State v. JonesState v. Jones
{¶ 1} Defendant-appellant, Jace Jones, Jr. (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to a five-year term of incarceration and a three-year term of incarceration, to be served consecutively.
{¶ 2} A jury found appellant guilty of burglary, in violation of R.C.
THE TRIAL COURT DID NOT HAVE AUTHORITY TO IMPOSE CONSECUTIVE SENTENCES OR A MAXIMUM SENTENCE WHEN THE IMPOSITION OF THESE SENTENCES VIOLATED THE DEFENDANT‘S
SIXTH AMENDMENT AND DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION AND THE EQUIVALENT RIGHTS UNDER THE OHIO CONSTITUTION.
{¶ 3} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, cert. denied (2006), 127 S.Ct. 442, the Supreme Court of Ohio held that under the United States Supreme Court‘s decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, portions of Ohio‘s sentencing scheme were unconstitutional because they required judicial fact finding before a defendant could be sentenced to more than the minimum sentence, the maximum sentence, and/or consecutive sentences. Id. at paragraph one of the syllabus. As a remedy, the Supreme Court of Ohio severed the offending sections from Ohio‘s sentencing code. Id. at ¶ 90-102 (applying a severance remedy similar to that adopted in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738.) As a result of the Foster court‘s application of the severance remedy, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or
{¶ 4} To the extent that appellant contends the trial court violated Blakely by imposing non-minimum, consecutive sentences based on factual findings neither admitted by him nor found by a jury, we find no merit to appellant‘s position. Appellant was sentenced after the United States Supreme Court rendered its opinion in Blakely, but did not raise an objection to the trial court‘s sentence based on Blakely. Therefore, appellant has waived all but plain error as to this issue. See, e.g., State v. Hairston, Franklin App. No. 06AP-420, 2007-Ohio-143; State v. Ragland, Franklin App. No. 04AP-829, 2007-Ohio-836; State v. Draughon, Franklin App. No. 05AP-860, 2006-Ohio-2445. Appellant, however, fails to demonstrate plain error because a trial court is no longer required to engage in judicial findings prior to the imposition of consecutive and non-minimum sentences. Ragland, at ¶ 4, citing Foster, supra. See, also, State v. Darks, Franklin App. No. 05AP-982, 2006-Ohio-3144.
{¶ 5} Appellant also asserts in his assignment of error that the retroactive application of Foster to his sentence violates both his right to due process and the ex post facto clause of the United States Constitution by raising the presumptive minimum sentences, and creating an unanticipated remedy by erasing the presumption to which he was entitled. Therefore, appellant seeks a remand and a resentencing.
{¶ 6} We note that appellant was sentenced prior to Foster, and was not sentenced under the post-Foster sentencing scheme. Therefore, this argument is not applicable in this instance. See, e.g., Ragland, supra at ¶ 9, citing State v. Nicklson, Cuyahoga App. No. 87225, 2006-Ohio-5935, at ¶ 10. Yet, even assuming the issue is
{¶ 7} For the foregoing reasons, appellant‘s single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT and FRENCH, JJ., concur.