STATE OF OHIO v. J.C. JOHN MARCUM
CASE NO. 10 CO 17
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 13, 2012
2012-Ohio-2721
Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Motion to Reopen Direct Appeal; JUDGMENT: Overruled.
For Plaintiff-Appellee: Atty. Robert Herron, Columbiana County Prosecutor; Atty. John E. Gamble, Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432
For Defendant-Appellant: J.C. John Marcum, Pro se, #583-801, Belmont Correctional Institution, P.O. Box 540, St. Clairsville, Ohio 43950
PER CURIAM
{¶1} Appellant, J.C. John Marcum, Jr., has already appealed his Columbiana County convictions of assault on a peace officer and aggravated burglary. In his original appeal, Appellant challenged the sufficiency and the weight of the evidence against him on both charges. He also challenged the admission of what he alleged to be hearsay evidence and claimed prosecutorial misconduct during trial and in closing. On review, we found sufficient evidence on each element of the offenses charged and that the conviction was not against the weight of the evidence. Because the alleged hearsay evidence was not offered for the truth of the matter asserted, it was not hearsay within the meaning of the rule. While the prosecutor‘s conduct was not ideal, it did not rise to the level of misconduct resulting in prejudice that necessitated reversal. We affirmed the judgment of the trial court in full.
{¶2} Appellant has now filed a timely application to reopen his appeal, to which the state has not responded. The time for response has passed and we will consider the matter on Appellant‘s motion alone. Appellant now contends that he received ineffective assistance of appellate counsel because counsel did not challenge the duration of his sentence and did not challenge the imposition of consecutive sentences. Although in Appellant‘s first assignment of error he refers to the word “sentence” in the singular, he does not specify which of the two sentences imposed he seeks to challenge. Appellant offers no reason, argument, or law supporting his contention that the “[s]everity of the sentence does not match the the [sic] offense pursuant to [R.C.] 2929.11 et seq.” nor does he identify on what, within the approximately forty-two subsections of
{¶3}
{¶4} To justify reopening his appeal, Appellant “bears the burden of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998), accord State v. Sheppard, 91 Ohio St.3d 329, 744, N.E.2d 770 (2001). “The two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess whether [Appellant] has raised a ‘genuine issue’ as to the ineffectiveness of appellate counsel in his request to reopen under
{¶5} Appellant was charged with and convicted of assaulting a peace officer while in the commission of his duties, a violation of
{¶6} Appellant was also convicted of aggravated burglary, a violation of
{¶7} Pursuant to
{¶8} Ohio sentencing ranges and sentencing goals are established by the legislature. In 1996 the Ohio legislature passed a comprehensive sentencing reform
{¶9} Subsequent to Ohio‘s sentencing reform a majority of the United States Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that any fact used to increase the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt whether the sentence is imposed at the federal or at the state level. Id. at 476. “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Id. at 490. Applying these principles the United States Supreme Court found unconstitutional a New Jersey hate crime statute that allowed a trial judge to impose an extended term of imprisonment if the trial judge found by a preponderance of the evidence at sentencing that the defendant was convicted of a crime committed
{¶10} Subsequently, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the same majority invalidated a Washington state case in which the trial court imposed an “exceptional” sentence after a judicial determination that the defendant had acted with “deliberate cruelty” resulting in a total sentence of ninety months, thirty-seven months longer than the maximum penalty that could otherwise be imposed for a “Class-B” felony in Washington at that time. Id. at 297-298. The Washington statute, like the New Jersey statute, required the trial judge to make a specific factual finding before imposing a penalty beyond the statutory maximum for the conviction and therefore violated the Sixth Amendment. The Blakely Court emphasized that the relevant statutory maximum when evaluating the constitutionality of a sentencing statute or sentence under Apprendi “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Emphasis sic.) Id. at 303-304. Whether, under the relevant statutory scheme, a “judge‘s authority to impose an enhanced sentence depends on finding a specified fact * * * one of several specified facts * * * or any aggravating fact * * * it remains the case that the jury‘s verdict alone does not authorize the sentence” because “[t]he judge acquires that authority only upon finding some additional fact.” (Emphasis sic.) Id. at 305.
