State v. FreemanState v. Freeman
{¶1} Appellant Richard B. Freeman appeals his criminal conviction and sentence in the Delaware County Common Pleas Court. The State of Ohio is the appellee.
{¶2} On January 27, 2006, appellant was indicted by the Delaware County Grand Jury in Case No. 06CR-I-01-0039. On April 7, 2006, appellant was indicted in Case No. 06CR-I-04-0170. Both of those cases were dismissed on May 2, 2006. On April 20, 2006, appellant was indicted in Case No. 06CR-I-04-0197. That case was dismissed on December 13, 2006.
{¶3} On August 25, 2006, appellant was indicted in Case No. 06CR-I-08-0384. He was charged with fifteen counts of Breaking and Entering, four counts of Receiving Stolen Property, fifteen counts of Theft, four counts of Possessing Criminal Tools, and one count of Vandalism. Of these charges, there was one felony of the fourth degree, twenty-nine felonies of the fifth degree, and nine misdemeanors of the first degree. The dates set forth in the indictment ranged from February 12, 2005 to January 14, 2006.
{¶4} On December 12, 2006, appellant entered guilty pleas to the following charges: Count Ten, Breaking and Entering, a felony of the fifth degree; Count Eleven, Theft, a misdemeanor of the first degree; Count Thirteen, B&E, a felony of the fifth degree; Count Fourteen, Theft, a misdemeanor of the first degree; Count Fifteen, B&E, a felony of the fifth degree; Count Sixteen, Theft, a misdemeanor of the first degree; Count Twenty, Theft, a misdemeanor of the first degree; Count Twenty-Two, Theft, a misdemeanor of the first degree; Count Twenty-Four, Theft, a misdemeanor of the first degree; Count Twenty-Five, B&E, a felony of the fifth degree; Count Twenty-Eight,
{¶5} After entering his guilty plea, the trial court imposed the sentence. The parties jointly recommended a seven-year prison term. The trial court sentenced appellant to a total of seven years in prison. He was sentenced to twelve months in prison on Count Ten, twelve months on Count Thirteen, twelve months on Count Fifteen, twelve months on Count Twenty-Five, twelve months on Count Twenty-Nine, six months on Count Thirty-One, twelve months on Count Thirty-Two and twelve months on Count Thirty-Five. The sentences as to Counts Ten, Thirteen, Fifteen, Twenty-Five, Twenty-Nine, Thirty-Two and Thirty-Five were ordered to be served consecutively to one another.
{¶6} The court also imposed a fine and ordered restitution to all of appellant’s victims.
{¶7} Appellant raises four Assignments of Error1:
{¶8} “I. THE TRIAL COURT ERRED BY IMPOSING NON-MINIMUM, CONSECUTIVE SENTENCES IN VIOLATION OF THE DUE PROCESS AND EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION.”
{¶10} “III. THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED MR. FREEMAN DUE PROCESS OF LAW BY IMPOSING NON-MINIMUM, CONSECUTIVE SENTENCES.”
{¶11} “IV. THE TRIAL COURT DID NOT HAVE THE AUTHORITY TO IMPOSE CONSECUTIVE SENTENCES.
I., III. AND IV.
{¶12} Assignments of error one, three and four are interrelated and will be addressed together.
{¶13} Appellant claims Ohio’s sentencing scheme remains unconstitutional despite the holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, as the application of Foster violates appellant’s rights under the due process and ex post facto clauses of the United States and Ohio Constitutions. Appellant also argues the trial court did not have the authority to impose consecutive sentences. We disagree.
{¶14} This Court has addressed and decided the issues raised by appellant in a number of recent cases. See, State v. Ashbrook, 5th Dist. No.2006CA00193, 2007-Ohio-2325, State v. Paynter, 5th Dist. No. CT2006-0034, 2006-Ohio-5542.
{¶15} As we explain below, we reject appellant’s argument and hold that he was properly sentenced according to the principles set forth in Foster and United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. [Hereinafter cited as “Booker“].
{¶16} In Booker, the United States Supreme Court issued two separate majority opinions. First, Justice Stevens wrote for the Court and held that the rule announced in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 applied to the Guidelines. Booker, 125 S.Ct. at 745. He based his opinion on the premise that the Guidelines were mandatory and imposed binding requirements on all sentencing judges. Id. at 749. Second, and in light of Justice Stevens’ holding, Justice Breyer wrote for the Court and invalidated two provisions of the Sentencing Reform Act of 1984 that had the effect of making the Guidelines mandatory. Id. at 756. The Court instructed that both holdings-the Sixth Amendment holding and the remedial interpretation of the Sentencing Act-should be applied to all cases on direct review. Id. at 769.
