2006 Ohio 6695 | Ohio Ct. App. | 2006
{¶ 2} On March 8, 2001, Green was indicted by the Ashtabula County Grand Jury on one count of Aggravated Burglary, a felony of the first degree in violation of R.C.
{¶ 3} Green failed to appear before the court as required. Green was subsequently arrested and, on April 25, 2003, indicted for Failure to Appear, a felony of the fourth degree in violation of R.C.
{¶ 4} On May 5, 2003, Green entered pleas of guilty to Aggravated Burglary and Failure to Appear. On June 23, 2003, the trial court imposed a ten-year prison term, the maximum prison term for a first degree felony pursuant to R.C.
{¶ 5} Green appealed the sentence imposed, but did not challenge the plea entered on either charge. On June 24, 2005, this court reversed Green's sentence and remanded the case for resentencing. Green,
{¶ 6} On August 23, 2005, Green filed a Motion to Withdraw Sentence relative to the charge of Failure to Appear. On August 30, 2005, the trial court again imposed a consecutive prison terms of ten years and eighteen months. Green timely appeals and raises the following assignments of error:
{¶ 7} "[1.] The trial court erred when it denied defendant's motion to vacate his plea and proceed to convict and sentence him for failure to appear.
{¶ 8} "[2.] The trial court erred and violated defendant's rights protected by the
{¶ 9} "[3.] The trial court erred when it sentenced defendant-appellant, a first-time offender, to a maximum sentence to be served consecutive to a sentence on the additional charge of Failure to Appear."
{¶ 10} In his first assignment of error, Green claims that the trial court erred in denying his motion to vacate his guilty plea for Failure to Appear. Green alleges that he could not have been convicted for Failure to Appear, even accepting the State's recitation of the facts to be true, because Green did not commit the acts constituting the crime of Failure to Appear. Cf. R.C.
{¶ 11} Green's post-appeal motion to withdraw his guilty plea is barred by the doctrine of res judicata.
{¶ 12} "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment." State v. Szefcyk,
{¶ 13} As stated above, Green challenged his sentence on direct appeal, but did not challenge the entry of his plea for Failure to Appear. Accordingly, Green is now barred from raising issues regarding that plea. State v. McDonald, 11th Dist. No. 2003-L-155,
{¶ 14} The first assignment of error is without merit.
{¶ 15} Under the second assignment of error, Green argues that the trial court erred by sentencing him based on factual findings not reflected in a jury verdict or admitted by him. Blakely v.Washington (2004),
{¶ 16} Subsequent to Green's resentencing, the Ohio Supreme Court decided State v. Foster,
{¶ 17} Therefore, after Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at ¶ 100. In accordance with the Foster decision, we must vacate Green's sentence and remand this matter to the trial court for a new sentencing hearing. Id. at ¶ 103. At this hearing, Green "may stipulate to the sentencing court acting on the record before it," as well as argue for a reduction in his sentence. The State may argue that the penalty previously imposed be re-imposed. Id. at ¶ 105.
{¶ 18} On May 1, 2006, this court granted Green leave "to file a supplemental brief raising additional issues" in light of theFoster decision. In his supplemental brief, Green raises several issues regarding the application of Foster to his sentence.
{¶ 19} Green argues that the retroactive application ofFoster to his resentencing hearing violates the Ex Post Facto Clause, Article
{¶ 20} Green maintains the retroactive application of Foster violates the Ex Post Facto Clause because it deprives offenders of "the presumption of minimum, less than maximum and concurrent terms of imprisonment." Green relies on the United States Supreme Court's decision in Miller v. Florida (1987),
{¶ 21} The Ex Post Facto Clause does not bar the remand of Green's case for resentencing. The Ohio Supreme Court, in Foster, expressly held that the "normal course" to be followed when a statute is deemed void is "is to vacate that sentence and remand to the trial court for a new sentencing hearing."
{¶ 22} Additionally, we find that Miller is distinguishable from the present situation involving Foster. The revisions to the sentencing guidelines at issue in Miller were put into effect by the action of the Florida Legislature. As noted above, the Ex Post Facto Clause typically applies to laws, not the judicial construction of laws. In order for the clause to apply to a judicial construction, that construction must be "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers,
{¶ 23} Finally, we note that Green urges the application of the Ex Post Facto Clause for the purpose of being sentenced under a law declared unconstitutional. In effect, Green seeks to have this court remand his case with instructions for the trial court to violate the Constitution in resentencing him. Such a result contradicts the general rule that, when a supreme court strikes down a law as unconstitutional, "the effect is not that the former was bad law, but that it never was the law." Peerless Elec. Co. v. Bowers (1955),
{¶ 24} Green also argues in his supplemental brief that the retroactive application of Foster violates the principle of "lenity" in the construction of criminal statutes as codified at R.C.2901.04(A) ("sections of the Revised Code defining * * * penalties shall be strictly construed against the state, and liberally construed in favor of the accused"). We disagree. The principle of lenity applies to the construction of ambiguous statutes, not to determinations of a statute's constitutionality or to the law regarding the retroactive effect of Supreme Court decisions. United States v. Johnson (2000),
{¶ 25} Green lastly argues that the retroactive application ofFoster invalidates the guilty pleas he entered to the charges of Aggravated Burglary and Failure to Appear. Green maintains that his pleas were predicated upon trial counsel's advice regarding "the presumption in favor of minimum, non-maximum and concurrent sentences, and his right to appeal any sentence imposed based on the trial court's failure to make specific findings supported by the record before it."
