State of Ohio v. Matthew Nicholson, Case No. 2019-1787
Cuyahoga County Common Pleas Court

State of Ohio v. Christopher P. Hacker, Case No. 2020-1496
Third District Court of Appeals (Logan County)

State of Ohio v. Danan Simmons Jr., Case No. 2021-0532
Eighth District Court of Appeals (Cuyahoga County)

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Death Penalty Appeal Argues Evidence Doesn’t Support Convictions

State of Ohio v. Matthew Nicholson, Case No. 2019-1787
Cuyahoga County Common Pleas Court

Matthew Nicholson appeals his convictions and death sentence for two September 2018 murders in Cuyahoga County. Nicholson was living with his girlfriend, America Polanco, and her 17-year-old son and 19-year-old daughter at Polanco’s Garfield Heights house. Nicholson shot the teenagers to death while they stood in the driveway.

Individuals facing the death penalty in the state receive an automatic appeal to the Supreme Court of Ohio.

Boyfriend Moves Into Family’s House
In 2014, Nicholson, then 25, and Polanco, then 41, began dating. He moved into Polanco’s house about six months later.

On the evening of Sept. 5, 2018, Nicholson arrived home from his job as an armed security guard. He stated that he placed his duty belt and his work-issued firearm in the trunk of his car. Later in the evening, Polanco received a text message from a phone number. Nicholson was suspicious, and Polanco eventually acknowledged that she was texting with a former boyfriend.

Nicholson and Polanco argued in their bedroom, and Polanco said that Nicholson strangled her to the point that she couldn’t breathe. She stated that Nicholson threatened to kill her and the children. During the argument, Polanco’s 17-year-old son, identified as M.L., knocked on the door, checking whether his mom was OK. Nicholson and M.L. argued and got into a physical fight, which moved into the kitchen.

Polanco’s 19-year-old daughter, Giselle, arrived home. Polanco told Giselle and M.L. that Nicholson was going to kill them. Polanco said that M.L. called 911 and Nicholson went upstairs to retrieve a gun. Giselle and M.L. went outside into the driveway. Nicholson said he believed they went to his car to get the firearm from his trunk. Polanco stated that when Nicholson returned with his gun, he opened the screen door and shot at Giselle and M.L.

Polanco ran outside, and Nicholson closed and locked the screen door. Polanco ran to her neighbors’ house, asking them to call 911.

Police and emergency responders arrived. The teenagers were transported to hospitals, as was Polanco after she said she felt ill while talking with police. A police lieutenant was on the phone speaking for hours with Nicholson, who remained in the house until he surrendered between 1 a.m. and 2 a.m. the next morning.

M.L. and Giselle died from their injuries. Law enforcement and medical examiners determined that Nicholson shot at the teens 13 times, and the gunshot wounds that hit the siblings were mostly in their backs.

Charges Include Possibility of Death Penalty
Nicholson was indicted on counts of aggravated murder, murder, attempted murder, felonious assault, and attempted felonious assault. The aggravated murder charges included death penalty specifications.

In October 2019, a jury found Nicholson guilty of all counts except for the attempted murder of Polanco. Following the mitigation phase of the trial, the jury recommended that Nicholson be sentenced to death. The trial court agreed and imposed the death penalty.

In his appeal to the Supreme Court, Nicholson raises 20 legal issues in a 401-page brief.

Nicholson’s Claims Include Self-Defense
Among Nicholson’s arguments:

• He acted in self-defense when Giselle was in the driveway and pointed the gun from his trunk at him.
• The trial court admitted improper evidence about other acts he allegedly committed earlier against Polanco and her children. He disputes the claims.
• Law enforcement lost or destroyed material evidence , including photographs of the contents of his trunk, denying his constitutional right to due process. He maintains that photos of the trunk would have supported his assertion that Polanco moved his work firearm from the driveway back to his trunk after the shootings.

Prosecutor Argues Evidence Proved Crimes
The Cuyahoga County Prosecutor’s Office responds:

• The evidence against Nicholson was overwhelming, and the number of shots he fired undermines his self-defense claim.
• The evidence of other acts that was presented at trial showed the years of physical and psychological abuse that Nicholson inflicted on Polanco and her children, leading to the murders.
• Nicholson didn’t meet his burden to establish that the missing photographs would have been exculpatory or that they were lost in bad faith.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Matthew Nicholson: Jonathan Tyack, 614.221.1342

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Brandon Piteo, 216.443.3189

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Does Keeping Offenders in Prison Longer Under Tokes Act Violate Constitutions?

State of Ohio v. Christopher P. Hacker, Case No. 2020-1496
Third District Court of Appeals (Logan County)

ISSUE: Based on the Reagan Tokes Act, do the sentence ranges for qualifying felonies violate the U.S. and Ohio constitutions – specifically, the separation of powers between government branches, the right to trial by jury, and the right to due process?

BACKGROUND:
In December 2019, Christopher Hacker agreed to plead guilty to aggravated burglary with a firearm specification. The prosecutors dismissed two other counts. The trial court sentenced Hacker to six to nine years in prison for aggravated burglary and one year for the firearm specification.

