2004 Ohio 7211 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} Also on January 29, 2001, Louis Luchisan, age 64, and his wife Elizabeth, were in their home in the same neighborhood as Mr. Sovak. Mr. Luchisan, who was confined to a wheelchair, was working at his computer when Appellant and Goins kicked in the side door of his house. One of the men was carrying a firearm. The two assailants asked for money. They then hit Mr. Luchisan over the head with a plate. Mrs. Luchisan saw blood flowing down her husband's head and shirt from the injury. Appellant and Goins took Mrs. Luchisan to various rooms in the house looking for money. Mrs. Luchisan gave them about $167, while Mr. Luchisan gave them $20. Appellant, the taller of two assailants, began hitting Mrs. Luchisan in the head and legs with the gun. They also hit Mrs. Luchisan with a telephone, and threatened to kill her. She later had to have staples put into her head as a result of the injuries.
{¶ 4} Appellant and Goins took the Luchisans' car, as well as a 27-inch television set. The police were notified to be on the lookout for the stolen vehicle.
{¶ 5} The car was spotted as the police were still inspecting the two crime scenes. Officer Joshua M. Kelly, who was on foot, saw the vehicle and pulled out his service firearm. The car suddenly veered and crashed into a tree. There were four people in the car, including Appellant in the back seat and Goins in the front passenger seat. Officers also found a sawed-off rifle in the vehicle, similar in appearance to the weapon used at the Luchisan home. Goins fled the car after the crash, and was captured soon afterward.
{¶ 6} Police found the keys to the Sovak's home when they were searching Goins' home. The tread of Appellant's shoes also matched shoe tread marks that were left at the crime scene.
{¶ 7} On February 5, 2001, a juvenile delinquency complaint was filed against Appellant alleging twelve counts, including the attempted murder, aggravated burglary, aggravated robbery, kidnapping, felonious assault, and receiving stolen property. The state filed a motion to transfer the case to the adult division of the Mahoning County Court of Common Pleas. After a bindover hearing, the juvenile court found probable cause for all the offenses except for the kidnapping charges. The juvenile court then bound the case over to the Mahoning County Grand Jury.
{¶ 8} On March 22, 2001, the Mahoning County Grand Jury indicted Appellant on: 1) attempted aggravated murder of Mr. Sovak; 2) aggravated burglary of Mr. Sovak; 3) aggravated robbery of Mr. Sovak; 4) kidnapping of Mr. Sovak; 5) aggravated burglary of the Luchisans; 6) aggravated robbery of Mr. Luchisan; 7) aggravated robbery of Mrs. Luchisan; 8) kidnapping of Mr. Luchisan; 9) kidnapping of Mrs. Luchisan; 10) felonious assault of Mr. Luchisan; 11) felonious assault of Mrs. Luchisan; 12) and receiving stolen property, i.e., the Luchisans' automobile. Four of the counts contained gun specifications. The court consolidated the matter with the criminal case proceeding against co-defendant James Goins.
{¶ 9} On November 28, 2001, Appellant and Goins filed writs of habeas corpus with this Court, challenging whether the Mahoning County Court of Common Pleas, General Division, had jurisdiction over the criminal charges that were not bound over from the juvenile division. Goins v.Wellington, 7th Dist. Nos. 01 CA 208, 01 CA 210, 2001-Ohio-3503 (Goins I). We denied both writs on December 18, 2001, and the case proceeded to jury trial beginning on March 4, 2002.
{¶ 10} On March 12, 2002, the jury found Appellant guilty as charged except on the one count of felonious assault against Mrs. Luchisan. The jury also found Appellant guilty of the gun specifications in counts six, seven, eight and nine.
{¶ 11} A sentencing hearing was held on March 20, 2002. The trial court filed its judgment entry on March 21, 2002. The court sentenced Appellant to the maximum prison terms on each count, and three years in prison on each gun specification. The court held that the kidnapping charges, and related gun specifications, merged with the robbery charges. The court also determined that all remaining sentences must be served consecutively to each other, for a total of 85 1/2 years in prison. This appeal was filed on March 27, 2002.
{¶ 12} The appeal was fully briefed on May 15, 2003. Appellant asserted two assignments of error. Prior to our scheduling of oral argument, Appellant's counsel moved to withdraw from the case, and we appointed new counsel. Appellant's substitute counsel filed a supplemental brief on January 20, 2004, adding two new assignments of error. Appellee has filed supplemental response to these additional assignments of error. Oral argument on these four assignments of error was held on April 28, 2004. While our Opinion was being prepared for final draft, Appellant filed a motion for leave to file a fifth assignment of error, alleging that Ohio's felony sentencing scheme is unconstitutional. On August 23, 2004, we permitted Appellant to file a supplemental fifth assignment of error, to which Appellee has responded. Oral argument was waived on the fifth assignment of error.
{¶ 14} "The court erred when it failed to dismiss counts four (4), eight (8) and nine (9) of the indictment. The court was without jurisdiction to proceed since no proper transfer proceedings from the juvenile court occurred."
{¶ 15} Appellant argues that a juvenile court has exclusive jurisdiction over any child who is alleged to be a delinquent for committing acts that would constitute a felony if committed by an adult. See R.C. §
{¶ 16} We must first point out that this issue was previously raised in Appellant's habeas proceedings, resulting in the Goins I Opinion. InGoins I, Appellant filed a writ of habeas corpus based, in part, on the theory that the general division of the court of common pleas lacked jurisdiction over the three kidnapping charges because those charges were not bound over from juvenile court. We held that a habeas action was not the proper forum to litigate the issue of whether the grand jury properly indicted Appellant on the kidnapping charges, and that the matter was not properly before us. Goins I at *5. Now that Appellant has properly raised the issue on direct appeal, we may address the matter.
