State v. JordanState v. Jordan
{¶1} This timely appeal comes for consideration upon the record in the trial court and the parties’ briefs. Defendant-Appellant, Chancelor A. Jordan, appeals the September 3, 2009 decision of the Columbiana County Court of Common Pleas that convicted him of one count of drug trafficking and three counts of drug possession and sentenced him accordingly. On appeal, Jordan argues that the imposition of maximum, consecutive sentences by the trial court was erroneous. Upon review, Jordan‘s arguments are meritless. The sentence chosen was not clearly and convincingly contrary to law or an abuse of discretion. Accordingly, we affirm the judgment of the trial court.
Facts and Procedural History
{¶2} On October 26, 2007, a Columbiana County grand jury secretly indicted Jordan on six counts: (1) possession of cocaine, in violation of
{¶3} Jordan was arraigned, pled not guilty to the counts in the indictment and counsel was appointed. Upon Jordan‘s request, the State filed a bill of particulars. Subsequently, Jordan reached a
{¶4} The court provided written information to Jordan regarding the charges he faced, the maximum penalties and the effect of a guilty plea. Jordan filed a written response to that document. During a hearing held on September 2, 2009, the trial court engaged in a
{¶5} Per Jordan‘s request, the trial court proceeded immediately to sentencing. The prosecutor advocated Jordan receive maximum, consecutive sentences. Defense counsel argued for a more lenient sentence and made a statement in mitigation of sentencing. Jordan himself made a statеment in mitigation of sentencing.
{¶6} The trial court ultimately pronounced the following sentence:
{¶7} “[I]n relation to the specification of count -- attached to count five; the six hundred and ten dollars is ordered forfeited. The digital scales is [sic] ordered forfeited to the State of Ohio, to be disposed of as provided by law.
{¶8} “In relation to count‘s one, two, and five of the indictment the Defendant is sentenced to twelve months of [sic] each of those counts. On count six, the Defendant is sentenced to eighteen months on that count. Those are ordered served consecutive with each other.”
{¶9} The court also gave Jordan credit for time served, and ordered Jordan‘s driver‘s license suspended on each of the counts for a period of six months, to be served concurrently. The court notified Jordan about a three-year period of discretionary post-release control following his release from prison. The sentencing decision was memorialized in a September 3, 2009 judgment entry.
Sentencing
{¶10} In his sole assignment of error, Jordan asserts:
{¶11} “The trial court‘s sentencing of Aрpellant Chancelor A. Jordan was clearly and convincingly contrary to law as well as an abuse of discretion.”
{¶12} When reviewing a felony sentence, an appellate court first examines the sentence to ensure the sentencing court clearly and convincingly complied with the
{¶13} Initially, the State argues that Jordan has forfeited all challenges to his sentence because he failed to object at the time of sentencing. The State cites State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, in support of this argument. However, Payne involved the narrow issue of forfeiture of an alleged Blakely error on appeal where the defendant failed to object to his sentence on such grounds at a sentencing proceeding that occurred after the announcement of Blakely. Payne at ¶21 (concerning alleged errors pursuant to Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403). This is not the issue here, therefore Payne does not apply. Thus, wе review Jordan‘s sentence under the analysis set forth in Kalish.
{¶14} Turning to the first prong of the inquiry, we must determine whether the sentence is clearly and convincingly contrary to law. Jordan was convicted of three fifth-degree felonies and one fourth-degree felony. Fifth degree felonies carry potential prison terms ranging from six to twelve months.
{¶15} Jordan presents two specific arguments as to why his sentence is contrary to law, the first of which relates to the trial court‘s failure to make findings before imposing consecutive sentences pursuant to
{¶16} Jordan misconstrues the effect Ice has on Foster. The Ohio Supreme Court excised the unconstitutional provisions requiring judicial fact-finding from the sentencing statutes, including
{¶17} In Ice, the United States Supreme Court examined an Oregon statute that required judges to find certain facts before imposing consecutive rather than concurrent sentences. Id. at 714-20. The Supreme Court upheld the constitutionality of the Oregon statute and held it did not violate the Sixth Amendment concerns at issue in Apprendi and Blakely. Id. at 719. The Cоurt concluded that, in light of historical practices and the right of states to administer their criminal justice systems, the Sixth Amendment did not prevent states from allowing judges to make any finding of facts necessary to impose consecutive, rather than concurrent, sentences. Id. at 716-20.
