No. 88504. | Ohio Ct. App. | Jun 7, 2007
{¶ 3} On remand, the trial court conducted a new sentencing hearing. The court stated that it was reimposing the sentences previously imposed. The court further stated that, "after considering all the relevant factors under the law, I am resentencing Mr. Rosado to a mandatory ten-year prison term on the first degree felony, five years on the second degree felony, and 12 months on the fifth degree felony, all to be served concurrently, with credit for time served. The court further informed appellant that he would be placed on post-release control for a period of five years following his release from prison, and explained the effect of post-release control.
{¶ 4} The third assignment of error raised by appellant's counsel questions the trial court's jurisdiction to resentence appellant, so we will address that issue first. Counsel argues that a motion to reopen appellant's prior appeal pursuant to App.R. 26 was pending at the time the trial court resentenced appellant, and that this motion deprived the trial court of jurisdiction. We disagree. The prior appeal was completed and closed when the judgment was journalized on January 20, 2006. The motion to reopen is not part of the original appeal but is a collateral post-conviction remedy. Morgan v. Eads,
{¶ 5} Appellant's first assignment of error asserts that his right to due process was violated by the court's imposition of a sentence in excess of the statutory minimum term as to the second and fifth degree felonies. He reaches this conclusion by a somewhat circuitous route. He argues, first, that he was entitled to a de novo sentencing hearing under State v. Jordan,
{¶ 6} We agree with appellant that State v. Jordan required the court to conduct a complete resentencing hearing. However abbreviated that hearing was, the trial court did conduct such a hearing. We also agree that State v. Foster applied to the resentencing. We note that as a result of the resentencing hearing, the court actually required appellant to serve six months more for the fifth degree *6 felony than the court originally ordered.1 However, nothing prevented the court from imposing a greater sentence on remand than was imposed originally. Cf. Foster, at 1f105.
{¶ 7} While "retroactive changes in the measure of punishment are impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense," State v.Walls,
{¶ 8} Appellant's second assignment of error contends that he was deprived of the effective assistance of counsel because his attorney did not argue to the trial court that the imposition of non-minimum sentences on him was a violation of his due process rights. Appellant was not prejudiced by his attorney's failure to argue *7 this issue, inasmuch as we have addressed this issue above and have rejected it. Therefore, we overrule the second assignment of error.
Supplemental Assignments of Error
{¶ 9} Appellant's first supplemental assignment of error claims the court failed to ensure that its sentence was consistent with sentences imposed for similar crimes committed by similar offenders, as required by R.C.
{¶ 10} Appellant's second and third supplemental assignments of error argue that the imposition of a mandatory ten-year term of imprisonment under the major drug offender specification was unconstitutional. InFoster, however, the supreme court specifically noted that the finding that a defendant is a major drug offender is tied to the amount of the controlled substance involved in the offense. Thus, the court's finding is based on the jury's verdict, and does not offend Blakely.Foster, at 1H[79, 81. We overrule the second and third supplemental assignments of error.
{¶ 11} Fourth, appellant contends that, after Foster, the trial court was prohibited from imposing any sentence other than the statutory minimum term. The court in Foster expressly rejected the presumption in favor of a minimum term, and *8 severed that provision. Foster, at ¶¶ 89, 97. Therefore, we overrule the fourth supplemental assignment of error.
{¶ 12} Fifth, appellant urges that imposition of sentences in excess of the statutory minimum term violates the rule of lenity. Application of the rule of lenity is appropriate only if there is an ambiguity in the statute. There is no ambiguity here. Foster severed the portions of the statute which created a presumption in favor of a minimum term as well as the portion which required judicial fact-finding to overcome that presumption. Foster, at ¶ {97. Consequently, there is no ambiguity as to whether imposition of the statutory minimum sentence is required.State v. Houston, Franklin App. No. 06AP-662,
{¶ 13} Appellant next argues that imposition of the mandatory ten-year term of imprisonment for a major drug offender violates the separation of powers doctrine by limiting the judiciary's discretion and constitutes cruel and unusual punishment. The legislature has the power to define criminal conduct and prescribe its punishment. State v.Thompkins (1996),
{¶ 14} "There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is `mandatory.'" *9 Harmelin v. Michigan (1991),
{¶ 15} Finally, appellant argues that the court failed to make a determination on the major drug offender specification prior to sentencing. This argument is irrelevant, because even if the court did not determine that appellant was a major drug offender, the court still had discretion to impose a ten-year term of imprisonment for this first degree felony. Accordingly, we overrule the eighth supplemental assignment of error.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *10
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, P.J. CONCURS CHRISTINE T. McMONAGLE, J., CONCURS IN JUDGMENT ONLY