2011 Ohio 2630
Ohio Ct. App.2011Background
- Indictments: charged with two counts of rape; superseding indictment added a first-degree rape count (substantial impairment) and two counts involving victim under 13.
- Trial: jury convicted on one count of substantially impaired rape and one count of rape of a minor under 13; acquitted on rape by force or threat of force.
- Sentence: eight years on each count, to be served concurrently; classified as a tier III sexual offender.
- Appeal: defendant timely appeals; raises two assignments of error challenging sentencing framework and a jury instruction issue.
- Procedural posture: Ohio Seventh District affirms trial court; Ice did not revive Foster for this case as to non-consecutive sentences; court examined R.C. 2929.11, 2929.12 relevance and judicial fact-finding.
- Disposition: judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ice revived Foster’s severed provisions for this case. | Zechar argues Foster is revived by Ice, making additional sentencing findings necessary. | Zechar contends constitutional sentencing provisions reattached, requiring resentencing. | Sentence within statutory range; Ice does not revive Foster here. |
| Whether the trial court erred in not elaborating on 2929.11/2929.12 considerations. | Zechar asserts lack of explicit analysis shows abuse of discretion. | Zechar asserts court complied by stating it considered 2929.11/2929.12. | No reversible error; mere acknowledgment of consideration suffices. |
| Whether the weekend instruction to the jury was error. | Zechar claims instruction impermissibly implied all evidence was in and harmed deliberations. | Zechar contends jurors could still be influenced by weekend deliberation. | Presumption jurors followed instructions; no reversible error. |
Key Cases Cited
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (held judicial-fact-finding before non-minimum/consecutive sentences unconstitutional; severed provisions)
- State v. Ice, 555 U.S. 160; 129 S. Ct. 711 (Supreme Court 2009) (upheld Oregon-style consecutive-sentencing findings; not revive Foster)
- State v. Hodge, 128 Ohio St.3d 1 (Ohio 2010) (Ice did not revive all severed provisions; limited impact on Ohio sentencing framework)
- State v. Kalish, 120 Ohio St.3d 23 (Ohio 2008) (fluency on review for felony sentences; two-step analysis including R.C. 2929.11/2929.12)
- State v. Barnette, 2007-Ohio-7209 (Ohio 2007) (dist. court; sufficiency of stating consideration of R.C. 2929.11/2929.12)