2007 Ohio 966 | Ohio Ct. App. | 2007
{¶ 2} On March 2, 2005, a Belmont County grand jury indicted appellant on one count of attempted murder, a first-degree felony in violation of R.C.
{¶ 3} Appellant eventually pled guilty to the charge. As part of the plea, appellant and plaintiff-appellee, the State of Ohio, agreed to at least a minimum sentence of eight years. However, the plea agreement noted that at the sentencing hearing, appellant would be arguing for an eight-year sentence while the state would be arguing for a ten-year sentence. The trial court found appellant guilty. It then held a sentencing hearing on August 26, 2005.
{¶ 4} At the hearing, the court heard from appellant, and listened to testimony from witnesses and arguments of counsel. It then sentenced her to nine years in prison. In its judgment entry, the court found, among other things, that imposing the minimum sentence on appellant would demean the seriousness of the offense.
{¶ 5} Appellant filed a timely notice of appeal on October 11, 2005.
{¶ 6} While this appeal was pending, the Ohio Supreme Court held that the provision of the Revised Code relating to non-minimum sentences, R.C.
{¶ 7} The Court went on to hold that the unconstitutional provisions could be severed. Id., at paragraph two of the syllabus. Since the provisions could be severed, *3 severed, "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id., at paragraph seven of the syllabus.
{¶ 8} Appellant raises a single assignment of error, which states:
{¶ 9} "THE TRIAL COURT ERRED BY SENTENCING MS. LONG TO PRISON BASED ON FACTS NOT FOUND BY A JURY OR ADMITTED BY MS. LONG (TR. 48-58)."
{¶ 10} Appellant argues that her sentence is void underFoster and Blakely. She further argues that she is entitled to a presumption of a minimum sentence. Appellant argues that to remand her case for resentencing without an instruction that she is entitled to a minimum sentence violates the Ex Post Facto and Due Process Clauses of the United States Constitution. For this reason, she asks that this court simply modify her sentence to three years or, in the alternative, remand her case for resentencing.
{¶ 11} Appellee, however, argues that because appellant entered a plea agreement in which she agreed to a minimum sentence of eight years, she cannot now raise a Foster issue because the trial court abided by the plea agreement in sentencing her. It further argues that the trial court based its sentence on facts admitted to by appellant in her plea agreement and on facts that it presented at the sentencing hearing, which appellant could have objected to. Therefore, appellee contends, the trial court did not impose an illegal sentence.
{¶ 12} Appellant was convicted of a first-degree felony. The possible prison sentences for first degree felonies are three, four, five, six, seven, eight, nine, or ten years. R.C.
{¶ 13} In her plea agreement, appellant and the state agreed to "at least a minimum sentence of 8 years." But the parties also agreed that at the sentencing hearing, appellant would argue for the court to impose an eight-year sentence while the *4 the state would argue for a ten-year sentence.
{¶ 14} Pursuant to R.C.
{¶ 15} Thus, it might appear that appellant has waived anyFoster/Blakely challenges to her sentence since she entered into a plea agreement that included a sentencing recommendation. However, this case is different from those cited above. For instance, the court inDavis stated that, "the
{¶ 16} The fact that appellant and the state agreed to a non-minimum range of sentences rather than a specific sentence is enough to distinguish this case from those *5
those cited above and allow appellant to raise a Foster challenge. Also, the fact is that the trial court did rely on the unconstitutional factors set out in R.C.
{¶ 17} Since this court finds that a Foster challenge is permissible, we must go on to analyze appellant's argument as follows.
{¶ 18} Appellant argues that Foster's remedy of remanding for resentencing within the trial court's discretion violates the Ex Post Facto and Due Process Clauses of the Constitution. This argument is not yet ripe for review because appellant has yet to be sentenced underFoster. See State v. Stroud,
{¶ 19} In the alternative, appellant argues that her sentence is illegal under Foster and asks that we remand it for resentencing. This is the proper remedy.
{¶ 20} The trial court sentenced appellant on August 26, 2005 — well before the Ohio Supreme Court decided Foster. And the trial court clearly relied on R.C.
{¶ 21} Since the trial court's imposition of a more than minimum sentence was based on R.C.
{¶ 22} After Foster, the trial court no longer needs to give reasons or findings prior *6 prior to imposing maximum, consecutive and/or more than minimum sentences. The Court held that:
{¶ 23} "These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. We do not order resentencing lightly. Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio's felony sentencing code must protect
{¶ 24} "Under R.C.
{¶ 25} The same day Foster was decided, the Ohio Supreme Court decided a companion case. State v. Mathis,
{¶ 26} "Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C.
{¶ 27} As an aside, it should be noted that the issue of waiver has arisen in other Foster related cases before this Court and other Ohio appellate district courts of appeal as well. The issue is whether the lack of objection in the trial court waives the Blakely issue for purposes of appeal when the sentencing occurred after theBlakely decision was announced. The Ohio Supreme Court inFoster and its progeny have created an exception to the doctrine of waiver. Accordingly, this Court has found the doctrine of waiver inapplicable to Foster related cases. State v. Buchanan, 7th Dist. No. 05-MA-60,
{¶ 28} Appellant's assignment of error has merit.
{¶ 29} Thus, for the reasons stated above, appellant's sentence is hereby reversed and the matter is remanded for resentencing consistent with State v. Foster,
Waite, J., concurs.
DeGenaro, P J., concurs.