2011 Ohio 2188
Ohio Ct. App.2011Background
- Newton pleaded guilty to Counts One and Two with the major drug offender specification under a plea agreement; criminal tools counts were dismissed and he received a ten-year sentence on each count to run concurrently, plus five-year license suspension and $10,000 fine.
- Prior to pleading, Newton moved to dismiss the MDO specification as unconstitutional under Foster and moved to suppress evidence.
- After the plea, Newton withdrew the motions and the trial court sentenced per the agreement; the issue on appeal is whether the MDO specification remained constitutional and whether the plea was knowingly and voluntarily entered.
- Foster held that judicial fact-finding is unconstitutional before certain penalties, but did not eliminate the major drug offender specification as a sentencing device; subsequent cases debated severability and application of the specification.
- Hunter clarified that Foster excised only judicial fact-finding, not the existence of the MDO specification, and that waiver and stipulations can foreclose further fact-finding; the court relied on this to uphold the plea and reject the withdrawal request.
- The trial court’s decision to deny the post-sentence motion to withdraw was affirmed on the basis that the plea was knowing and intelligent and Newton received a favorable plea considering the potential penalties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the MDO specification unconstitutional post-Foster/Hunter? | Newton argued the MDO spec is unconstitutional. | Newton contends Foster eliminated the spec. | Not unconstitutional; Hunter preserves the spec. |
| Did Newton knowingly and voluntarily plead given MDO issues? | Newton asserts lack of knowledge about constitutionality affected voluntariness. | Newton relies on misreading Foster's impact. | No manifest injustice; plea was knowing and voluntary. |
Key Cases Cited
- State v. Hunter, 123 Ohio St.3d 154 (2009-Ohio-4147) (excision of judicial-fact-finding does not eliminate the MDO/specification; waiver and stipulation support validity)
- State v. Foster, 109 Ohio St.3d 1 (2006-Ohio 856) (excised required judicial fact-finding; framing of enhanced penalties)
- State v. Dillard, 173 Ohio App.3d 373 (2007-Ohio-5651) (discussion of whether MDO can survive Foster; some courts sever provisions differently)