2008 Ohio 3350 | Ohio Ct. App. | 2008
{¶ 3} At trial, McClurg testified that Shepherd had been living with her, but she denied having knowledge that Shepherd had sold or used drugs. However, McClurg asserted that the drugs found in her house must have belonged to Shepherd because the drugs did not belong to her. McClurg admitted that she had been charged with possession of the same drugs found in her residence and that she had accepted a plea agreement in exchange for her testimony against Shepherd. *3
{¶ 4} The jury found Shepherd guilty of one count of Possession of Cocaine in violation of R.C.
1. "The trial court denied Mr. Shepherd due process of law, by sentencing him to non-minimum terms of imprisonment, in violation of the ex post facto doctrine.
Fifth andFourteenth Amendments, ArticleI , SectionX , United States Constitution. (August 16, 2006 Transcript, p. 290; August 23, 2006 Judgment Entry)."2. "Trial counsel provided ineffective assistance of counsel by failing to object to the imposition of an unconstitutional sentence. (August 15, 2006 Transcript, p. 290)."
{¶ 7} In Foster, the Supreme Court of Ohio concluded that several of Ohio's sentencing statutes, including R.C.
{¶ 8} The Supreme Court released its decision in Foster on February 27, 2006, and the trial court entered Shepherd's sentences on August 23, 2006. Although he could have raised the argument that his sentences violated ex post facto and due process principles with the trial court so that it could address the issue, he failed to do so. By not raising these arguments in the trial court, Shepherd has forfeited any alleged error regarding his sentence. State v. Payne,
{¶ 9} Nonetheless, Shepherd argues that, at the time he committed his crimes, he enjoyed a statutory presumption that the sentence imposed would consist of a minimum term of imprisonment. He claims the Supreme Court in Foster retroactively removed that presumption because the trial court no longer needed to make findings of fact in order to impose a non-minimum sentence. However, we have consistently rejected this argument on the merits and have held that a trial court does not violate due process principles or commit plain error by applying Foster to defendants who committed their offenses before that decision was released. State v. Evans, Washington App. No. 07CA45, 2008-Ohio-1446, at ¶¶ 25-26; State v. Miller, Washington App. No. 06CA57,
{¶ 10} Moreover, Miller v. Florida, (1987),
{¶ 11} Shepherd argues that the Foster remedy retroactively changed the fact-finding requirements necessary to impose a sentence beyond the statutorily defined presumptive minimum. However, we have previously explained that the presumptive maximum and minimum terms of imprisonment remained the same before and after Foster. State v. VanHoose, Pike App. No. 07CA765,
"[t]he law before Foster never mandated imposition of minimum sentences on offenders who had not previously served a prison term, as appellant asks us to do here. By demanding application of a presumption in favor of a minimum sentence, but not allowing any means by which the presumption can be overcome, `appellant essentially seeks the benefit of a state of law that never existed.'"
State v. Hardesty, Pickaway App. No. 07CA2,
{¶ 12} Consequently, because the trial court did not err by imposing non-minimum sentences, Shepherd cannot show that trial counsel was constitutionally ineffective for failing to raise this argument.VanHoose at ¶ 27. To obtain the reversal of a conviction on grounds of ineffective assistance of counsel, an appellant must show (1) his counsel's performance was deficient, and (2) such deficient performance prejudiced the defense so as to deprive him of a fair trial.Strickland v. Washington (1984),
{¶ 13} While we recognize Shepherd's need to preserve these issues for appeal, we reject his arguments that the trial court violated his due process rights when it sentenced him to non-minimum sentences and that his trial counsel was ineffective for *8 failing to challenge these sentences in the trial court. Therefore, we affirm the judgment of the court below.
*9JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
*1Abele, P.J. Kline, J.: Concur in Judgment and Opinion.