THE STATE OF OHIO, APPELLEE, v. ELMORE, APPELLANT.
No. 2007-0475
Supreme Court of Ohio
July 28, 2009
122 Ohio St.3d 472, 2009-Ohio-3478
LANZINGER, J.
Submitted May 19, 2009
{153} Moreover, the majority‘s concerns of potential dismissal for failure to promptly file a challenge, thereby creating “an impossible situation” for prospective relators, are overrated. While one who waits too long to bring a matter to this court‘s attention may risk the application of laches, that legal doctrine punishes only the dilatory, not the diligent. See Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, 119. Laches will not affect a prospective relator unless he or she has unjustifiably ignored his potential claims; I fail to see how that doctrine affects our consideration of whether an otherwise diligent individual has properly exhausted his other remedies.
{154} Therefore, based on our precedent in Tatman and Gains, I would dismiss this case because Finkbeiner had and continues to have an adequate remedy in the ordinary course of law by filing a common pleas court action for a prohibitory injunction.
O‘DONNELL and CUPP, JJ., concur in the foregoing opinion.
Vorys, Sater, Seymour & Pease, L.L.P., John J. Kulewicz, William J. Pohlman, Mary J. Henkel, Michael J. Hendershot, and Elizabeth A. Davis; and Law Office of Fritz Byers and Fritz Byers, for relator.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borrell, Assistant Prosecuting Attorney, for respondents.
I. Case Procedure
{11} Appellant, Phillip E. Elmore, was convicted by a jury of aggravated murder with four death specifications, murder, kidnapping, aggravated robbery, aggravated burglary, and grand theft of a motor vehicle in the June 2002 death of Pamela Annarino. He was sentenced to death for the capital offense of aggravated murder. On the noncapital offenses, the trial court merged Count 2, murder, with Count 1, aggravated murder, and imposed a ten-year term of imprisonment for Counts 3, 4, and 5, and an 18-month term of imprisonment for Count 6. Count 3 was ordered to be served concurrently with all other counts, while Counts 4, 5, and 6 were ordered to run consecutively to one another and consecutively to the death sentence imposed for Count 1. Thus, Elmore‘s total prison term for the noncapital offenses was 21 and 1/2 years.
{12} Elmore‘s convictions and death sentence were affirmed by this court on December 13, 2006. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, 169. However, we held that the trial court‘s fact-finding in support of maximum and consecutive sentences for the noncapital offenses violated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, which declared parts of Ohio‘s felony-sentencing scheme unconstitutional. Elmore at 139. Consequently, this court remanded Elmore‘s case to the trial court for a new sentencing hearing on the noncapital offenses in accordance with Foster. Elmore at
{13} Elmore then filed this appeal as a matter of right to challenge his resentencing. We hold that Elmore‘s post-Foster resentencing was proper and therefore affirm the judgment of the Licking County Court of Common Pleas.
II. Analysis of Propositions
{14} In summary, Elmore challenges the Foster remedy as it has been applied to him. He contends that the trial court should have imposed no more than minimum and concurrent prison terms for a total prison term of three years and that his resentencing pursuant to Foster (1) violates his right to a jury trial, (2) is an ex post facto violation, (3) is a due process violation, (4) was imposed by a court that lacked jurisdiction to impose consecutive sentences, and (5) is forbidden by the rule of lenity.1 We disagree and affirm the judgment of the court of common pleas, now addressing Elmore‘s five propositions of law separately.
A. Right to Trial by Jury
{15} In proposition of law one, Elmore argues that the Foster remedy cannot be applied retroactively to his noncapital sentencing because it violates his Sixth Amendment right to a jury trial based upon principles articulated in three cases that hold that the jury must determine any fact (other than the existence of a prior conviction) that increases the maximum authorized punishment. Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; and United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621.
{16} In Foster, we examined Ohio‘s felony-sentencing structure and held that certain statutes violated Sixth Amendment principles as stated in the Apprendi line of cases. Consequently, we applied the Booker remedy and severed the unconstitutional statutes requiring judicial factfinding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 190. Elmore, who committed his crimes in June 2002, resists the retroactive application of Foster because, he avers, he was deprived of “constitutional statutory presumptions” that were in effect when he committed the offenses.
