State v. Maddox (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Maddox, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 

             THE STATE OF OHIO, APPELLEE, v. MADDOX, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Maddox, Slip Opinion No. 

.]
Criminal law—Sentencing—R.C. 2967.271—Reagan Tokes Law—Ripeness—A
        criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is
        ripe for review on the defendant’s direct appeal of his or her conviction and
        prison sentence—Court of appeals’ judgment reversed and cause
        remanded.
      (No. 2020-1266—Submitted June 29, 2021—Decided March 16, 2022.)
                CERTIFIED by the Court of Appeals for Lucas County,
                           No. CL-19-1253, 

.
                               _______________________
        STEWART, J.
        {¶ 1} In this certified-conflict case, we are asked to decide whether a
criminal defendant’s challenge to the constitutionality of R.C. 2967.271, which is
a part of the “Reagan Tokes Law” and allows the Ohio Department of
                             SUPREME COURT OF OHIO




Rehabilitation and Correction (“DRC”) to administratively extend an incarcerated
person’s prison term beyond his or her minimum prison term or presumptive earned
early-release date but not beyond his or her maximum prison term, is ripe for review
on the defendant’s direct appeal of his or her conviction and prison sentence. We
hold that it is. Accordingly, we reverse the judgment of the Sixth District Court of
Appeals and remand the matter to that court for it to consider whether the
challenged provisions are constitutional.
                          Facts and Procedural History
       {¶ 2} On September 30, 2019, appellant, Edward Maddox, entered guilty
pleas pursuant to North Carolina v. Alford, 

, 

, 

 (1970), to two counts of attempted burglary in violation of R.C. 2923.02(A)
and R.C. 2911.12(A)(2) and (D), felonies of the third degree, and one count of
burglary in violation of R.C. 2911.12(A)(2) and (D), a felony of the second degree.
The trial court sentenced Maddox pursuant to the Reagan Tokes Law to 12-month
definite prison terms for each of the attempted-burglary counts and an indefinite
prison term of four to six years for the burglary count. The sentences were ordered
to be served concurrently.
       {¶ 3} Maddox appealed his convictions to the Sixth District Court of
Appeals, asserting, among other alleged errors, that it “was plain error for the trial
court to impose [a] sentence under the Reagan Tokes Law because its provisions
are unconstitutional nullities.” 

. Specifically, he argued that
the sections of the statute that allow DRC to extend his prison term beyond the
presumptive minimum term violate the United States and Ohio Constitutions,
including the requirement of separation of powers and his rights to a trial by jury
and due process of law. Id. at ¶ 5.
       {¶ 4} Effective March 22, 2019, the Reagan Tokes Law established
indefinite-sentencing provisions for people convicted of non-life-sentence felony
offenses of the first or second degree. Under R.C. 2967.271(B) through (D), there




                                            2
                                January Term, 2022




is a presumption that the offender will be released on the expiration of his or her
minimum prison term or earned early-release date, but the statute enables DRC to
rebut the presumption and keep the offender incarcerated up to the expiration of his
or her maximum prison term.
       {¶ 5} The court of appeals did not reach the merits of Maddox’s
constitutional challenge, holding that the issue is not ripe for review because
Maddox has not yet been subjected to a prison term exceeding his minimum prison
term. 

. Instead, the court held that the appropriate method
for Maddox to challenge the constitutionality of the presumptive-release sections
of the law is to file a petition for a writ of habeas corpus if he is not released upon
the expiration of his four-year minimum term. Id. at ¶ 12.
       {¶ 6} Maddox filed in the Sixth District a motion to certify a conflict
regarding the ripeness issue, asserting that the court of appeals’ judgment is in
conflict with the judgments in State v. Leet, 2d Dist. Montgomery No. 28670, 2020-
Ohio-4592, State v. Ferguson, 2d Dist. Montgomery No. 28644, 

,
State v. Barnes, 2d Dist. Montgomery 

, and State v.
Guyton, 12th Dist. Butler No. CA2019-12-203, 

. The court of
appeals granted the motion and certified a conflict on the following issue of law:


               Is the constitutionality of the provisions of the Reagan Tokes
       [Law], which allow the Department of Rehabilitation and
       Correction[] 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 [law]?




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                               SUPREME COURT OF OHIO




We determined that a conflict exists and agreed to review the certified question.

