State v. Yopp, 2006-A-0042 (7-27-2007)State v. Yopp, 2006-A-0042 (7-27-2007)
{¶ 1} Appellant, Neal D. Yopp, appeals from the judgment entry of the Ashtabula County Court of Common Pleas resentencing him to a total term of eight years imprisonment. For the reasons below, we reverse and remand the matter.
{¶ 2} On December 30, 2003, at approximately 1:30 p.m., two masked men entered the Andover Bank in Pierpont Township. The two men ordered everyone to the
{¶ 3} Marguerite Hayner was at the teller window when the two men entered the bank. After the men left the bank, Hayner saw the get-away car and was able to read a partial license plate number. Hayner also described the car as having the back window broken out.
{¶ 4} Police officers arrived at the bank and began their investigation. Deputy Niemi of the Ashtabula County Sheriffs Office was dispatched to the scene. Niemi was subsequently provided a description of the car and checked the area around the bank.
{¶ 5} As Niemi drove, he saw a car covered with a tarp parked near the corner of 193 and Maple Road. The wind was blowing the tarp off the car and Niemi saw the car matched the description of the get-away vehicle, including the partial license plate number. Niemi also saw fresh tire tracks in the mud, as if the car had been parked there recently.
{¶ 6} Niemi spoke with Dale York who told him his son, Dale York, owned the car. The elder York told Niemi his son had been there about an hour before but left with a friend in a maroon Oldsmobile.
{¶ 7} On the afternoon of December 30, Crystal and Mary Harvey of Harvey‘s Auto Sales sold a car to the younger York. York picked out the car and decided to buy
{¶ 8} Subsequently, Detective Rose of the sheriffs office learned appellant and Michael Hommes were at the Ashtabula City Police Department with information concerning the bank robbery. Detective Rose interviewed appellant. Appellant told Detective Rose he had taken his girlfriend to work that morning, returned home to sleep, got up and went to Taco Bell, drove around for some time, then returned home about 1:30 or 2:00 p.m. Appellant told Rose that York had come to his house and he had taken York to Harvey‘s Auto Sales, where York purchased a car.
{¶ 9} Rose also interviewed Michael Hommes. Rose testified there were discrepancies in appellant‘s and Hommes‘s stories. Subsequently, Detective Rose interviewed York. Detective Rose advised York that appellant had told investigators about the car York bought. York then gave Detective Rose a statement confessing to his involvement in the crime and implicating appellant as the other person involved.
{¶ 10} Appellant was subsequently indicted on one count of aggravated robbery,
{¶ 11} Appellant‘s first assignment of error states:
{¶ 12} “The trial court‘s imposition of a sentence greater than the minimum term permitted by statute based upon findings not made by a jury nor admitted by appellant is contrary to law and violates appellant‘s right to a trial by jury and due process, as guaranteed by the
{¶ 13} Under his first assignment of error, appellant initially asserts the trial court violated Foster when it found “the minimum sentence would demean the seriousness of the defendant‘s conduct and its impact on the victim and would not adequately protect the public from future crime by the defendant because the defendant made an actual threat of physical harm to the victim.” Appellant asserts that the foregoing determination is substantively equivalent to the statutory findings under
{¶ 14} In Foster, the Supreme Court of Ohio held that
{¶ 15} Here, the court‘s comment that the minimum term would demean the severity of appellant‘s actions and not adequately protect the public from future crime echoes the language of former
{¶ 16} Appellant next argues that he was somehow entitled to the shortest prison term for his convictions. Appellant‘s argument is premised upon an application of a now defunct presumption for the shortest prison term set forth in former
{¶ 17} Former
{¶ 18} “[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender the court shall impose the shortest
{¶ 19} “(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 20} “(2) “The court finds on the record that the shortest term will demean the seriousness of the offender‘s conduct or will not adequately protect the public from future crime by the offender or others.”
{¶ 21} Prior to Foster, a defendant who had not served a prior prison term was afforded a presumption in favor of the shortest prison term.1 However, Foster declared this statutory subsection unconstitutional. Post-Foster, a court is no longer required to engage in the factfinding exercise mandated by former
{¶ 22} Appellant‘s first assignment of error is without merit.
{¶ 23} We shall next address appellant‘s third assignment of error, which provides:
{¶ 24} “Appellant‘s resentencing violates his right to due process and against the ex post fact application of law, as State v. Foster subjected appellant to an effective raise in the presumptive sentences for a first-time offender and those convicted of fourth degree felonies to the statutory maximum.”
{¶ 25} Under this assigned error, appellant asserts Foster undermines due process by violating the prohibition against ex post facto laws. We disagree.
