State v. RaglandState v. Ragland
{¶ 1} Defendant-appellant, Randolph R. Ragland, appeals from a judgment of conviction entered by the Franklin County Court of Common Pleas.
{¶ 2} On February 2, 2000, a Franklin County Grand Jury indicted appellant for two counts of rape in violation of
{¶ 3} Subsequently, appellant filed an application to reopen his appeal pursuant to
[1]. APPELLANT‘S SENTENCE IS UNCONSTITUTIONAL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS PURSUANT TO APPRENDI V. NEW JERSEY * * *; BLAKELY V. WASHINGTON * * *; AND UNITED STATES V. BOOKER * * *, AS INTERPRETED BY THE OHIO SUPREME COURT IN STATE V. FOSTER * * *.
[2]. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON WHEN COUNSEL FAILED TO RAISE AT SENTENCING THE UNCONSTITUTIONALITY OF THE OHIO SENTENCING STATUTES * * *.
[3]. THE TRIAL COURT VIOLATED APPELLANT‘S RIGHT TO TRIAL BY JURY BY SENTENCING APPELLANT TO A TERM OF INCARCERATION WHICH EXCEEDED THE STATUTORY MAXIMUM MANDATED BY THE
SIXTH ANDFOURTEENTH AMENDMENTS.[4]. THE TRIAL COURT VIOLATED APPELLANT‘S RIGHTS UNDER THE EX POST FACTO AND DUE PROCESS CLAUSES OF THE FEDERAL CONSTITUTION BY SENTENCING APPELLANT TO A TERM OF INCARCERATION WHICH EXCEEDED THE MAXIMUM PENALTY AVAILABLE UNDER THE STATUTORY FRAMEWORK AT THE TIME OF THE OFFENSE.
[5]. THE RULE OF LENITY REQUIRES THE IMPOSITION OF MINIMUM AND CONCURRENT SENTENCES, AND THE RULING OF THE TRIAL COURT TO THE CONTRARY MUST BE REVERSED.
{¶ 5} In his second assignment of error, appellant contends that trial counsel was ineffective for failing to raise a Blakely objectiоn to appellant‘s sentence. In order to prevail on an ineffective assistance of counsel claim, appellant must meet the two-prong test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; accord State v. Bradley (1989), 42 Ohio St.3d 136, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258. Initially, appellant must show that counsel‘s performance was deficient. To meet that requirement, appellant must show counsel‘s error was so serious that counsel was not functioning as the “counsel” guaranteed by the
{¶ 6} If appellant successfully provеs that counsel‘s assistance was ineffective, the second prong of the Strickland test requires appellant to prove prеjudice in order to prevail. Id. at 692. To meet that prong, appellant must show counsel‘s errors were so serious as to deprivе him of a fair trial, a trial whose result is reliable. Id. at 687. Appellant would meet this standard with a showing “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
{¶ 7} Even if this court were to assume that appellant‘s trial counsel was deficient for failing to assert a Blakely objection, we can find no prejudice from trial counsel‘s failure. As noted in State v. Peeks, Franklin App. No. 05AP-1370, 2006-Ohio-6256, at ¶ 15, a trial court‘s application of the statutory sentencing scheme in existence before Foster generally benefited defendants. For example, before Foster, a trial court had to make a number of findings under
{¶ 8} In his third assignment of error, appellant contends that the Supreme Court оf Ohio‘s decision in Foster is incompatible with the United States Supreme Court precedent in this area and that he is entitled to a minimum, concurrent sentence on remand pursuant to those United States Supreme Court cases. We disagree. This court is bound to follow a decision of the Supreme Court of Ohio and we cannot overrule that court‘s decision or declare it unconstitutional. State v. Bruce, Hamilton App. No. C060456, 2007-Ohio-175, at ¶ 6; State v. Durbin, Greene App. No. 2005-CA-134, 2006-Ohio-5125, at ¶ 42; State v. Alexander, Franklin App. No. 06AP-501, 2006-Ohio-6375, at ¶ 7; State v. Schweitzer, Auglaize App. No. 2-06-25, 2006-Ohio-6087, at ¶ 7-9. Accordingly, we overrule his third assignment of error.
{¶ 9} In his fourth аssignment of error, appellant contends that the Foster court‘s severance remedy, as applied to his case, violatеs due process and ex post facto principles against retroactivity. We disagree. We first note that appellаnt was sentenced before Foster had been decided and has yet to be sentenced under Foster. Thus, this assignment of error is arguably not ripe for review. See, e.g., State v. Nicklson, Cuyahoga App. No. 87225, 2006-Ohio-5935, at ¶ 10. Nevertheless, we note that this court recently considered and rejected this argument. State v. Gibson, Franklin App. No. 06AP-509, 2006-Ohio-6899, at ¶ 18; State v. Pigot, Franklin App. No. 06AP-343, 2007-Ohio-141, at ¶ 7. See, also, State v. McGhee, Shelby App. No. 17-06-05, 2006-Ohio5162; State v. Green, Ashtabula App. No. 2005-A-0069, 2006-Ohio-6695, at ¶ 22. We agree with the reasoning set forth in these cases that the severance remedy chosen by
{¶ 10} Finally, appellant contends in his fifth assignment of error that the rule of lenity requires the trial cоurt to impose minimum and concurrent sentences. We disagree. The rule of lenity,
{¶ 11} In conclusion, we overrule each of appellant‘s five assignments of error. This court‘s previous judgment, affirming the judgment of the Franklin County Court of Common Pleas, is confirmed.
Judgment confirmed.
BRYANT and PETREE, JJ., concur.