State v. ColemanState v. Coleman
DECISION AND JUDGMENT ENTRY
{¶ 1} Appellant, Andre J. Coleman, appeals the Sandusky County Court of Common Pleas judgment. For the following reasons, we affirm appellant‘s judgment of conviction.
{¶ 2} This is appellant‘s second appeal as of right. We stated the facts underlying appellant‘s convictions in State v. Coleman, 6th Dist. No. S-02-041, 2005-Ohio-318:
{¶ 3} “On July 11, 2002, appellant was indicted on one count of murder with a firearm specification; two counts of attempted murder with firearm specifications; two counts of felonious assault with firearm specifications; one count of failure to comply with the order or signal of a police officer; one count of tampering with evidence; one count of having a weapon while under disability; and one count of possession of drugs. The charges arose from a brawl involving a crowd of people that broke out shortly after 2:00 a.m. on July 6, 2002, in the parking lot outside a bar in Fremont, Ohio. As a result of the fight, one man died from a gunshot in the chest and another man was shot in the leg. After the shootings, appellant and his companions fled the scene in their car. Appellant threw his gun out the car window and failed to immediately pull over when the police pursued him. When appellant was searched incident to arrest, police recovered marijuana and cocaine from his pockets. The case was tried to a jury and on October 18, 2002, appellant was found guilty of all counts except attempted murder and one of the felonious assault charges.” Id., ¶ 10.
{¶ 4} Appellant was subsequently sentenced as follows: “for murder, 15 years to life, plus a 3-year gun specification; for felonious assault, eight years, plus a 3-year gun specification; for failure to comply with the order or signal of a police officer, eighteen months; for tampering with evidence, five years; for having a weapon under disability, 12 months; and for possession of drugs, 12 months.” Id., ¶ 33. The murder and felonious assault sentences were imposed consecutively to each other. The four remaining sentences were imposed concurrently to the term for felonious assault, for a total term of 29 years incarceration.
{¶ 5} On appeal, we affirmed his convictions, but determined that resentencing was necessary because the trial court failed to comply with State v. Comer (2003), 99 Ohio St.3d 463, 2003-Ohio-4165. The trial court were required by Comer to state specific findings on the record at sentencing hearings, pursuant to
{¶ 6} Prior to appellant‘s resentencing, the Ohio Supreme Court decided State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio-856, certiorari denied by State v. Foster, 127 S.Ct. 442, which declared certain portions of Ohio‘s sentencing laws unconstitutional as violative of a defendant‘s
{¶ 7} The trial court held another sentencing hearing, adhering to Foster‘s mandates. Appellant was sentenced as follows: for murder, 15 years to life incarceration, plus a three year gun specification; for felonious assault, eight years incarceration plus a three year gun specification; for failure to comply, 12 months incarceration; for tampering with evidence, three years incarceration; for having a weapon under a disability, 12 months incarceration; for possession of drugs, 12 months incarceration. The terms imposed for murder and felonious assault were ordered consecutive to each other, with the remaining sentences ordered to run concurrent to the terms for murder and felonious assault and concurrent to each other. Noting it was bound by Foster, the trial court did not make any findings in support of the maximum or consecutive nature of the sentences, as Comer and our decision to reverse and remand required. It did, however, consider the principles and purposes of sentencing as required by
{¶ 8} Appellant filed a timely appeal and raises three assignments of error:
{¶ 9} “I. The trial court erred by giving the defendant maximum concurrent sentences in a post-Foster sentencing in violation of the jury trial guarantee of the due process clause of the
{¶ 10} “II. Post-Foster sentencing violates the Ex Post Factor Clause of the Federal Constitution and also exceeds the
{¶ 11} “III. Application of the rule of lenity in favor of the defendant requires that he be sentenced to minimum and concurrent sentences.”
{¶ 12} Because the first and second assignments of error raise issues with the retroactive application of Foster, we address them jointly. In his first assignment of error, appellant argues that Foster violates the Federal Constitution because the law as it existed prior to Foster required that he be given minimum, concurrent sentences. Prior to Foster, appellant argues, ”
{¶ 13} As with other defendants whose appeals were pending when Foster was announced, appellant “essentially seeks the benefit of Foster‘s substantive holding, but he wishes to avoid the remedial holding.” State v. McGhee, 3rd Dist. No. 17-06-05, 2006-Ohio-5162. “[H]e wants `a sentence that comports with the
{¶ 14} In his second assignment of error, appellant claims that the trial court violated due process and the Ex Post Facto Clause of the United States Constitution when it resentenced him pursuant to State v. Foster. We note that appellant failed to raise this issue at his resentencing, although the trial court expressly stated that it was following the dictates of Foster during the resentencing hearing. Ordinarily, failure to raise a constitutional issue at the trial court waives the error on appeal; ex post facto and due process challenges fall within the waiver doctrine. This argument was available to appellant at the time of trial. See State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899, ¶ 14, citing State v. Awan (1986), 22 Ohio St.3d 120, syllabus.
{¶ 15} Nevertheless, appellant‘s arguments fail. “To fall within the ex post facto prohibition, a law must be retrospective — that is, `it must apply to events occurring before its enactment’ — and it `must disadvantage the offender affected by it.‘” Lynce v. Mathis (1997), 519 U.S. 433, 441, quoting Weaver v. Graham (1981), 450 U.S. 24, 29. The Ex Post Facto Clause extends to four types of laws:
{¶ 16} “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Rogers v. Tennessee (2001), 532 U.S. 451, 456, quoting Calder v. Bull (1798), 3 Dall. 386, 390.