{18} Elmore argues that after Foster, a trial court may never impose nonminimum or consecutive sentences because before Foster, judges were required to make findings of fact in order to depart from the minimum sentence. Elmore then argues that he is entitled to no more than minimum concurrent terms. But we had specifically considered and rejected this very outcome in Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at 1188-89. And we clarified that trial courts have full discretion to impose a prison sentence within the statutory range without the mandatory findings. Id. at 100.
{19} Elmore faced no greater penalty on resentencing than he did at his original sentencing. And both in Foster and the companion case of State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, we made clear that sentencing courts in this state must still consider all of the remaining sentencing factors contained in several sections of
{110} As Justice Stevens stated in Booker concerning the federal guidelines, “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker, 543 U.S. at 233, 125 S.Ct. 738, 160 L.Ed.2d 621.
B. Ex Post Facto Clause
{112} Elmore argues in proposition of law two that the application of the Foster remedy to his noncapital sentencing violated the Ex Post Facto Clause of the United States Constitution because the Foster remedy constituted judicial legislation. We do not agree.
{113} We held that Foster‘s holding would be applied to all cases on direct review, relying on Booker‘s retroactive approach. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 1106. Because Elmore‘s appeal was on direct review when Foster was decided, his case was remanded to the trial court for resentencing. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, 130-140.
{114}
{115} Judicial alteration of a common-law doctrine of criminal law will violate the principle of fair warning and will not be given retroactive effect only where the alteration “is ’ “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” ’ ” Rogers v. Tennessee (2001), 532 U.S. 451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697, quoting Bouie at 354, 84 S.Ct. 1697, 12 L.Ed.2d 894, quoting Hall, General Principles of Criminal Law (2d Ed.1960) 58-59 (upholding the Tennessee Supreme Court‘s abrogation of the common-law “year and a day rule” in homicide prosecutions).
{116} In essence, Elmore argues that this court‘s Foster decision effected a change in the substantive law applicable to his case. However, his arguments that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, he was entitled to have a jury determine all facts relevant to an enhanced sentence and that the Foster decision took away that substantive right are meritless.
{117} The trial court on remand followed the instructions of Foster by referring to all statutory provisions that it was required to consider: “The Court
{118} His ex post facto challenge fails because there has been no increase in potential punishment. “Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Dobbert v. Florida (1977), 432 U.S. 282, 293-294, 97 S.Ct. 2290, 53 L.Ed.2d 344; see also Beazell v. Ohio (1925), 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216; Collins v. Youngblood (1990), 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30.
{119} Elmore cites Miller v. Florida (1987), 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351, to argue that the Foster remedy changed the actual terms of the sentencing statutes and must be viewed as an implied legislative change that is barred by ex post facto limitations. In Miller, Florida‘s presumptive prison range for an offense was changed by the legislature from 3 1/2 to 4 1/2 years to 5 1/2 to 7 years. Miller, 482 U.S. at 424, 426-428, 107 S.Ct. 2446, 96 L.Ed.2d 351.
{120} The United States Supreme Court held that the application of the revised guidelines in effect at sentencing, rather than those in effect when Miller committed his offenses, constituted an ex post facto violation. The Supreme Court held that the defendant was “substantially disadvantaged” by imposition of the sentence under the new guidelines because it foreclosed his ability to challenge the imposition of a sentence longer than the presumptive sentence under the old law. Id. at 433, 107 S.Ct. 2446, 96 L.Ed.2d 351.
{121} Miller, however, is distinguishable from Elmore‘s situation. Before Foster, Elmore was always subject to a three-to-ten-year sentence for his conviction of each of the first-degree felonies and a six-to-18-month sentence for his conviction of the fourth-degree felony (grand theft, auto). After Foster, there is no increased presumptive sentence, which was the ex post facto violation in Miller. Moreover, Elmore maintained his right to appeal any sentence. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, 126.