Hacker appealed to the Third District Court of Appeals, in part challenging the constitutionality of the Reagan Tokes Act. The Tokes statutes were enacted after Tokes, a 21-year-old student, was abducted, raped, and murdered in 2017 by a man on parole. The Third District upheld the trial court ruling.

Hacker appealed to the Supreme Court of Ohio, which held his case and the appeal in State v. Simmons for a decision in State v. Maddox. In March 2022, the Supreme Court concluded in Maddox that an offender can appeal a prison sentence imposed under a Tokes Act provision before the Department of Rehabilitation and Corrections (DRC) extends the minimum sentence based on that law.

After Maddox was issued, the Court allowed this appeal and Simmons to move forward. In both cases, the Court agreed to consider whether the Tokes Act is constitutional.

Prisons Can Argue Against Release of Inmates
R.C. 2967.271, which is part of the Tokes Act, presumes that an offender will be released from prison once the offender’s minimum prison term is reached. In certain circumstances, the DRC can contest that presumed release date to keep the offender in prison.

To challenge an inmate’s release, the DRC must hold a hearing and establish one of three criteria. The relevant provision in most cases allows the DRC to show that the offender violated a prison rule or a law, demonstrating that the offender is not rehabilitated and remains a threat to society.

If the DRC prevails at the hearing before the Parole Board, the DRC can keep the offender in prison beyond the sentence’s minimum prison term.

Offender Argues DRC Can Unconstitutionally Extend Sentences Under Tokes Act
Hacker contends that the law violates the separation of powers because the DRC, an executive branch agency, has the power to decide the length of an offender’s sentence. The courts have no role in the DRC hearing process, Hacker maintains. He argues the DRC can increase an offender’s sentence based on only internal information, instead of facts that the judge considered when sentencing the person.

Hacker also maintains that the act makes the DRC a fact-finder – determining the circumstances that justify increasing the minimum sentence. Placing the DRC in that role infringes on an offender’s right to have a jury decide the necessary facts that lead to a prison sentence, he states.

He argues that the law also violates his due process rights because it doesn’t give adequate notice of the conduct that will extend a person’s prison sentence. The law allows sentences to be extended for institutional rule infractions and violations of law, categories that are too vague, Hacker asserts.

And although a hearing must be held before the DRC can impose additional prison time, the statute doesn’t describe how the hearing must be conducted and what rights the offender has, Hacker notes. He maintains that an offender does not have a right to an attorney or a right to confront witnesses against him, and the DRC doesn’t have to prove beyond a reasonable doubt the basis for increasing a prison sentence. He asserts that this lack of information further violates his due process rights.

He adds that no process exists for appealing this internal prison process to a court.  

State Maintains That Sentence Adjustments Don’t Violate Constitutions
The Ohio Attorney General’s Office responds that state law has for years allowed courts to impose sentence ranges, called indefinite sentences, and permitted the DRC to decide when to release an offender serving an indefinite sentence. The Tokes Act allows the same for certain types of felonies.

The attorney general maintains that the act keeps the power to sentence with the judiciary, and the executive branch decides when to release the inmate within the indefinite sentencing range imposed by the trial court. These distinct responsibilities don’t infringe on the separation of powers, the attorney general argues. While the executive branch has discretion to decide the exact release date, it cannot hold the offender beyond the maximum prison term set by the court, the attorney general notes.

The office contends that Hacker forfeited his argument that the act violates his right to a trial by jury because he didn’t argue it in the lower courts. However, the attorney general maintains, the DRC has no authority under the act to impose a punishment greater than the sentence that aligns with the jury verdict. The attorney general reasons that the act doesn’t infringe on the right to have a jury determine the case outcome.

The office notes that Hacker hasn’t yet faced a DRC hearing that might affect the length of his prison term. But a hearing is required to be held if the DRC wants to challenge an inmate’s release once the minimum prison term is reached. If the DRC position is based on an inmate’s misconduct, a hearing will have already occurred on that allegation as well, according to the attorney general. Due process demands no more, the attorney general’s brief states. It adds that DRC rules and policies define the conduct that could lead to further incarceration beyond the minimum prison term. And the offender is given 30 days’ notice of the hearing, the chance to offer mitigating evidence, and a written decision.

Additional Briefs Submitted; Request Made to Participate in Arguments
The Ohio Public Defender’s Office and Edward Maddox, the subject of the Supreme Court’s March 2022 decision, each filed an amicus curiae brief supporting Hacker’s positions. The public defender will participate in oral arguments, sharing the time allotted to Hacker.

Amicus curiae briefs supporting the attorney general were submitted by the Cuyahoga County Prosecutor’s Office and Ohio Prosecuting Attorneys Association.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Christopher P. Hacker: Tina McFall, 937.593.6591

Representing the State of Ohio from the Attorney General’s Office: Benjamin Flowers, 614.466.6980

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Is Tokes Act Unconstitutional?

State of Ohio v. Danan Simmons Jr., Case No. 2021-0532
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does the Reagan Tokes Act violate the separation of powers between government branches and the constitutional rights to a trial by jury and to due process?

