State v. SheetsState v. Sheets
YOUNG, P.J.
{¶1} Defendant-appellant, David J. Sheets, appeals the sentencing decision of the Clermont County Court of Common Pleas.
{¶2} Appellant was indicted in December 2004 on one count of aggravated theft. He was subsequently indicted in 2005 for grand theft and misuse of credit cards (for a total of three felony counts). The charges stemmed from a course of conduct between September 2002 and December 2004 during which appellant, a travel agent and the owner of The Travel
{¶3} Appellant appeals, raising five assignments of error. We will address appellant‘s second assignment of error first, and his first and third assignments of error together.
{¶4} Assignment of Error No. 2:
{¶5} “THE COURT OF COMMON PLEAS VIOLATED SHEETS’ RIGHTS UNDER THE EX POST FACTO CLAUSE OF THE FEDERAL CONSTITUTION BY SENTENCING SHEETS TO A TERM OF INCARCERATION WHICH EXCEEDED THE MAXIMUM PENALTY AVAILABLE UNDER THE STATUTORY FRAMEWORK AT THE TIME OF THE OFFENSE. THE DECISION RENDERED BY THE SUPREME COURT OF OHIO IN STATE V. FOSTER (2006), 109 OHIO ST.3d 1, WHICH PURPORTS TO AUTHORIZE THE SENTENCE RENDERED AGAINST SHEETS IS INCOMPATIBLE WITH THE CONTROLLING PRECEDENT OF THE UNITED STATES SUPREME COURT AND MUST BE REJECTED.”
{¶6} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court
{¶7} Appellant argues that the severance remedy outlined in Foster violates the ex post facto and due process clauses of the United States Constitution because it effectively raises the presumptive sentences for first-time offenders.2 Thus, appellant claims, any post-Foster sentence greater than the statutory minimum sentence violates the ex post facto and due process clauses.
{¶8} We have previously considered the ex post facto and due process argument appellant raises herein and have rejected it each time. See State v. Doyle, Brown App. No. CA2005-11-020, 2006-Ohio-5373; State v. Andrews, Butler App. No. CA2006-06-142, 2007-Ohio-223; and State v. Cockrell, Fayette App. No. CA2006-05-020, 2007-Ohio-1372. Several other Ohio appellate courts have rejected it as well. See, e.g., State v. Smith, Montgomery App. No. 21004, 2006-Ohio-4405; State v. Paynter, Muskingum App. No. CT2006-0034, 2006-Ohio-5542; and State v. McGhee, Shelby App. No. 17-06-05, 2006-Ohio-5162.
{¶9} We find nothing in appellant‘s brief to prompt us to reconsider our conclusion
{¶10} Assignment of Error No. 1:
{¶11} “THE COURT OF COMMON PLEAS VIOLATED SHEET‘S [SIC] RIGHT TO TRIAL BY JURY BY SENTENCING SHEETS TO A TERM OF INCARCERATION WHICH EXCEEDED THE STATUTORY MAXIMUM MANDATED BY THE SIXTH AND FOURTEENTH AMENDMENTS. THE DECISION RENDERED BY THE SUPREME COURT OF OHIO IN STATE V. FOSTER, WHICH PURPORTS TO AUTHORIZE SENTENCES IN EXCESS OF THE STATUTORY MAXIMUM, IS INCOMPATIBLE WITH THE CONTROLLING PRECEDENT OF THE UNITED STATES SUPREME COURT AND MUST BE REJECTED.”
{¶12} Assignment of Error No. 3:
{¶13} “THE COURT OF COMMON PLEAS VIOLATED SHEETS’ RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION BY SENTENCING SHEETS PURSUANT TO THE DECISION RENDERED BY THE SUPREME COURT OF OHIO IN STATE V. FOSTER (2006), 109 OHIO ST.3d 1, BECAUSE THE HOLDING OF FOSTER IS INVALID UNDER ROGERS V. TENNESSEE (2001), 532 U.S. 451.”
{¶14} In his first assignment of error, appellant argues that the severance remedy in Foster is legally erroneous and incompatible with prior rulings of the United States Supreme Court, including Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531; United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738; and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348. Appellant asserts that based upon the foregoing decisions, the Foster court should only have excised the judicial fact-finding portion of
{¶15} In his third assignment of error, appellant argues that the severance remedy in Foster is legally erroneous and incompatible with the United States Supreme Court‘s decision in Rogers v. Tennessee (2001), 532 U.S. 451, 121 S.Ct. 1693. Appellant asserts that Rogers prohibits imposition of non-minimum sentences. Thus, appellant should have been sentenced to a minimum prison term.
