State v. Hodge

• Decision Date: 29 December 2010
• Docket Number: No. 2009–1997.,2009–1997.
• Citation: 941 N.E.2d 768,128 Ohio St.3d 1
• Parties: The STATE of Ohio, Appellee,v.HODGE, Appellant.
• Court: Ohio Supreme Court

128 Ohio St.3d 1

941 N.E.2d 768

2010 -Ohio- 6320

The STATE of Ohio, Appellee,

v.HODGE, Appellant.

No. 2009–1997.

Supreme Court of Ohio.

Submitted Sept. 15, 2010.Decided Dec. 29, 2010.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalR.C. §§ 2929.14(E)(4), 2929.41(A)

[Ohio St.3d 1] Syllabus of the Court

1. The jury-trial guarantee of the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to imposing consecutive sentences. ( Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, construed.)

2. The United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

3. Trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that findings be made.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman Jr. and Rachel Lipman Curran, Assistant Prosecuting Attorneys, for appellee.

Janet Moore, Attorney at Law L.L.C., and Janet Moore; and Ohio Justice and Policy Center, David A. Singleton, Angelina N. Jackson, and Peter C. Link, for appellant.Kenneth W. Oswalt, Licking County Prosecuting Attorney, urging affirmance for amicus curiae Licking County Prosecuting Attorney.Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

CUPP, J.

{¶ 1} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this court held some sections and provisions of Ohio's sentencing statutes unconstitutional based on the decisions of the United States Supreme Court in [Ohio St.3d 2] Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.

{¶ 2} Among the provisions held unconstitutional in Foster were those requiring a trial judge to make certain findings prior to imposing consecutive sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C. 2929.41(A). To remedy this constitutional defect, these provisions were severed from the remaining, valid portions of the statutory sentencing framework. After the decision in Foster, trial judges who imposed consecutive sentences did not need to apply the provisions severed by Foster but instead were to apply the law that was displaced by the enactment of the severed provisions. The trial court in this case, as allowed by our decision in Foster, imposed consecutive sentences without making factual findings under R.C. 2929.14(E)(4) or presuming that sentences were to run concurrently under R.C. 2929.41(A).

{¶ 3} Subsequent to Foster, the United States Supreme Court, in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, upheld the constitutional validity of an Oregon statute similar to Ohio's pre- Foster sentencing statutes that requires Oregon's trial judges to make factual findings prior to imposing consecutive sentences.

{¶ 4} The defendant in the case now before us asks us to hold that Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to consecutive sentences that were held unconstitutional in Foster. He also argues that certain defendants who were sentenced to consecutive terms after Foster must be resentenced pursuant to the provisions that were invalidated in Foster.

{¶ 5} For the reasons that follow, we determine in the circumstances present here that Ice does not revive the disputed statutory provisions and that defendants who were sentenced by trial judges who did not apply those provisions are not entitled to resentencing. We accordingly affirm the judgment of the court of appeals.

{¶ 6} Although we affirm the judgment below, we acknowledge that given the holding and reasoning of the United States Supreme Court in Ice, the General Assembly is no longer constrained by Foster's holdings regarding the constitutionality of the consecutive-sentencing provisions invalidated in Foster and may, if it chooses to do so, respond with enactment of a statutory provision in light of Ice's holding.

I. Facts and Procedural History

{¶ 7} Defendant-appellant, Kenneth Hodge, pleaded guilty in Hamilton County Common Pleas Court to nine felonies with firearm specifications. In an entry on September 18, 2008, the trial court merged several counts and imposed an aggregate prison sentence of 18 years—three years for each of five counts of [Ohio St.3d 3] aggravated robbery and three additional years for accompanying firearm specifications. The three-year sentences for the multiple firearm specifications were imposed concurrently with each other and consecutively to the aggravated-robbery sentences.¹ In imposing consecutive sentences on the aggravated-robbery counts, the trial court did not make the findings required by R.C. 2929.14(E)(4) and 2929.41(A) in reliance on this court's holding in Foster that those statutes were unconstitutional.

{¶ 8} On appeal, Hodge argued in his sole assignment of error that the trial court erred by imposing consecutive sentences without making findings under R.C. 2929.14(E)(4) and 2929.41(A), asserting that Foster's holding that those statutes were unconstitutional is no longer valid in light of Oregon v. Ice. He asserted that the statutes are, therefore, revived because they have never been specifically repealed by the General Assembly. In rejecting this argument, the First District Court of Appeals cited several decisions of other appellate districts that refused to accept the same argument ² and briefly stated that it agreed with the reasoning of those decisions: “We remain bound by the Ohio Supreme Court's decision in Foster. The Ohio Supreme Court has not directly addressed the effect of Oregon v. Ice on Ohio's sentencing law. Absent a contrary decision by the Ohio Supreme Court, Foster still applies to consecutive sentences. The trial court did not err when it imposed consecutive sentences without making findings of fact.” State v. Hodge (Sept. 16, 2009), 1st Dist. No. C–080968.

{¶ 9} We accepted Hodge's appeal under our discretionary jurisdiction for the purpose of reviewing the question whether, as a consequence of the decision in Ice, Ohio trial courts imposing consecutive sentences must first make the findings specified in R.C. 2929.14(E)(4) in order to overcome the presumption for concurrent sentences of R.C. 2929.41(A). 124 Ohio St.3d 1472, 2010-Ohio-354, 921 N.E.2d 245.

II. Analysis

{¶ 10} In Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this court applied the principles developed in Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, to determine that a number of provisions in Ohio's sentencing statutes violated the [Ohio St.3d 4] jury-trial guarantee of the Sixth Amendment to the United States Constitution. Particularly relevant to this case, we held in Foster at paragraph three of the syllabus: “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.”

{¶ 11} Upon holding the consecutive-sentencing provisions unconstitutional, we applied United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, to hold that the statutes were severable from the Ohio sentencing framework, so that “[a]fter the severance, judicial fact-finding is not required before imposition of consecutive prison terms.” Foster at paragraph four of the syllabus. We further held that “[t]rial 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.” Id. at paragraph seven of the syllabus. We determined that three of the four cases on appeal addressed within the Foster opinion and other cases that were identified in Foster as pending on direct review had to be “remanded to trial courts for new sentencing hearings” because Sixth Amendment principles “as they have been articulated” had to be protected. Id. at ¶ 104.

{¶ 12} In State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 18, we recognized that Foster severed and excised former R.C. 2924.14(E) and former R.C. 2929.41(A) in their entirety, and we observed that this action left no specific statute in place to govern the imposition of consecutive sentences beyond the basic statutes regarding the “purposes and principles of sentencing.” We held that common-law sentencing presumptions were therefore reinstated, giving trial judges “the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently.” Id. at ¶ 18–19.

{¶ 13} We reaffirmed Foster and Bates in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, holding that a trial court has the discretion to impose consecutive sentences in the wake of those decisions and that despite the severance of the statutory presumptions, a trial court is not required by the rule of lenity to impose minimum or concurrent sentences. Id. at paragraph two of the syllabus and at ¶ 36–41.

{¶ 14} In reliance on these decisions, many defendants in Ohio have been sentenced by trial judges who have exercised their discretion to impose consecutive sentences without applying any of the statutes severed in Foster, including those regarding consecutive sentencing.

{¶ 15} The validity of ...