{1122} Therefore, Elmore‘s resentencing was not an ex post facto violation.
C. Due Process
{123} In proposition of law three, Elmore argues that his resentencing on the noncapital offenses violates due process. The United States Supreme Court has
{1124} The application of the Foster remedy to Elmore‘s resentencing does not violate his due process rights. First, Foster did not judicially increase the range of his sentence, nor did it retroactively apply a new statutory maximum to his earlier committed offenses, nor did it create the possibility of consecutive sentences where none had previously existed. Thus, Elmore had notice of the sentencing range, which was the same at the time he committed the offenses as when he was resentenced. He never had an irrebuttable presumption of minimum and concurrent sentences. See State v. Mallette, 8th Dist. No. 87984, 2007-Ohio-715, 2007 WL 530187, 147; State v. Houston, 10th Dist. No. 06AP-662, 2007-Ohio-423, 2007 WL 275596, 15.
{125} Second, in discussing Booker retroactivity, the Sixth Circuit stated: “For this court to find that notice is a significant concern in this situation, it would have to find that a defendant would likely have changed his or her conduct because of a possible increase in jail time.” Barton, 455 F.3d at 656. Elmore does not claim that he might have altered his conduct because of the possibility that the elimination of judicial factfinding and presumptive concurrent and minimum sentences might result in an increased prison term.
{126} Moreover, Ohio courts of appeals have consistently held that there is no due process or ex post facto violation in applying Foster to cases that have not completed their direct appeal. A significant part of the rationale for all these cases has been that the defendants were on notice of the potential maximum sentences for their crimes before Foster, and there was no change in the maximum sentences after Foster was decided. See State v. Bruce, 170 Ohio App.3d 92, 2007-Ohio-175, 866 N.E.2d 44, 111; State v. Smith, 2d Dist. No. 21004, 2006-Ohio-4405, 2006 WL 2459101, 134; State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162, 2006 WL 2796275, 20; State v. Grimes, 4th Dist. No. 06CA17, 2006-Ohio-6360, 2006 WL 3480378, 119-11; State v. Paynter, 5th Dist. No. CT2006-0034, 2006-Ohio-5542, 2006 WL 3020319, 140-42; State v. Coleman, 6th Dist. No. S-06-023, 2007-Ohio-448, 2007 WL 293171, 119-20; Id.; State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899, 2006 WL 3775878, 18; State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011, 2006 WL 3833868, 121-25; State v. Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373, 2006 WL 2934289, 149-50.
{128} Finally, in his reply brief, Elmore cites Danforth v. Minnesota (2008), 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859, in arguing that application of the Foster remedy is not constitutionally required in his case. Danforth, in a petition for postconviction relief, had sought retroactive application of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, which generally bars out-of-court testimonial witness statements. The Minnesota Supreme Court held that under Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, it could apply a new rule of federal constitutional criminal procedure retroactively on collateral review only if the rule was substantive or a ” ‘watershed rule’ of criminal procedure” implicating the fundamental fairness and accuracy of the proceedings. Danforth v. State (Minn.2006), 718 N.W.2d 451, 457, 460. The United States Supreme Court reversed, holding that Teague does not bar states from giving broader retroactive effect to new rules of federal constitutional criminal procedure in their own state collateral proceedings. Danforth, 552 U.S. at __, 128 S.Ct. at 1042, 1047, 169 L.Ed.2d 859.
{129} Elmore‘s case involves a direct appeal, rather than a collateral attack. Furthermore, because Danforth holds that states may be more generous in giving retroactive effect to new federal rules in state postconviction proceedings, Elmore‘s argument that Danforth somehow limits this court‘s ability to retroactively apply the Foster remedy to his case lacks merit.
{130} Elmore‘s resentencing did not violate his due process rights.