{¶16} At the outset, we note that we are bound by the supreme court‘s mandate in Foster. See Doyle, 2006-Ohio-5373. An appellate court is bound to follow a decision of the Ohio Supreme Court and cannot overrule that court‘s decision or declare it unconstitutional. State v. Ragland, Franklin App. No. 04AP-829, 2007-Ohio-836, ¶8. Appellant will have the opportunity to present these arguments (as well as those raised in his second and fourth assignments of error) to the supreme court if he chooses to appeal from this decision. See Doyle.
{¶17} We also note that assignments of error identical to appellant‘s first and third assignments of error (as well as his second assignment of error) were raised, addressed, and rejected by several Ohio appellate courts.
{¶18} With regard to appellant‘s arguments in his first assignment of error, the Tenth Appellate District rejected them as follows: “In addition, to the extent that appellant claims the trial court‘s sentence, as well as the remedy in Foster, violates his Sixth Amendment right to a trial by jury, and the principles set forth in Apprendi, Blakely, and Booker, we find this argument unpersuasive. The trial court did not resentence appellant based upon any additional factual findings not found by a jury, and appellant did not receive greater than the statutory maximum based upon factual findings the jury did make, as prohibited by Blakely.
{¶19} The Ninth Appellate District likewise rejected the arguments in State v. Ross, Summit App. No. 23375, 2007-Ohio-1265. In Ross, just as appellant did in the case at bar, the defendant argued that “[t]he Supreme Court of Ohio *** cannot cure an unconstitutional sentence by unilaterally eliminating the Sixth Amendment statutory maximum.” Id. at ¶7. The Ninth Appellate District held: [T]o the extent appellant asserts that the Foster remedy of severance is unconstitutional, we find no merit to such an argument. *** [The severance remedy] is the approach that was taken by the United States Supreme Court in Booker. In Booker, the high Court severed portions of the federal sentencing guidelines which offended the Sixth Amendment, causing the guidelines to become advisory rather than mandatory. As the U.S. Supreme Court found such a remedy to be constitutional, we find the remedy provided by Foster to similarly be constitutional.” Ross at ¶7 (citation omitted).
{¶20} With regard to appellant‘s arguments in his third assignment of error, the Ninth Appellate District rejected them3 as follows:
{¶21} “In Bouie [v. Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697], the United States Supreme Court held that due process prohibits retroactive application of any judicial decision construing a criminal statute that ‘is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue[.]’ While Bouie referenced ex post facto principles, the United States Supreme Court later explained [in Rogers, 532 U.S. 451] that Bouie‘s ‘rationale rested on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.’ This principle has also
{¶22} “***
{¶23} “‘Appellant essentially seeks the benefit of a state of law that never existed; he wants a sentence that comports with the Sixth Amendment requirements of Booker [and Foster], but wants to avoid the possibility of a higher sentence under the remedial holdings of Booker [and Foster].’ However, ‘because criminal defendants were aware of the potential sentences at the time they committed their crimes, and because the remedial holding of Foster was not unexpected, Foster did not violate due process notions.‘” Ross, 2007-Ohio-1265, ¶9, 12 (citations omitted). See, also, State v. Malloy, Allen App. No. 1-06-69, 2007-Ohio-1083; State v. Fout, Franklin App. No. 06AP-664, 2007-Ohio-619.
{¶24} We agree with the reasoning espoused in the foregoing cases. We therefore hold that the severance remedy outlined in Foster is not legally erroneous, is not incompatible with prior rulings from the United States Supreme Court, and does not violate due process notions or a defendant‘s right to a jury trial under the Sixth Amendment. Appellant‘s first and third assignments of error are overruled.
{¶25} Assignment of Error No. 4:
{¶26} “THE RULE OF LENITY REQUIRES THE IMPOSITION OF MINIMUM AND CONCURRENT SENTENCES, AND THE RULING OF THE COURT OF COMMON PLEAS TO THE CONTRARY MUST BE REVERSED.”
{¶27} Appellant argues that the severance remedy in Foster violates the rule of lenity because it allows trial courts to impose any sentence within the statutory range
{¶28} The rule of lenity is a rule of statutory construction “that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant where the intended scope of the statute is ambiguous.” Houston, 2007-Ohio-423, ¶6, citing Moskal v. United States (1990), 498 U.S. 103, 107-108, 111 S.Ct. 461. The rule of lenity is codified in
{¶29} The rule of lenity, however, applies only where there is an ambiguity in a statute or a conflict between statutes. Houston at ¶7, citing United States v. Lanier (1997), 520 U.S. 259, 117 S.Ct. 1219; State v. Arnold (1991), 61 Ohio St.3d 175. “The rule has no applicability in the present case because there is no ambiguity or conflict in the sentencing statut[e], and appellant does not contend otherwise.” State v. Ragland, Franklin App. No. 04AP-829, 2007-Ohio-836, ¶10; see, also, State v. Elswick, Lake App. No. 2006-L-075, 2006-Ohio-7011 (because
{¶30} As the Ninth Appellate District aptly stated: “Post-Foster, there is no ambiguity in the statutes under which appellant was sentenced. Appellant asserts that there is an ambiguity in the sentencing statutes because they have been severed, i.e., appellant argues that because the Foster Court altered the statutes they have somehow become ambiguous. However, nothing in the current language in
{¶31} In light of the foregoing, we find that the rule of lenity is inapplicable. Appellant‘s fourth assignment is overruled.
