2006 Ohio 6899 | Ohio Ct. App. | 2006
{¶ 2} On July 16, 2004, appellant was indicted by the Franklin County Grand Jury on two counts of rape, and one count of felonious assault resulting from an incident that occurred on June 28, 2004. On February 27, 2006, the trial court held a plea hearing during which the trial court advised appellant of his rights pursuant to Crim. R. 11. The facts surrounding the underlying incident were read into the record by the prosecutor as follows:
About 3:00 the Defendant came in [to the bar where the victim was]. She met up with him. They were talking a little bit about relationships they were involved in, getting to know each other a little bit. They were also drinking. Around midnight [the victim] and the Defendant left the bar. [The victim] went outside the bar to find that her car wasn't there. She and the Defendant walked behind the bar to the alley in the efforts to look for her car. Once they were back behind the alley, the Defendant grabbed her and slammed her against the wall, began to strangle her, with one hand he strangled her, and with the other hand he pulled her pants off. At some point he grabbed an object that was about a foot long, looked like a rod, began jamming this rod into her vagina and into her anus. A pickup truck drove down the alley, and the Defendant fled. Medics and the police responded. They took [the victim] to Riverside Hospital. She spent five days in the hospital, had reconstructive surgery to her genitalia and to her anus. She still has problems today. She picked the Defendant out of a photo array. There were still photos showing the two of them leaving the bar together. The Defendant's jacket was found at the scene with her blood on it, and his DNA was found and saliva was found on a bite mark on her breast. Thank you, Your Honor.
(Feb. 27, 2006 Tr. at 18-19.)
{¶ 3} For purposes of the plea, appellant took no exception to the facts as presented by the prosecutor. The trial court thereafter accepted appellant's Alford plea to one count of rape, a felony of the first degree, in violation of R.C.
{¶ 4} Appellant timely appeals, and brings the following two assignments of error for our review:
ASSIGNMENT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED WHEN IT CORRECTED THE JUDGMENT TO INDICATE THAT THE EIGHTEEN-YEAR PRISON TERM WAS A MANDATORY PRISON TERM WHEN ONLY THE TEN-YEAR PRISON TERM FOR THE RAPE CONVICTION COULD BE IMPOSED AS A MANDATORY PRISON TERM.
ASSIGNMENT OF ERROR NUMBER TWO
THE TRIAL COURT DID NOT HAVE THE STATUTORY AUTHORITY TO IMPOSE MAXIMUM AND CONSECUTIVE SENTENCES AND A SENTENCE GREATER THAN THE MINIMUM SENTENCE AND THE IMPOSITION OF THIS SENTENCE VIOLATED THE DEFENDANT'S
SIXTH AMENDMENT AND DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION AND THE EQUIVALENT RIGHTS UNDER THE OHIO CONSTITUTION.
{¶ 5} Under his first assignment of error, appellant contends the trial court's corrected judgment entry is in error. Crim. R. 36 provides, "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." It is clear that the purpose of the May 16, 2006 judgment entry was to correct a clerical mistake arising from oversight, as there was discussion at the plea hearing about the rape conviction carrying a mandatory prison term. (Feb. 27, 2006 Tr. at 13, 19-22.) In fact, appellant does not argue that the corrected judgment entry did more than correct an oversight. Rather, appellant contends that because the corrected language is followed by the imposition of the ten-year and eight-year sentences, the corrected judgment entry inaccurately reflects that the total 18-year prison term is mandatory, when only the prison term imposed on the rape conviction is mandatory. Therefore, appellant asks this court to remand this matter with instructions to the trial court to have the sentencing entry reflect that the only mandatory sentence is the ten-year term of incarceration imposed for the rape conviction.
{¶ 6} Appellee agrees with appellant that his felonious assault conviction does not carry a mandatory prison term. However, appellee argues the trial court's corrected judgment entry is not in error because it does not make such a finding. We agree.
{¶ 7} The corrected judgment entry states, in pertinent part:
* * * The Court further finds that a prison term is mandatory pursuant to R.C.
2929.13 (F).The Court hereby imposes the following sentence: Ten (10) Years as to Count Two and Eight (8) Years as to Count Three to be served consecutive with each other at the Ohio Department of Rehabilitation and Correction. The Court finds specifically that this offence [sic] was so vicious and unusual in it's [sic] ferocity as to require the maximum possible sentence.
(Emphasis sic.) (May 16, 2006 Entry, at 2.)
{¶ 8} The statement that "a prison term is mandatory pursuant to R.C.
{¶ 9} In his second assignment of error, appellant contends the trial court erred by imposing a non-minimum and consecutive term of imprisonment. Specifically, appellant asserts the retroactive application of State v. Foster,
{¶ 10} In Foster, the Supreme Court of Ohio held that under the United States Supreme Court's decisions in Apprendi v. New Jersey (2000),
{¶ 11} Appellant argues that the severance remedy instituted inFoster violates his
{¶ 12} Appellee contends Foster does not violate the constitutional protections against ex post facto laws because appellant had notice of the potential maximum sentences when the crimes were committed, and these potential sentences did not change after Foster. Further, appellee argues that pursuant to R.C.
{¶ 13} Both the United States and Ohio Constitutions prohibit ex post facto legislation, and similar restrictions have been placed on judicial opinions. See, e.g., Bouie, supra. In Bouie, the United States Supreme Court held that due process prohibits retroactive application of any "judicial construction of a criminal statute [that] is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue." Id. at 354. While Bouie referenced ex post facto principles, the United States Supreme Court later explained thatBouie was "rooted firmly in well established notions of due process," and "[i]ts rationale rested on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct." Rogers v. Tennessee,
{¶ 14} At the outset, we note that Foster was decided on February 27, 2006, and appellant was sentenced on April 14, 2006. Appellant did not raise this argument to the trial court, and failure to do so constitutes a waiver of this issue on appeal. State v. Awan (1986),
{¶ 15} Yet, even assuming the issue had been properly preserved for appeal, we find that appellant's position lacks merit. Recently, in reviewing an ex post facto claim with respect to a sentencing underFoster, this court held that "[w]e are bound to apply Foster as it was written." State v. Alexander, Franklin App. No. 06AP-501,
{¶ 16} While agreeing with the observations made in Hildreth andDurbin, the court in Grimes also approved of, and followed, the reasoning of the Third Appellate District in State v. McGhee, Shelby App. No. 17-06-05,
{¶ 17} Additionally, the Second District in State v. Smith, Montgomery App. No. 21004,
{¶ 18} Here, like the defendants in the above-cited cases, appellant knew the statutory range of punishments at the time he committed the offenses for which he was convicted. The statutory range of punishments has not changed in light of Foster. Contrary to appellant's suggestion,Foster did not judicially increase the range of appellant's sentence, nor did it retroactively apply a new statutory maximum to an earlier committed crime. Further, as stated by this court in Alexander, supra, "at the time that appellant committed his crimes the law did not afford him an irrebuttable presumption of minimum and concurrent sentences." Id. at ¶ 8. Hence, we conclude that the remedial holding ofFoster does not violate appellant's due process rights, or the ex post facto principles contained therein. Consequently, we overrule appellant's second assignment of error.
{¶ 19} For the foregoing reasons, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
