845 N.E.2d 470 (Ohio 2006), 2004-1568, State v. Foster

Docket Nº:2004-1568, 2004-1771, 2005-0735, 2005-2156.
Citation:845 N.E.2d 470, 109 Ohio St.3d 1, 2006-Ohio-856
Opinion Judge:LANZINGER, J.
Party Name:The STATE of Ohio, Appellee, v. FOSTER, Appellant. The State of Ohio, Appellant, v. Quinones, Appellee. The State of Ohio, Appellee, v. Adams, Appellant. The State of Ohio, Appellee, v. Horn, Appellant.
Attorney:Robert L. Becker, Licking County Prosecuting Attorney, and Kenneth W. Oswalt, Assistant Prosecuting Attorney, for appellee in case No. 2004-1568., David H. Bodiker, Ohio Public Defender, and Theresa G. Haire, Assistant Public Defender, for appellant in case No. 2004-1568., Jim Petro, Attorney Gen...
Judge Panel:MOYER, C.J., PFEIFER, LUNDBERG STRATTON, O'CONNOR and O'DONNELL, JJ., concur.
Case Date:February 27, 2006
Court:Supreme Court of Ohio
 
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Page 470

845 N.E.2d 470 (Ohio 2006)

109 Ohio St.3d 1, 2006-Ohio-856

The STATE of Ohio, Appellee,

v.

FOSTER, Appellant.

The State of Ohio, Appellant,

v.

Quinones, Appellee.

The State of Ohio, Appellee,

v.

Adams, Appellant.

The State of Ohio, Appellee,

v.

Horn, Appellant.

Nos. 2004-1568, 2004-1771, 2005-0735, 2005-2156.

Supreme Court of Ohio, 2005.

Feb. 27, 2006

Submitted July 26, 2005.

Submitted Aug. 10, 2005.

Submitted Feb. 10, 2006.

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SYLLABUS OF THE COURT

1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial fact-finding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.)

2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of being severed. After the severance, judicial fact-finding is not required before a prison term [109 Ohio St.3d 2] can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.)

3. Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.)

4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial fact-finding is not required before imposition of consecutive prison terms. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.)

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5. Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial fact-finding before repeat violent offender and major-drug-offender penalty enhancements are imposed, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.)

6. R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender and major-drug-offender specifications. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.)

7. 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.

Robert L. Becker, Licking County Prosecuting Attorney, and Kenneth W. Oswalt, Assistant Prosecuting Attorney, for appellee in case No. 2004-1568.

David H. Bodiker, Ohio Public Defender, and Theresa G. Haire, Assistant Public Defender, for appellant in case No. 2004-1568.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Diane Richards Brey and Franklin E. Crawford, Deputy Solicitors, urging affirmance for amicus curiae Ohio Attorney General in case No. 2004-1568.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor and Seth L. Gilbert, Assistant Prosecuting Attorneys, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association in case No. 2004-1568.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender; and Jason Macke, urging reversal for amici curiae Ohio Association of Criminal Defense Lawyers and Cuyahoga County Public Defender in case No. 2004-1568.

Jeffrey M. Gamso, Toledo, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc., in case No. 2004-1568.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz Williamson and Jon W. Oebker, Assistant Prosecuting Attorneys, for appellant in case No. 2004-1771.

Michael T. Fisher, Dover, for appellee in case No. 2004-1771.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender; and Jason Macke, urging affirmance for amici curiae Cuyahoga County Public Defender and Ohio Association of Criminal Defense Lawyers in case No. 2004-1771.

John E. Wells Sr., urging affirmance on his own behalf in case No. 2004-1771.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Diane Richards Brey and Franklin E. Crawford, Deputy Solicitors, urging reversal for amicus curiae Ohio Attorney General in case No. 2004-1771.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor and Seth L. Gilbert, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association in case No. 2004-1771.

Charles E. Coulson, Lake County Prosecuting Attorney, and Alana A. Rezaee, Assistant

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Prosecuting Attorney, for appellee in case No. 2005-0735.

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Supervising Attorney-Appellate Division, for appellant in case No. 2005-0735.

Lorrain R. Croy, Assistant Prosecuting Attorney, for appellee in case No. 2005-2156.

David H. Bodiker, Ohio Public Defender, and Charles B. Clovis, Assistant Public Defender, for appellant in case No. 2005-2156.

[109 Ohio St.3d3] LANZINGER, J.

{¶ 1} The question presented in these four 1 cases, consolidated sua sponte, is whether Ohio's felony-sentencing structure violates the Sixth Amendment to the United States Constitution in the manner set forth in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Because we determine that portions of the applicable statutes are unconstitutional, we apply a severance remedy similar to that adopted in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. This opinion will (1) summarize the Sixth Amendment principles of Apprendi and Blakely, (2) present the histories of the Foster, Quinones, Adams, and Horn appeals, (3) provide an overview of Ohio sentencing statutes, (4) measure the statutes against the requirements of the Sixth Amendment, and (5) apply a remedy for the constitutional violation.

I. Sixth Amendment Principles

{¶ 2} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to trial by jury. Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Likewise, Section 5, Article I of the Ohio Constitution states that the "right of trial by jury shall be inviolate," and Section 10, Article I confirms the right to "speedy public trial by an impartial jury." These sections preserve for the accused "all essential and distinguishing features of the trial by jury" known to the common law in Ohio. Work v. State (1853), 2 Ohio St. 296, syllabus.

{¶ 3} It was not anticipated that jury rights may be implicated in sentencing until Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. In Apprendi, the Supreme Court of the United States examined New Jersey's "hate crime" statute, which allowed an enhanced sentence if the judge found by a preponderance of the evidence that racial bias was a motive for the offense. After the judge made this finding in his case, Apprendi was sentenced to 12 years in prison, two years above the maximum for the second-degree crime of which he had been convicted. The Supreme Court ruled that Apprendi's sentence, by exceeding the [109 Ohio St.3d 4] statutory maximum based only on judicial fact-finding, violated his Sixth Amendment rights because the jury, rather than judge, must find all facts essential to punishment. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.

{¶ 4} Two years later, the Apprendi rule was applied to an Arizona capital statute

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that permitted the death penalty solely on a judicial finding of statutory aggravating circumstances. Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. Because the aggravating factor found by the judge operated as " 'the functional equivalent of an element of a greater offense,' " it required submission to a jury and proof beyond a reasonable doubt. Id. at 609, 122 S.Ct. 2428, 153 L.Ed.2d 556, quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348, 147 L.Ed.2d 435, fn. 19.

{¶ 5} Until now, we have not had occasion to rule on the effect of Apprendi, Ring, or Blakely on our noncapital sentencing law. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107, ¶ 7 (adequate remedy in extraordinary-writ case prevented consideration of constitutional claim); State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, at ¶ 69-70 (Ring not applicable to Ohio's capital-sentencing scheme). In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, the Apprendi rule was broadened. We now examine our...

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