, 

, 

.
                                  Law and Analysis
          {¶ 7} “In order to be justiciable, a controversy must be ripe for review.”
Keller v. Columbus, 

, 

, 

;
see also Pack v. Cleveland, 

, 

 (1982), paragraph
one of the syllabus. Article IV, Section 4(B) of the Ohio Constitution provides that
“[t]he courts of common pleas * * * shall have original jurisdiction over all
justiciable matters * * * as provided by law,” and this court has stated that “it is the
duty of every judicial tribunal to decide actual controversies between parties
legitimately affected by specific facts and to render judgments which can be carried
into effect.” Fortner v. Thomas, 

, 

 (1970).
“ ‘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.” ’ ” State ex rel. Elyria Foundry Co. v. Indus. Comm., 

,
89, 

 (1988), quoting Comment, Mootness and Ripeness: The
Postman Always Rings Twice, 65 Colum.L.Rev. 867, 876 (1965), quoting Davis,
Ripeness of Governmental Action for Judicial Review, 68 Harv.L.Rev. 1122, 1122
(1955).
          {¶ 8} Ripeness is distinct from standing, but both doctrines require that “an
injury in fact be certainly impending.” Natl. Treasury Emps. Union v. United
States, 

 (D.C.Cir.1996). “[I]f a threatened injury is sufficiently
‘imminent’ to establish standing, the constitutional requirements of the ripeness
doctrine will necessarily be satisfied.” 

. Then, “only the prudential
justiciability concerns of ripeness can act to bar consideration of the claim.” 

The prudential-justiciability concerns include (1) whether the claim is fit for
judicial decision and (2) whether withholding court consideration will cause




                                            4
                                   January Term, 2022




hardship to the parties. Hill v. Snyder, 

 (6th Cir.2017), citing
Abbott Laboratories v. Gardner, 

, 

, 

 (1967), abrogated in part on other grounds, Califano v. Sanders, 

,

, 

 (1997). The first prong of the prudential-justiciability
question is met when “[t]he issue presented in th[e] case is purely legal, and will
not be clarified by further factual development.” Thomas v. Union Carbide
Agricultural Prods. Co., 

, 

, 

 (1985).
       {¶ 9} Maddox argues that his constitutional challenge is ripe on direct
appeal of his convictions and prison sentence because he has been sentenced under
a statute that he has claimed violates the separation-of-powers requirement of the
Ohio Constitution and his rights to a trial by jury and due process of law under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
their parallel Ohio provisions.       He also asserts that the potential maximum
punishment for an offense influences pretrial practice, plea bargaining, and the
decision whether to go to trial.
       {¶ 10} R.C. 2967.271 provides, in 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 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




                                           5
                      SUPREME COURT OF OHIO




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 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




                                    6
                        January Term, 2022




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 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




                                 7
                             SUPREME COURT OF OHIO




       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.


       {¶ 11} In short, the statute provides that an offender must be released on his
or her presumptive release date unless DRC rebuts the presumption and extends the
period of incarceration, not to exceed his or her maximum prison term. We hold
that Maddox’s challenge to the statute’s constitutionality is ripe for review on direct
appeal because (1) he has been sentenced under the statute, (2) no further factual
development is necessary for a court to analyze the challenge, and (3) delaying
review would result in duplicative litigation, forcing Maddox and similarly situated
people to endure potential violations of their constitutional rights in order to
challenge the law. See 

.
       {¶ 12} The United States Supreme Court has held that a constitutional
challenge to a statute is ripe for review when the claimant is merely threatened with
prosecution under the statute and the statute arguably curtails his or her




                                          8
                                 January Term, 2022




constitutional rights. Steffel v. Thompson, 

, 

,

 (1974). In Steffel, the petitioner had been warned twice by police
to stop distributing handbills opposing American involvement in Vietnam on the
sidewalk outside of a shopping center. 

. He was threatened with
arrest under a Georgia criminal-trespass law. 

. In response to the
threat, he brought an action for injunctive and declaratory relief in federal district
court, claiming that the application of the statute to his conduct violated his rights
under the First and Fourteenth Amendments to the United States Constitution. 

.
        {¶ 13} The district court denied all relief and dismissed the action, finding
“ ‘the rudiments of an active controversy between the parties * * * lacking.’ ”
(Ellipsis added in Steffel.) 

, quoting sub nom. Becker v. Thompson, 

 (N.D.Ga.1971). The petitioner appealed the district
court’s denial of declaratory relief, and the court of appeals affirmed the district
court’s judgment. Id. at 456-457. The Supreme Court reversed, holding that “it is
not necessary that petitioner first expose himself to actual arrest or prosecution to
be entitled to challenge a statute that he claims deters the exercise of his
constitutional rights.” Id. at 459.
       {¶ 14} In the case before us, Maddox has already been sentenced under a
statute that he has claimed infringes on his constitutional rights, including his rights
to a trial by jury and due process of law. See 

. Moreover,
Maddox argues that preventing a defendant from challenging the constitutionality
of his or her sentence until habeas corpus is available allows the state to leverage
the specter of the Reagan Tokes Law and potential maximum punishment during
plea negotiations—without having to defend the law’s constitutionality until well
after the defendant has been imprisoned.
       {¶ 15} In reaching its decision below, the Sixth District relied on our
decision in State ex rel. Bray v. Russell, 

, 

 (2000),




                                           9
                              SUPREME COURT OF OHIO




to “infer [that] the appropriate method for [Maddox] 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 four-year
minimum term of incarceration,” 

.                  But Bray is
distinguishable from this case, because it involved prisoners’ challenges to former
R.C. 2967.11, Ohio’s “bad time” statute, which authorized DRC to unilaterally
extend an inmate’s sentence beyond the sentence imposed by the trial court if the
prisoner committed certain violations while in prison. 

