2006 Ohio 6534 | Ohio Ct. App. | 2006
Lead Opinion
OPINION
{ ¶ 1} Appellant, Michael A. Lloyd, appeals from his sentencing order in which he received more-than-the-minimum sentences for two robbery convictions. In light of the Supreme Court case, State v. Foster,
{ ¶ 2} Appellant entered a plea of guilty to a bill of information containing two counts. Both counts of the information alleged that appellant had committed robbery, in violation of R.C.
{ ¶ 3} Appellant committed the two robberies on April 19, 2005 and April 26, 2005, respectively. The first robbery was committed at a BP station in Willoughby Hills, where appellant brandished a knife and robbed the store clerk of $344.15. The second robbery was committed at a Save on Cigarettes store, also in Willoughby Hills, where appellant again brandished a knife, but this time the store clerk was able to detain him until the police arrived.
{ ¶ 4} Appellant was sentenced on August 11, 2005, to two four-year sentences, to run concurrently with one another. Appellant filed a timely notice of appeal, raising the following two assignments of error:
{ ¶ 5} "[1.] The trial court erred in sentencing [appellant] to four years in prison when it sentenced him contrary to R.C.
{ ¶ 6} "[2.] The trial court erred when it sentenced [appellant] to more-than-the-minimum sentences based upon a finding of factors not found by the jury or admitted by [appellant] in violation of [appellant's] state and federal constitutional rights to trial by jury."
{ ¶ 7} In his first assignment of error, appellant argues that the trial court erred when it sentenced him contrary to R.C.
{ ¶ 8} In Foster, at ¶ 37, the Supreme Court of Ohio stated:
{ ¶ 9} "* * * R.C.
{ ¶ 10} After Foster, the question evolves as to whether a trial court, when considering this nonexclusive list of statutory factors under R.C.
{ ¶ 11} In Foster, the Supreme Court held that portions of the applicable sentencing statutes were unconstitutional in light ofBlakely v. Washington (2004),
{ ¶ 12} The Supreme Court stated that "[i]n conducting aBlakely analysis, we must determine whether a presumptive sentence is created and whether judicial factfinding is required to exceed that sentence." Id. at ¶ 55. (Emphasis added.) However, where the Supreme Court found that judicial factfinding was not mandatory or there was no presumptive sentence, the court found that it was constitutional. Id. at ¶ 70.1 Thus, it is clear that the distinction between unconstitutional provisions (i.e., impermissible judicial factfinding) and constitutional provisions (i.e., permissible judicial factfinding), is whether the factfinding was mandated by the statute.
{ ¶ 13} Further, with respect to the general guidance statutes, R.C.
{ ¶ 14} In the sections of the sentencing statute which the Supreme Court declared violated Blakely, the court stressed that judicial factfinding was mandatory before the court could overcome the minimum presumption, and impose the greater sentence. See paragraphs one, three, and five of the syllabus. The court applied the remedy set forth inUnited States v. Booker (2005),
{ ¶ 15} The Supreme Court instructed sentencing courts on remand to "consider those portions of the sentencing code that are unaffected by today's decision and impose any sentence within the appropriate felony range." Id. at ¶ 105. The Supreme Court was more explicit in this mandate in State v. Mathis,
{ ¶ 16} Furthermore, we look to federal district courts for guidance. In Foster, the Supreme Court stated that "the [United States] Supreme Court excised from the Sentencing Reform Act of 1984 those provisions that made the Guidelines mandatory, rendering the Guidelines `effectively advisory.' * * * District courts, although no longer bound to apply them, must consider the Guidelines and take them into account in sentencing." Id. at ¶ 10. Since Booker, federal district courtsstill rely on judicial factfinding under the Guidelines.2 Thus, it would be reasonable to presume that under Ohio's sentencing statutes, trial court judges may still employ qualified judicial factfinding, just as federal districts courts do, as long as it is not required by the statute.
{ ¶ 17} It is clear that R.C.
{ ¶ 18} Therefore, although Foster and Mathis do not expressly hold that trial courts can still make findings under R.C.
{ ¶ 19} In addition, since Foster was decided, this court has addressed the issue at bar; i.e., whether the trial court erred when it sentenced an appellant "contrary to R.C.
{ ¶ 21} In his second assignment of error, appellant argues the trial court erred when it sentenced him to a more-than-the-minimum sentence based upon findings of factors not found by a jury in violation of his state and federal constitutional rights to a trial by jury.
{ ¶ 22} In sentencing appellant to a more-than-the-minimum sentence, the trial court relied upon judicial fact-finding, formerly mandated by statute, but now deemed unconstitutional and void by the Supreme Court of Ohio. In Foster, the Supreme Court held that R.C.
{ ¶ 23} Further, pursuant to Booker, supra, the Supreme Court's remedy was to sever the unconstitutional provisions of the Revised Code, including R.C.
{ ¶ 24} Since Foster was released while this case was pending on direct review, appellant's sentence is void, must be vacated, and remanded for resentencing. Foster at ¶ 103-104. Upon remand, the trial court is no longer required to make findings or give its reasons for imposing maximum, consecutive or more-than-the-minimum sentences. Id. at paragraph seven of the syllabus. Appellant's second assignment of error has merit.
{ ¶ 25} Accordingly, appellant's first assignment of error is without merit and his second assignment of error is sustained. The sentence of the Lake County Court of Common Pleas is vacated. This case is reversed and remanded for resentencing for proceedings consistent with this opinion pursuant to Foster.
DIANE V. GRENDELL, J., concurs, WILLIAM M. O'NEILL, J., concurs in judgment only with Concurring Opinion.
Concurrence Opinion
{ ¶ 26} While I agree with the majority opinion with respect to the second assignment of error, I write to separately concur in judgment only because I believe that the first assignment of error is moot in light of the analysis of the second assignment of error. Lloyd will get a new sentencing hearing pursuant to State v. Foster,4 and, therefore, errors, if any, committed by the trial court during the first sentencing hearing will be corrected.5 Lloyd will be able to challenge anew the trial court's findings made at the subsequent sentencing hearing.
{ ¶ 27} Furthermore, in going beyond the question of mootness of the first assignment of error, the majority has not addressed appellant's argument that the trial court's findings made pursuant to R.C.
{ ¶ 28} Appellant has put forth a salient argument in this court that the trial court did not consider certain mitigating facts in arriving at appellant's sentence. However, by not addressing this argument, the majority has provided no guidance to the trial court as to whether appellant's sentence was supported by the record. If, as appellant argues in this court, his sentence was greater than the record called for, the trial court needs the benefit of this court's analysis on this issue.
