2006 Ohio 2445 | Ohio Ct. App. | 2006
{¶ 2} When presented with an application for reconsideration, an appellate court must determine whether the application calls to the court's attention an obvious error in its decision or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been. State v. Rowe (Feb. 10, 1994), Franklin App. No. 93AP-1763; Columbus v. Hodge (1987),
{¶ 3} Defendant-appellant, Anton R. Draughon, appealed from a judgment of conviction and sentence that imposed a non-minimum prison sentence for his conviction of one count of attempted carrying of a concealed weapon. Appellant claimed in his first assignment of error that the trial court failed to make findings required to impose a non-minimum sentence. In his second assignment of error, he claimed that the trial court violatedBlakely v. Washington (2004),
{¶ 4} In our March 30, 2006 judgment entry, we summarily sustained appellant's second assignment of error and remanded this matter to the trial court for resentencing pursuant toState v. Foster,
{¶ 5} In Foster, the Supreme Court of Ohio determined that portions of this state's sentencing statutes violate the
{¶ 6} The State claims that appellant waived his Blakely
argument because he did not present the argument to the trial court. The Ninth District Court of Appeals has determined that defendants waive a Blakely challenge to their sentence if they were sentenced after Blakely was decided and did not raise such a challenge in the trial court. State v. Dudukovich, Lorain App. No. 05CA008729,
{¶ 7} We acknowledge the broad language the Supreme Court of Ohio used in Foster when it ordered resentencing for all cases pending on direct review. However, we conclude that a defendant who did not assert a Blakely challenge in the trial court waives that challenge and is not entitled to a resentencing hearing based on Foster. We first note that, normally, constitutional arguments not made in the trial court are waived.State v. Awan (1986),
{¶ 8} Thus, in accordance with the well-settled doctrine of waiver of constitutional challenges, and the language inBooker, we hold that a Blakely challenge is waived by a defendant sentenced after Blakely if it was not raised in the trial court. Unlike each of the defendants in Foster, appellant was sentenced after the Supreme Court's decision in Blakely. See Dudukovich, supra. Thus, he could have objected to his sentencing based on Blakely and the constitutionality of Ohio's sentencing scheme. Appellant, however, did not raise such a constitutional challenge to Ohio's sentencing statutes in the trial court. While he did object to the trial court's imposition of a non-minimum sentence, he did not object based on Blakely. Therefore, appellant waived his Blakely argument on appeal. Accordingly, on reconsideration, appellant's second assignment of error is overruled.
{¶ 9} Appellant's first assignment of error contended that the trial court failed to make findings required by R.C.
{¶ 10} The State's application for reconsideration is well-taken and is granted. Upon reconsideration, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
{¶ 11} The State also filed a motion to certify our judgment entry in this case to be in conflict with the Ninth District Court of Appeals' decision in Dudukovich, supra. Because we have reconsidered our judgment entry in this case, the State's motion to certify is rendered moot.
Application for reconsideration granted; motion to certifymoot.
Brown and McGrath, JJ., concur.