{¶ 17} The record of this case indicates that on February 28, 2001, the Juvenile Court transferred jurisdiction of the entire juvenile case over to the general division of the court of common pleas. The judgment entry gives no indication that it intended to retain jurisdiction over the kidnapping charges. The judgment entry, though, does state that the court "makes no probable cause finding of Kidnapping" as set forth in counts 4, 8, and 9 of the juvenile complaint.
{¶ 18} In Goins I, we offered an interpretation of the juvenile court's language when it stated that it was not making a probable cause finding concerning the kidnapping counts:
{¶ 19} "Rather than make a discretionary probable cause decision, the juvenile court actually made a statement of the law on kidnapping by saying that pushing a man into his house when he steps outside, dragging him around the house, and locking him in a fruit cellar is not kidnapping because it occurred on his own property where he was first found by the offenders. The court also decided that kidnapping is not committed when offenders drag a woman around the house in search of money and force her husband to stay in a room while the search was conducted. Because of the court's legal construction of the definition of kidnapping, these counts were not bound over." Id. at *5.
{¶ 20} The Ohio Supreme Court has repeatedly made it clear that, absent a valid bindover procedure, the juvenile court retains exclusive jurisdiction over any case involving a delinquent child. See State v.Golphin (1998),
{¶ 21} In Appellant's view, the juvenile court did not specifically bind over the kidnapping charges and, therefore, did not relinquish jurisdiction over those charges.
{¶ 22} Appellee argues in rebuttal that a grand jury has authority to consider charges that are related to or that arise from the charges that are transferred from a juvenile court, citing as authority our recent holding in State v. White, 7th Dist. No. 01-JE-3, 2002-Ohio-5226. InWhite, the juvenile was charged with aggravated murder with a death specification, and aggravated burglary. The juvenile court held a bindover hearing and found that there was probable cause on the aggravated murder charge. The juvenile court bound the case over to the general division of the Jefferson County Court of Common Pleas. The juvenile court did not specifically bind over the aggravated burglary charge. Id. at ¶ 35.
{¶ 23} Soon afterward, the juvenile was indicted by the grand jury on charges of aggravated murder, aggravated burglary, aggravated robbery, aggravated arson, tampering with evidence, escape, and assault. The juvenile later pleaded guilty to aggravated murder, aggravated burglary, aggravated robbery, and escape.
{¶ 24} On appeal to this Court, the juvenile argued that he could not be convicted of aggravated burglary or aggravated robbery because those charges were not bound over from the juvenile court.
{¶ 25} White cited former R.C. §
{¶ 26} "If a child who is charged with an act that would be an offense if committed by an adult * * * is transferred for criminal prosecution * * *, the juvenile court does not have jurisdiction to hear or determine the case subsequent to the transfer. The court to which the case is transferred for criminal prosecution pursuant to that section has jurisdiction subsequent to the transfer to hear and determine the case in the same manner as if the case originally had been commenced in that court, including, but not limited to, jurisdiction to accept a plea of guilty * * * and to enter a judgment of conviction pursuant to the Rules of Criminal Procedure against the child for the commission of the offense that was the basis of the transfer of the case for criminal prosecution, whether the conviction is for the same degree or a lesser degree of the offense charged, for the commission of a lesser-included offence, or forthe commission of another offense that is different from the offensecharged. (Emphasis added.)" Id. at ¶ 37.
{¶ 27} White held that under R.C. §
{¶ 28} In prior years, once a juvenile was bound over to the general division of the court of common pleas, the juvenile court lost all jurisdiction to prosecute existing and future criminal charges against that juvenile:
{¶ 29} "1. Once a juvenile is bound over in any county in Ohio pursuant to R.C.
{¶ 30} "2. When a minor is transferred from the Juvenile Court to the Court of Common Pleas on a charge which would constitute a felony if committed by an adult, the grand jury is empowered to return any indictment under the facts submitted to it and is not confined to returning indictments only on charges originally filed in the Juvenile Court." State v. Adams (1982),
{¶ 31} The Ohio legislature expressly repudiated the Adams holding in a subsequent revision to the juvenile bindover statutes in Am. Sub. H.B. No.
{¶ 32} "1995 H 1, § 3, eff. 1-1-96, reads in part: (B) The General Assembly hereby declares that its purpose in enacting the language in division (B) of section
{¶ 33} It is not absolutely clear what part of the Adams opinion that the legislature intended to overrule in its 1995 revisions. Many courts continue to apply the holding of paragraph two of the syllabus of Adams.
"The longstanding rule in Ohio is that upon transfer from juvenile court, the grand jury is authorized to return a proper indictment on the facts submitted to it, and is not confined to the charges originally filed in the juvenile court." State v. Walker (Sept. 28, 1999), 5th Dist. No. 99 CA 2, citing Adams, supra, paragraph two of the syllabus. "[T]he grand jury was within its power to indict appellant for counts that were not alleged in the juvenile proceedings." State v. Whisenant
(1998),
{¶ 34} The version of R.C. §
{¶ 35} "(F) Upon the transfer of a case for criminal prosecution to the appropriate court having jurisdiction of the offense under division (B) or (C) of this section, the juvenile court shall state the reasons for the transfer * * *. The transfer abates the jurisdiction of thejuvenile court with respect to the delinquent acts alleged in thecomplaint, and, upon the transfer, all further proceedings pertaining to the act charged shall be discontinued in the juvenile court, and the case then shall be within the jurisdiction of the court to which it is transferred as described in division (H) of section
{¶ 36} R.C. §
{¶ 37} In the instant case, the juvenile court did not believe that the delinquent acts that occurred on January 29, 2001, established probable cause for the three kidnapping charges that were part of the juvenile complaint. Nevertheless, the juvenile court clearly transferred the entire case to the general division of the Mahoning County Court of Common Pleas: "The Court having found probable cause that nine (9) felonies have been committed herein and that Count #1 is a Category one offense and Counts #6 and #7 are Category two offenses, IT IS THEREFOREORDERED that pursuant to ORC
{¶ 38} The charges that were issued by the grand jury were based on the same delinquent acts under review in the juvenile court, the only difference being that the grand jury found that those acts also formed the basis of three counts of kidnapping. The kidnapping charges were based on the events occurring on January 29, 2001, at the residences of Mr. Sovak and Mr. and Mrs. Luchisan, and do not involve any additional circumstances beyond those that were under review in the juvenile court. Therefore, the grand jury was free to indict Appellant on charges arising out of those circumstances, even though the juvenile court did not specifically transfer those charges when it bound the case over to the general division of the court of common pleas.