. This court
held that former R.C. 2967.11 violated the separation-of-powers doctrine, because
it stripped the trial courts of their authority to impose final sentences on defendants.

. Thus, the prisoners in Bray had no way to challenge their additional
prison time other than through habeas corpus, because the trial courts did not
impose that prison time, precluding any remedy through direct appeal.
       {¶ 16} In contrast, Maddox and other defendants who have been sentenced
under the Reagan Tokes Law have received the entirety of their sentences and the
sentences have been journalized. Therefore, a direct appeal is the appropriate way
to challenge the constitutionality of the provisions at issue. See State v. Patrick,

, 

, 

 (holding that an appeal
of an indefinite sentence on constitutional grounds is permitted under Ohio law).
       {¶ 17} While the state counters, and the third dissenting opinion agrees, that
Maddox has not suffered any harm under the statute because he has not yet been
denied release at the expiration of his minimum prison term, Maddox argues that
having to wait until that happens to seek habeas corpus to challenge the law would
deny indigent defendants the assistance of counsel because habeas corpus is a civil
proceeding in which no right to appointed counsel exists. Maddox also contends
that doing so would needlessly consume judicial resources because of the
duplicative and piecemeal litigation that would result. And he asserts that “[it]
makes no sense to ‘wait-and-see’ if the [Reagan Tokes Law] is unconstitutional




                                          10
                                January Term, 2022




until after an inmate is held-over because a Byzantine system that postpones
adjudication until after someone is physically restrained under an extensive
sentence results in the worst legal harm—loss of liberty that cannot be retroactively
remedied.” We agree.
       {¶ 18} Additionally, appellate courts throughout Ohio have already
considered the constitutionality of R.C. 2967.271 in direct appeals and have
reached different conclusions. In the cases from the Second and Twelfth Districts
cited above, the courts held that the statute is constitutional. See generally Leet, 2d
Dist. Montgomery No. 28670, 

; Ferguson, 2d Dist. Montgomery
No. 28644, 

; Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-
4150; Guyton, 12th Dist. Butler No. CA2019-12-203, 

. The Third
District has also held that the law is constitutional. See, e.g., State v. Hacker, 3d
Dist. Logan No. 8-20-01, 

. In contrast, and as the Sixth District
did in this case, the Fourth and Fifth Districts have held that the constitutionality
issue was not ripe for review. See, e.g., State v. Buckner, 5th Dist. Muskingum
Nos. CT2020-0023 and CT 2020-0024, 

, ¶ 8-10; State v. Ramey,
4th Dist. Washington Nos. 20CA1 and 20CA2, 

. The Eighth
District has found the constitutionality issue ripe for review, but it previously
reached opposite conclusions regarding the constitutionality of the statute, creating
an intra-district conflict. See State v. Delvallie, 8th Dist. Cuyahoga No. 109315,

. The court of appeals resolved that conflict in an en banc
decision and determined that the presumptive-release provisions of the statute are
constitutional. Id. at ¶ 103.
       {¶ 19} As demonstrated by the appellate courts that have already considered
the constitutionality issue, we hold that a challenge to the constitutionality of R.C.
2967.271 is fit for review on a defendant’s direct appeal of his or her conviction
and prison sentence, because no additional factual development is necessary, see
Abbott Laboratories, 

, 87 S.Ct.1507, 

, thus satisfying




                                          11
                              SUPREME COURT OF OHIO




the first prong of the prudential-ripeness test. We further hold that to refrain from
reviewing whether R.C. 2967.271 is constitutional would cause hardship to
Maddox and others who are similarly situated, thus satisfying the second prong of
the prudential-ripeness test. See Abbott Laboratories at 149.
        {¶ 20} Finally, the first dissenting opinion asserts that “there is no conflict
between the Sixth District’s judgment and those of the courts of appeals listed in
its order certifying a conflict,” as the cases listed in the order did not address the
issue of ripeness. Dissenting opinion of Kennedy, J., ¶ 26. This position elevates
form over substance. Because the appellate courts in those cases decided the
constitutional question, they implicitly found the issue ripe for consideration.
Similarly, the second dissenting opinion acknowledges that “[w]hile it could be
argued that the courts in the conflict cases implicitly concluded that the
constitutional challenges to the law were ripe for review, it could also be argued
that those courts did not consider the ripeness question because it was not raised in
those appeals.” Dissenting opinion of Fischer, J., ¶ 31. However, while this case
was pending in this court, both the Second and Twelfth Districts explicitly affirmed
their previously implicit positions that the constitutionality of the statute is ripe for
review on direct appeal. See State v. Thompson, 2d Dist. Clark No. 2020-CA-60,

