2007 Ohio 774 | Ohio Ct. App. | 2007
{¶ 2} On May 6, 2003, Allen was charged, by way of "secret" indictment, with one count of Aggravated Robbery, a felony of the first degree in violation of R.C.
{¶ 3} On November 5, 2003, Allen entered a written plea of guilty to Aggravated Robbery (in violation of R.C.
{¶ 4} On January 29, 2004, the trial court sentenced Allen to ten years in prison for Aggravated Robbery, ten years in prison for Aggravated Burglary, eight years in prison for Kidnapping, and eight years in prison for Felonious Assault. The court ordered the sentences for Aggravated Burglary, Kidnapping, and Felonious Assault to be served concurrently with each other and consecutively with the sentence for Aggravated Robbery. The court also ordered Allen to serve an additional, consecutive three-year prison term for the Firearm Specification. Allen's aggregate sentence was twenty-three years of imprisonment.
{¶ 5} Allen appealed the January 29, 2004 Judgment Entry of Sentence to this court on the grounds that the sentencing court engaged in impermissible judicial fact-finding in violation of his constitutional rights, under the authority of Apprendi v. New Jersey (2000),
{¶ 6} On June 30, 2006, the trial court again sentenced Allen to an aggregate prison term of twenty-three years as described above. Allen timely appeals and raises the following assignments of error.
{¶ 7} "[1.] The trial court erred when it sentenced the defendant-appellant to a more-than-the-minimum, maximum and consecutive prison term in violation of *4 the Due Process and Ex Post Facto Clauses of the Ohio and United States Constitutions.
{¶ 8} "[2.] The trial court erred when it sentenced the defendant-appellant to a more-than-the-minimum, maximum and consecutive prison term in violation of defendant-appellant's right to due process.
{¶ 9} "[3.] The trial court erred when it sentenced the defendant-appellant to a more-than-the minimum, maximum and consecutive prison term 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.
{¶ 10} "[4.] The trial court erred when it sentenced the defendant-appellant to a more-than-the-minimum, maximum and consecutive prison terms contrary to the rule of lenity.
{¶ 11} "[5.] The trial court erred when it sentenced the defendant-appellant to a more-than-the-minimum, maximum and consecutive prison terms contrary to the intent of the Ohio Legislators."
{¶ 12} In his first assignment of error, Allen argues that the retroactive application of Foster to his sentencing violates the Due Process and Ex Post Facto Clauses of the United States Constitution. We agree with Allen that, although "[t]he Ex Post Facto Clause, by its own terms, does not apply to the courts," Rogers v. Tennessee (2001),
{¶ 13} This court has previously considered and rejected the argument that the Ohio Supreme Court's decision in Foster is so "unexpected and indefensible by reference to [prior] law" that its retroactive effect is violative of the federal constitution. State v. Green, 11th Dist. Nos. 2005-A-0069 and 2005-A-0070,
{¶ 14} Allen's argument has also been consistently rejected by other Ohio appellate districts and federal courts. See State v. Gibson, 10th Dist. No. 06AP-509,
{¶ 15} The first assignment is without merit.
{¶ 16} Under his second assignment of error, Allen raises additional arguments as to why the retroactive application of Foster is generally violative of due process principles. Allen argues that, in the absence of constitutionally impermissible judicial fact-finding, the only legally authorized sentence that could be imposed is the minimum sentence authorized by statute. We disagree. Upon Allen's conviction for his various crimes, he became subject to a range of punishments based on the degree of felony associated with each conviction. See R.C.
{¶ 17} Prior to Foster, a sentencing court's discretion to impose sentence within this range was restricted by the requirement that certain findings be made before a particular sentence, such as a maximum or a greater than minimum sentence, could be imposed.1 The legally authorized range of Allen's sentence remains the same in the absence of the necessity of making additional findings. Gibson,
{¶ 18} We also reject Allen's argument that he had no notice, actual or constructive, of the potential sentences he could receive. The plea agreements entered into and signed by Allen stated the potential range of sentences he was subject to under R.C.
{¶ 19} Allen second assignment of error is without merit. *7
{¶ 20} Under the third and fifth assignments of error, Allen argues that the Ohio Supreme Court, by severing the unconstitutional provisions of Ohio's felony sentencing law, violated the doctrine of separation of powers and arrived at a result contrary to the intention of Ohio's legislators. We disagree.
{¶ 21} Both of these arguments have been previously rejected by this court. Elswick,
{¶ 22} We further note that judicial review of statutes, rather than being contrary to the principles of separation of power, is "emphatically the province and duty of the judicial department."Marbury v. Madison (1803),
{¶ 23} The result in Foster may be contrary to the intent of Ohio's legislators. That fact, however, is not grounds for this court to disregard the Supreme Court's decision in Foster.
{¶ 24} The second and fifth assignments of error are without merit.
{¶ 25} Under the fourth assignment of error, Allen argues that the retroactive application of Foster violates the principles of lenity. This argument, *8
too, has been rejected by this court several times. Green,
{¶ 26} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing Allen to an aggregate twenty-three years imprisonment for Aggravated Robbery With Firearm Specification, Aggravated Burglary With Firearm Specification, Kidnapping With Firearm Specification, and Felonious Assault With Firearm Specification, is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O'TOOLE, J., concurs in judgment only.
