2000 COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73130 and 73132 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION BRADLEY WILLIAMSON : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-346301 and CR-344227. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Leo Gorie, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert M. Ingersoll, Esq. Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113-1513 -2- TIMOTHY E. McMONAGLE, P.J.: Defendant-appellant Bradley Williamson ( appellant ) appeals his conviction and sentence imposed by the Cuyahoga County Common Pleas Court after his entry of a guilty plea to the charges against him. Appellant asserts that the sentence imposed by the court violates numerous rights guaranteed to him by the Constitution because the sentence includes a potential for additional prison time pursuant to the statutory mandates of R.C. 2967.11 and R.C. 2967.28. Finding no abridgment of appellant's constitutional rights, we affirm his conviction and sentence. The facts giving rise to this appeal are as follows. On October 24, 1996, appellant was indicted on one count of felonious assault (R.C.2903.11). On November 26, 1996, he was additionally charged in a three-count indictment with aggravated burglary (R.C.2911.11); attempted murder (R.C. 2903.02 and R.C. 2923.02); and aggravated robbery (R.C. 2911.01). Pursuant to agreement with the state, appellant entered a plea of guilty to an amended indictment charging one count of attempted felonious assault, aggravated burglary and attempted murder. The state entered a nolle prosequi to the remaining charge against him. Because each of the crimes charged occurred after July 1, 1996, appellant was sentenced under the sentencing structure as put forth in Senate Bill 2. At sentencing, for the crime of attempted felonious assault the trial court imposed a five year term of incarceration at the Lorain Correctional Institution subject to three years post- release supervision. Further, for the crimes of aggravated -3- burglary and attempted murder the court imposed two consecutive terms of incarceration of eight years at the Lorain Correctional Institution and ordered appellant to serve two consecutive five year terms of post-release supervision. As a result of the consecutive sentencing, appellant is required to serve twenty-one years in prison followed by ten to thirteen years of post-release supervision. Appellant timely appeals and asserts five assignments of error for our review. I. BRADLEY WILLIAMSON'S SENTENCE VIOLATES HIS CONSTITUTIONAL RIGHT NOT TO BE DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW, BECAUSE IT CONTAINS PROVISIONS UNDER WHICH HE CAN BE IMPRISONED FOR FUTURE ACTS WITHOUT FIRST AFFORDING HIM HIS FULL DUE PROCESS RIGHTS. II. THE NEW OHIO SENTENCING STRUCTURE OF S.B. 2 VIOLATES BRADLEY WILLIAMSON'S CONSTITUTIONAL RIGHT NOT TO BE PLACED IN JEOPARDY TWO TIMES FOR THE SAME OFFENSE. III. BRADLEY WILLIAMSON IS DENIED HIS CONSTITUTIONAL RIGHT TO SUBSTANTIVE DUE PROCESS UNDER OHIO'S NEW SENTENCING SCHEME. IV. BRADLEY WILLIAMSON'S SENTENCE VIOLATES HIS CONSTITUTIONAL RIGHT TO BE FREE OF CRUEL AND UNUSUAL PUNISHMENT. V. BRADLEY WILLIAMSON'S SENTENCE IS UNCONSTITUTIONAL, BECAUSE THE NEW OHIO SENTENCING SCHEME VIOLATES THE CONSTITUTIONAL PROVISIONS REQUIRING THE SEPARATION OF POWERS. Appellant contends that because R.C. 2967.11 ( bad time provision) and R.C. 2967.28 ( post-release control sanction provision) provide that he may be subjected to additional prison -4- time, they violate numerous rights guaranteed to him by the Constitution. In his first assignment of error, appellant complains that he may suffer a new and separate loss of liberty and be required to serve additional prison time, over and above the sentences imposed upon him, for new and additional offenses without the full panoply of due process rights as provided to any other citizen facing criminal charges and punishments. Appellant asserts that the imposition of bad time (R.C. 2967.11) or post-release control sanctions (R.C. 2967.28) would deny him his: 1) right to counsel; 2) right to a jury trial; 3) right to a public trial; and 4) right to be found guilty beyond a reasonable doubt. In his second assigned error, appellant contends his right not to be placed in double jeopardy for the same offense could be violated because in addition to the bad time or post-release control violation sanction which could be imposed, both R.C. 2967.11(G) and R.C. 2967.28(F)(4) authorize the state to pursue criminal charges against a prisoner or a releasee for