D. Consecutive Sentences
{131} In proposition of law four, Elmore argues that the trial court lacked the authority to impose consecutive sentences because Foster, as part of its remedy, excised in their entirety
{133} We held in Bates that in the absence of statutory authority, “the common-law presumptions are reinstated.” Bates at 118, citing 73 American Jurisprudence 2d (2007), Statutes, Section 271 (the repeal of a statute that abrogates the common law operates to reinstate the common-law rule). We also stated that ” ‘in the absence of [a] statute [stating otherwise], it is a matter solely within the discretion of the sentencing court as to whether sentences shall run consecutively or concurrently.’ ” Id. at 113, quoting Stewart v. Maxwell (1963), 174 Ohio St. 180, 181, 22 0.0.2d 116, 187 N.E.2d 888. See also State ex rel. Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 23 0.0.2d 357, 191 N.E.2d 549. (“It is clear that a court has the power to impose consecutive sentences“); Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805 (“this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute“). In Bates, we held that after Foster, a “trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently.” Bates at 19.
{134} Since Foster was decided, the United States Supreme Court has announced Oregon v. Ice (2009), __ U.S. __, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, a case that held that a jury determination of facts to impose consecutive rather than concurrent sentences was not necessary if the defendant was convicted of multiple offenses, each involving discrete sentencing prescriptions. The jury historically played no role in a decision to impose sentences consecutively or concurrently. The choice rested exclusively with the judge, and thus the Oregon statutes did not erode any traditional function of the jury. Further, the state had sovereign authority over the administration of its criminal justice system, and there was no compelling reason to diminish the state‘s role by curbing the state‘s limitation on the discretion of judges in imposing consecutive or concurrent sentences.
{135} Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge‘s duty to make findings before doing so.
E. The Rule of Lenity
{136} Elmore argues in his fifth proposition of law that the trial court‘s imposition of consecutive, nonminimum, and maximum sentences violated the rule of lenity. He alleges that he should have received minimum and concurrent sentences for his noncapital offenses.
{137} The “rule of lenity” is codified in
{138} The rule of lenity is a principle of statutory construction that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous. See Moskal v. United States (1990), 498 U.S. 103, 107-108, 111 S.Ct. 461, 112 L.Ed.2d 449, quoting Bifulco v. United States (1980), 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205, quoting Lewis v. United States (1980), 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (“the ‘touchstone’ of the rule of lenity ‘is statutory ambiguity’ “); State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079. Under the rule, ambiguity in a criminal statute is construed strictly so as to apply the statute only to conduct that is clearly proscribed. United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432.
{139} In arguing that the rule of lenity was violated, Elmore asserts that the General Assembly enacted a statutory scheme intended to reserve consecutive and maximum sentences for the worst offenders and offenses. He contends that Foster‘s elimination of statutory presumptions for minimum and concurrent sentences and the elimination of limitations on judicial discretion in imposing greater prison terms constituted the least lenient construction of the statutes applied in resentencing him. Accordingly, Elmore argues that he should have been sentenced to minimum and concurrent sentences for his noncapital offenses.
{140} Elmore‘s argument misconstrues the rule of lenity. He seeks to apply the rule by arguing that the Foster remedy ignored the General Assembly‘s intent in enacting the sentencing laws. However, the rule of lenity applies to the
{41} Elmore argues that there is an ambiguity in the sentencing statutes because they have been severed. Nevertheless, nothing in the language of the version of
III. Conclusion
{42} We hold that resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, for offenses that occurred prior to February 27, 2006, does not violate the Sixth Amendment right to a jury trial, or the Ex Post Facto or Due Process Clauses of the United States Constitution. A trial court, upon resentencing pursuant to Foster, has discretion to impose consecutive sentences and, despite the Foster severance of statutory presumptions, is not required by the rule of lenity to impose a minimum prison term.
{43} The resentencing of Elmore on his noncapital offenses was conducted in accordance with this court‘s direction on remand. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, 1169. We accordingly affirm the judgment of the Licking County Court of Common Pleas.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and CANNON, JJ., concur.
TIMOTHY P. CANNON, J., of the Eleventh Appellate District, sitting for CUPP, J.
Keith A. Yeazel and W. Joseph Edwards, for appellant.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae, Ohio Prosecuting Attorneys Association.