State v. Hess
2013 Ohio 10
Ohio Ct. App.2013Background
- Hess pled guilty to breaking and entering, a fifth-degree felony, with an agreement for no more than eight months in prison.
- The State indicated the term could be concurrent or consecutive, and requested consecutive sentencing; Hess understood this.
- At sentencing, Hess argued HB86 amendments necessitated concurrent sentencing or reflected a typographical error.
- The trial court decided the eight-month term could be served consecutively to Hess’s existing Montgomery County sentence.
- HB86 restructured the judicial-fact-finding requirement for consecutive sentences and renumbered relevant provisions; Hess faced a potential typographical error in the cross-reference by R.C. 2929.41(A).
- The court imposed consecutive sentencing under R.C. 2929.14(C) after determining the corrected statutory framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2929.41(A) permits consecutive sentences given HB86 amendments | Hess argues the typo in 2929.41(A) and the Foster decision bar consecutive sentences | Hess contends strict construction against the state and the typo negate enforceability | Consecutive sentences are permissible under R.C. 2929.14(C) despite the error. |
| Whether HB86 revival and the interplay of 2929.41(A) and 2929.14(C) support the court’s decision | Hess asserts lack of proper judicial-findings revival to allow consecutive terms | State argues legislature intended revival and correct linkage between 2929.41(A) and 2929.14(C) | The court may apply the revived scheme to impose consecutive sentences. |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (struck down mandatory consecutive-finding requirements as unconstitutional)
- State v. Hodge, 128 Ohio St.3d 1 (Ohio 2010) (reaffirmed revival and application of HB86 contemporaneous with Ice/renumbered provisions)
- Oregon v. Ice, 555 U.S. 160 (U.S. 2009) (upheld judicial fact-finding before consecutive sentences, influencing state reform)
- Chickasaw Nation v. United States, 534 U.S. 84 (U.S. 2001) (canons of interpretation are guides, not mandatory; correct evident legislative intent)