; State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,

        (“We find that by previously upholding R.C.
2967.271 as constitutional, we have implicitly determined that a defendant’s
constitutional challenge to the Reagan Tokes Law is ripe for review”), citing
Guyton, 12th Dist. Butler No. CA2019-12-203, 

.
        {¶ 21} We conclude that a defendant’s challenge to the provisions of the
Reagan Tokes Law is fit for judicial review on the defendant’s direct appeal of his
or her conviction and prison sentence, and we further conclude that withholding
judicial consideration of the issue will cause hardship to such a defendant. We
therefore hold that the issue of the constitutionality of an indeterminate sentence




                                           12
                                  January Term, 2022




imposed under R.C. 2967.271 ripens at the time of sentencing and that the law may
be challenged on direct appeal.
                                     Conclusion
        {¶ 22} We answer the certified question in the affirmative and hold that a
criminal defendant’s challenge to the constitutionality of R.C. 2967.271 is ripe for
review on the defendant’s direct appeal of his or her conviction and prison sentence.
Accordingly, we reverse the judgment of the Sixth District Court of Appeals and
remand the matter to that court for it to consider the merits of Maddox’s
constitutional challenge.
                                                                   Judgment reversed
                                                                 and cause remanded.
        O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur.
       KENNEDY, J., dissents, with an opinion.
       FISCHER, J., dissents, with an opinion.
       DEWINE, J., dissents, with an opinion.
                                _________________
       KENNEDY, J., dissenting.
       {¶ 23} Because the Sixth District Court of Appeals’ order certifying a
conflict does not point to any judgment from another court of appeals with which
its judgment in fact conflicts on a question of law, I dissent and would dismiss this
matter as having been improvidently certified.
       {¶ 24} Article IV, Section 3(B)(4) of the Ohio Constitution provides that
“[w]henever the judges of a court of appeals find that a judgment upon which they
have agreed is in conflict with a judgment pronounced upon the same question by
any other court of appeals of the state, the judges shall certify the record of the case
to the supreme court for review and final determination.”
       {¶ 25} Construing this language, we have explained that “there must be an
actual conflict between appellate judicial districts on a rule of law before




                                          13
                             SUPREME COURT OF OHIO




certification of a case to the Supreme Court for review and final determination is
proper.” Whitelock v. Gilbane Bldg. Co., 

, 

(1993), paragraph one of the syllabus. We will therefore dismiss a certified-conflict
case if, upon review, we discover that the matter is not properly before this court
because no actual conflict on a rule of law exists. E.g., State v. Pettus, 

, 

, 

.
       {¶ 26} In this case, there is no conflict between the Sixth District’s
judgment and those of the courts of appeals listed in its order certifying a conflict.
In none of the cases cited by the Sixth District did the appellate court articulate the
rule of law that a challenge to R.C. 2967.271, which is a part of the “Reagan Tokes
Law,” is ripe for review on direct appeal from the judgment of conviction. None
of those cases even addressed the issue of ripeness. Because a conflict between the
judgments of different appellate districts on the same rule of law is required before
a conflict may be certified to this court, the conflict question certified by the Sixth
District is not properly before us.
       {¶ 27} I recognize that “[r]ipeness is a justiciability doctrine,” Natl. Park
Hospitality Assn. v. Dept. of Interior, 

, 

, 

 (2003), and that it is a threshold consideration for a court, Thomas v.
Union Carbide Agricultural Prods. Co., 

, 

, 

 (1985). But as we have long understood, “ ‘[a] reported decision,
although a case where the question might have been raised, is entitled to no
consideration whatever as settling * * * a question not passed upon or raised at the
time of the adjudication.’ ” (Brackets and ellipsis added in Payne.) State v. Payne,

, 

, 

, quoting State ex rel.
Gordon v. Rhodes, 

, 

 (1952), paragraph one of the
syllabus. We therefore should not assume from an appellate court’s silence that it
actually adopted a rule of law that is in conflict with a judgment of another court of
appeals.




