State v. Miller
2011 Ohio 2828
Ohio Ct. App.2011Background
- Miller was convicted on May 17, 2004 of possession of cocaine with a major-drug-offender specification and possession of marijuana, receiving an aggregate 12-year sentence including a two-year term on the specification.
- The appellate court previously affirmed Miller’s conviction in 2005.
- Miller moved to reopen his appeal after Foster to challenge the constitutionality of the major-drug-offender specification; the motion was denied.
- Before Ohio prison transfer Miller requested a sentence reduction or credit for good behavior; the trial court denied the motion.
- On March 10, 2010 Miller was resentenced to correct post-release-control error and informed of the mandatory nature and duration of post-release control.
- On appeal Miller challenges the two-year major-drug-offender specification and asserts error from the resentencing proceeding; the issue is framed as a single assignment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller may challenge the major-drug-offender specification post-Foster | Miller seeks to invalidate the spec as unconstitutional. | Resentencing scope is limited to post-release-control issues and the prior severability holding applies. | Barred by res judicata; alternatively meritless. |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (severability of some sentencing provisions and remand for sentencing)
- State v. Bezak, 114 Ohio St.3d 94 (Ohio 2007) (resentence limited to proper imposition of post-release control)
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (void sentence review allowed; resentencing focused on post-release control)
- State v. Hunter, 123 Ohio St.3d 164 (Ohio 2009) (jury trial on major-drug-offender specification not required)