State v. Balwanz, 2007 Ohio 5041 (Ohio App. 9/20/2007)
| Decision Date | 20 September 2007 |
| Docket Number | No. 07 BE 20.,07 BE 20. |
| Citation | 2007 Ohio 5041 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Christopher Balwanz, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Christopher Balwanz, Pro Se, A415562, Noble Correctional Institution, 15708 McConnelsville Road, Caldwell, Ohio 43724, for Defendant-Appellant.
Before: Hon. Joseph J. Vukovich, Hon. Mary DeGenaro, Hon. Cheryl L. Waite.
{¶1} Defendant-appellant Christopher Balwanz appeals from the April 3, 2007 sentencing entry entered in the Belmont County Common Pleas Court. The issue raised in this appeal is whether the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, which severed R.C. 2929.14(B)'s presumption of a minimum sentence for an offender who had not previously served a prison term, violates the ex post facto clause of the United States Constitution. For the reasons expressed below, the judgment of the trial court is affirmed.
{¶2} This is the fourth time Balwanz's sentence for his convictions of possession of drugs and failure to comply have been before this court. See State v. Balwanz, 7th Dist. No. 02BE37, 2004-Ohio-1534 (Balwanz I); State v. Balwanz, 7th Dist. No. 04BE32, 2005-Ohio-2955 (Balwanz II); and State v. Balwanz, 7th Dist. No. 05BE35, 2006-Ohio-4616 (Balwanz III).
{¶3} "In 2001, Balwanz was convicted of one count of possession of drugs and one count of failure to comply with the order or signal of a police officer. He received the maximum 18 month sentence for the failure to comply conviction and the maximum 8 year sentence for the possession of drugs (cocaine) conviction. The trial court ordered the sentences to be served consecutively. Balwanz appealed (Balwanz I). He argued that while the trial court made the required maximum sentences findings, it failed to make the required consecutive sentence findings. Based on the Ohio Supreme Court's mandate in State v. Comer, 99 Ohio St.3d 463, 793 N.E.2d 473, 2003-Ohio-4165 (overruled by Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006O-hio-856), this court agreed. Thus, in Balwanz I, we vacated the sentence, and reversed and remanded for further proceedings.
{¶4} "On remand, the trial court once again ordered maximum prison terms for each crime, but instead of ordering the sentences to be served consecutively, the trial court ordered the sentences to be served concurrently. Balwanz appealed that sentence (Balwanz II). He argued that during resentencing, the trial court failed to make the appropriate maximum sentence findings. This court agreed. We stated that the trial court was very thorough in the original sentencing hearing when it imposed maximum sentences. However, once this court vacated the sentences and remanded for new sentencing in Balwanz I, the trial court was required to reassess and reiterate the requisite maximum sentence findings at the new sentencing hearing. We explained that in order to comply with the Supreme Court's mandate in Comer, 99 Ohio St.3d 463, 793 N.E.2d 473, 2003-Ohio-4165, the trial court was required to completely resentence Balwanz. Failure to do so resulted in error that required vacation of the sentences and remand for a new sentencing hearing. Balwanz II.
{¶5} Balwanz, 2006-Ohio-4616, ¶3-5.
{¶6} Balwanz appealed that sentence. (Balwanz III). The basis for the appeal in Balwanz III was the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Foster rendered provisions of the Revised Code relating to nonminimum (R.C. 2929.14(B)), maximum (R.C. 2929.14(C)), and consecutive (R.C. 2929.14(E)(4)) sentences unconstitutional because they required judicial findings of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant. Id. at paragraphs one and three of the syllabus. In line with that decision, we reversed the trial court's judgment, vacated the sentence and remanded for resentencing because the trial court made maximum sentence findings.
{¶7} On March 19, 2007, a resentencing hearing was held by the Belmont County Common Pleas Court. The trial court once again sentenced Balwanz to the maximum 18 months on the failure to comply conviction and the maximum eight years on the possession of drugs conviction. The sentences were also once again ordered to be served concurrently. Balwanz now appeals from that sentence.
{¶8} "THE COURT OF COMMON PLEAS VIOLATED APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNTIED STATES CONSTITUTION WHICH INCORPORATES PRINCIPLES OF THE EX POST FACTO CLAUSE OF ARTICLE I, §10, BY RESENTENCING HIM TO A PRISON TERM THAT EXCEEDED THE `MAXIMUM' SENTENCE WHICH IS IMPOSED UNDER THE LAWS IN EFFECT AT THE TIME OF HIS OFFENSE BEFORE APPLYING ANY SENTENCE ENHANCEMENT FACTORS FOUND TO BE UNCONSTITUTIONAL IN STATE V. FOSTER, 845 N.E.2D 470."
{¶9} Pre-Foster, R.C. 2929.14(B) enumerated findings that were required to be made by a trial court prior to it sentencing an offender to more than the minimum term. R.C. 2929.14(B) read as follows:
{¶10} "(B) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(5), (D)(6), (G), or (L) of this section, in section 2907.02 or 2907.05 of the Revised Code, or in Chapter 2925. of the Revised Code, if 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 prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶11} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶12} "(2) The court finds on the record that the shortest prison 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."
{¶13} Thus, R.C. 2929.14(B) contained a minimum presumption and in order for that presumption to be overcome, either subsection (1) or (2) had to be found by the trial court.
{¶14} However, the Ohio Supreme Court, in Foster, rendered R.C. 2929.14(B) in its entirety unconstitutional since it required judicial fact finding. Foster, 2006-Ohio8-56, paragraph one of the syllabus. As a remedy, the Ohio Supreme Court severed R.C. 2929.14(B) in its entirety from the statute. Id. at paragraph two of the syllabus and ¶96-97.
{¶15} Balwanz acknowledges all of this. However, he argues that the Supreme Court violated the ex post facto clause of the United States Constitution when it severed the minimum presumption.
{¶16} This court has previously ruled on the ex post facto argument and found it meritless. State v. Palmer, 7th Dist. No. 06JE20, 2007-Ohio-1572, ¶75. In Palmer, we cited to several cases from other Ohio Appellate Districts that have ruled that the ex post facto argument is meritless. Id. at ¶59-76. We explained the reasons for holding as such are multiple. One is that a court of appeals is an inferior court to the Ohio Supreme Court and the appeals court is required to follow the Supreme Court's mandates. Accordingly, an appellate court lacks the power to declare a mandate of the Ohio Supreme Court to be unconstitutional. Id. at ¶62, 69, 74. Another reason is that the Supreme Court's severance of the unconstitutional sections of the statute did not affect the range of punishment an offender would face; the offender would still be subject to the range set forth in R.C. 2929.14(A) (). Id. at ¶65, 67, 71. A third reason was that the presumption of a minimum sentence was only a presumption and not a guarantee, and thus there was no ex post facto violation. Id. at ¶72. Lastly, the Ohio Supreme Court denied a reconsideration motion in Foster that urged the Court to find that Foster violated the ex post facto clause, and as such, it seemed to have implicitly found no merit with the argument. Id. at ¶74.
{¶17} Furthermore, the Tenth Appellate District has explained:
{¶18} State v. Fout, 10 Dist. No. 06AP-664, 2007-Ohio-619, ¶6.
{¶19} We find the Tenth Appellate District's reasoning persuasive and adopt it as our own. Thus, considering all the above, we once again hold that Foster does not operate as an ex post facto law.
{¶20} In the last paragraph of the pro se...
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