2006 Ohio 7011 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} On February 10, 2006, appellant was indicted by the Lake County Grand Jury on five counts: counts one and five, failure to comply with order or signal of police officer, felonies of the third degree, in violation of R.C.
{¶ 3} On March 6, 2006, appellant withdrew his former plea of not guilty, and entered an oral and written plea of guilty to counts one and two. On March 10, 2006, the trial court accepted appellant's guilty plea on counts one and two, and entered a nolle prosequi on the remaining three counts.
{¶ 4} Pursuant to its April 5, 2006 judgment entry, the trial court sentenced appellant to three years in prison on count one and one year on count two, with one hundred-twelve days of credit for time already served. The trial court indicated that the prison sentence in count two was to be served consecutive to the sentence in count one, for a total of four years in prison. The trial court suspended appellant's driver's license for ten years, to commence upon his release from prison. The trial court notified appellant that post release control is optional up to a maximum of three years. Also, the trial court ordered appellant to pay all court costs and fees. It is from the foregoing judgment that appellant filed a timely notice of appeal and makes the following assignments of error:
{¶ 5} "[1.] The trial court erred when it sentenced [appellant] to more-than-the-minimum prison terms in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions.
{¶ 6} "[2.] The trial court erred when it sentenced [appellant] to more-than-the-minimum prison terms in violation of [appellant's] right to due process.
{¶ 7} "[3.] The trial court erred when it sentenced [appellant] to more-than-the-minimum prison terms based on the Ohio Supreme Court's severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers.
{¶ 8} "[4.] The trial court erred when it sentenced [appellant] to more-than-the-minimum prison terms contrary to the rule of lenity.
{¶ 9} "[5.] The trial court erred when it sentenced [appellant] to more-than-the-minimum prison terms contrary to the intent of the Ohio legislators."
{¶ 10} In his first assignment of error, appellant argues that the trial court erred by sentencing him to more than the minimum prison terms in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions. He alleges that the sentences imposed were not available to the trial court at the time the offenses were committed.
{¶ 11} In his second assignment of error, appellant contends that the trial court erred by sentencing him to more than the minimum prison terms in violation of his right to due process. He maintains that he had neither actual nor constructive notice that the sentences imposed were possible punishments for the offenses.
{¶ 12} Appellant's first and second assignments of error are interrelated since they both are premised on alleged violations of ex post facto principles embedded in the notion of due process. Thus, we will address them in a consolidated fashion.
{¶ 13} Preliminarily, we note that there is no constitutional right to an appellate review of a criminal sentence. Ross v. Moffitt (1974),
{¶ 14} The Fifth District in State v. Firouzmandi, 5th Dist. No. 2006-CA-41,
{¶ 15} "[a]lthough the Ohio Constitution does not expressly provide for a `right' to appeal, Article IV, Section 3(B)(1)(f) does provide for the establishment of an appellate court system. Section
{¶ 16} With respect to his first and second assignments of error, appellant raises an issue of first impression for our court. However, other appellate districts have considered the question, and concluded that State v. Foster,
{¶ 17} Article
{¶ 18} "'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.'" (Emphasis added.) Rogers v. Tennessee (2001),
{¶ 19} In addition, "'Section 28, Article
{¶ 20} In the instant matter, we must consider both the federal and state constitutional ramifications of Foster2
{¶ 21} With respect to the federal constitutional considerations, due process guarantees notice and a hearing. The right to a sentencing hearing has not been implicated by Foster. Thus, we are only concerned with the issue of warning as to potential sentences. Federal circuit courts have determined that United States v. Booker (2005),
{¶ 22} Most circuit courts have held that defendants were on notice with respect to statutory maximums, regardless of whether the federal sentencing guidelines were mandatory. McGhee, supra, at ¶ 15, citingUnited States v. Duncan (11th Cir. 2005),
{¶ 23} Similarly in Ohio, prior to Foster, individuals who decided to commit crimes were aware of what the potential sentences could be for the offenses committed. R.C.
{¶ 24} There was no legislative alteration of Ohio's sentencing code post Foster. The range of sentences available for third and fourth degree felonies remained unchanged. R.C.