{¶ 26} This court has previously rejected appellant‘s ex post facto challenge in State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011. In Elswick, this court determined Foster did not undermine federal or state constitutional guarantees of due process as they relate to the prohibition against ex post fact laws since: (1) it did not affect a defendant‘s right to a sentencing hearing; (2) it did not alter the statutory range of sentences available to a trial court for any particular felony crime; and, (3) because the judicial determination of S.B. 2‘s unconstitutionality was prefigured by the United States Supreme Court in Apprendi v. New Jersey (2000), 530 U.S. 466 and Blakely v. Washington (2004), 542 U.S. 296. Elswick at ¶ 21-25
{¶ 27} 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, 2006-Ohio-6899; State v. Moore, 3d Dist. No. 1-06-51, 2006-Ohio-6860; United States v. Portillo-Quezada (C.A. 10 2006), 469 F.3d 1345, 1354-1356, and the cases cited therein.
{¶ 28} Here, appellant was convicted of aggravated robbery, a felony of the first degree, and grand theft, a felony of the fourth degree. Pursuant to
{¶ 29} We shall next consider appellant‘s fourth assignment of error, which reads:
{¶ 30} “Appellant‘s resentencing, pursuant to State v. Foster, violates his right to due process through the deprivation of a liberty interest, as [sic] subjected appellant to an effective raise in the presumptive sentences for a first-time offenders [sic] and those convicted of fourth degree felonies to the statutory maximum.”
{¶ 31} Appellant asserts his resentencing was unconstitutional because it deprived him of a liberty interest without due process of law. In support, appellant relies upon Hicks v. Oklahoma (1980), 447 U.S. 343.
{¶ 32} In Hicks, the defendant was convicted of trafficking heroin. Under Oklahoma law, a convicted defendant is entitled to have his punishment fixed by the jury. Since he had been convicted of felony offenses twice within the preceding 10 years, the jury was instructed, in accordance with Oklahoma‘s habitual offender statute then in effect, that, if they found the defendant guilty they “shall assess [the] punishment
{¶ 33} Subsequent to his conviction, Oklahoma‘s habitual offender statute was declared unconstitutional. On appeal, therefore, the defendant sought to have his 40-year sentence set aside. The court acknowledged the unconstitutionality of the statute but nevertheless affirmed the defendant‘s conviction and sentence. The court reasoned that the defendant was not prejudiced by application of the unconstitutional statute because his sentence was within the range of punishment that could have been imposed by the jury.
{¶ 34} The United States Supreme Court reversed the state court‘s determination, holding that affirming the conviction and sentence deprived the defendant of a liberty interest without due process of law. Id. at 347. The Court observed that the defendant had a liberty interest in having the jury fix his sentence and, as such, possessed “a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion * * *.” Id. at 346. The Court reasoned that the state court “denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of petitioner‘s right to liberty is a denial of due process of law.” Id.
{¶ 35} Using Hicks as a guide, appellant asserts he possessed and retained an overriding liberty interest in the sentencing elements and procedures set forth in R.C.
{¶ 36} In Hicks, Oklahoma afforded a defendant an absolute statutory right to a sentence imposed by a jury. In affirming the sentence, the state court clearly ignored this statutory right and thereby violated that defendant‘s right to due process. To the contrary, a felony defendant in Ohio has never enjoyed an absolute right to the shortest prison term. While former
{¶ 37} While Foster affected the procedural means by which Ohio‘s sentencing courts now impose their selected punishments, the substantive statutory sentencing ranges remain intact. Under Ohio law, both prior to and after Foster, a felony defendant is on notice of the range of punishments to which he or she may be subject upon indictment. See
{¶ 38} Appellant‘s fourth assignment of error is overruled.
{¶ 39} Lastly, we shall address appellant‘s second assignment of error, which states:
{¶ 40} “The trial court erred by failing to notify appellant pursuant to
{¶ 41} A review of the record demonstrates that the trial court failed to advise appellant that he will be subject to postrelease control sanctions at his resentencing.
{¶ 42} In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, the Supreme Court of Ohio determined that a trial court‘s failure to properly notify an offender about postrelease control renders a sentence void. Id. at ¶ 25. In particular, the statute governing sentencing hearings,
{¶ 43} Here, at resentencing, the trial court sentenced appellant to a prison term of eight years for aggravated robbery, a felony of the first degree, and sixteen months for grand theft, a felony of the fourth degree. Pursuant to
{¶ 44} Appellant‘s second assignment of error has merit.
{¶ 45} For the foregoing reasons, appellant‘s first, third, and fourth assignments of error are overruled, but his second assignment of error is sustained. As a result, the judgment of the Ashtabula County Court of Common Pleas must be reversed and the matter remanded for resentencing.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY OTOOLE, J., concurs in judgment only.