{¶ 39} For all the above reasons, we overrule Appellant's first assignment of error.
{¶ 40} Appellant's second assignment of error asserts:
{¶ 41} "The trial court committed prejudicial error when it failed to merge, for the purpose of sentencing, count six (6), aggravated robbery of Louis Luchesan [sic] with count twelve (12), receiving stolen property (Luchesan's [sic] car taken during his robbery) since they were allied offense [sic] of similar import."
{¶ 42} Appellant contends that the act of robbing a car from the Luchisans and the act of receiving that car as stolen property cannot be viewed as two separate crimes. Thus, he argues that he should not have been sentenced on both offenses. Appellee argues in rebuttal that this argument was waived when Appellant failed to object at trial to the convictions or the corresponding sentences.
{¶ 43} This Court has previously held that a defendant who fails to raise the issue of allied offenses of similar import at trial has waived that issue on appeal, unless there is plain error. State v. Johnson
(Dec. 6, 2000), 7th Dist. No. 2000-CO-1; see also Crim. R. 52(B). Plain error may only be found, "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."State v. Long (1978),
{¶ 44} The allied-offense statute, R.C. §
{¶ 45} "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 46} "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶ 47} R.C. §
{¶ 48} Appellant was convicted of aggravated robbery and receiving stolen property. Aggravated robbery, under R.C. §
{¶ 49} "It is hornbook law that a thief cannot be charged with committing two offenses — that is, stealing and receiving the goods he has stolen. E.g., Cartwright v. United States,
{¶ 50} The Ohio Supreme Court has also issued the following related holding:
{¶ 51} "[W]e conclude that although, as to the principal offender who steals a motor vehicle, any acts of receiving or concealing the same motor vehicle knowing it to have been stolen are considered merged into the crime of auto theft itself, so as to preclude separate sentences for a violation of R.C.
{¶ 52} It is clear from the record that the vehicle that Appellant was accused of receiving under the receiving stolen property charge was the vehicle that was stolen as part of the aggravated robbery charges. Although the two crimes are technically distinct, it has been the consistent and longstanding rule in Ohio that a defendant cannot be sentenced for both a theft crime and a receiving stolen property crime based on the same stolen property. Thus, the trial court should not have imposed an additional sentence on the receiving stolen property conviction. Appellant's second assignment of error is sustained.
{¶ 53} Appellant's third assignment of error asserts:
{¶ 54} "The trial court's determination of Chad Barnette's 85.5 year term of incarceration violated the Due Process Clause of the United States Constitution because it had been fixed by anticipatory judgment months in advance of trial and was explicitly weighed to punish Mr. Barnette for exercising his right to a jury trial. (5/17/01 Pretrial Tr. 14 and Sentencing Tr. at 35-36)."
{¶ 55} Appellant argues that his sentence constitutes a due process violation for two reasons. First, he claims that the trial judge's remarks at a pretrial hearing demonstrate that the trial court was biased against him. Second, he contends that the trial court imposed a harsher sentence upon him for exercising his right to trial. We will deal with each issue in turn.
{¶ 56} Appellant tries to prove that the trial court was biased against him by referring to certain comments that the judge made at a pretrial hearing on May 17, 2001:
{¶ 57} "* * * I'm not the kind of guy who changes my mind. You know, once-once this is set, it's set and we're going to do it, and if that doesn't work out for you, well, that's too bad. So you better be ready for the prosecution and you better be ready for me, you better be ready for a jury, you better be ready to work with your lawyer." (5/17/01 Tr., p. 10.)
{¶ 58} The context of the quoted section of the transcript indicates that the trial judge was explaining the consequences of Appellant's insistence on going to trial just two months after he was indicted, particularly in light of the fact that Appellant's counsel had just filed for a continuance because he was not ready for trial. It is apparent that Appellant did not grasp the gravity of his situation. The trial court's comments do not demonstrate that it was prejudiced against Appellant or that it anticipated a particular sentence. Appellant's due process argument is completely without merit.
{¶ 59} Appellant's second argument is that he was punished for exercising his right to trial. Appellant bases his argument on the fact that the prosecution had offered to enter into a Crim. R. 11 plea agreement with him in which the state would recommend a total sentence of 23 years in prison on all counts in the indictment. Appellant did not accept this plea agreement. At the conclusion of trial, the prosecution recommended that Appellant be sentenced to maximum consecutive sentences on all counts. In response, Appellant's counsel argued that maximum consecutive sentences were inappropriate. Counsel argued: "If 23 years was sufficient time to insulate the public from him two weeks ago, why isn't it sufficient time today?" (3/20/02 Tr., p. 21.) The trial court responded to these comments by stating:
{¶ 60} "When the prosecutor asked for maximum consecutive sentences, although the defense finds fault with that, I find no fault with their recommendation or understanding their recommendation. This Court particularly is of the opinion that when someone admits to his wrongdoing and steps up to the plate and says, I did these things, I'm sorry for what I did and I ask for mercy, then mercy is appropriate because the first step towards rehabilitation has taken place. But when someone says I didn't do anything wrong, I deny that I did any of these things that have been charged against me but for being caught in the vehicle that you had to admit being caught in, then mercy's not appropriate. When 12 people from this community have to be brought in here and have the evidence presented to them and they unanimously agree without any question whatsoever that not only did you commit this receiving stolen property, but you each committed ten other outrageous criminal offenses, then the State would not be justified in coming in here saying, let's give them the deal we offered them. The State should come in and say now they deserve to be punished." (3/20/02 Tr., pp. 35-36.)
