State v. Hodge, 128 Ohio St. 3d 1

Hodge pled guilty to nine felonies with firearm specs in Hamilton County; Judge imposed 18-year aggregate sentence with five aggravated-robbery counts, consecutive to each other but without findings under R.C. 2929.14(E)(4) or a concurrent-sentencing presumption under R.C. 2929.41(A) as Foster held unconstitutional.
Foster severed R.C. 2929.14(E)(4) and 2929.41(A) from Ohio’s sentencing framework, allowing severed provisions to be displaced and common-law presumptions to govern sentencing.
Ice (2009) held Oregon’s similar consecutive-sentencing statutes constitutional, challenging Foster’s reasoning that judicial fact-finding violated the Sixth Amendment.
Hodge argued Ice revived the severed Ohio provisions and that defendants sentenced post-Foster should be resentenced.
The Ohio Supreme Court majority declined to recognize automatic revival of the severed provisions and affirmed the court of appeals; a dissent would overrule Foster to revive enforcement of those provisions.
The court acknowledged Ice’s impact but concluded that automatic revival requires affirmative action by the General Assembly, which had not occurred; it left open the possibility of new legislation reinstating the provisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Ice revive Foster’s severed provisions on consecutive sentencing?	Hodge argues Ice reinstates the severed statutes.	Court declines revival without legislative action.	Ice does not automatically revive the severed provisions.
Should automatic revival be recognized absent reenactment by the General Assembly?	Hodge defends automatic revival.	Majority resists automatic revival to avoid disruption.	No automatic revival; waiting on affirmative reenactment.
Are defendants sentenced without applying the severed provisions entitled to resentencing?	Hodge seeks resentencing under Foster-era rules.	No entitlement to resentencing without legislative revival.	Not entitled to resentencing.
What is Ice’s impact on Ohio’s sentencing framework and separation of powers?	Ice undermines Foster’s reasoning; corrections needed.	Separation concerns justify no partial overruling.	Ice is collateral; Foster not overruled; no automatic revival.

State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (severed unconstitutional consecutive-sentencing provisions; corrections under Blakely/Apprendi)
State v. Bates, 118 Ohio St.3d 174 (2008-Ohio-1983) (severance left trial courts with discretion; no Sixth Amendment mandate for findings)
State v. Elmore, 122 Ohio St.3d 472 (2009-Ohio-3478) (reiterated discretion to impose consecutive sentences post-Foster)
Oregon v. Ice, 555 U.S. 160 (2009) (upheld Oregon’s consecutive-sentencing approach; diminished reliance on jury findings)
State ex rel. Bodyke, 126 Ohio St.3d 266 (2010-Ohio-2424) (severance clarifications; separation of powers; statutory revival limitations)