{¶ 26} We disagree. The Ohio Supreme Court has stated that, "when a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle,
{¶ 27} In the present case, Green acknowledged, in signed plea agreements, that he could receive prison terms of between three and ten years and between six and eighteen months for Aggravated Burglary and Failure to Appear respectively. The plea agreements are silent in respect to statutory presumptions of a particular sentence. Accordingly, the trial court satisfied the requirements of Criminal Rule 11.
{¶ 28} The United States Supreme Court has held that "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Brady v. United States
(1970),
{¶ 29} For the foregoing reasons, we reject Green's arguments that the retroactive application of Foster is unconstitutional, violates the principles of lenity, and renders his guilty pleas invalid. In other respects, Green's second assignment of error is with merit and this case is remanded for resentencing in accordance with Foster.
{¶ 30} Under his third and final assignment of error, Green sets two arguments why the sentence imposed, i.e., maximum and consecutive sentences, is contrary to law. Green urges this court to reduce the sentence imposed rather than remand this case for resentencing.
{¶ 31} Green's first argument is that the trial court failed to adequately address the mitigating factors relevant to Green's case.
{¶ 32} The overriding purposes of felony sentencing in Ohio "are to protect the public from future crime by the offender * * * and to punish the offender." R.C.
{¶ 33} It is well-established that R.C.
{¶ 34} In the present case, the trial court stated that it "considered the record, oral statements, any victim impact statement, the presentence report, the purposes and principles of sentencing under RC
{¶ 35} Green's second argument under the third assignment of error is that his sentence is inconsistent with and disproportionate to the sentences of similarly situated offenders. "A sentence imposed for a felony shall be * * * consistent with sentences imposed for similar crimes committed by similar offenders." R.C.
{¶ 36} Green cites to several cases where offenders received lesser sentences than his for "similar or worse cases." State v. Edwards, 11th Dist. No. 2001-L-005, 2002-Ohio-3359, at ¶ 14 (six years for Aggravated Robbery and Aggravated Burglary with a Gun Specification); State v.Hazel, 5th Dist. No. 2002 CA 00355, 2003-Ohio-3930, at ¶ 2 (three years community control for second degree Aggravated Burglary); State v.Cromer (March 17, 2000), 6th Dist. Nos. L-98-1289 and L-98-1290, 2000 Ohio App. LEXIS 1042, at *6 (nine years for two counts of Impersonating a Peace Officer, Burglary, Theft, and Attempted Grand Theft); State v.Hart, 12th Dist. No. CA2003-08-195,
{¶ 37} Similarly, the prosecution cites to several cases where offenders have received the maximum sentence for Aggravated Burglary.State v. Allen, 11th Dist. No. 2004-L-038,
{¶ 38} In sentencing Green, the trial court emphasized the following considerations: the victim was seventy-six years old; Green and his accomplices broke into the victim's home at night while she was sleeping; the victim was severely beaten after she woke up; the motive for the crime was to obtain money for drugs and alcohol; Green absconded from the State of Ohio after being indicted and remained at large for twenty months; Green has a lengthy juvenile record and was on juvenile parole at the time of the offense. Allen, Viers, Dillon, andLovely were all cases in which the victims suffered serious physical harm (Aggravated Burglary does not require the actual infliction of physical harm), as did the victim in the present case. Green's sentence is proportional to these similarly situated offenders.
{¶ 39} Green argues that the attack on the victim was the unexpected conduct of his accomplices and should not be attributed to him. By pleading guilty to Aggravated Burglary, however, Green has admitted his culpability for the harm suffered by the victim. Cf. State v.Whittenberger (December 3, 1999), 11th Dist. No. 98-P-0047, 1999 Ohio App. LEXIS 5770, at *8-*9 (imposing a ten-year sentence for Complicity to Aggravated Burglary where the offender waited in the car while the accomplices attacked the victims).
{¶ 40} The third assignment of error is without merit.
{¶ 41} For the reasons set forth in Green's second assignment of error, we reverse the Judgment Entry of Sentence of the Lake County Court of Common Pleas and remand for proceedings in light of the "remedial severance and interpretation of Ohio's felony sentencing statutes," as explained in Foster.
WILLIAM M. O'NEILL, J., CYNTHIA WESTCOTT RICE, J., concur.