{¶ 61} Appellant cites this section of the sentencing transcript to demonstrate that the trial court had predetermined before trial that the final sentence would be more severe because Appellant exercised his right to go to trial. Appellant's argument is not persuasive.
{¶ 62} It is true that a criminal defendant should not be punished solely for choosing to go to trial, or for refusing to enter into a plea agreement. State v. O'Dell (1989),
{¶ 63} There are legitimate reasons, though, why a trial court may sentence a defendant more harshly after a trial on the merits than the court might have done in response to a plea bargain. First, the United States Supreme Court has recognized the propriety of offering a more lenient sentence in exchange for a guilty plea. Corbitt v. New Jersey
(1978),
{¶ 64} Second, a trial court usually knows much more about the facts of the case after trial than it does at the time of a pretrial plea hearing. This added knowledge will "almost inevitably * * * affect the judge's consideration of what penalty appears most appropriate."Derrick,
{¶ 65} After examining the record, we conclude that the comments made by the trial judge do not demonstrate that Appellant received an enhanced sentence merely because he chose to proceed to a trial on the merits. It is apparent that many of the trial court's statements were proper responses to arguments raised by defense counsel at the sentencing hearing. For example, counsel argued that the more modest sentencing recommendation that the State offered during plea negotiations proved that maximum consecutive sentences were inappropriate. The trial judge responded by stating that the State may have interpreted Appellant's willingness to enter a plea agreement as an acknowledgment of guilt and a beginning of the rehabilitation process. After trial, though, it became clear that the crimes Appellant committed were, as the court stated, "outrageous" and that severe punishment was more appropriate. The court was not punishing Appellant for going to trial, even though the court took into account the facts that were revealed at trial. The evidence that Appellant relies on does not demonstrate that Appellant received an enhanced sentence in retaliation for exercising his constitutional right to a jury trial, and his third assignment of error is overruled.
{¶ 66} Appellant's fourth assignment of error asserts:
{¶ 67} "The trial court's determination of Chad Barnette's 85.5 year sentence was entered in violation of R.C.
{¶ 68} Appellant sets forth three reasons why this case should be remanded for resentencing: 1) the trial court arbitrarily imposed a total sentence of 85.5 years in prison because he wanted the sentence to match the age of one of the victims; 2) the trial court did not provide particularized findings proving that each and every count was the worst form of each offense; and 3) the sentence of 85.5 years in prison was not consistent with sentences rendered in similar cases in Ohio, in violation of R.C. §
{¶ 69} A court of appeals no longer applies an abuse-of-discretion standard when reviewing a felony sentence. State v. Cloud (Sept. 26, 2001), 7th Dist. No. 98-CO-51. Our standard of review is governed by R.C. §
{¶ 70} "(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶ 71} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 72} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section
{¶ 73} "(b) That the sentence is otherwise contrary to law."
{¶ 74} R.C. §
{¶ 75} We first note that the trial court correctly merged the sentences for kidnapping and robbery so that the sentences would run concurrently. It is axiomatic in Ohio that a kidnapping charge arising out of a robbery merges with that robbery charge unless there is a separate animus for the kidnapping. State v. Fears (1999),
{¶ 76} The trial court also correctly merged the firearm specifications for each set of crimes that were committed together at the same time. R.C. §
{¶ 77} R.C. §
{¶ 78} "(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense: * * *"
{¶ 79} Under the catch-all provision of R.C. §
{¶ 80} Appellee, in rebuttal, observes that the aforementioned comments by the trial judge were made after he had already made all the findings necessary to impose sentence. The court had already examined the sentencing factors in R.C. §
{¶ 81} "The other factors that are appropriate or that, or that are mentioned under that section of the code are not appropriate except forany other relevant factors indicating conduct is more serious. Those factors included the fact that you acted as a group and you terrorized multiple victims, and then you celebrated the crimes that you committed * * *." (Emphasis added.) (3/20/02 Tr., p. 40).
{¶ 82} It was only after the court had made all these appropriate findings that it concluded that sentence would correspond to the age of the oldest victim. Based on the context of the trial court's comments, it does not appear that the age of the victims was improperly used as a factor in sentencing.
{¶ 83} Appellant also contends that the trial court was required to give particular reasons explaining why each and every count was the worst form of each specific offense. Under R.C. §
{¶ 84} Appellant cites three cases to support his view that the trial court needed to give separate reasons why each particular count was the worst form of the offense in order to support the imposition of maximum sentences for each offense. Appellant first cites State v. Longnecker (June 7, 2002), 4th Dist. No. 01CA2. The defendant in Longnecker received a four-year sentence on one count of gross sexual imposition, which is a third degree felony punishable by up to five years in prison. Longnecker does not deal with maximum sentences and is inapposite to the instant appeal.
{¶ 85} The second cite is to State v. Watkins (Aug. 31, 2002), 2nd Dist. No. 2000-CA-21. The defendant in Watkins appealed the court's imposition of maximum sentences on one count of rape and one count of gross sexual imposition, which were to be served concurrently. The Second District Court of Appeals remanded the case for resentencing because the trial court provided no explanation whatsoever for imposing the maximum sentence for the rape conviction. The Watkins case does not discuss whether or not the court should have given separate reasons for the sentences it imposed for each of the two counts. The only section of theWatkins case that Appellant cites does not deal with sentencing at all, but rather, is part of the discussion concerning whether the defendant was a sexual predator. The Watkins case is, therefore, also inapposite to the instant appeal.