BACKGROUND:
In December 2019, Danan Simmons Jr. agreed to plead guilty to having a weapon illegally, drug trafficking, and drug possession, along with a firearm specification. The prosecutors dismissed two other charges.

The trial court sentenced Simmons to five years in prison. The trial court did not sentence him to a range of years because it found the applicable law, which is part of the Reagan Tokes Act, to be unconstitutional. The Tokes statutes were enacted after Tokes, a 21-year-old student, was abducted, raped, and murdered in 2017 by a man on parole.

The Cuyahoga County prosecutor appealed to the Eighth District Court of Appeals. The Eighth District ruled that the Tokes Act is constitutional, reversed the trial court’s sentence, and sent the case back for sentencing.

However, Simmons appealed to the Supreme Court of Ohio, which held his case and the appeal in State v. Hacker for a decision in State v. Maddox. In March 2022, the Supreme Court concluded in Maddox that an offender can appeal a prison sentence imposed under a Tokes Act provision before the Department of Rehabilitation and Corrections (DRC) extends the minimum sentence based on that law.

After the Maddox ruling was released, the Court allowed this case and Hacker to move forward. The Court will consider in both cases whether the Tokes Act is constitutional.

Prisons Can Argue Against Release of Inmates
R.C. 2967.271, which is part of the Tokes Act, presumes that an offender will be released from prison once the offender’s minimum prison term is reached. In certain circumstances, the DRC can contest that presumed release date to keep the offender in prison.

To challenge an inmate’s release, the DRC must hold a hearing and establish one of three criteria. The relevant provision in most cases allows the DRC to show that the offender violated a prison rule or a law, demonstrating that the inmate is not rehabilitated and remains a threat to society.

If the DRC prevails at the hearing before the Parole Board, the DRC can keep the inmate in prison beyond the sentence’s minimum prison term.

Offender Maintains That Tokes Act Creates Unconstitutional Hybrid Sentences
Simmons argues that the sentence ranges – called indefinite sentences – that were in place for courts to impose before the Tokes Act is different from the types of sentences the act now allows. The Tokes Act has implemented “hybrid sentences” – in which there is a concrete minimum sentence combined with an “indefinite tail” that can be activated by the executive branch when it makes certain findings while the offender is in prison, Simmons’ brief maintains.

Simmons states that the constitutional right to a jury trial requires that the facts supporting an enhanced sentence must either be admitted as part of a guilty plea or determined by a jury to be true beyond a reasonable doubt. The DRC, however, presents circumstances, such as prison rule infractions, that take place after a conviction – a violation of the offender’s constitutional right to have a jury determine the facts to support a sentence for a crime, Simmons argues.

Citing a 2000 Court decision (State ex rel. Bray v. Russell), Simmons contends that the Tokes Act also violates the separation of powers between the branches of government. He notes that the executive branch has the authority to discipline prisoners. When the DRC seeks to extend an offender’s prison sentence, however, the Tokes Act allows the executive branch to act unconstitutionally as prosecutor, judge, and jury.

Simmons also agrees with Hacker (also being heard at these oral arguments) that the law doesn’t provide for proper notice to offenders regarding what conduct could extend their sentences. Nor does the law give a prisoner the procedural protections – such as the rights to be present at the hearing, to have an attorney, and to call witnesses – that are necessary to ensure due process for the DRC hearing, Simmons states.

Prosecutor Argues Tokes Act Provisions Are Constitutional
The Cuyahoga County Prosecutor’s Office maintains that Simmons’ argument on the right to a jury trial shouldn’t be considered by this Court because it wasn’t made in the lower courts. The prosecutor also notes that additional fact-finding by a jury isn’t necessary for the DRC to decide to continue an offender’s punishment within the range of years set by the trial court. The decision at the DRC hearing wouldn’t increase the offender’s sentence beyond the maximum authorized by the trial court, so the law allowing these longer sentences is constitutional, the prosecutor argues.

The hearing determines whether to keep an offender in prison longer than the minimum part of the sentencing range. Because that determination must fall within the range of years set by the trial court, the executive branch isn’t infringing on the judicial branch’s powers, the prosecutor states.

As the attorney general indicated in Hacker, the Cuyahoga County prosecutor notes that DRC rules spell out what conduct violates prison rules, what the consequences are, and what the disciplinary process is for addressing rule infractions. The prosecutor contends that this information gives inmates adequate notice of the conduct that could result in a longer prison sentence within an offender’s range. And the procedural protections that Simmons cites don’t apply to Parole Board hearings, the prosecutor maintains.

Additional Briefs Submitted; Attorney General to Participate in Arguments
The Ohio Attorney General’s Office and Ohio Prosecuting Attorneys Association each filed an amicus curiae brief supporting the Cuyahoga County prosecutor. The attorney general will share the 15 minutes allotted to the county prosecutor to present arguments before the Supreme Court.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Danan Simmons Jr. from the Cuyahoga County Public Defender’s Office: Cullen Sweeney, 216.443.3660

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, 216.443.7800

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