                                          14
                                 January Term, 2022




        {¶ 28} For these reasons, I would dismiss this matter as having been
improvidently certified. Because the majority does not, I dissent.
                                _________________
        FISCHER, J., dissenting.
        {¶ 29} I respectfully dissent. While I do not necessarily question the
substantive analysis set forth in the majority opinion or the other dissenting
opinions, I conclude that this case is not the proper vehicle for this court to consider
the conflict question.
        {¶ 30} This appeal presents multiple procedural hurdles that render it less
than ideal for addressing the ripeness question. First, the trial court did not consider
the constitutionality of R.C. 2967.271, as appellant, Edward Maddox, did not
challenge the law’s constitutionality at the trial-court level.
        {¶ 31} Second, there is a viable argument that no conflict exists between the
Sixth District Court of Appeals’ decision in this case and the conflict cases from
the other districts. None of the conflict cases contains any analysis of the ripeness
question. While it could be argued that the courts in the conflict cases implicitly
concluded that the constitutional challenges to the law were ripe for review, it could
also be argued that those courts did not consider the ripeness question because it
was not raised in those appeals. Because the conflict cases contain no discussion
of the ripeness question, I am not convinced that there is an actual conflict of law
at issue in this case.
        {¶ 32} As noted in the majority opinion, the constitutionality of R.C.
2967.271 has been the subject of numerous appeals throughout this state. See
majority opinion at ¶ 18. Given the procedural problems noted above, I would
dismiss this appeal as having been improvidently certified and would address the
ripeness question in a case better suited to our review.
                                _________________




                                          15
                                SUPREME COURT OF OHIO




       DEWINE, J., dissenting.
       {¶ 33} This court’s authority is limited. We may decide only cases in which
someone has suffered an injury in fact. Thus, a claim is not ripe for our review
when it is premised “on contingent events that may never occur at all.” State ex
rel. Jones v. Husted, 

, 

, 

(“Jones III”) (lead opinion).
       {¶ 34} This case presents precisely such a claim. Edward Maddox is
serving a prison sentence that by law is presumed to end after no more than four
years. There is a possibility, however, that Maddox could engage in conduct that
would allow prison authorities to extend his prison term beyond his presumptive
release date and a possibility that prison authorities will do so. Maddox wants to
challenge the constitutionality of the statutory scheme allowing for that possibility
now. The problem is that under our precedent Ohio courts are not permitted to
decide speculative claims like the one that Maddox has raised. The majority,
though, misreads federal caselaw on ripeness and, based on its misunderstanding,
decides that Maddox’s claim should be decided now.
 I. Maddox presumably will be released from prison after serving no more
                                   than four years
       {¶ 35} Maddox was sentenced to an indefinite prison term of four to six
years for burglary under R.C. 2967.271, which is a part of the “Reagan Tokes Law.”
Under Ohio’s statutory scheme, trial courts are required to impose an indefinite
prison sentence consisting of a minimum and a maximum term for certain felonies,
including second-degree felonies such as Maddox’s burglary offense. See R.C.
2929.14(A)(2)(a). It is presumed that a “person shall be released from service of
the sentence on the expiration of the offender’s minimum prison term or on the




                                         16
                                    January Term, 2022




offender’s presumptive earned early release date, whichever is earlier.” R.C.
2967.271(B).1
        {¶ 36} Thus, Maddox presumably will be released after serving no more
than four years. 

 However, if certain conditions are met, the Ohio Department
of Rehabilitation and Correction (“DRC”) may rebut that presumption following a
hearing. R.C. 2967.271(C). DRC may rebut Maddox’s presumptive release date if
it finds that (1) during his incarceration, Maddox violated the law or the prison’s
safety or security rules and his behavior while in prison shows that he has not been
rehabilitated and remains a threat to society, (2) Maddox was placed in extended
restrictive housing within the year preceding the date of the hearing, or (3) at the
time of the hearing, Maddox is classified at a security level of three or higher. R.C.
2967.271(C)(1) through (3). If DRC rebuts the presumption, it may hold Maddox
in prison for a “reasonable” additional period not exceeding the maximum term.
R.C. 2967.271(D)(1).
        {¶ 37} Maddox’s claim that his sentence is invalid is based on prison
authorities’ possible extension of his release date beyond the presumptive minimum
term. The question we must decide is whether the possibility of Maddox’s serving
a sentence longer than his presumptive minimum term is a sufficient injury to allow
him to challenge the possible extension of his prison term now.
 II. We decide only cases in which someone has suffered an actual injury; a
                       possibility of future harm is not enough
        {¶ 38} The Ohio Constitution vests the “judicial power of the state” in this
court and the inferior courts. Ohio Constitution, Article IV, Section 1. Although
the language of our Constitution does not mirror the “cases” and “controversies”



1. A “presumptive earned early release date” comes into play when prison officials recommend to
the trial court that an offender be released prior to the expiration of the minimum term based on
“[the offender’s] exceptional conduct while incarcerated or the offender’s adjustment to
incarceration.” R.C. 2967.271(F)(1).




                                               17
                             SUPREME COURT OF OHIO




language of the United States Constitution, see United States Constitution, Article
III, Section 2, our Constitution is generally understood to impose similar
constraints, see Fortner v. Thomas, 

, 

 (1970).
Judicial power is the power to decide “specific cases affecting the interests of
persons or property.” Stanton v. State Tax Comm., 

, 

 (1926). Thus, Ohio courts may decide only “actual controversies between
parties legitimately affected by specific facts.” 