{¶ 25} Appellant knew the potential statutory sentence, had notice that Ohio's sentencing statutes were subject to judicial scrutiny, and was unlikely to amend his criminal behavior in light of a sentencing change. Therefore, this court cannot hold that Foster violates federal notions of due process as established in Bouie v. Columbia (1964),
{¶ 26} Regarding the state constitutional considerations, the Third District in McGhee, supra, at ¶ 21-22, stated:
{¶ 27} "[i]n construing Ohio's constitution, we must adapt the test for retroactive legislation to apply to retroactive judicial decisions. In determining whether a law violates Section
{¶ 28} "Even though a law may apply retroactively, it is not necessarily unconstitutional. A substantive retroactive law will be held unconstitutional, while a remedial retroactive law is not.Smith, at ¶ 6 * * *. A statute is substantive if it `"impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction."' Id. at ¶ 6 * * *."
{¶ 29} We agree with the Third District that the court's holding inFoster does not create a substantively retroactive law. McGhee, supra, at ¶ 23. The holding in Foster applies retroactively in a limited number of cases, but it does not affect a vested or an accrued substantive right. Id. "[A] presumed sentence can be `taken away' without the defendant's consent." Id. at ¶ 24. Thus, no vested right has been affected by Foster. Id. In addition, no accrued substantial right has been affected. Id. at ¶ 25. "[Defendants are not entitled to enforce or protect specific sentences prior to sentencing." Id. A range of determinative sentences available for each degree of felony offense is established in R.C.
{¶ 30} Foster does not violate Section
{¶ 31} Appellant's first and second assignments of error are without merit.
{¶ 32} In his third assignment of error, appellant contends that the trial court erred by sentencing him to more than the minimum prison terms based on the Supreme Court of Ohio's severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers. He stresses that the sentences imposed were the result of a judicially mandated change to Ohio's sentencing statutes.
{¶ 33} In State v. Hochhausler (1996),
{¶ 34} "[t]he principle of separation of powers is embedded in the constitutional framework of our state government. The Ohio Constitution applies the principle in defining the nature and scope of powers designated to the three branches of the government. State v. Warner
(1990),
{¶ 35} This court stated in State v. Boczek, 11th Dist. Nos. 2005-L-008 and 2005-L-009,
{¶ 36} "'[c]ourts in Ohio, in determining whether or not a statute is unconstitutional, follow the well-settled axiom that a regularly enacted statute of the General Assembly is presumed to conform with the Ohio and United States Constitutions and is, therefore, entitled to the benefit of every presumption in favor of its constitutionality, unless it appears beyond a reasonable doubt that the legislation and the constitutional provisions are incompatible. State ex rel. Dickman v.Defenbacher (1955),
{¶ 37} R.C.
{¶ 38} In the case sub judice, we do not agree with appellant that the Supreme Court of Ohio violated the separation of powers doctrine. We note that severance is a specific remedy that the judicial branch may use when interpreting a statute's constitutionality. Pursuant to R.C.
{¶ 39} Appellant's third assignment of error is without merit.
{¶ 40} In his fourth assignment of error, appellant maintains that the trial court erred by sentencing him to more than the minimum prison terms contrary to the rule of lenity. He alleges that he should have received the minimum sentences available for his offenses.
{¶ 41} R.C.
{¶ 42} "The `rule of lenity' is a principle of statutory construction which states that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant where the intended scope of the statute is ambiguous." State v. Brown (May 2, 1997), 2d Dist. No. 96 CA 92, 1997 Ohio App. LEXIS 1747, at 10, citing Moskal v.United States (1990),
{¶ 43} In the instant case, appellant was sentenced afterFoster, and, thus, the trial court was bound to apply the law announced by the Supreme Court of Ohio. Because R.C.
{¶ 44} Appellant's fourth assignment of error is without merit.
{¶ 45} In his fifth assignment of error, appellant alleges that the trial court erred by sentencing him to more than the minimum prison terms contrary to the intent of the Ohio legislators. He maintains that by severing the offending statutes in Foster, the Supreme Court failed to uphold the intent of the Ohio General Assembly when it enacted Senate Bill 2 ("S.B. 2"). Appellant stresses that excising the findings a trial court was required to make when imposing more than the minimum, maximum, or consecutive terms, eliminates meaningful appellate review. Also, he contends that the severance remedy in Foster was more severe than the remedy used in Booker.