{¶ 86} The third case Appellant cites is State v. Akerman (Nov. 10, 1999), 3rd Dist. No. 5-99-32, 5-99-33. The defendant in Akerman was convicted of two charges of felony domestic violence, both of which were fifth degree felonies. The defendant received two sentences of 11 months, to be served consecutively. On appeal, the defendant conceded that the trial court had made the necessary findings to support consecutive sentences. The argument on appeal, though, was that the findings did not apply to either count because the trial court did not recite the findings for each count separately. The Third District Court of Appeals affirmed the sentence because it found that the trial court's findings applied to both counts:
{¶ 87} "[I]t is clear that the trial court's findings were intended to apply to both charges unless it stated otherwise, which it did on several occasions. The defendant's proposed rule, which would require the trial court to make that finding twice in the same hearing, is not mandated by the sentencing statutes and serves no legitimate sentencing purpose." Id. at p. *3.
{¶ 88} The court's holding in Akerman is the opposite of the position taken by Appellant, and we agree with the analysis in Akerman. Appellant has not presented any other authority establishing a need for the trial court to give separate reasons supporting those findings for every related count in a multiple count sentencing hearing. Just as in theAkerman case, it is clear in the instant case that the trial court's findings and explanations were meant to apply to all related charges.
{¶ 89} Our review of the record, though, has uncovered a related error with respect to the court's imposition of maximum sentences. The record reveals that the trial court failed to make the required findings to justify the maximum sentence on the aggravated robbery of Mr. Sovak and on the receiving stolen property charge. We will limit our discussion to the aggravated robbery charge, because we have already determined (under assignment of error number two) that the trial court should not have sentenced Appellant on the receiving stolen property charge.
{¶ 90} The transcript of the sentencing hearing contains a list of the counts which constituted the worst form of the offense. (3/20/02 Tr., p. 43.) As we noted earlier, the court justified imposing maximum sentences because he found the counts in the indictment constituted the worst form of the offense, pursuant to the requirements of R.C. §
{¶ 91} Appellant further argues, under assignment of error number four, that the 85.5 year sentence was disproportionate to other sentences for similar crimes. Appellant refers to seven cases to demonstrate the disproportionality of his sentence, but we are not persuaded by the authorities that have been cited.
{¶ 92} State v. Duvall, 8th Dist. No. 80316, 2002-Ohio-4574, was the result of a negotiated plea and is not comparable to the instant case, which was the result of the jury trial. The same is true for three other cases cited by Appellant: State v. Walker, 1st Dist. No. C-030159,
{¶ 93} State v. Bragenzer, 4th Dist. No. 01CA15, 2002-Ohio-6156, was also the result of a negotiated plea. More importantly, the defendant inBragenzer received maximum consecutive sentences on two first degree felony counts. The sentences imposed and affirmed in Bragenzer would actually support the sentences imposed in the instant case.
{¶ 94} State v. Dillon, 4th Dist. No. 01CA54, 2002-Ohio-4990, is somewhat comparable to the instant case. The defendant was convicted of aggravated burglary, as well as three complicity charges of felonious assault, aggravated robbery and kidnapping. The defendant helped two accomplices to break into a neighbor's home and steal $1000. The accomplices hit the victim with a flashlight, and the defendant tripped the victim as he tried to escape. The defendant received 36 years of a possible 38-year prison sentence. Some of the sentences, though, were ordered to be served concurrently, for a total sentence of 20 years. This is roughly half of what Appellant received on similar charges.
{¶ 95} State v. Jeffries (March 22, 2001), 8th Dist. No. 76880, involved a conviction for gross sexual imposition and abduction, which are not comparable to the convictions in the instant case, and thus, cannot be applied to determine appropriate sentences for the crimes under review in this appeal.
{¶ 96} Appellant has presented only one case that appears to support his theory. One of the cases cited actually supports the imposition of maximum consecutive sentences. The other cases were the result of plea agreements, and thus cannot easily compare with sentencing after a jury trial. The fact that Appellant has only produced one case in which a criminal defendant received a less severe sentence for similar crimes is indicative that the maximum consecutive sentences under review in this appeal were not disproportionate to other similar convictions and sentences in Ohio. We find no merit in Appellant's third argument under this assignment of error.
{¶ 97} Based on Appellant's arguments, we have found one error under assignment of error number four that warrants a modification of the maximum sentence imposed by the trial court for the aggravated robbery of Mr. Sovak. For this reason, we partially sustain Appellant's fourth assignment of error.
{¶ 98} Appellant's fifth assignment of error asserts:
{¶ 99} "The trial court erred when it imposed non-minimum, maximum, and consecutive sentences based on facts not found by the jury or admitted by Mr. Barnette, in contravention of Blakely v. Washington
(2004),
{¶ 100} Appellant did not raise this assignment of error in his initial brief or in his supplemental brief after new counsel had been appointed. We granted Appellant leave to file this fifth assignment of error in order to assert arguments arising from the very recent United States Supreme Court case of Blakely v. Washington (2004),
{¶ 101} Blakely reviewed the constitutionality of the felony sentencing guidelines of the State of Washington. Blakely held that part of Washington's felony sentencing scheme violated the
{¶ 102} After examining Appellant's argument, it appears that he has waived the issue he is now attempting to assert on appeal. Any sentencing challenge available to the defendant under Blakely is waived, because he did not object at trial to what he now contends is a violation of his constitutional right to a jury trial. See, e.g., State v. Awan (1986),
{¶ 103} The fact that Blakely was decided after Appellant had submitted his brief on appeal, and after oral argument had been held, is not determinative in our analysis. The issues that were under review inBlakely were previously reviewed many times by the United States Supreme Court and by legions of lower federal court and state court decisions.Blakely is only the most recent progeny of a line of cases that includes the seminal case of Apprendi v. New Jersey (2000),
{¶ 104} Apprendi held that, "it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." Id. at 490,
{¶ 105} The argument that Appellant is now attempting to assert under the authority of Blakely is essentially the same argument raised inApprendi. The Apprendi case was decided on June 26, 2000, long before Appellant was convicted and sentenced for the crimes he committed against Mr. Sovak and Mr. and Mrs. Luchisan. Apprendi was decided three and one half years before Appellant's substitute counsel submitted his first supplemental brief on appeal, and any issues related to the constitutionality of Ohio's sentencing scheme certainly could have been, and should have been, raised at that time. Furthermore, Blakely dealt with well-established, rather than novel, constitutional rights, which must be timely raised at trial in order to be preserved as issues on appeal. See Awan, supra,
{¶ 106} Furthermore, it does not appear the Ohio's felony sentencing scheme would run afoul of the holdings in Apprendi and Blakely. Blakely
stands for the proposition that, under the
{¶ 107} We agree with those Ohio courts that have already concluded that the Ohio felony sentencing scheme does not violate the holdings inApprendi and Blakely. See, e.g. State v. Scheer, 4th Dist. No. 03CA21,
{¶ 108} Based on the foregoing analysis, we overrule Appellant's fifth assignment of error.
