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A few weeks ago this writer posted an article concerning Senate Bill 201, known as the “Reagan Tokes Act.” That act introduces indefinite sentencing schemes for all first-and-second-degree felonies committed after March 22, 2019.  

The problem with the law, as previously held by one Ohio trial court, is that it gives the sentencing decision to hold or release a defendant to the Ohio Department of Rehabilitation and Correction (“ODRC”): The ODRC may keep a defendant in custody until the maximum term if it chooses, based on several factors—including the ODRC making the decision as to whether the offender committed a new crime. R.C. 2967.271(B)-(C)(1)(a); See State v. O’Neal, Hamilton County Common Pleas Case No. B 1903562 11-20-2019 Judgment Entry.  Concluding the act is unconstitutional, the trial court in O’Neal found it violates the separation of powers doctrine.   

Since the Second District has now weighed in on the question, it’s time for Part II: the search for more money. State v. Barnes, 2020-Ohio-4150 (Aug 21, 2020); see Space Balls.   

Notably, though the two decisions address the same question, they do so under very different standards of review. Barnes raised the same separation of powers issue that O’Neal did to the Second District, but did not raise it in the trial court below.  Thus, the question was considered under a plain error review.  Ultimately, the Second District held that because the act does not allow the ODRC to extend a sentence—but merely allows it to keep a defendant within the permitted indefinite term, it does not “plainly” violate the separation of powers doctrine.   

Here is the important point:  O’Neal raised the issue in the trial court.  Barnes did not.  The takeaway in the end then, is still the same as in part I: raise the issue first in trial court, or you’re going to forfeit the argument to a “plain error” standard of review.