2007 Ohio 4772 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} On May 9, 2003, appellant was indicted by the Ashtabula County Grand Jury on seven counts of drug trafficking resulting from controlled drug buys made by the Trumbull, Ashtabula, and Geauga Law Enforcement Task Force ("T.A.G.") from *2
appellant. The drug buys were set up by T.A.G., and took place at appellant's residence in Jefferson, Ohio. The buys occurred on September 18, 2002; September 19, 2002; October 3, 2002; October 10, 2002; and November 13, 2002. Appellant was charged with trafficking in drugs on September 18, 2002, to-wit: 1.44 grams of methamphetamine, a schedule II controlled substance, in violation of R.C.
{¶ 3} At trial, Detective Scott Daniels, who was employed by the Ashtabula County Sheriffs Office and assigned to T.A.G., testified that he was the agent in charge of setting up the controlled buys involved in this case between the confidential informant *3 and appellant. After each controlled buy, the methamphetamine and/or hydrocodone (vicodin) pills that were purchased by the informant from appellant were taken into custody by Daniels.
{¶ 4} With respect to Count One and Count Two, on September 18, 2002, the confidential informant arrived at appellant's residence, and the two discussed the informant's purchase of methamphetamine. The informant paid appellant $180 for that drug. The informant also purchased twenty-five hydrocodone (vicodin) pills for $120.
{¶ 5} With respect to Count Five, on October 3, 2002, the informant purchased methamphetamine from appellant at his residence for $180. As to Count Six, on October 10, 2002, the informant purchased methamphetamine from appellant at his residence for $280.
{¶ 6} With respect to Count Seven, on November 13, 2002, the informant purchased methamphetamine from appellant at his residence for $180.
{¶ 7} The jury returned a guilty verdict on Counts One, Two, Five, Six, and Seven. Appellant was sentenced to one year prison terms on each of Counts One, Two, Five, and Six and a four year prison term on Count Seven. The sentences were to be served concurrently, but consecutively to sentences imposed by the trial court in an unrelated criminal case, Case No. 2004-CR-121. In that other case appellant had been sentenced to six years in prison on various drug-related charges, each of which was ordered to be served concurrently.
{¶ 8} Following his conviction in this case, appellant appealed inState v. Smith, 11th Dist. No. 2004-A-0089, 200-Ohio-5187, ("SmithI "), challenging various matters including his sentence. In that case this court affirmed the guilty finding, but reversed *4
the sentencing and remanded the case for resentencing to the trial court pursuant to State v. Foster,
{¶ 9} Appellant was resentenced by the trial court on November 1, 2006. At that hearing the trial court stated that in Foster the Supreme Court held that the findings of fact required by S.B. 2 were unconstitutional, and that the trial court would now consider the findings made during the original sentencing as guidelines in the resentencing.
{¶ 10} The court then asked appellant's counsel if he had any comments, and he did not object to the court's recitation. Counsel stated that what had formerly been required as findings of fact were now a "suggested guideline" that the court is "advised," but not required, to follow. Counsel asked the court to review R.C.
{¶ 11} The court acknowledged counsel's request, and stated that it had reviewed R.C.
{¶ 12} The court imposed the same sentence it had imposed during the original sentence: one year terms on each of Counts One, Two, Five, and Six and a four year term on Count Seven. Appellant appeals the trial court's judgment entry resentencing him, asserting two "arguments." Appellant failed to identify any assignments of error. App.R. 16(A) provides: "The appellant shall include in its brief * * * all of the following: * * * (3) A statement of the assignments of error presented for review * * *." In the interest of justice, we will consider each "argument" asserted by appellant to be an assignment of error. For his first assignment of error, appellant states:
{¶ 13} "THE TRIAL COURT IMPROPERLY RELIED UPON FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT OR ADMITTED BY THE DEFENDANT AS BASIS [SIC] FOR THE IMPOSITION OF CONSECUTIVE SENTENCES."
{¶ 14} Appellant argues that while the trial court stated it would consider the findings of fact it made during the original sentencing as guidelines in the resentencing, even this use violates Foster. We do not agree.
{¶ 15} The court in Foster held:
{¶ 16} "Because R.C.
{¶ 17} "R.C.
{¶ 18} "* * *
{¶ 19} "Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster, supra, at paragraphs three, four, and seven of the syllabus. (Citations omitted.)
{¶ 20} The range of prison terms available for a fourth-degree felony is from six to eighteen months. R.C.