whatever act resulted in the violation sentence. Thus, pursuant to the statutory mandates, a possibility exists for conviction and sentence to be imposed two times for a single offense. In his third assigned error, appellant contends that Senate Bill 2 burdens his fundamental right to liberty without a compelling justification because his right to freedom may be abridged by imposition of additional prison time as authorized by R.C. 2967.11 and R.C. 2967.28. -5- In his fourth assigned error, appellant contends that these statutes permit the disproportionate result of a misdemeanant being punished as if he had committed a felony thereby constituting a potential abridgment of his right to be free of cruel and unusual punishment. Appellant complains that such disproportionate results may occur because unlike the statutory sanctions for misdemeanor offenses: 1) R.C. 2967.11 would permit a person charged with a misdemeanor or even a minor misdemeanor to be required to serve a prison sentence if these misdemeanors were committed while the person is in prison; 2) the sanctions created by R.C. 2967.28 could also result in prison sentences; and 3) both statutory sections require such sentences to run consecutively. Finally, in his fifth assigned error, appellant complains that both R.C. 2967.11 and 2967.28 violate the Constitutional provisions requiring separation of powers by allowing the Executive Branch to encroach on the powers of the Judiciary when the prison authority and/or the adult parole authority are allowed to hold hearings, convict inmates or prison releasees for committing crimes, and impose sentences upon them. In each of appellant's five as 11c1 signments of error appellant raises constitutional challenges to R.C. 2967.11 and R.C. 2967.28. While we find each of appellant's constitutional challenges to these statutory enactments compelling, we find ourselves constrained from determining the merits of his claims because appellant has not alleged any injury from either of the code sections. The record before us shows that, as of yet, appellant -6- has not had his prison time extended pursuant to R.C. 2967.11 nor had sanctions imposed upon him for violation of post-release control as mandated by R.C. 2967.28. In reliance on the reasoning set forth in the Supreme Court decision in Roe v. Wade (1973), 410 U.S. 113, appellant asserts this court should not avoid appellant's arguments on the basis that the issues he raises are not yet ripe for determination. However, we find that circumstances of Roe v. Wade, supra, are distinguishable from the matter sub judice and, consequently, find that decision does not compel us to decide the constitutional issues before us. It is rudimentary that, in order for one to have a right to challenge a statute upon a constitutional basis, the person posing such a challenge must, in fact, be adversely affected by that statute. Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169, 512 N.E.2d 971. McKenny v. Hillside Dairy Co. (1996), 109 Ohio App.3d 164, 175. The Palazzi court held [t]he constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision. Palazzi id.,syllabus (emphasis added). Constitutional questions will not be decided until the necessity of a decision arises on the record before the court. Christensen v. Bd. of Commrs. on Grievances and Discipline (1991), 61 Ohio St.3d 534, 535. Standing to challenge the constitutionality of a statute requires demonstration of -7- concrete injury in fact, rather than an abstract or suspected injury. State ex rel. Consumers League of Ohio v. Ratchford (1982), 8 Ohio App.3d 420. Consequently, we find that until a prisoner's sentence has been extended pursuant to the bad time provision of R.C. 2967.11, he lacks standing to bring a constitutional challenge to the statute. See State v. Davis (December 31, 1997), Miami County App. No. 97-CA-17, unreported; State v. Somerlot (Jan. 23, 1998), Erie County App. No. E-97-002, unreported. Moreover, we find that until a releasee has been subjected to the sanctions as provided in R.C. 2967.28, he lacks standing to bring a constitutional challenge to the statute. See State v. Hicks (Mar. 31, 1998), Erie County App. No. E-97-117, unreported. Accordingly, we find the assignments of error presented by appellant to be without merit as appellant lacks standing to bring a constitutional challenge to these statutory provisions. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE PRESIDING JUDGE KENNETH A. ROCCO, J. and MICHAEL J. CORRIGAN, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's . 0