{¶ 46} The Fifth District in Firouzmandi, at ¶ 54-57, stated:
{¶ 47} "* * * we apply an abuse of discretion standard to appeals challenging the trial court's imposition of sentence. This term however has been applied in a somewhat rote manner by the courts without analysis of the true purpose of the appellate court's role in the review of a trial court's discretionary powers. An excellent analysis of the misconception surrounding the concept of `abuse of discretion' was set forth by the Arizona Supreme Court sitting en banc: `(t)he phrase "within the discretion of the trial court" is often used but the reason for that phrase being applied to certain issues is seldom examined. One of the primary reasons an issue is considered discretionary is that its resolution is based on factors which vary from case to case and which involve the balance of conflicting facts and equitable considerations.Walsh v. Centeio,
{¶ 48} "* * *
{¶ 49} "Accordingly, appellate courts can find an `abuse of discretion' where the record establishes that a trial judge refused or failed to consider statutory sentencing factors. Cincinnati v.Clardy (1978),
{¶ 50} "Both the United States Supreme Court and the Supreme Court of Ohio found that the particular mechanism that the legislature chose in an attempt to guide judicial discretion in sentencing was constitutionally infirm. Nothing in the Foster or Booker decisions prevent the legislature from enacting provisions which comply with the respective constitutional safeguards. `Ours, of course, is not the last word: The ball now lies in Congress' court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.' Booker, supra * * *, at 768." (Parallel citations omitted.)
{¶ 51} With respect to the intent of the legislature in enacting S.B. 2 in 1996, the Supreme Court stated: "[w]ith the enactment of S.B. 2, the General Assembly adopted a comprehensive sentencing structure that recognized the importance of `truth in sentencing.' The general purpose of S.B. 2 was to introduce certainty and proportionality to felony sentencing." Foster at ¶ 34. The Supreme Court described the "overwhelming majority" of S.B. 2 reforms that survive its holding, and noted that trial courts must still "consider those portions of the sentencing code that are unaffected by [its] decision * * *." Id. at ¶ 101, 105. For example, trial courts must still consider R.C.
{¶ 52} "Excising the unconstitutional provisions does not detract from the overriding objectives of the General Assembly, including the goals of protecting the public and punishing the offender. See R.C.
{¶ 53} R.C.
{¶ 54} We do not agree with appellant that the severance remedy inFoster is a more severe and radical departure than that used inBooker. Pursuant to Booker, again, the Supreme Court of Ohio determined that trial courts are still required to consider R.C.
{¶ 55} Appellant's fifth assignment of error is without merit.
{¶ 56} For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
WILLIAM M. O'NEILL, J., concurs,
CYNTHIA WESTCOTT RICE, J., concurs in judgment only with Concurring Opinion.
Concurrence Opinion
{¶ 57} I concur with the majority in judgment only. The focus of the majority's opinion centers on the effect of Foster on appellant's sentence. However, Foster is inapplicable to the facts sub judice.
{¶ 58} Appellant entered a written guilty plea to failure to comply with the order or signal of a police officer in violation of R.C.
{¶ 59} According to the pre-sentence investigation report, appellant had previously been incarcerated for more than one offense. This prior prison term elevated appellant beyond the minimum sentence without any requirement for factual findings by the judiciary. Therefore,Foster is inapplicable. Appellant had previously been imprisoned. Therefore, appellant was properly sentenced to more-than-the-minimum under Ohio's sentencing scheme both pre-Foster and post-Foster.
{¶ 60} Appellant's twelve-month sentence was ordered to be served consecutively to the three years imposed for the failure to comply offense.3 The consecutive nature of these sentences is required by law.
{¶ 61} R.C.
{¶ 62} Therefore, Foster had no effect whatsoever on either the imposition of more-than-the-minimum sentences or the consecutive nature of the sentences imposed on appellant. The sentences were required by law. As such, the extensive analysis provided by the majority, although illuminating, is unnecessary in this appeal.
{¶ 63} Therefore, I concur in judgment only.
