2007 Ohio 3137 | Ohio Ct. App. | 2007
{¶ 2} In September 2002, the Seneca County Grand Jury indicted Bulkowski for one count of attempted murder in violation of R.C.
{¶ 3} In December 2002, Bulkowski withdrew his pleas of not guilty and not guilty by reason of insanity and entered a negotiated plea of guilty to the felonious assault and tampering with evidence counts, in exchange for dismissal of *3 the attempted murder count of the indictment. Thereafter, the trial court convicted Bulkowski on the felonious assault and tampering with evidence counts and sentenced him to a seven-year prison term on the felonious assault count and to a two-year prison term on the tampering with evidence count, to be served consecutively. Additionally, the trial court subjected Bulkowski to a mandatory term of post-release control and ordered him to pay restitution and costs.
{¶ 4} In July 2003, Bulkowski moved for post-conviction relief.
{¶ 5} In January 2005, Bulkowski moved for leave to amend his motion for post-conviction relief, which the trial court granted.
{¶ 6} In November 2005, the trial court dismissed Bulkowski's motion for post-conviction relief, from which Bulkowski appealed.
{¶ 7} In August 2006, this Court vacated Bulkowski's December 2002 sentence and remanded his case for resentencing pursuant to State v.Foster,
{¶ 8} It is from this judgment that Bulkowski appeals, presenting the following assignments of error for our review. *4
THE TRIAL COURT ERRED BY DEPRIVING THE APPELLANT OF A LIBERTY INTEREST WITHOUT DUE PROCESS OF LAW.
THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT IN VIOLATION OF THE EX POST FACTO CLAUSE.
THE TRIAL COURT COMMITTED PLAIN ERROR IN RESENTENCING THE APPELLANT.
{¶ 9} Due to the nature of Bulkowski's assignments of error, we elect to address his first and second assignments of error together.
{¶ 11} Foster addressed constitutional issues concerning felony sentencing and held that portions of Ohio's felony sentencing framework requiring judicial *5 findings before imposition of more than the minimum, maximum, and consecutive sentences were unconstitutional and void, and severed them. 109 Ohio St.3d at ¶ 100.
{¶ 12} This Court has previously held that the Foster decision does not violate the due process and ex post facto clauses. See State v.McGhee, 3d Dist. No. 17-06-05,
{¶ 13} Bulkowski committed the offenses at issue after the United States Supreme Court decided Apprendi v. New Jersey (2000),
{¶ 14} Accordingly, we overrule Bulkowski's first and second assignments of error.
{¶ 16} We note that Bulkowski failed to raise this argument during his resentencing. As such, Bulkowski has waived this issue on appeal except as to plain error. State v. Long (1978),
{¶ 17} Here, Bulkowski argues that Foster's determination that certain provisions of the felony sentencing statutes were unconstitutional rendered those felony sentencing statutes in their entirety unconstitutional; that Foster's severance remedy violated separation of powers principles; and, that Foster's severance remedy did not comport with the legislature's intent regarding felony sentencing.
{¶ 18} This Court has previously addressed arguments similar to those of Bulkowski's and determined that they lack merit. See State v.Daniels, 3d Dist. No. 17-06-15,
{¶ 19} In applying the severance remedy, Foster engaged in a lengthy discussion of the possible ways in which to comply with the United States Supreme Court's decision in Blakely v. Washington (2004),
{¶ 20} Further, we note that "all trial courts and intermediate courts of appeal are charged with accepting and enforcing the law as promulgated by the Supreme Court and are bound by and must follow the Supreme Court's decision." World Diamond, Inc. v. Hyatt Corp. (1997),
{¶ 21} Accordingly, we overrule Bulkowski's third assignment of error. *8
{¶ 22} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
*1SHAW and PRESTON, JJ., concur. r