2011 Ohio 3372
Ohio Ct. App.2011Background
- On Oct. 3, 2004, Hohvart was in a relationship with Jennifer Whaley while separated from his wife.
- Whaley and Hohvart drove to a fast-food restaurant; a dispute over the order led to an argument.
- Whaley was locked in the car, struck, and Whaley’s nose was broken, teeth loosened, and a cheekbone fractured.
- Police found Whaley’s DNA in a blood sample from Hohvart’s car, tying him to the offense.
- Hohvart was indicted on felonious assault (2nd degree) and abduction (3rd degree); convicted by jury; initial eight- and five-year sentences were ordered consecutive, totaling 13 years.
- After Foster invalidated certain sentencing provisions, the case was remanded for resentencing, and on Jan. 22, 2010, Hohvart again received maximum consecutive sentences totaling 13 years, without specific findings under R.C. 2929.14(E).
- On appeal, Hohvart argued that Foster required judicial findings for consecutive sentences, a position rejected in light of State v. Hodge and related authorities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consecutive sentences require findings under R.C. 2929.14(E)? | Hohvart contends Foster requires such findings. | State argues no mandatory findings post-Foster; Ice did not revive the old provisions. | Overruled; no required findings under 2929.14(E) for consecutive sentences. |
| Retroactive application of Foster violated Ex Post Facto or due process? | Foster applied retroactively would create Ex Post Facto issues. | Elmore approves retroactive Foster; no greater punishment. | Elmore controls; retroactive Foster does not violate Ex Post Facto or due process. |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (severed unconstitutional judicial-fact-finding prerequisites for sentencing)
- State v. Hodge, 128 Ohio St.3d 1 (2010-Ohio-6320) (Ice does not revive Foster; no automatic revival of excised provisions; no mandatory findings required post-Hodge)
- State v. Elmore, 122 Ohio St.3d 472 (2009-Ohio-3478) (retroactive application of Foster does not violate Ex Post Facto or due process)