State v. HohvartState v. Hohvart
WAITE, P.J.
{1} Appellant John Hohvart appeals the maximum consecutive felony sentences imposed on him by the Mahoning County Court of Common Pleas. He claims that the trial court was required to make certain findings set forth in
Case Background
{3} Eventually, Appellant‘s car ran out of fuel and Whaley escaped from the vehicle. A passing motorist saw her and drove her to a nearby gas station. There, she contacted authorities and was taken for medical treatment. Whaley‘s nose was broken and required reconstructive surgery, two of her teeth were knocked loose, and a cheekbone was fractured. Police seized Hohvart‘s car and, after obtaining a warrant, tested blood in the car which was found to be consistent with Whaley‘s DNA.
{4} Hohvart was indicted on November 18, 2004, on felonious assault, a second degree felony under
ASSIGNMENT OF ERROR NO. 1
{5} “The trial court erred by imposing consecutive sentences without making findings as required by
{6} The argument being made by Appellant was addressed in the recent Ohio Supreme Court case, State v. Hodge, which reaffirmed and clarified holdings in State v. Foster. Appellant contends that, prior to the Ohio Supreme Court‘s decision in State v. Foster, a trial court could not impose consecutive sentences without first making a number of factual findings, such as whether the sentence was necessary to protect the public from future crime, to punish the offender, or that consecutive sentences were not disproportionate to the seriousness of the offender‘s conduct. Appellant is correct. Foster invalidated those prior statutory provisions and held that the judicial fact-finding requirements violated the constitutional Sixth Amendment right to trial by jury because a jury, rather than a trial judge, was required to make all findings essential to punishment. Foster declared a number of statutory provisions requiring judicial fact-finding to be unconstitutional and severed them from the felony
{7} After Foster, the Ohio Supreme Court clarified that trial courts, while no longer having the statutory authority to impose consecutive sentences, still retained the common law authority to make the determination as to whether sentences should be carried out concurrently or consecutively. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, ¶18. ”Foster [does] not prevent the trial court from imposing consecutive sentences; it merely took away a judge‘s duty to make findings before doing so.” State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶35.
{8} Appellant asserts, though, that the holding in Foster with respect to consecutive sentences is no longer valid law due to a subsequent ruling of the United States Supreme Court in Oregon v. Ice. In Ice, the United States Supreme Court examined whether the Sixth Amendment right to trial by jury was infringed by mandatory judicial fact-finding specifically relating to consecutive sentences. Ice
{9} Subsequent to the filing of this appeal, the Ohio Supreme Court ruled on the specific issue being raised here. State v. Hodge held as follows: “The United States Supreme Court‘s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio‘s former consecutive-sentencing statutory provisions,
{10} Hodge did acknowledge that the Ice holding undermined the reasoning in Foster: “After Ice, it is now settled law that Apprendi and Blakely do not control the resolution of this issue and that the jury-trial guarantee of the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to imposing consecutive sentences.” Id. at ¶19. “Had we the benefit of the United States Supreme Court‘s decision in Ice regarding Oregon‘s consecutive-sentencing statutes prior to our decision in Foster, we likely would have ruled differently * * *.” Id. at ¶20. Nevertheless, Ice did not require judicial fact-finding in order for consecutive sentences to be imposed. The Ice decision merely allows state court judges to engage in judicial fact-finding without violating the constitution with respect to consecutive sentences. We must also note that Foster completely excised the judicial fact-finding statutes from the Ohio Revised Code. Even if those statutes were never formally repealed by the legislature, they remain excised until positive action is taken by the General Assembly indicating its intent and desire to reestablish the statute. Id. at ¶27. Pursuant to Hodge, there is no automatic revival of statutes that have been declared unconstitutional. Id. at ¶30.
{11} Appellant contends that amendments to Ohio‘s felony sentencing statutes that occurred after the Ice opinion was released contain the formerly excised fact-finding provisions, and that these reenactments should be interpreted as legislative intent to fully revive
ASSIGNMENT OF ERROR NO. 2
{13} Appellant also argues that it is improper to retroactively apply the holding of State v. Foster to pending criminal cases because this would violate the Due Process and Ex Post Facto Clauses of the United States Constitution. As stated above, Foster corrected a problem with Ohio‘s felony sentencing statutes regarding the right to trial by jury. Foster rendered certain aspects of the felony sentencing statutes unconstitutional because they required the trial judge, rather than a jury, to determine certain facts essential to imposing sentences that were more severe than the minimum sentences prescribed for any given felony. Foster declared as unconstitutional
{14}
{15} The Ohio Supreme Court, in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, considered and resolved this issue; whether Foster violated the Ex Post Facto clause or constituted a denial of due process. In Elmore, the Ohio Supreme Court held that resentencing pursuant to Foster for crimes that were committed before Foster was decided does not violate the Ex Post Facto and Due Process clauses because a defendant resentenced under Foster is not subject to any greater potential punishment than existed previously. Id. at ¶18. A criminal defendant may not be able to raise certain procedural arguments because of the holdings in Foster, but a procedural change is not an ex post facto violation. Id. Appellant was subject to potential five-year and eight-year maximum prison terms for his crimes both before and after Foster. He had notice of the sentencing range when he committed the crimes and when he was sentenced. He was never subject to an irrebuttable presumption of minimum or concurrent sentence either before or after
CONCLUSION
{16} Given the clear and comprehensive holdings of the Hodge case, it is evident that
Donofrio, J., concurs.
Vukovich, J., concurs.