. And they must
“refrain from giving opinions on abstract propositions” or issuing “premature
declarations or advice upon potential controversies.” Id.; see also Travis v. Pub.
Util. Comm., 

, 

 (1931).
       {¶ 39} The ripeness doctrine flows from the constitutional limitation of our
authority to the exercise of the judicial power. See Natl. Park Hospitality Assn. v.
Dept. of Interior, 

, 

, 

 (2003). It
has also been said to encompass “ ‘prudential reasons for refusing to exercise
jurisdiction.’ ” 

 quoting Reno v. Catholic Social Servs., Inc., 

,

, 

 (1993), fn.18; but see Susan B. Anthony List v.
Driehaus, 

, 167, 

, 

 (2014) (questioning
the “continuing vitality of the prudential ripeness doctrine”).
       {¶ 40} As constitutional commands, ripeness and mootness can be viewed
as “time dimensions of standing.” Wright & Miller, Federal Practice & Procedure,
Section 3532.1 (3d Ed.2017). For a claim to be ripe, there must have been an
“injury in fact.” Susan B. Anthony List at 158-159; State ex rel. Walgate v. Kasich,

, 

, 

 (lead opinion). To meet
that requirement, a harm “must be ‘concrete and particularized’ and ‘actual or
imminent, not “conjectural” or “hypothetical.” ’ ” Susan B. Anthony List at 158,
quoting Lujan v. Defenders of Wildlife, 

, 

, 

 (1992), quoting Whitmore v. Arkansas, 

, 

, 

 (1990). An allegation of future injury may satisfy the




                                         18
                                  January Term, 2022




ripeness requirement, but that bar is high and the injury must be “ ‘certainly
impending’ ” or there must be a “ ‘substantial risk’ that the harm will occur.” 

quoting Clapper v. Amnesty Internatl. USA, 

, 

,

 (2013), fn. 5. In contrast, “[a] claim is not ripe if it rests on
contingent events that may never occur at all.” Jones III, 

, 2016-
Ohio-5752, 73 N.E3d 463, at ¶ 21; see also Trump v. New York, ___ U.S. ___, ___,

, 

 (2020), quoting Texas v. United States, 

, 

, 

 (1998) (to be justiciable, a claim
must be “ ‘ripe’—not dependent on ‘contingent future events that may not occur as
anticipated, or indeed may not occur at all’ ”).
         {¶ 41} The Jones trilogy of cases illustrates this point.         Those cases
involved the signature requirements for a ballot initiative sought to be placed before
Ohio voters. 

. After local boards of elections had conducted an
initial review of the signatures, the Ohio secretary of state directed the boards to
rereview certain aspects of the part-petitions and to recertify the results. Id. at
¶ 1-5.
         {¶ 42} Proponents of the ballot initiative filed suit, challenging the secretary
of state’s authority to order a rereview of the signatures. State ex rel. Husted v.
Jones, 

, 

, 

 (“Jones I”); 

. But the case became moot when the secretary of state determined that
notwithstanding the fact that a number of the signatures had been invalidated on
rereview, there remained sufficient signatures to certify the matter to the ballot.

. The Ohio Manufacturers’ Association (“OMA”) then filed its own
action, alleging that thousands of invalid signatures had been verified and seeking
to block the initiative from appearing on the ballot. Ohio Manufacturers’ Assn. v.
Ohioans for Drug Price Relief Act, 

, 

, 

 (“OMA”); 

.




                                           19
                             SUPREME COURT OF OHIO




       {¶ 43} In response to the OMA’s action, the initiative’s proponents filed a
mandamus complaint in this court, seeking to restore signatures that were
invalidated on rereview so as to avoid the possibility that the OMA’s challenge
would reduce the validated signatures to a number below the threshold for
certification to the ballot. State ex rel. Jones v. Husted, 

, 2016-
Ohio-3390, 

 (“Jones II”); Jones III, 

, 2016-Ohio-
5752, 73 N.E3d 463, at ¶ 11.       This court summarily dismissed Jones II “as
premature.” 

 We later explained that we had dismissed Jones II as unripe
because the proponents’ “claims were contingent upon future events that might or
might not occur.” 