{¶ 17} Although the Ex Post Facto Clause “is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government,” Rogers, 532 U.S. at 456, quoting Marks v. United States (1977), 430 U.S. 188, 191, “limitations on ex post facto judicial decisionmaking are inherent in the notion of due process.” Id., explaining Bouie v. City of Columbia (1964), 378 U.S. 347. While noting some overlap between the Ex Post Facto Clause and the restrictions due process places upon retroactive applications of judicial decisions, Rogers held that the two are not coextensive. “The Ex Post Facto Clause, by its own terms, does not apply to courts” as it “would circumvent the clear constitutional text” and “evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other.” Id. at 460. Thus, appellant‘s argument that the Ex Post Facto Clause applies to resentencing hearings conducted pursuant to Foster is not well-taken, and we proceed to examine only his due process claim.
{¶ 18} The test of whether a judicial interpretation or severance of a statute violates due process is whether the judicial decision is “unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.” Rogers, 532 U.S. at 455, quoting Bouie, 378 U.S. at 354. Appellant‘s offenses arose from conduct which occurred on July 6, 2002. Appellant‘s due process claim thus requires us to examine the expressions of Ohio‘s sentencing statutes and constitutional law prior to that date to determine whether the Foster decision was “unexpected and indefensible.”
{¶ 19} Every Ohio appellate court to confront the issue to date has held that no due process rights are implicated by Foster. See State v. Smith, 2nd Dist. No. 21004, 2006-Ohio-4405; State v. Durbin, 2nd Dist. No. 2005-CA-134, 2006-Ohio-5125; State v. McGhee, 3rd Dist. No. 17-06-05, 2006-Ohio-5162; State v. Grimes, 4th Dist. No. 04CA17, 2006-Ohio-6360; State v. Paynter, 5th Dist. No. CT2006-0034, 2006-Ohio-5542; State v. Hildreth, 9th Dist. No. 06CA008879, 2006-Ohio-5058; State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899; State v. Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373. Criminal defendants, pre-Foster, were never guaranteed a minimum prison term. “[T]he Court in Foster did not simply sever the judicial fact-finding portion of
{¶ 20} Moreover, appellant‘s resentencing did not result in the imposition of a more burdensome punishment than the one to which he had been exposed at the time of the commission of the offenses. In his first appeal of right, we reversed appellant‘s sentence with respect to the imposition of maximum terms for each of his convictions and with respect to the imposition of consecutive terms for murder and felonious assault, since improper findings were made pursuant to Comer, supra, the prevailing law at the time. At the time of appellant‘s first sentencing hearing, he was aware of the maximum penalty which could have been imposed. In fact, appellant received lower than the maximum sentences originally imposed on his convictions for failure to comply and for tampering with evidence. Because appellant was only guaranteed the presumption of a minimum term in the absence of judicial factfinding, once such factfinding was held unconstitutional, the presumption ceased to exist. We cannot conclude, therefore, that the remedy, which implements longstanding
{¶ 21} As an intermediate appellate court, we are bound to follow Foster. The remedy which Foster fashioned became unquestionable law in Ohio when the United States Supreme Court denied certiorari on October 16, 2006. Foster v. Ohio (2006), 127 S.Ct. 442. We recognize that the Court does not explicitly endorse a decision when declining to review a matter, because a denial “imports no expression of opinion upon the merits of the case.” Agoston v. Com. of Pa. (1950), 340 U.S. 844, 844, quoting United States v. Carver (1923), 260 U.S. 482, 490. “A denial simply means that as a matter of `sound judicial discretion’ fewer than four members of the Court deemed it desirable to review a decision of a lower court.” Id. However, lower courts are bound to apply controlling precedent and must not, even despite doubts, force superior court review of an issue by upsetting controlling precedent. Eberhart v. U.S. (2005), 546 U.S. 12, 126 S.Ct. 403, 407. Appellant‘s first and second assignments of error are not well-taken.
{¶ 22} Next, appellant argues that the “rule of lenity” requires courts to construe the sentencing statutes as they exist post-Foster in favor of criminal defendants, to resolve doubts regarding punitive statutes against the imposition of harsher punishments. Originally a staple of common law, Ohio‘s rule of lenity is codified in
{¶ 23} The rule of lenity “applies only where there is ambiguity in or conflict between the statutes” at issue. State v. Arnold (1991), 61 Ohio St.3d 175, 178. The rule has no application here, since there is no ambiguity or conflict between statutes, and Foster severed the portions of the sentencing statutes which violated the
{¶ 24} We must sua sponte find, however, error in the trial court‘s order for the one year term for failure to comply to run concurrent to the other terms. Appellant was convicted of
{¶ 25} The portion of appellant‘s sentence ordering the one year term for failure to comply to run concurrent to all other sentences is, therefore, contrary to statute. An 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,” if clear and convincing evidence shows that the sentence is “contrary to law.”
{¶ 26} For the foregoing reasons, the judgment of the Sandusky County Court of Common Pleas is affirmed in part and modified in part. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk‘s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Sandusky County.
JUDGMENT AFFIRMED IN PART AND MODIFIED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Arlene Singer, J., William J. Skow, J., George M. Glasser, J., CONCUR.
Judge George M. Glasser, retired, sitting by assignment of the Chief Just