2007 Ohio 1574 | Ohio Ct. App. | 2007
Lead Opinion
STATEMENT OF THE CASE
{¶ 2} On January 6, 2006, appellant pled guilty to burglary in violation of R.C. {¶ 3} "The Court finds pursuant to R.C.
{¶ 4} Appellant filed timely notice of appeal from this sentencing entry. The state has not filed a response to appellant's brief.
ASSIGNMENT OF ERROR
{¶ 5} Appellant's sole assignment of error provides: {¶ 6} "THE TRIAL COURT ERRED WHEN IT IMPOSED A NON-MINIMUM PRISON TERM ON DEFENDANT-APPELLANT BRENDA MOORE BASED UPON R.C.
{¶ 7} Appellant notes that she was sentenced approximately two weeks after the Ohio Supreme Court released its Foster decision. Appellant urges that the trial *3
court's actual reliance on R.C.
LAW AND ANALYSIS
{¶ 8} It is well-known that in Foster, the Ohio Supreme Court found R.C. {¶ 9} After Foster, a sentencing court has discretion to consider any factors it finds relevant. See R.C.
{¶ 10} The trial court's entry reads as if the court was unaware of the Foster holding. In fact, the sentencing hearing was a mere two weeks after release of the Foster opinion. The effect of the court's entry here is analogous to the entry of a court that sentenced a defendant pre-Foster. The Ohio Supreme Court explicitly instructed us to reverse and remand for resentencing all cases pending on direct appeal.Foster at ¶ 104, 106. Where a sentencing court's language seemingly ignores the implications of Foster, we must similarly reverse and remand. *4
{¶ 11} We cannot say that the trial court's citation to R.C.
{¶ 12} The trial court here placed a limit on itself. However, the Supreme Court's resentencing order requires that such limits be lifted as they are unconstitutional. Trial courts cannot choose to ignore (or accidentally ignore) Foster and act as if judicial fact-finding is still required. This is the case regardless of whether the fact-finding actually increases the defendant's chances for a lesser sentence.
{¶ 13} The error is just as unconstitutional post-Foster as it was pre-Foster. Thus, one could not categorize the error as non-constitutional in order to distinguish the Foster remedy and avoidFoster's resentencing mandate. Logically, a trial court's act of restricting itself to and relying on a recently declared unconstitutional statute cannot be non-constitutional error merely because in reality the statute has been erased by the Supreme Court. The fact remains that the trial court overlooked that act of erasure. Disregarding the Supreme Court's constitutionally-required severance pronouncement is just as unconstitutional as originally applying the unconstitutional statute.
{¶ 14} Thus, the trial court can in its new statutorily unfettered sentencing discretion consider the factors that were previously-required factual findings in order to impose what the court finds to be an appropriate sentence. However, the court cannot cite a severed and excised unconstitutional statute without calling into question whether the court actually followed the requirements of Foster. The timing of the hearing and entry within weeks of Foster further arouses our suspicions regarding the court's proper application of the new precedent.
CONCLUSION
{¶ 15} It is not logical to hold that a sentence imposed prior to the Supreme Court's Foster decision must be vacated because it was imposed in reliance upon an *5 unconstitutional statute, but a sentence imposed a few weeks after theFoster decision and relying upon that same unconstitutional statute is not a proper reason to have the trial court address sentencing anew.{¶ 16} For the foregoing reasons, appellant's sentence is vacated and the case is remanded for resentencing as we have been doing withpre-Foster sentences. At such resentencing, the trial court should not place limits upon its sentencing discretion by engaging in unconstitutional judicial fact-finding and thus should refrain from citing invalidated statutory sections as though they still exist.
DeGenaro, P.J., dissents; see dissenting opinion.
Waite, J., concurs.
Dissenting Opinion
{¶ 17} The issue presented by the parties in this case is whether a trial court commits reversible error when it relies on former R.C.
{¶ 18} A trial court clearly errs when it relies on a statute which has been declared unconstitutional by a higher court. However, such an error is not a constitutional error and, therefore, is subject to harmless error review. Appellant has failed to demonstrate that she was prejudiced by the trial court's judgment since the trial court at least considered imposing the minimum sentence, something the trial court is no longer statutorily required to do. Accordingly, the trial court's decision in this case should be affirmed.
{¶ 19} In Foster, the Ohio Supreme Court held that R.C.
{¶ 20} When reaching this conclusion, the United States Supreme Court was careful to clarify that a defendant's right to a jury trial is not violated when a judge finds facts when determining an appropriate sentence; they only do so when they find facts mandated by statute when determining an appropriate sentence. Id. at 308-309.
{¶ 21} "First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury's traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involvejudicial factfinding, in that a judge (like a parole board) mayimplicitly rule on those facts he deems important to the exercise of hissentencing discretion. But the fact do (sic) not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement on the traditional role of a jury is concerned." (Emphasis added) Id.