Donofrio, J., concurs.
DeGenaro, J., concurs in part and dissents in part; see concurring in part and dissenting in part opinion.
Dissenting Opinion
{110} Although I agree with the majority's resolution of Appellant's first, third, and much of his fourth assignments of error, I respectfully dissent from the remainder of its opinion.
{111} First, I cannot agree with the majority's resolution of Appellant's second assignment of error. The majority concludes that aggravated robbery and receiving stolen property are allied offenses of similar import because one cannot, as a factual matter, receive something that one has stolen. But this conclusion ignores the test the Ohio Supreme Court has formulated to determine whether two offenses are allied offenses of similar import. I agree with the general proposition that one cannot receive something one has stolen. But this affects whether one of Appellant's convictions is against the manifest weight of the evidence, an argument Appellant has not advanced, rather than whether the offenses are allied offenses of similar import. Appellant's second assignment of error is meritless.
{112} Second, I cannot agree with the majority's discussion in Appellant's fourth assignment of error regarding whether the trial court properly imposed maximum sentences upon him because the trial court's comments demonstrated a blatant disregard for the purposes and principles of Ohio's felony sentencing laws. Further, the majority fails to address the second part of this assignment of error, that dealing with whether the trial court properly imposed consecutive sentences. In this case, the trial court gave proper findings in support of its decision to order that Appellant's sentences be run consecutively. But its reasons in support of those findings run afoul of the purposes and principles of Ohio's felony sentencing laws. Appellant's fourth assignment of error in this regard is meritorious.
{113} Third, I disagree entirely with the majority's resolution of Appellant's fifth assignment of error. Appellant has not waived his argument under Blakely v. Washington (2004),
{116} In Rance, the court held that crimes are allied offenses of similar import only if the elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other. Id. at 636. When making this judgment, the court should not consider the particular facts of the case, but should only consider the statutory elements in the abstract. Id. at paragraph one of the syllabus. "If the elements do not so correspond, the offenses are of dissimilar import and the court's inquiry ends — the multiple convictions are permitted." Id. at 636. But if the elements do correspond, then the court must review the defendant's conduct to determine if the offenses were committed separately or with a separate animus as to each offense.State v. Jones,
{117} "The linchpin of the Rance test is the observation that the General Assembly may prescribe cumulative punishments for specific offenses that would have constituted the same offenses under Blockburgerv. United States (1932),
{118} The cases the majority relies upon most, Maumee v. Geiger
(1976),
{119} Appellant was convicted of aggravated robbery under R.C.
{120} The statutory elements of aggravated robbery and receiving stolen property demonstrate that they are not allied offenses of similar import. For instance, someone could commit aggravated robbery when attempting a theft offense, even if the offender does not actually succeed at the theft offense. Therefore, the offender would not have actually stolen anything and could not be guilty of receiving stolen property even though they are guilty of aggravated robbery. Similarly, an offender could commit theft, as defined by R.C.
{121} As the majority points out, a criminal defendant should not serve a sentence for both stealing property and receiving that same property. But the reason is not because the offender is guilty of two offenses which are allied offenses of similar import. Instead, a conviction for both of these offenses is against the manifest weight of the evidence, which appellant did not raise and thus waived. We should not create an exception to the Ohio Supreme Court's decision in Rance when there is an alternative means of correcting the injustice the majority recognizes in its opinion. Appellant's arguments in this regard are meritless.
{124} "The sentence shall be commensurate with, and not demeaning to, the seriousness of the offender's conduct and its impact on the victim. It must be consistent with sentences for similar crimes by similar offenders.
{125} "People who burglarize other homes spend ten years in jail if you have the misfortune of appearing before this Court on a burglary. People who try to kill other people get ten years in jail. People who commit aggravated robberies of other people get ten years in jail and so forth. So I intend to impose a sentence that is consistent with sentences for similar crimes by similar offenders."
{126} These statements clearly and convincingly demonstrate a blatant disregard for the purposes and principles of Ohio's felony sentencing laws. I cannot state strongly enough that the mere fact that someone commits an offense is not a reason to give that person the maximum possible prison term for that offense. The elements of the offense, without the aggravating factors listed in R.C.
{128} "If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{129} "(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{130} "(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.
{131} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." R.C.
{132} When the trial court makes findings in accordance with R.C.
{133} At the sentencing hearing, the trial court found as follows:
{134} "Consecutive prison terms are an option under 2929.14(E)(3) [sic] if necessary to protect the public and punish the offender and not disproportionate to the conduct and the danger the offender poses and the Court finds that the harm is so great or unusual that a single term does not adequately reflect seriousness of the conduct. The Court does so find."
{135} This finding clearly complies with R.C.