.
       {¶ 44} After Jones II was dismissed, the “contingent events” did in fact
come to pass. In OMA, this court determined that a number of the signatures at
issue were invalid, causing the initiative to fall below the threshold of signatures
required for the initiative to be certified to the ballot. OMA at ¶ 46 (lead opinion).
At that point, the proponents’ claims became ripe. See 

. Thus, in
Jones III, this court considered the merits of the proponents’ challenge to the
invalidation of the signatures on rereview. Id. at ¶ 30-53.
       {¶ 45} The case at bar is akin to Jones II. At the time of Jones II, there
remained enough valid signatures to certify the ballot initiative at issue. So it was
speculative whether the initiative’s proponents would suffer any injury as a result
of the invalidation of any signatures on rereview. Similarly, it is speculative
whether Maddox’s prison term will be extended beyond his presumptive release
date. As was the case for the proponents in Jones II, Maddox’s claim relies on
contingent events that may never occur.
       {¶ 46} So far, Maddox has suffered no injury under the provisions of the
Reagan Tokes Law that allow prison authorities to extend a presumptive minimum
sentence. As it stands now, Maddox will be released after he serves his minimum
sentence. Several things must occur in order for Maddox’s release date to be




                                          20
                                January Term, 2022




extended beyond that point. First, Maddox must engage in certain proscribed
conduct, be placed in restrictive housing during a specific time, or be classified at
a security level of three or higher at the time of any hearing on the extension of his
sentence. See R.C. 2967.271(C)(1) through (3). Second, prison authorities must in
fact hold a hearing on the matter. Id. Third, at the hearing, prison authorities must
rebut the presumption that Maddox should be released at the end of his minimum
sentence. Id. These are all “contingent events that may never occur.” Jones III,

, 

, 73 N.E3d 463, at ¶ 21.
       {¶ 47} Furthermore, whether Maddox’s prison term will be extended
beyond its minimum is in large measure up to Maddox. It is up to him to decide
whether he will engage in conduct that violates the law or the safety- or security-
related prison rules. And whether Maddox will be classified at a high security level
or placed in restrictive housing largely depends on his conduct while he is in prison.
So, it is hard to see how Maddox has suffered an injury in fact from something that
hasn’t happened yet, that may never happen, and that is largely within his control.
       {¶ 48} Under our precedent, Maddox has not established that he has
suffered an actual injury sufficient to allow him to challenge the possibility that his
sentence will be extended in the future.
                 III. The majority misapplies federal precedent
       {¶ 49} The majority reaches a contrary result by applying a two-part test for
determining prudential ripeness that is derived from the United States Supreme
Court’s decision in Abbott Laboratories v. Gardner, 

, 

, 

 (1967), abrogated in part on other grounds, Califano
v. Sanders, 

, 

, 

 (1997). Under this test, a
court must consider whether a case is “fit for judicial resolution” and whether
withholding judicial review will cause hardship to the parties. Id.; see also Hill v.
Snyder, 

 (6th Cir.2017).




                                           21
                               SUPREME COURT OF OHIO




        {¶ 50} There’s a big problem, though. Since Abbott was decided, the
United States Supreme Court has made clear that the Abbott test applies only when
determining prudential ripeness and that constitutional standards for justiciability
must be met before one even gets to considerations of prudential ripeness. See
Susan B. Anthony List, 573 U.S. at 157-158, 167, 

, 

;
Trump, ___ U.S. at ___, 

, 

; see also Common
Cause v. Trump, 

, 56 (D.D.C.2020) (referring to the Abbott test
as “the canonical test for prudential ripeness”).
        {¶ 51} Federal courts have explained that “[c]onstitutional ripeness turns on
whether the plaintiff has established ‘an injury-in-fact that is imminent or certainly
impending.’ ” 

, quoting Am. Petroleum Inst. v. Environmental
Protection Agency, 

 (D.C.Cir.2012).               Once constitutional
ripeness is established, determining prudential ripeness requires the court to
balance “ ‘the fitness of the issues for judicial decision’ against ‘the hardship to the
parties of withholding judicial consideration.’ ” 

 quoting Abbott, 

, 

, 

. Remarkably though, the majority here
skips right over the constitutional-ripeness requirement and simply looks to the
prudential-ripeness factors.
        {¶ 52} The Supreme Court’s decision in Susan B. Anthony List illustrates
the problem with the majority’s approach. That case involved a pre-enforcement
challenge to an Ohio statute prohibiting certain “false statements” from being made
during an election campaign. 

. The Sixth Circuit Court of Appeals had
affirmed the federal district court’s dismissal of the case on ripeness grounds after
considering three factors: (1) the likelihood that the alleged harm would come to
pass, (2) whether the factual record was sufficiently developed, and (3) the hardship
to the parties if judicial relief were denied. 

. In reversing the Sixth Circuit,
the Supreme Court made clear that the essential inquiry was the constitutional
“injury-in-fact requirement.” 

