A split Ohio appeals court on Tuesday ruled an incarcerated man should be allowed to participate in prison programs that can earn him credit toward his release, adding a state trial judge cannot bar access to the programs.

A majority of Ohio's Eleventh District Court of Appeals found a district court judge lacks the power to specifically ban Anthony Talbert from taking part in the programs that could shorten his 4.5-year prison sentence, finding the transitional control programs are not part of the offender's sentence and cannot be regulated by the courts.

"Even if transitional control may be considered a part of the criminal sentence, the trial court lacked statutory authority to prohibit appellant's participation," Judge John E. Eklund said in the majority opinion. "Therefore, the portion of the trial court's judgment prohibiting appellant's participation in the transitional control program is clearly and convincingly contrary to law."

Ohio law specifies that the state's Department of Rehabilitation and Corrections creates internal administrative rules for how transitional programs are set up, and that state statutes guide who may participate, the opinion noted.

State law also provides a 30-day window prior to an incarcerated person being moved into the transitional program to allow a judge to weigh in, and according to the statute, if the judge disagrees with the move, it can be stopped, the opinion noted.

Yet Ohio appeals courts are currently split on whether judges actually have the power to disagree, with the Fifth and Second Appellate Districts finding that because the goal of the program is rehabilitation, a judge is limited in when and how they may stand in the way. The Eleventh District in its opinion found that a judge may not deny access to the program at sentencing as happened in Talbert's case.

The First and Twelfth Appellate Districts disagreed, however, finding a judge has a higher obligation to public safety — not to the individual offender — and should be allowed the discretion to consider the recidivism risk as well as factors like victim impact or oral statements, the Eleventh Appellate District majority noted.

The judges further found that because relevant state law defines criminal sentences as a kind of "sanction" — and participation in the program is not, and is given as credit for good behavior — a judge cannot limit participation in the program.

Talbert had a significant criminal record, having been to prison five times prior to entering into a June 2024 plea agreement with state prosecutors in which he admitted to two felony drug counts of bringing narcotics into a government facility as well as possession of fentanyl, the opinion said.

Prosecutors argued a trial judge who accepted the plea deal should also specifically include in the sentence that Talbert not be allowed to enter into transitional control programs or alternative housing, and that he be made to serve his entire sentence in prison, the opinion noted.

The trial judge agreed, and at sentencing Talbert was given 4.5 years in prison with the conditions that he be made to serve the full amount of time without enrollment in the programs that could trigger an earlier release, according to the opinion.

Judge Eugene A. Lucci disagreed with the majority, siding with the First and Twelfth Districts in finding courts have an obligation to protect public safety, rejecting the majority's notion that sentencing and the execution of the sentence are distinct concepts.

"Under the majority's approach, a trial court that determines at sentencing — based on the defendant's criminal history, risk factors and the purposes of sentencing — that transitional control would be inappropriate must nevertheless remain silent until the [Department of Rehabilitation and Correction] expends significant resources conducting eligibility assessments, arranging housing, employment, education, programming and supervision, soliciting victim statements, preparing institutional summary reports, and providing formal notification to the court," Judge Lucci wrote in the dissent.

The dissent found that not only do judges in the state have the legal authority to deny incarcerated people access to the programs, but that Talbert should not be allowed to participate and serve his full sentence.

A spokesperson for neither side immediately responded to requests for comment.

Judges John E. Eklund, Eugene A. Lucci and Scott Lynch presided over the case for the Court of Appeals of Ohio, Eleventh Appellate District.

Talbert was represented by John P. Laczko of the Portage County Public Defender's Office.

The government is represented by Dennis Watkins, Ryan J. Sanders and Charles L. Morrow of the Trumbull County Prosecutor's Office.

The case is State of Ohio v. Anthony Talbert, case number 2024-T-0081, before the Court of Appeals of Ohio Eleventh Appellate District.

--Editing by Philip Shea.