{136} The trial court specifically stated that it intended to give the defendants "at least one year in jail for every year of the life of the man who you tried to kill. * * * It is the intention of this Court thatyou should not be released from the penitentiary and the State of Ohioduring your natural lives. (Emphasis added.) I believe from what was represented to the court in the trial that but for the grace of the good lord above, Mr. Sovak would have died, and but for the grace of god that his family was able to find him and save him, he would have died and you would be here on charges of aggravated murder. That's what you tried to do. That's what you wanted to do." The trial court ignores the fact that the legislature has prevented it from giving a life sentence for attempted aggravated murder.
{137} Someone has attempted to commit aggravated murder when he engages "in conduct that, if successful, would constitute or result in" aggravated murder. R.C.
{138} The fact that Appellant and Goins broke into Mr. Sovak's home, savagely beat him, robbed him, and locked him in a fruit cellar cannot be easily dismissed and may be a basis for making some of Appellant's sentences consecutive. But the prison term imposed by the trial court, eighty-five and one-half years, was an attempt by the trial court to override the legislature's intent by imposing a life sentence upon Appellant when one is not authorized by law. Appellant's sentence to a term of eighty-five and one-half years is clearly excessive.
{139} Trial courts cannot rotely incant some of the language contained in the felony sentencing statutes and expect to be affirmed on appeal. They must follow the mandates of those statutes and consider the principles and purposes of those statutes when imposing sentences upon felony offenders. This case is a prime example of what happens when a trial court fails to do so. Appellant has clearly and convincingly proven that his sentence is contrary to law and his fourth assignment of error is meritorious.
{141} First, the majority ignores the fact that courts across the country have recognized that Blakely has "worked a sea change in the body of sentencing law." United States v. Ameline (9th Cir. 2004),
{142} The majority's failure to recognize the novelty of the Court's decision leads to its incorrect application of that decision to Ohio's felony sentencing law. Under Blakely, the "statutory maximum" forApprendi-purposes is no longer the maximum that an offender could be sentenced for an offense. Rather, it is the maximum that an offender can be sentenced for that offense based on the facts reflected in the jury verdict or admitted by the defendant. Ohio's felony sentencing statutes require that a trial court make specific factual findings before it can sentence an offender to more than the minimum sentence for each offense. These findings are not reflected in the jury's verdict. Accordingly, Appellant's sentence violates his
{144} In Apprendi, the Court was asked whether a New Jersey statute which enhanced a second degree felony to a first degree felony "if the trial judge finds, by a preponderance of the evidence, that `the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity'" was constitutional. Id.,
{145} After Apprendi, many of Ohio's appellate courts were asked to declare that Ohio's felony sentencing statutes were likewise unconstitutional because they require that trial judges, rather than juries, make the findings necessary to sentence an offender to either 1) more than the minimum sentence under R.C.
{146} We must revisit those decisions in light of the Court's decision in Blakely because it answers a question unanswered in Apprendi: what is the relevant statutory maximum for Apprendi-purposes? It further clarified what the Court means when distinguishing between "elements" and "sentencing factors."
{147} In Blakely, the defendant pled guilty to kidnapping his estranged wife with a firearm, a second-degree felony. The maximum possible prison term for this offense was ten years. But Washington's Sentencing Reform Act specified a "standard range" for sentencing an offender for second-degree kidnapping with a firearm of 49 to 53 months. A trial court could impose a sentence above the standard range if it finds "substantial and compelling reasons justifying an exceptional sentence." Id.,
{148} Pursuant to the plea agreement, the State recommended a sentence within the standard range. But the trial court rejected the State's recommendation and imposed a 90 month sentence after finding that the defendant acted with "deliberate cruelty" when committing the offense. "Deliberate cruelty" was one of the specifically listed statutory grounds for departing upward from the standard range. The defendant objected and, on appeal, argued that the trial court's upward departure denied him the right to a trial by jury. The Court applied Apprendi's holding and agreed that the trial court denied the defendant his right to a jury trial.
{149} The Court noted that under Apprendi, a trial court cannot increase a 10year sentence to a 20-year sentence because the judge found the crime was a hatecrime, one committed "`with a purpose to intimidate . . . because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'" Id. at 468-469, quoting N.J.Stat.Ann.
{150} "In this case, petitioner was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with `deliberate cruelty.' The facts supporting that finding were neither admitted by petitioner nor found by a jury. The State nevertheless contends that there was no Apprendi violation because the relevant `statutory maximum' is not 53 months, but the 10-year maximum for class B felonies in 9A.20.021(1)(b). It observes that no exceptional sentence may exceed that limit. * * * Our precedent makes clear, however, that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the factsreflected in the jury verdict or admitted by the defendant. * * * In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not follow, the jury has not found all the facts `which the law makes essential to the punishment' * * * and the judge exceeds his proper authority" (Citations omitted) (Emphasis sic.) Id.
{151} Because the judge in Blakely increased the defendant's sentence due to his "deliberate cruelty" when committing the offense, a fact neither found by the jury nor admitted by the defendant, his sentence was invalid. Id.,
{153} First, courts from around the country have recognized that a criminal defendant whose appeal was pending at the time Blakely was decided does not waive his Blakely-related arguments simply because he did not make those same arguments to the trial court. See Ameline; Peoplev. George (2004),
{154} The court in Strong ably described the situation as follows:
{155} "Our examination of [Apprendi, Ring, and Blakely] reveals that the `statutory maximum' as used by the United States Supreme Court in its 2000 Apprendi decision is different from that redefined in the 2004Blakely decision. Indeed, in Apprendi, the statutory maximum was the ten-year prescribed statutory maximum, which a defendant could receive for a second-degree offense if the preponderance of certain aggravating and mitigating circumstances, as found by the trial court, weighed in favor of the higher term. By contrast, in Blakely, the `statutory maximum' is the maximum sentence that a trial judge may impose without any additional findings, i.e., the presumptive or standard sentence. Because Blakely redefined the `statutory maximum' for purposes ofApprendi, a defendant, such as Strong, who challenges his enhanced sentence but fails to do so on the grounds of Apprendi has not waived his argument pursuant to Blakely. Accordingly, we find no waiver." Id. at 12-13.