{¶32} Assignment of Error No. 5:
{¶33} “THE SENTENCE IMPOSED UPON DEFENDANT SHEETS WAS AN ABUSE OF DISCRETION.”
{¶34} In this assignment of error, appellant asserts that the trial court “clearly abused its discretion by imposing a four year term of incarceration, and reversal is accordingly required[,]” but fails to explain why and/or how his sentence was an abuse of discretion.
{¶35}
{¶36} Appellant‘s fifth assignment of error is accordingly overruled.
{¶37} Judgment affirmed.
BRESSLER, J., concurs.
WALSH, J., concurs separately.
WALSH, J., concurring separately.
{¶38} I concur with the majority‘s resolution of this case, but write separately to offer further support for rejecting appellant‘s contentions.
{¶39} In appellant‘s second assignment of error, he argues that the severance remedy outlined in Foster violates the ex post facto and due process clauses of the United States Constitution because it eliminates the presumption in favor of minimum sentences. As noted in the majority opinion, this court has previously considered the ex post facto and due process arguments appellant raises in the present appeal, and this court has each time rejected them. See Doyle; Andrews; Cockrell.
{¶40} However, our earlier opinions fail to note the premise that constitutionally infirm legislation is void ab initio. City of Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 80. Where, as in the case of
{¶41} Consequently, a decision overruling a former statute as being unconstitutional is retrospective in its operation, “and the effect is not that the former was bad law, but that it never was the law.” Roberts v. Treasurer, 147 Ohio App.3d 403, 2001-Ohio-8867, ¶20, citing Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210; Shaffer v. Frontrunner, Inc. (1990), 57 Ohio App.3d 18, 20; Anello v. Hufziger (1988), 48 Ohio App.3d 28. This general rule has been applied in cases where the Supreme Court is not overruling one of its former decisions but interpreting a statute. Id. Thus, once a statute has been found unconstitutional, it no longer applies to pending cases. Id. citing Grandillo v. Montesclaros (2000), 137 Ohio App.3d 691, 697. The Ohio Supreme Court has noted limited exceptions to this rule: in those instances in which a court expressly indicates that its decision is to apply only prospectively, see Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision, 85 Ohio St.3d 125, 127, 1999-Ohio-257; State ex rel. Bosch v. Indus. Comm. (1982), 1 Ohio St.3d 94, 98; or in those cases in which contractual rights have arisen or a party has acquired vested rights under prior law. See Peerless Elec. Co. at 210.
{¶42} However, neither of these exceptions apply in the present case. See State v. McGhee, Shelby App. No. 17-06-05, 2006-Ohio-5162. The Ohio Supreme Court in Foster specifically stated that its holding would apply retroactively to pending cases. See Foster at ¶104. Nor does the Foster decision affect a vested right. See McGhee. A vested right “so completely and definitely belongs to a person that it cannot be impaired or taken away without that person‘s consent.” Id. at ¶23, citing Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, ¶20 (Lundberg Stratton, J., dissenting); Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137, 2004-Ohio-382, at ¶9; Black‘s Law Dictionary (7th Ed.1999) 1324. A vested right is “more than a mere expectation or interest based upon an anticipated continuance of
{¶43} Under former
{¶44} As a result of Foster‘s conclusion that
{¶45} The U.S. Supreme Court has similarly espoused the general principle that an act of Congress, “having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the
{¶46} “The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”
{¶47} Nevertheless, the U.S. Supreme Court, addressing a similar circumstance regarding a judicial change to a criminal sentencing statute, held that the existence of a prior sentencing statute served as an “operative fact” to warn the defendant of the penalty which the state would seek to impose on him if he were convicted. See Dobbert. The Court found that “[t]his was sufficient compliance with the ex post facto provision of the United States Constitution.” Id. at 297-298. The Ohio Ninth District Court of Appeals in McGhee similarly concluded that the remedy in Foster did not violate the federal prohibition against ex post facto laws.
{¶49} In his first assignment of error appellant argues that the Foster court should have excised only the judicial fact-finding portion of
{¶50}
{¶51} Finally, leaving the presumptive minimum intact while excising the findings necessary to exceed the presumptive minimum would eviscerate the range of sentences provided by statute, in effect mandating a minimum sentence. This result would not be consistent with the purposes and principles of the sentencing statutes, which remain intact post Foster.
{¶52} For this reason, I would also overrule appellant‘s first assignment of error.