{¶18} Subsequent to Ice, the defendant in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, argued that because Foster excised
{¶19} “We addressed this issue in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328. In Bates, we considered whether a trial court has the authority after Foster to order a prison sеntence that it imposes to be served consecutively to a prison sentence already imposed by another Ohio court. Id. at ¶11. We stated that before Foster,
{¶20} “We held in Bates that in the absence of statutory authority, ‘the common-law presumptions are reinstated.’ Bates at ¶18, citing 73 American Jurisprudence 2d (2007), Statutes, Section 271 (the repeal of a statute that abrogates the common law operates to reinstate the common-law rule). We also stated that ’ “in the absence of [a] statute [stating otherwise], it is a matter solely within the discretion of the sentencing court as to whether sentences shall run consecutively or concurrently.” ’ Id. at ¶13, quoting Stewart v. Maxwell (1963), 174 Ohio St. 180, 181, 22 O.O.2d 116, 187 N.E.2d 888. See also State ex rel. Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 23 O.O.2d 357, 191 N.E.2d 549. (‘It is clear that a court has the power to impose consecutive sentences‘); Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805 (‘this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute‘). In Bates, we held that after Foster, a ‘trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently.’ Bates at ¶19.
{¶21} “Since Foster was decided, the United States Supreme Court has announced Oregon v. Ice (2009), --- U.S. ----, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, a сase that held that a jury determination of facts to impose consecutive rather than
{¶22} ”Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge‘s duty to make findings before doing so. The trial court thus had authority to impose consecutive sentences on Elmore.” Elmore at ¶32-35. Thus, the Ohio Supreme Court stopped just short of considering Foster in light of Ice.2
{¶23} Most appellate districts when faced with this issue have decided that Foster is still good law that appellate courts must follow unless and until the Ohio Supreme Court directly overrules it. See, e.g., State v. Dunaway, 12th Dist. Nos. CA2009-05-141, CA2009-06-164, 2010-Ohio-2304, at ¶89-90; State v. Finn, 6th Dist. Nos. L-09-1162, L-09-1163, 2010-Ohio-2004, at ¶10; State v. Sabo, 3d Dist. No. 14-09-33, 2010-Ohio-1261, at ¶34-42; State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372, at ¶7-8; State v. Moncoveish, 11th Dist. No. 2008-P-0075, 2009-Ohio-6227, at ¶21; State v. Robinson, 8th Dist. No. 92050, 2009-Ohio-3379, at ¶27-29; State v. Starett, 4th Dist. No. 07CA30, 2009-Ohio-744, at ¶35.
{¶24} But in State v. Vandriest, 5th Dist. No. 09-COA-032, 2010-Ohio-997, the Fifth District held thаt because the appellant was sentenced after Ice and after the Ohio legislature “amended”
{¶25} We conclude that, pursuant to Ice and Elmore, Ohio‘s post-Foster
{¶26} Second, Jordan contends that his sentence was clearly and convincingly contrary to law because the trial court failed to consider the overriding purposes of felony sentencing contained in
{¶27} Thus, we move to the second prong of the analysis which is whether the chosen sentence was an abuse of discretion. As an initial matter, the trial court may consider a wealth of information when sentencing the defendant, including but not limited to: the trial transcript, the defendant‘s prior arrests, crimes for which the defendant was acquitted, and otherwise inadmissible evidence including information that was suppressed prior to trial. Ballard at ¶80-81. Further, although
{¶28} Regarding the seriousness of Jordan‘s crime, there is evidence upon which the trial court could have reasonably relied to conclude the crime was more serious. Jordan was involved in numerous drug-related crimes that took place over a period of years. The prosecutor alleged during sentencing that Jordan was “at the top of the food chain” in terms of the illegal drug trade in Columbiana County. The prosecutor indicated that when Jordan was arrested for a federal warrant he was found in the center of Lisbon with six bags of cocaine in his pocket. The prosecutor showed a video of an informаnt purchasing drugs from Jordan, and pointed out the overwhelming evidence of significant drug trafficking activity at the residence. Further, the prosecutor noted that several young children were in an adjoining room when the drug activity took place. These considerations would tend to make the crime more serious.
{¶29} With regard to the likelihood of recidivism, see
{¶30} Jordan did apologize for his crimes during sentencing therefore demonstrating some remorse which could tend to show recidivism is less likely.
{¶31} “MR JORDAN: I would like, uh, I would like to say, ‘Yes, I did sell drugs, and I went to jail.’ And all this from 2003, I believe I was eighteen or nineteen.
{¶32} “And I did, I sold drugs, I went to jail for it, and in this casе, I guess I got the possession from ‘03, and I was never charged, it‘s not like I was charged and then I came and I just kept catching cases.
{¶33} “It‘s just, they -- I had cocaine in my pocket, I was not indicted-- all this is coming four years later, it‘s like they saved it. You know what I‘m saying? Maybe if I was indicted, maybe if -- you know what I‘m saying? Maybe I wouldn‘t have continued to sell drugs. You know what I‘m saying? It‘s like they just sаved it up.”
{¶34} These remarks would seem to indicate Jordan‘s failure to accept full responsibility for his actions. Thus, on the whole, the trial court could have reasonably concluded recidivism was more likely. For these reasons, the trial court did not abuse its discretion in sentencing Jordan.
{¶35} In conclusion, Jordan‘s sole assignment of error is meritless. Jordаn‘s sentence was not clearly and convincingly contrary to law or an abuse of discretion. Accordingly, the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs in judgment only.