{¶11} Both Apprendi and Blakely refute the use of sentencing enhancements that require judicial fact-finding, however, both opinions also emphasize that while judicial fact-finding is prohibited by the Sixth Amendment, judicial discretion is not. In
{¶12} Applying the principles of Apprendi and Blakely, the United States Supreme Court determined that the sentencing guidelines promulgated by the federal sentencing commission under the 1984 Sentencing Reform Act violated the Sixth Amendment. U.S. v. Booker, 543 U.S. 220, 226, 125 S.Ct. 738, 160 L.Ed.2d 261 (2005). The Booker Court stated “[w]e have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range;” “[i]f the Guidelines as currently written could be read as merely advisory * * * their use would not implicate the Sixth Amendment.” Id. at 233. The remedy the Booker Court devised, having determined that the provisions of the statute were severable, was to sever and invalidate the portions of the Sentencing Reform Act of 1984 that had the effect of making the Guidelines mandatory. Id. As a result, the sentencing scheme now grants full discretion to federal judges to impose any sentence allowed under the statutory range without making specific findings. “[D]istrict courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing” which helps “to avoid excessive sentencing disparities, while
{¶13} The Ohio Supreme Court applied Apprendi, Blakely, and Booker to Ohio‘s Sentencing Reform Act, S.B. 2, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. The Court conducted an analysis similar to that found in Booker and held that the sections of Ohio‘s Sentencing Reform Act governing the imposition of more than minimum terms, maximum terms, consecutive terms, penalty enhancements for repeat violent offenders and major drug offenders, and the imposition of consecutive prison terms all violated the Sixth Amendment by requiring judicial fact-finding. The Court determined that these provisions were severable. The purposes of felony sentencing, established by
{¶14} Three years after the Ohio Supreme Court found the Ohio consecutive sentencing provisions unconstitutional, the United States Supreme Court ruled in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that a state statute requiring judicial findings prior to the imposition of consecutive sentences did not violate the Sixth Amendment under Blakely and Apprendi. The Court evaluated the statutory scheme adopted by Oregon, which provides that sentences run concurrently unless the judge finds statutorily described facts which permit, but do not require, consecutive terms. The Court held that because the elements of the individual sentences were found beyond a reasonable doubt, by a jury, the sentencing provision did not implicate the due process concerns raised by the sentencing enhancements involved in Blakely and Apprendi and their predecessors.
{¶15} The Ohio State Supreme Court then revisited Foster in State v. Hodge, and found “[t]he United States Supreme Court‘s decision in Oregon v. Ice * * * does not revive Ohio‘s former consecutive-sentencing statutory provisions * * * which were held unconstitutional in State v. Foster,” and therefore “[t]rial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that findings be made.” (Internal citations omitted.) State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, paragraphs two and three of the syllabus. In 2011 the Ohio Legislature passed H.B. 86, effective September 30, 2011, which re-codified the exact conditional language severed from
{¶16} Appellant was tried and convicted of offenses committed on December 9, 2009. The offenses occurred three years after the Ohio Supreme Court invalidated the consecutive sentencing provisions of
{¶17} Under Foster, Mathis, Blakely, and Apprendi the trial court has complete discretion to impose a sentence within the statutory range. The trial court could have exercised its discretion in this instance to impose a maximum of eighteen months for the assault and a maximum of eleven years for the aggravated burglary. It did not choose to do so. There is nothing in this record that suggests error with regard to sentences within the statutory range. Appellate counsel‘s decision not to challenge the duration of Appellant‘s sentences and the application of consecutive
{¶18} Appellant received effective assistance of counsel in his appeal. There was no reasonable probability of success had counsel challenged the duration and consecutive application of Appellant‘s sentences. Accordingly, Appellant‘s application for reopening is denied.
Waite, P.J., concurs.
Vukovich, J., concurs.
DeGenaro, J., concurs.