{¶ 22} The Court's subsequent decision in Booker further demonstrated that the only thing in this context which violates a defendant's SixthAmendment right to a jury trial is when the a judge is required to findparticular facts before increasing a defendant's sentence. That decision dealt with the constitutionality of the federal *7 sentencing structure. The Court determined that trial courts violated defendants' rights when they sentenced them pursuant to the federal sentencing guidelines. Id. at 243-244. But when fashioning a remedy to this constitutional violation, the Court simply made those guidelines advisory, rather than mandatory. Id. at 245-246. Thus, the United States Supreme Court has clearly held that judges are allowed to find facts at sentencing. They just cannot be legislatively mandated to find a particular fact in order to increase an offender's sentence.
{¶ 23} The Ohio Supreme Court recognized this distinction inFoster. Although the Ohio Supreme Court held that the statutes, such as R.C.
{¶ 24} "Because R.C.
{¶ 25} In other words, both the United States and Ohio Supreme Courtshave recognized that judges must make factual findings when makingappropriate sentencing decisions. These courts merely held that judicialfactfindings violates a defendant's right to a jury trial when statutesmandate that a trial court find certain facts in order to increase an offender's sentence beyond that authorized solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
{¶ 26} The Constitution does not prevent judges from finding and considering facts when sentencing offenders for their crimes. Instead, a constitutional violation occurs when judges are required to find particular facts, which have not been found by *8 a jury, when sentencing an offender to a particular sentence. A trial judge in Ohio did not violate an offender's rights when that judge determined that the minimum prison term would demean the seriousness of the offense; the offender's rights were violated because the judge wasrequired to find this fact before imposing more than a minimum sentence. After Foster, Ohio's trial courts are no longer required to make those findings, so the offender's rights cannot be violated when the trial court considers those facts.
{¶ 27} In this case, the trial court did not err when it considered whether the minimum sentence would demean the seriousness of Appellant's offense. It's error was citing to R.C.
{¶ 28} The error at issue in Foster was a constitutional error; the trial court's actions denied Foster his constitutional right to a jury trial since the trial court found facts (the findings required by former R.C.
{¶ 29} This jurist is at a loss as to what other constitutional right was at stake when Appellant was sentenced and the majority fails to identify any. If there was no constitutional right at stake, then the trial court's error must have been a non-constitutional, rather than a constitutional, error. *9
{¶ 30} The difference between a constitutional error and a non-constitutional error is significant. A court faced with a constitutional error can only be considered harmless if the appellate court can "declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California (1967),
{¶ 31} In this case, the trial court's citation to R.C.
{¶ 32} Furthermore, while there is nothing requiring that the trial court make that particular finding, there is nothing preventing the trial court from making a particular finding either. It is perfectly acceptable, post-Foster for a trial court to find that "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others," the findings formerly required by R.C.
{¶ 33} The majority correctly points out that this analysis is similar to that used by the critics of Foster, who claim that the severed statutes only served to benefit defendants by making it more difficult for sentencing courts to impose sentences above the statutory minimum. However, there is an important distinction between this case andFoster, the nature of the error. In cases involving constitutional error, such as Blakely and Foster, prejudice is presumed and an error is only harmless if the prosecution can demonstrate that the error is harmless beyond a reasonable doubt. In contrast, in cases involving non-constitutional errors, such as this one, the defendant bears the burden of demonstrating prejudice. *10
{¶ 34} This shift in the burden to show prejudice from the prosecution to the defense is critical because it changes the perspective we use when deciding whether a particular error is reversible. Thus, the critics of Foster are wrong, since the Ohio Supreme Court could not be sure that the error was harmless beyond a reasonable doubt. Nevertheless, those same arguments are important now since Appellant must show us how she was prejudiced. Thus, a finding of harmless error in this case is not inconsistent with the decisions in Blakely andFoster.
{¶ 35} The majority suspects that the trial court may not have been aware of Foster when sentencing Appellant. This may very well be correct, but is legally irrelevant. We can rationally affirm Appellant's sentence because the trial court's error was not a constitutional error, even though the actions would have been a constitutional error prior toFoster, and Appellant cannot show that she was prejudiced by that non-constitutional error.
{¶ 36} In this appeal, Appellant has not challenged the reasonableness of her sentence (an issue which has been raised in other cases). Instead, Appellant's only basis for challenging her sentence is that the trial court cited to R.C.
{¶ 37} Since Foster severed the statutory sections which caused the violation of the right to a jury trial, the trial court could consider any factor it wished to give Appellant any authorized sentence within the statutory range. It chose to consider whether the minimum sentence would demean the seriousness of the offense or adequately protect the public. There is nothing in either a statute or rule prohibiting the trial court from considering these factors. Furthermore, the consideration of these factors actually benefited Appellant since they made the trial court consider giving the minimum term. Appellant has failed to demonstrate that the trial court's error in this case prejudiced her in any way. *11
{¶ 38} For these reasons, the arguments in Appellant's sole assignment of error are meritless. The trial court did not commit prejudicial error when it relied on a statute which the Ohio Supreme Court had declared unconstitutional since the trial court's decision did not affect Appellant's substantial rights. Accordingly, the trial court's judgment should be affirmed. *1