2014 Ohio 4566
Ohio Ct. App.2014Background
- Larry Ross was convicted by a jury of multiple offenses including aggravated robbery, kidnapping, felonious assault on a police officer (with one-, three-, and seven-year firearm specifications), grand theft of a motor vehicle, petty theft, criminal damaging, having weapons while under disability, and tampering with evidence.
- The trial court originally imposed an aggregate consecutive 21-year term; on appeal this court affirmed convictions but remanded for resentencing on Count 5 (the felonious-assault sentence) because it had been ordered consecutive to other counts.
- At resentencing the trial court imposed 5 years on the felonious-assault count and merged the firearm specifications into a single 7-year term to be served prior to and consecutive to the 5 years, ordering the aggregate 12 years on Count 5 to run consecutive to the previously imposed sentences on other counts.
- Ross raised seven assignments of error on the resentencing, including alleged denial of allocution, improper merger of firearm specifications, due process concerns from reliance on prior hearing statements, Sixth Amendment judicial factfinding, inadequate consecutive-sentence analysis, failure to consider postsentence behavior, and application of the proper sentencing statute.
- The court affirmed the resentencing on all substantive points but remanded for a nunc pro tunc correction because the sentencing journal entry failed to include the statutory consecutive-sentence findings the judge had made on the record.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ross) | Held |
|---|---|---|---|
| Denial of allocution | Court complied with Crim.R.32(A)(1) and asked Ross whether he wished to speak | Ross claims he was denied his right to allocution at resentencing | Court: allocution was offered; Ross declined to speak; claim overruled |
| Merger of firearm specifications | Trial court properly sentenced under law; merger argument untimely | Ross argues all firearm specs should merge into single 7-year term | Court: argument barred by res judicata; in any event, statutes and precedent would not require merger between aggravated robbery and felonious assault specs; overruled |
| Reliance on prior sentencing statements | Court may consider the record (including transcript of prior victim statements) per R.C.2929.19(B) | Ross contends court improperly relied on judge’s recollection of prior hearing and violated due process | Court: judge relied on the record/transcript, not personal recollection; no due process violation; overruled |
| Judicial factfinding and Sixth Amendment | State: judicial consideration of remorse and R.C.2929.11/2929.12 factors is permissible after Foster and H.B.86 adjustments | Ross: court made judicial findings (e.g., lack of remorse) that increased sentence in violation of Apprendi/Blakely | Court: consideration of statutory factors (including lack of remorse) does not require jury findings and did not violate Sixth Amendment; overruled |
| Consecutive-sentence findings | State: court made required findings on record that consecutive terms were necessary and not disproportionate | Ross: court merely recited statutory language and failed to independently analyze, and journal entry omitted findings | Court: judge provided factual analysis at hearing supporting consecutive sentences, but journal entry omitted the statutory findings; remand limited to nunc pro tunc entry to reflect on-the-record findings |
| Postsentence behavior | State: no evidence in record Ross provided postsentence behavior to consider | Ross: court should have considered his intervening conduct | Court: Ross did not present postsentence information or identify record support; claim overruled |
| Applicable sentencing statute (date of offense) | State: H.B.86 (effective Sept. 30, 2011) applies to offenders sentenced after that date; trial court properly applied revived consecutive-sentence statute | Ross: court should have applied law in effect when offense occurred (April 11, 2011) | Court: H.B.86 applies to those sentenced after its effective date; correct law applied; overruled |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (U.S. 1961) (allocution principle requiring court to ask defendant if he wishes to speak)
- State v. Green, 90 Ohio St.3d 352 (Ohio 2000) (discussing allocution and trial-court obligation)
- Mattox v. State, 8 Ohio App.2d 65 (10th Dist. 1966) (trial reliance on personal recollection at postconviction hearing improper)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be found by jury, except prior convictions)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (application of Apprendi to sentencing guidelines)
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (excising unconstitutional mandatory judicial factfinding provisions of Ohio sentencing law)
- Oregon v. Ice, 555 U.S. 160 (U.S. 2009) (states may require judges to make findings before imposing consecutive sentences)
- State v. Hodge, 128 Ohio St.3d 1 (Ohio 2010) (Foster remains valid until legislature enacts new sentencing-foundation statutes)