State v. Elmore

Decision Date28 July 2009
Docket NumberNo. 2007-0475.,2007-0475.
Citation122 Ohio St.3d 472,2009 Ohio 3478,912 N.E.2d 582
PartiesThe STATE of Ohio, Appellee, v. ELMORE, Appellant.
CourtOhio Supreme Court

Kenneth W. Oswalt, Licking County Prosecuting Attorney, for appellee.

Keith A. Yeazel, Columbus, and W. Joseph Edwards, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert and Steven L. Taylor, Assistant Prosecuting Attorneys, urging affirmance for amicus curiae, Ohio Prosecuting Attorneys Association.

LANZINGER, J.

I. Case Procedure

{¶ 1} Appellant, Phillip E. Elmore, was convicted by a jury of aggravated murder with four death specifications, murder, kidnapping, aggravated robbery, aggravated burglary, and grand theft of a motor vehicle in the June 2002 death of Pamela Annarino. He was sentenced to death for the capital offense of aggravated murder. On the noncapital offenses, the trial court merged Count 2, murder, with Count 1, aggravated murder, and imposed a ten-year term of imprisonment for Counts 3, 4, and 5, and an 18-month term of imprisonment for Count 6. Count 3 was ordered to be served concurrently with all other counts, while Counts 4, 5, and 6 were ordered to run consecutively to one another and consecutively to the death sentence imposed for Count 1. Thus, Elmore's total prison term for the noncapital offenses was 21 and 1/2 years.

{¶ 2} Elmore's convictions and death sentence were affirmed by this court on December 13, 2006. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 169. However, we held that the trial court's fact-finding in support of maximum and consecutive sentences for the noncapital offenses violated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, which declared parts of Ohio's felony-sentencing scheme unconstitutional. Elmore at ¶ 139. Consequently, this court remanded Elmore's case to the trial court for a new sentencing hearing on the noncapital offenses in accordance with Foster. Elmore at ¶ 140. On remand, the trial court resentenced Elmore to exactly the same sentence.

{¶ 3} Elmore then filed this appeal as a matter of right to challenge his resentencing. We hold that Elmore's post-Foster resentencing was proper and therefore affirm the judgment of the Licking County Court of Common Pleas.

II. Analysis of Propositions

{¶ 4} In summary, Elmore challenges the Foster remedy as it has been applied to him. He contends that the trial court should have imposed no more than minimum and concurrent prison terms for a total prison term of three years and that his resentencing pursuant to Foster (1) violates his right to a jury trial, (2) is an ex post facto violation, (3) is a due process violation, (4) was imposed by a court that lacked jurisdiction to impose consecutive sentences, and (5) is forbidden by the rule of lenity.1 We disagree and affirm the judgment of the court of common pleas, now addressing Elmore's five propositions of law separately.

A. Right to Trial by Jury

{¶ 5} In proposition of law one, Elmore argues that the Foster remedy cannot be applied retroactively to his noncapital sentencing because it violates his Sixth Amendment right to a jury trial based upon principles articulated in three cases that hold that the jury must determine any fact (other than the existence of a prior conviction) that increases the maximum authorized punishment. Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; and United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621.

{¶ 6} In Foster, we examined Ohio's felony-sentencing structure and held that certain statutes violated Sixth Amendment principles as stated in the Apprendi line of cases. Consequently, we applied the Booker remedy and severed the unconstitutional statutes requiring judicial factfinding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 90. Elmore, who committed his crimes in June 2002, resists the retroactive application of Foster because, he avers, he was deprived of "constitutional statutory presumptions" that were in effect when he committed the offenses.

{¶ 7} Much of Elmore's argument rests on a misunderstanding of Foster and the remedy of severance. We held in Foster that a court may not be required to make findings before imposing more than a minimum prison term pursuant to R.C. 2929.14(B); however, we have never held that the presumptive minimum prison term equated to a statutory maximum term. A defendant convicted of an offense has always been on notice that the statutory maximum is the greatest prison term within a felony range. While the Foster decision severed the requirement that judges make findings before imposing a nonminimum prison term, the severance does not make it necessary that defendants receive a minimum prison term if findings are not made.

{¶ 8} Elmore argues that after Foster, a trial court may never impose nonminimum or consecutive sentences because before Foster, judges were required to make findings of fact in order to depart from the minimum sentence. Elmore then argues that he is entitled to no more than minimum concurrent terms. But we had specifically considered and rejected this very outcome in Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 88-89. And we clarified that trial courts have full discretion to impose a prison sentence within the statutory range without the mandatory findings. Id. at ¶ 100.

{¶ 9} Elmore faced no greater penalty on resentencing than he did at his original sentencing. And both in Foster and the companion case of State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, we made clear that sentencing courts in this state must still consider all of the remaining sentencing factors contained in several sections of R.C. Chapter 2929. "Courts shall consider those portions of the sentencing code that are unaffected by today's decision and impose any sentence within the appropriate felony range." Foster, ¶ 105. Unaffected sections "include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by statutes that are specific to the case itself." Mathis at ¶ 38.

{¶ 10} As Justice Stevens stated in Booker concerning the federal guidelines, "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Booker, 543 U.S. at 233, 125 S.Ct. 738, 160 L.Ed.2d 621.

{¶ 11} Resentencing under Foster did not violate Elmore's Sixth Amendment right to jury trial.

B. Ex Post Facto Clause

{¶ 12} Elmore argues in proposition of law two that the application of the Foster remedy to his noncapital sentencing violated the Ex Post Facto Clause of the United States Constitution because the Foster remedy constituted judicial legislation. We do not agree.

{¶ 13} We held that Foster's holding would be applied to all cases on direct review, relying on Booker's retroactive approach. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 106. Because Elmore's appeal was on direct review when Foster was decided, his case was remanded to the trial court for resentencing. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 130-140.

{¶ 14} Section 10, Article I of the United States Constitution provides that "[n]o State shall * * * pass any * * * ex post facto Law." The Ohio Constitution contains a similar provision, Section 28, Article II. Although the Ex Post Facto Clause limits only legislative acts, similar limits have been placed on judicial opinions. In Bouie v. Columbia (1964), 378 U.S. 347, 353-354, 84 S.Ct. 1697, 12 L.Ed.2d 894, the Supreme Court ruled that the judicial enlargement of a criminal statute, applied retroactively, violated the Due Process Clause because it was unforeseeable and acted precisely like an ex post facto law. See also State v. Garner (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, quoting Bouie at 353, 84 S.Ct. 1697, 12 L.Ed.2d 894.

{¶ 15} Judicial alteration of a common-law doctrine of criminal law will violate the principle of fair warning and will not be given retroactive effect only where the alteration "is `"unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue."'" Rogers v. Tennessee (2001), 532 U.S. 451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697, quoting Bouie at 354, 84 S.Ct. 1697, 12 L.Ed.2d 894, quoting Hall, General Principles of Criminal Law (2d Ed.1960) 58-59 (upholding the Tennessee Supreme Court's abrogation of the common-law "year and a day rule" in homicide prosecutions).

{¶ 16} In essence, Elmore argues that this court's Foster decision effected a change in the substantive law applicable to his case. However, his arguments that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, he was entitled to have a jury determine all facts relevant to an enhanced sentence and that the Foster decision took away that substantive right are meritless.

{¶ 17} The trial court on remand followed the instructions of Foster by referring to all statutory provisions that it was required to consider: "The Court has considered the record, oral statements, and the Presentence Investigation prepared, as well as the principles and...

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