. After concluding that the claim met that




                                           22
                                 January Term, 2022




standard, the court mentioned only in passing the prudential-ripeness factors that
the majority finds all important in this case. See 

.
        {¶ 53} In Susan B. Anthony List, the court questioned whether the Abbott
factors for determining prudential ripeness should continue to be considered, noting
that they are in tension with its recent pronouncement that federal courts are
obligated to hear cases within their jurisdiction. Nevertheless, the court found it
unnecessary to “resolve the continuing vitality of the prudential ripeness doctrine
in th[at] case because the ‘fitness’ and ‘hardship’ factors [were] easily satisfied.”
Susan B. Anthony List, 573 U.S. at 167, 

, 

.
        {¶ 54} Fair to say, then, that today’s majority opinion rests on the shakiest
of foundations. It finds dispositive a test for prudential ripeness from federal
caselaw that the United States Supreme Court has called into question. Yet, the
majority neglects to engage in the threshold constitutional inquiry that the United
States Supreme Court has found to be determinative.
        {¶ 55} Tellingly, the very case that the majority cites as justification for
skipping to the prudential-ripeness factors actually demonstrates how far the
majority has gone off track. See majority opinion, ¶ 8, citing Natl. Treasury Emps.
Union v. United States, 

 (D.C.Cir.1996). The majority pulls from
that case this quote: “ ‘[I]f a threatened injury is sufficiently “imminent” to establish
standing, the constitutional requirements of the ripeness doctrine will necessarily
be satisfied.’ ” Majority opinion at ¶ 8, quoting Natl. Treasury Emps. 

. From this the majority implies that no analysis of constitutional ripeness is
necessary. But the majority misses the point—whether one refers to the inquiry as
one of standing or of constitutional ripeness, an injury must be sufficiently
imminent for it to be judiciable.
        {¶ 56} Indeed, the Natl. Treasury court was explicit that “ripeness * * *
shares the constitutional requirement of standing that an injury in fact be certainly
impending.” 

. Thus, the court in Natl. Treasury did what this court




                                           23
                             SUPREME COURT OF OHIO




should have done and analyzed constitutional ripeness before it analyzed prudential
ripeness. See 

. That case involved a challenge by a public union
to the federal Line Item Veto Act, former 2 U.S.C. 691 and 692. Natl. Treasury
Emps. 

. At the time of suit, the President had not yet exercised the
line-item veto or even had the opportunity to do so. 

. Because there was
no threat of “imminent” injury, the court held that the claim was not ripe. 

. The same rationale applies here. DRC has not yet attempted to extend
Maddox’s sentence, and nothing in the record suggests a concrete threat that it will
do so. The alleged injury is not sufficiently imminent to be ripe.
       {¶ 57} The majority also relies heavily on Steffel v. Thompson, 

, 

, 

 (1974), a case involving facts very different
from what we have here. In Steffel, the petitioner had twice been stopped by the
police outside of a shopping mall and threatened with criminal prosecution for
distributing handbills opposing the Vietnam War. 

. The petitioner’s
companion had already been arrested and charged with criminal trespass for his
refusal to stop distributing the handbills after being warned not to do so. 

 at 455-
456. The petitioner sought to challenge the statute in question, claiming that it
“deter[red] the exercise of his constitutional rights.” 

. The Supreme Court
held that in those circumstances, the alleged threats of prosecution could not be
characterized as “imaginary or speculative” and that the petitioner had standing to
challenge the constitutionality of the statute. 

       {¶ 58} The court in Steffel determined that the injury-in-fact requirement
had been met because the imminent threat of enforcement of the statute deterred
the petitioner from exercising his constitutional rights. See id.; see also Calderon
v. Ashmus, 

, 

, 

 (1998) (noting that
in Steffel, “[t]he imminent threat of state criminal prosecution and the consequent
deterrence of the plaintiff’s exercise of constitutionally protected rights established
a case or controversy”). Maddox, in contrast, has not shown any present injury.




                                          24
                               January Term, 2022




He doesn’t allege that he has been deterred from doing anything that he has the
right to do; he has merely pointed to the possibility of injury in the future should
certain speculative events come to pass.
                                 IV. Conclusion
        {¶ 59} By law, there is a presumption that Maddox will serve only the
minimum prison term to which he has been sentenced.            Because Maddox’s
challenge to the possible extension of his sentence beyond the minimum term rests
upon “contingent events that may never occur,” we lack authority to review that
claim now. Jones III, 

, 

, 73 N.E3d 463, at ¶ 21.
I would affirm the judgment of the court of appeals dismissing Maddox’s appeal. I
respectfully dissent from the majority’s decision to do otherwise.
                                _______________
        Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman,
Assistant Prosecuting Attorney, for appellee.
        Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, for appellant.
        Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General,
Michael J. Hendershot, Chief Deputy Solicitor General, and Diane R. Brey, Deputy
Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave
Yost.
        Timothy Young, Ohio Public Defender, and Craig Jaquith, Assistant Public
Defender, urging reversal for amicus curiae Office of the Ohio Public Defender.
        Raymond T. Faller, Hamilton County Public Defender, and Krista M.
Gieske, Assistant Public Defender, urging reversal for amicus curiae Law Office of
the Hamilton County Public Defender.
        Anzelmo Law and James A. Anzelmo, urging reversal for amicus curiae
Anzelmo Law.
                               _________________




                                           25