddox guilty. On each count of attempted burglary, he was sentenced to a 12-month prison term. For burglary, the court sentenced him to a minimum of four years in prison with a potential maximum of six years. The court imposed the sentences concurrently.
Maddox appealed to the Sixth District Court of Appeals, arguing that the DRC’s authority under the Tokes Law to extend his sentence beyond the minimum prison term violates the separation of powers between the judicial and executive branches and infringes on his constitutional rights. The Sixth District ruled that because Maddox hadn’t yet served his minimum prison term and the DRC hadn’t applied the Tokes provisions to delay his release, the legal issues weren’t ready, or “ripe,” for courts to review.
Maddox pointed out, and the Sixth District agreed, that decisions from the Second District Court of Appeals and the Twelfth District Court of Appeals conflict with this ruling. The Sixth District certified the conflict to the Ohio Supreme Court, which agreed to review the disagreement among the state’s appellate courts. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast and livestreamed.
Tokes Law Allows DRC to Delay Release Beyond Minimum Sentence
Since the enactment of the Reagan Tokes Law, Senate Bill 201, state law requires a court sentencing a person for a second-degree felony to impose an indefinite prison term – defined by the appropriate minimum prison term and, in Maddox’s case, a maximum term set at 150% of the minimum.
The law presumes that an offender will be released when the minimum prison term expires or at the time of an earned early release date. However, R.C. 2967.271 enables the DRC to hold a hearing to rebut the offender’s release based on: the offender’s rule infractions or law violations in certain circumstances; the offender’s placement in extended restrictive housing; or the offender’s security level. If successful in rebutting the release, the DRC determines the additional amount of time to keep the offender in prison, but can’t exceed the offender’s maximum prison term.
Offender States Constitutionality of Tokes Law Can Be Reviewed Now
The Sixth District suggested that the appropriate method for an offender to challenge the Tokes Law’s indefinite sentencing structure is by filing a writ of habeas corpus to contest continued incarceration if the offender is kept in prison after reaching the minimum prison term – in Maddox’s case, four years. Maddox maintains, though, that offenders sentenced under the law should have the right to question its constitutionality before the trial court’s sentencing and in direct appeals.
“It makes no sense to ‘wait-and-see’ if the Tokes law is unconstitutional until after an inmate is held-over because a Byzantine system that postpones adjudication until someone is physically restrained under an extended sentence results in the worst legal harm – loss of liberty that can’t be retroactively remedied – if the Tokes law is ultimately held invalid,” his brief states.
Maddox notes that whether the Tokes Law’s sentencing structure is constitutional plays a role throughout Ohio in negotiating plea agreements with the state and in a defendant’s decision whether to go to trial. The potential consequences are dire if an offender can’t challenge these sentences until a habeas review that takes place after conviction and incarceration, he contends. He adds that the offender has no right to counsel when filing a writ of habeas corpus.
He argues that the DRC alone decides whether the offender will serve a longer-than-minimum sentence. Trial judges have no discretion on the maximum term, and the Tokes Law makes prison officials “judicial proxies with the clout to determine – without review – if any of the maximum term is actually served,” his brief maintains.
He asks the Court to reverse the Sixth District’s decision and remand the case for the court to consider the issues raised.
Prosecutor Argues Harm to Offender Currently Is ‘Speculative’
Pointing to precedent, the Lucas County Prosecutor’s Office maintains that a case isn’t ready for review if it rests on events that may not happen or if the case is abstract or hypothetical. Instead, courts deal with problems that are real, present, and imminent and in which a defendant can show concrete injury, the prosecutor notes.
The prosecutor contends that the DRC hasn’t taken any action with Maddox under the Tokes Law, and it is unclear whether the department ever will use the law to keep Maddox in prison longer than his minimum sentence. The factors required under the law to rebut his presumed release after he completes his minimum term may never arise, the prosecutor states. Even if factors come into play, the prosecutor argues, the DRC isn’t required in every situation to argue against an offender’s release. The office’s brief maintains that Maddox’s concerns are “merely hypothetical” and “entirely speculative.”
The office argues that Maddox hasn’t reached the end of his minimum prison term and been denied release, so he has suffered no harm under the Tokes Law. Given these circumstances, the issues Maddox raises aren’t ready for a court to review, the office states.
In the appellate cases in conflict with the Sixth District’s decision, both the Second and Twelfth Districts ruled on the merits of the arguments in those cases by upholding the Tokes Law as constitutional. However, the prosecutor argues, the courts didn’t explicitly consider whether the challenges to the Tokes Law were ready for courts to review. The prosecutor agrees with the Sixth District’s ruling. On the issue of legal representation, the prosecutor notes that, even in civil proceedings such as habeas filings, a court has discretion to appoint a lawyer for indigent offenders.
Groups Maintain Indefinite Prison Terms Can Be Appealed After Sentencing
An amicus curiae brief supporting Maddox’s position has been submitted jointly by Anzelmo Law, the Hamilton County Public Defender’s Office, and the Ohio Public Defender’s Office. The public defenders and the law firm describe the Tokes Law as a “resurrection of Ohio’s unconstitutional ‘bad time’ law” and represents a “retreat” from truth in sentencing.
They maintain that whether the indefinite sentences imposed on offenders under the Tokes Law are proper turns on whether the law is constitutional. And that issue can’t be addressed until the Court finds these cases ready for review, they state. The groups argue that indefinite prison terms are part of the felony sentence and, under state law, can be appealed at the time the sentence is rendered.
State Asserts that Courts Require Concrete Facts, Developed Record
The Ohio Attorney General’s Office has filed an amicus brief supporting the Lucas County prosecutor. The attorney general rejects the position that the Tokes Law is a retreat from Ohio’s truth-in-sentencing goals as a policy argument that should be directed to the legislature.
Also, Maddox must wait until the DRC takes an action under the law before it is appropriate for a court to consider his arguments, the attorney general notes. By waiting until circumstances are concrete, it will ensure that courts have an adequate record for an effective review and ruling, the attorney general maintains.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Edward Maddox: Andrew Mayle, 419.334.8377
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Alyssa Breyman, 419.213.2001