{¶17} In Foster, the Court found, in relevant part to appellant’s assignment of error, the provisions addressing “more than the minimum” sentence for offenders who have not previously served a prison term pursuant to
{¶19}
{¶20} Appellant in the case at bar was subject to criminal prosecution for his conduct at the time the crimes were committed. Appellant therefore cannot complain of a lack of fair warning that his conduct could be treated as a criminal offense. See Weaver v. Graham, 450 U.S. at 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (noting that the Ex Post Facto Clause assures that “legislative Acts give fair warning of their effect and
{¶21} Retroactive changes in the measure of punishment are impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense. See Lindsey v. Washington (1937), 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182; State v. Walls, 96 Ohio St.2d at 447, 2002-Ohio-5059 at ¶ 29, 775 N.E.2d at 841.
{¶22} Appellant must show that applying the remedial severance and interpretation of Ohio’s felony sentencing statutes as set forth in the Foster decision to his case actually “produce[d] a sufficient risk of increasing the measure of punishment attached to” his crime. California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 510, 115 S.Ct. 1597, 131 L.Ed.2d 588. A “speculative and attenuated” possibility that the statutory change has increased the measure of punishment will not constitute an ex post facto violation. Id. In other words, appellant must demonstrate that he had more than a speculative chance under the old law of receiving probation. State v. Walls, supra, 96 Ohio St.2d 448, 2002-Ohio-5059.
{¶23} As the Supreme Court of Ohio noted in Foster: “[t]hus, Ohio has a presumptive minimum prison term that must be overcome by at least one of two judicial findings. For someone who has never been to prison before (not necessarily a first-time offender), the court must find that the shortest term will ‘demean the seriousness’ of the crime or will inadequately protect the public; otherwise, the court must find that the offender has already been to prison to impose more than a minimum term.” Foster, 109 Ohio St.3d at 19, 2006-Ohio-856 at ¶ 19, 845 N.E.2d at 490. The remedy applied
{¶24} Appellant was aware at the time he committed the crimes that the court would engage in fact-finding in determining the appropriate sentence within the sentencing range to impose. In Foster the court noted: “[t]wo statutory sections apply as a general judicial guide for every sentencing. The first,
{¶25} Appellant does not have the right to a windfall sentence under an unconstitutional scheme, but only the right to a new sentencing proceeding under a constitutional one. Under the current remedy as set forth in Foster, appellant was entitled to a new sentencing hearing, unencumbered by the presumptive term and unencumbered by the judicial fact-finding necessary to overcome the presumption. Nothing prohibited the trial judge from sentencing appellant to the minimum term for his
{¶26} Further, appellant was sentenced to consecutive sentences. This court has held that trial courts have the full discretion to impose a prison sentence within the statutory range and judicial fact finding is no longer required before a court imposes non-minimum, maximum or consecutive prison terms. State v. Firouzmandi, Licking App. No. 06-CA-41, 2006-Oho-5823; State v. Duff, Licking App. No. 06-CA-81, 2007-Ohio-1294, See also, State v. Diaz, Lorain App. No. 05CA008795, 2006-Ohio-3282. Here, appellant’s sentences fell within the statutory ranges. Accordingly, the trial court did not abuse its discretion by imposing consecutive sentences.
{¶27} We conclude that retroactive application of the remedy in this case does not run afoul of the state or federal prohibitions against ex post facto laws. Id. Additionally, we would note that under the federal sentencing guidelines as applied in light of the Booker decision “defendant‘s due process [and ex post facto] argument has been justifiably rejected by the Courts of Appeals that have considered it. See, e.g., United States v. Lata, 415 F.3d 107 (1st Cir.2005); United States v. Vaughn, 430 F.3d 518 (2d Cir.2005), cert. denied 547 U.S. 1060 (2006); United States v.. Scroggins, 411 F.3d 572 (5th Cir.2005); United States v. Jamison, 416 F.3d 538 (7th Cir.2005); United States v. Dupas, 417 F.3d 1064 (9th Cir.2005), amended by 419 F.3d 916 (9th Cir.2005), cert. denied 547 U.S. 1011 (2006); United States v. Rines, 419 F.3d 1104, 1106 (10th Cir.2005), cert. denied 546 U.S. 1119 (2006); and United States v. Duncan, 400 F.3d 1297 (11th Cir.2005), cert. denied 546 U.S. 940 (2005)“. United State v. Shepherd (6th Cir.2006), 453 F.3d 702, 705-706.
{¶28} Accordingly, assignments of error I, III and IV are overruled.
II.
{¶29} In his second assignment of error, appellant argues his trial counsel was ineffective for failing to object to the trial court’s imposition of non-minimum, consecutive sentences. We disagree.
{¶30} The standard this issue must be measured against is set out in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S. 1011. Appellant must establish the following:
{¶31} “Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
{¶33} Based upon our decision in assignments of error I, II and IV, we find no deficiency by defense counsel on this issue.
{¶34} Appellant’s second assignment of error is overruled.
{¶35} The decision of the Delaware County Common Pleas Court is affirmed.
By: Delaney, J.
Hoffman, P.J. and
Farmer, J. concur
S/L Patricia A. Delaney
S/L William B. Hoffman
S/L Sheila G. Farmer
JUDGES
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant.
S/L Patricia A. Delaney
S/L William B. Hoffman
S/L Sheila G. Farmer
JUDGES