{¶ 21} Further, the court in Foster held:
{¶ 22} "The second general statute, R.C.
{¶ 23} The trial court stated that it would use its previous findings as guidelines during appellant's resentencing. It did not use them to augment appellant's sentence. In Foster, those portions of Ohio's felony sentencing scheme mandating judicial fact-finding in order to increase a defendant's sentence beyond the statutory maximum were found unconstitutional, declared void, and formally excised. Here, the trial court, in resentencing appellant post-Foster, did not engage in impermissible judicial fact-finding. In fact, after Foster, such an exercise would be impossible because the statutes which formerly mandated this exercise were severed, thereby eliminating the possibility of compromising a defendant's Sixth Amendment rights. Id. at paragraphs two, four, and six of the syllabus.
{¶ 24} Nothing in Foster precludes a trial court from considering any factors deemed relevant in achieving the principles and purposes of sentencing, including, in this case the findings of fact made in the original sentence. While Foster does not require the trial court to state the reasons for its sentence, there is nothing in Foster which precludes a court from doing so. As a result, we do not agree that the trial court erred in considering its previous findings of fact as guidelines during appellant's resentencing.
{¶ 25} However, we note that while appellant was given ample opportunity to object to his sentence, he failed to do so.
{¶ 26} Several Ohio appellate districts have held that the traditional doctrine of waiver applies to claims that sentencing statutes violateBlakely v. Washington (2004),
{¶ 27} In State v. Cook, 10th Dist. No. 05AP-515,
{¶ 28} The Ninth Appellate District also held waiver to apply in this context in State v. Dudukovich, 9th Dist. No. 05CA008729,
{¶ 29} The Ninth District noted that the Supreme Court inFoster rejected the state's argument regarding waiver in holding: "Foster could not have relinquished his sentencing objections as a known right when no one could have predicted that Blakely would extend theApprendi doctrine to redefine `statutory maximum.'" Foster at ¶ 31. *9 The Ninth District held that since Blakely was decided on June 24, 2004, and Dudukovich was sentenced on April 28, 2005, the Foster holding that rejected the state's waiver argument was inapplicable.Dudukovich at ¶ 22.
{¶ 30} The Ninth District found guidance in the following holding of the Supreme Court in United States v. Booker (2005),
{¶ 31} The Eighth Appellate District has also held the doctrine of waiver applies to a Sixth Amendment Blakely challenge. In State v.Pinkney, 8th Dist. No. 88357,
{¶ 32} In contrast, we note the Second Appellate District, by remanding a case where a defendant had not raised the issue, impliedly held the waiver doctrine does not apply to challenges made pursuant toFoster. State v. Miller, 2d Dist. No. 21054,
{¶ 33} We find the reasoning of the Eighth, Ninth and Tenth Districts to be persuasive. The holdings of those courts apply with greater force here because Foster had already been decided at appellant's resentencing. Appellant was therefore on notice of the Foster decision at the time of the resentencing hearing, and never objected to the court's reference to its previous findings of fact. Appellant offers no explanation as to why he failed to raise the issue at his resentencing. As a result, we hold that appellant waived his right to raise such argument for the first time on appeal.
{¶ 34} Appellant's first assignment of error is not well-taken.
{¶ 35} For his second assignment of error, appellant asserts:
{¶ 36} "IT WAS A VIOLATION OF THE PROHIBITION AGAINST EX POST FACTO LAW FOR THE COURT TO IMPOSE CONSECUTIVE SENTENCES IN THIS CASE."
{¶ 37} This assignment of error has previously been asserted and rejected in numerous prior decisions of this court. See State v.Green, 11th Dist. Nos. 2005-A-0069 and 2005-A-0070,
{¶ 38} This same argument has also been consistently rejected by other Ohio appellate districts and federal courts. See State v. Gibson, 10th Dist. No. 06AP-509,
{¶ 39} Appellant's second assignment of error is not well-taken.
{¶ 40} For the reasons stated in the Opinion of this court, the assignments of error are without merit, and it is the judgment and order of this court that the judgment of the Ashtabula County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs in judgment only,
COLLEEN MARY OTOOLE, J., concurs with Concurring Opinion.
Concurrence Opinion
{¶ 41} I write separately simply due to caution regarding the majority's application of the doctrine of waiver to appellant's first assignment of error. I agree with the majority's well-reasoned conclusion that the trial court committed no error in considering, as a guideline in resentencing appellant, the former R.C.
{¶ 42} Consequently, I concur. *1