2007 Ohio 423 | Ohio Ct. App. | 2007
{¶ 2} For purposes of appellant's assignments of error herein, only a brief recitation of the facts is necessary. On August 5, 2004, the trial court entered a judgment and sentence upon a jury verdict finding appellant guilty of one count of aggravated burglary and one count of aggravated robbery, as well as firearm specifications included in each count. Appellant was sentenced to serve a ten-year prison term for each conviction, and an additional three-year prison term for the firearm specifications, with each sentence to run consecutively, for an aggregate term of 23 years. Appellant appealed to this court. InState v. Houston, Franklin App. No. 04AP-875,
[I.] The Court of Common Pleas violated Appellant's right to trial by jury by sentencing Appellant to a term of incarceration which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments. The decision rendered by the Supreme Court of Ohio in State v. Foster (2006),
109 Ohio St. 3d 1 ,2006-Ohio-856 which purports to authorize sentences in excess of the statutory maximum, is incompatible with the controlling precedent of the United States Supreme Court and must be rejected.[II.] The Court of Common Pleas violated Appellant's rights under the Ex Post Facto Clause of the Federal Constitution by sentencing Appellant to a term of incarceration which exceeded the maximum penalty available under the statutory framework at the time of the offense. The decision rendered by the Supreme Court of Ohio in State v. Foster (2006),
109 Ohio St. 3d 1 , which purports to authorize the sentence rendered against Defendant Ashcroft, is incompatible with the controlling precedent of the United States Supreme Court and must be rejected.[III.] The Court of Common Pleas violated Appellant's rights under the Fourteenth Amendment to the Federal Constitution by sentencing Appellant pursuant to the decision rendered by the Supreme Court of Ohio in State v. Foster (2006),
109 Ohio St. 3d 1 , because the holding of Foster is invalid under Rogers v. Tennessee (2001),532 U.S. 451 .[IV.] The Rule of Lenity requires the imposition of minimum and concurrent sentences, and the ruling of the Court of Common Pleas to the contrary must be reversed.
{¶ 3} Appellant's first, second, and third assignments of error are related, and will be addressed together. Appellant asserts in these three assignments of error that the trial court's sentencing order was violative of his right against ex post facto laws, due process rights, and right to a trial by jury. Essentially, appellant asserts in all of these assignments of error that the retroactive application ofFoster, supra, to his sentence is unconstitutional. In Foster, the Ohio Supreme Court held that, under the United States Supreme Court's decisions in Apprendi v. New Jersey (2000),
{¶ 4} Appellant argues that the severance remedy instituted inFoster violates his constitutional rights because the severance, in effect, raises the presumptive minimum sentence. Appellant maintains that, pursuant to the sentencing statutes in effect at the time his crimes were committed, there was a presumption of minimum and concurrent terms, and non-maximum sentences. This court recently addressed these issues in State v. Gibson, Franklin App. No. 06AP-509,
{¶ 5} In the present case, like the defendant in Gibson, 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. Thus, Foster did not judicially increase appellant's sentence, and it did not retroactively apply a new statutory term to an earlier committed crime. Further, " `at the time that appellant committed his crimes the law did not afford him an irrebuttable presumption of minimum and concurrent sentences.'" Id., at ¶ 18, citing Alexander, at ¶ 8. In addition, to the extent that appellant claims the trial court's sentence, as well as the remedy inFoster, violate his Sixth Amendment right to a trial by jury and the principles set forth in Apprendi, Blakely, and Booker, we find this argument unpersuasive. The trial court did not resentence appellant based upon any additional factual findings not found by a jury, and appellant did not receive greater than the statutory maximum based upon factual findings the jury did make, as prohibited by Blakely. Therefore, we conclude that the remedial holding of Foster does not violate appellant's constitutional rights. For these reasons, and based upon our rationale in Gibson, we overrule appellant's first, second, and third assignments of error.
{¶ 6} Appellant argues in his fourth assignment of error that the trial court's sentence violated the rule of lenity. The rule of lenity is a principle of statutory construction that provides 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. Moskal v. United States (1990),
{¶ 7} Here, appellant claims that the remedy crafted inFoster, by which the judicially reconstructed statutory provisions are to be retroactively applied to pre-Foster prosecutions on remand, violates the rule of lenity by imposing the least lenient construction of the sentencing statute on a defendant being resentenced. However, the rule of lenity applies only where there is an ambiguity in a statute or conflict between multiple statutes. See Lanier, at 266. There exists no ambiguity in the sentencing statutes in Ohio because the Ohio Supreme Court held that portions of Ohio's felony sentencing framework were unconstitutional in Foster. See State v. Moore, Allen App. No. 1-06-51, at ¶ 12. See, also, State v. Elswick, Lake App. No. 2006-L-075,
{¶ 8} Accordingly, appellant's four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and FRENCH, J., concur.
