2007 Ohio 2434 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} On April 18, 2003, Adams was charged, by way of "secret" indictment, with two counts of Aggravated Vehicular Homicide, felonies of the second degree, in *2
violation of R.C.
{¶ 3} Adams' case was tried before a jury on May 12-13, 2003, which found Adams guilty of all charges.
{¶ 4} On June 4, 2003, the trial court held a sentencing hearing. Pursuant to R.C.
{¶ 5} Adams appealed his convictions and sentence to this court, arguing, in relevant part, that in sentencing him to maximum and consecutive sentences and in imposing additional sentences for the Repeat Violent Offender Specifications, the trial court had engaged in impermissible judicial fact-finding in violation of his constitutional rights, under the authority of Apprendi v. New Jersey (2000),
{¶ 6} The Ohio Supreme Court, in State v. Foster, held that the statutes under which Adams' had been sentenced were unconstitutional.
{¶ 7} The Supreme Court ordered Adams' case to be remanded "to the trial court for resentencing in light of our remedial severance and interpretation of Ohio's felony sentencing statutes." Id. at ¶ 107. On remand, the trial court would "have full discretion to impose a prison sentence within the statutory range and * * * no longer [would be] required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at paragraph seven of the syllabus.
{¶ 8} On May 18, 2006, the trial court again sentenced Adams to an aggregate prison term of twenty-six years as described above. Adams timely appeals and raises the following assignments of error.
{¶ 9} "[1.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum, consecutive prison terms in violation of the Due Process and Ex Post Facto Clauses of the Ohio and United States Constitutions. *4
{¶ 10} "[2.] The trial court erred when it sentenced the defendant-appellant to more than-the-minimum, consecutive prison terms in violation of defendant-appellant's right to due process.
{¶ 11} "[3.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum, consecutive prison terms based on the Ohio Supreme Court's severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers.
{¶ 12} "[4.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum, consecutive prison terms contrary to the rule of lenity.
{¶ 13} "[5.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum, consecutive prison terms contrary to the intent of the Ohio legislators.
{¶ 14} "[6.] The trial court erred by imposing prison terms under the Repeat Violent Offender Specifications in violation of the defendant-appellant's due process rights under the
{¶ 15} The arguments raised in Adams' first five assignments of error have been previously considered and repeatedly rejected by this court. See State v. Allen, 11th Dist. No. 2006-L-167,
{¶ 16} In the sixth assignment of error, Adams argues he cannot be sentenced to any additional time for the Repeat Violent Offender Specifications, because the Supreme Court "totally eliminated" those provisions from Ohio's sentencing statutes.
{¶ 17} The provisions governing the imposition of additional prison time on Repeat Violent Offenders are provided as follows:
{¶ 18} "If the court finds that the repeat violent offender, in committing the offense, caused any physical harm * * *, the court shall impose the longest prison term from the range of terms authorized for the offense * * *."
{¶ 19} "If the court imposing a prison term on a repeat violent offender imposes the longest prison term from the range of terms authorized for the offense * * *, the court may impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if the court finds that both of the following apply * * *:
{¶ 20} "(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section
{¶ 21} "(ii) The terms so imposed are demeaning to the seriousness of the offense, because one or more of the factors under section
{¶ 22} For support, Adams relies on language found in the Ohio Supreme Court's decision of State v. Chandler,
{¶ 23} According to Adams, this language demonstrates that, by ruling R.C.
{¶ 24} Initially, we note that no court has adopted Adams' interpretation of Foster or Chandler. Nor are we aware of any appellate court having considered such an interpretation. To the contrary, other courts have remanded sentencing cases with the understanding that the trial court has full discretion to impose a repeat violent offender penalty enhancement. See, e.g. State v. Pianowski, 2nd Dist. No. 21069,
{¶ 25} More significantly, Adams' interpretation of Foster is refuted by the opinion within the Foster decision. When considering the potential remedies in light of the conclusion that portions of Ohio's felony sentencing statutes were unconstitutional, the Supreme Court discussed "accepting] the criminal defendants' request that we interpret all the affected statutes as imposing only the minimum sentence for those entering prison for the first time and as preventing maximum sentences, consecutive sentences, and enhanced penalties such as repeatviolent offender and major drug offender prison sentences, because all require judicial fact-finding." Foster,
{¶ 26} Finally, we note that the language from Chandler which Adams relies on is dicta. The specific issue in Chandler was "whether a person can be subject to the special penalty statute [R.C.
{¶ 27} We disagree with Adams' reading of the phrase "[o]nly the add-on that had required judicial fact-finding has been severed" to mean that penalty enhancements for repeat violent offenders and major drug offenders have been abolished. A more legally sound understanding of these words is that only the requirement to make factual findings before imposing "the add-on" has been severed. This understanding of the dicta is consistent with the syllabus and reasoning of Foster and the underlying issue in Chandler.
{¶ 28} The sixth assignment of error is without merit.
{¶ 29} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing Adams to an aggregate twenty-six years imprisonment for two counts of Aggravated Vehicular Homicide and Driving While Under the Influence of Alcohol or Drugs, is affirmed.
MARY JANE TRAPP, J., concurs,
*9WILLIAM M. O'NEILL, J., dissents with a Dissenting Opinion.
Dissenting Opinion
{¶ 30} The trial court in this matter has imposed what is called an "add-on" to the defendant's maximum sentence due to his status as a "repeat violent offender." The majority suggests this can be accomplished by simply adding the years onto a statutory maximum sentence without making any findings whatsoever. Such a proposition is clearly a tortured reading of both the United States Constitution and the case law interpreting Ohio's sentencing statutes.
{¶ 31} As stated by the Supreme Court of Ohio:
{¶ 32} "The major-drug-offender penalty that is referred to in R.C.
{¶ 33} The majority refers to the above language from State v.Chandler as "dicta." I disagree. Moreover, while the State v.Chandler decision concerned the addon for major drug offenders contained in former R.C.
{¶ 34} The "add-on" provisions for repeat violent offenders are only found in former R.C.
{¶ 35} The law is clear. After the State v. Foster decision, R.C.