{156} Second, Ohio's appellate courts routinely dismissed arguments similar to the ones now advanced under Blakely when those arguments were based solely on Apprendi. See State v. Elkins,
{157} Given the nature of both the U.S. Supreme Court's and Ohio's caselaw when Appellant was sentenced, it was reasonable for Appellant to believe at the time of his sentencing that, because he was sentenced within the sentencing range provided by our legislature, his sentence did not violate Apprendi. I cannot criticize either a criminal defendant or his counsel for failing to make these arguments to the trial court. Given the caselaw on the subject, the trial court would not have a meaningful opportunity to correct the "error." It is unfair to punish Appellant for his inability to foresee the Supreme Court's redefinition of "statutory maximum" by invoking the procedural principle of waiver.
{158} Third, a violation of Blakely would constitute plain error. Plain errors are "errors or defects affecting substantial rights" and "may be noticed although they were not brought to the attention of the court." Crim. R. 52(B). This rule places three limitations on this court's ability to recognize plain error: 1) there must be a deviation from a legal rule; 2) the error must be an obvious defect in the trial proceedings; and, 3) the error must have affected the outcome of the trial. State v.Barnes,
{159} Clearly, a violation of Blakely would be a deviation from a legal rule, is an obvious defect in the trial court's proceedings, and affects the outcome of the trial. If a criminal is tried and sentenced in violation of his
{160} For all these reasons, I must dissent from the majority's conclusion that Appellant waived his ability to argue that his sentence violates his
{162} Clearly, Ohio's appellate courts are conflicted over exactly howBlakely impacts existing Ohio felony sentencing law. Given this conflict, I can understand the majority's position on the subject. Nevertheless, I must respectfully disagree with its conclusion.
{164} "[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others." R.C.
{165} A trial court cannot sentence an offender to more than the minimum possible prison term unless it finds either 1) that the offender has previously served a prison term, 2) that the shortest prison term will demean the seriousness of the offender's conduct, or 3) that the shortest prison term will not adequately protect the public from future crime by the offender or others. See State v. Edmonson,
{166} The presumption codified in R.C.
{167} Distinguishing Ohio's sentencing structure from Washington's simply because Washington's law is more structured than Ohio's misses the point. At the lowest level, our sentencing laws are indistinguishable from those at issue in Blakely. They require that the trial court make findings based on facts the jury was not asked to find in order to sentence the offender to more than the "statutory maximum" punishment.
{168} The findings the trial court made in this case, that the shortest possible prison sentence would demean the seriousness of Appellant's conduct and that the shortest prison term will not adequately protect the public from future crime by the offender or others, are not "facts" like those constituting an element of an offense. Instead, they are more akin to broader conclusions, such as finding a defendant guilty of an offense or negligent, which are based on specific facts. As will be discussed below, this distinction does not mean that a trial court may make those findings in a post-Blakely environment. But the analysis is a bit more nuanced than simply concluding that an offender's sentence violatesBlakely because the trial court made a factual finding.
{170} "(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense:
{171} "(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
{172} "(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
{173} "(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
{174} "(4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
{175} "(5) The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
{176} "(6) The offender's relationship with the victim facilitated the offense.
{177} "(7) The offender committed the offense for hire or as a part of an organized criminal activity.
{178} "(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
{179} "(9) If the offense is a violation of section
{180} These factors appear to be indistinguishable from those Apprendi
and Blakely held must be found by a jury. For instance, R.C.
{181} Obviously, none of the factors in R.C.
{183} As stated above, Apprendi's basic holding is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Its exception for the fact of a prior conviction was based on the Court's previous decision in Almendarez-Torres v. United States (1998),
{184} In Almendarez-Torres, the Court was asked to decide, among other things, whether a jury had to find that a defendant had a prior conviction before a trial court could consider that prior conviction when sentencing the defendant. It concluded that a jury did not have to find this fact in order for a trial court to enhance a defendant's sentence because of the prior conviction.
{185} "First, the sentencing factor at issue here — recidivism is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. See, e.g., Parke v. Raley,
{186} Subsequently, the Court clarified that when it refers to "the fact of a prior conviction," it means facts relating to the defendant's likelihood to recidivate. See Jones v. United States (1999),
{188} "(D) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes:
{189} "(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section
{190} "(2) The offender previously was adjudicated a delinquent child pursuant to Chapter
{191} "(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter
{192} "(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
{193} "(5) The offender shows no genuine remorse for the offense." R.C.
{194} Because a court may consider facts relating to the offender's likelihood to recidivate without having those facts proven by a jury, it may consider the factor in R.C.
{195} The same cannot be said for the remaining factors. These factors are all judgment calls involving the weighing of facts. Thus, they are more like the seriousness factors than they are the fact of a prior conviction. In this case, the trial court's finding was based on these factors, not solely on those found in R.C.
{196} Because the jury did not find the facts forming the basis of the trial court's findings allowing it to sentence Appellant to more than the minimum possible prison term for each offense, the trial court erred when doing so.
{199} Because of the conflict among many members of the judiciary in this state regarding whether and how Blakely applies to the most basic aspects of felony sentencing in Ohio, I trust that the Ohio Supreme Court will soon deal with some of these issues to offer both the legal community and the citizens as a whole definitive guidance on this important issue. I would certify a conflict with those courts which have found that Blakely does not apply. The majority should do the same with the Eighth District.
{200} In this case the trial court's decision must be reversed and this cause remanded to the trial court to properly resentence Appellant in accordance with Blakely.
