State v. Lett

• Decision Date: 31 May 2005
• Docket Number: No. 84729.,No. 84707.,84707.,84729.
• Citation: 829 N.E.2d 1281,2005 Ohio 2665,161 Ohio App.3d 274
• Parties: The STATE of Ohio, Appellee, v. LETT, Appellant.
• Court: Ohio Supreme Court

829 N.E.2d 1281

161 Ohio App.3d 274

2005-Ohio-2665

The STATE of Ohio, Appellee, v. LETT, Appellant.

No. 84707.

No. 84729.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 31, 2005.

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William D. Mason, Cuyahoga County Prosecuting Attorney, and Edward J. Corrigan, Assistant Prosecuting Attorney, for appellee.

Paul Mancino Jr., for appellant.

MICHAEL J. CORRIGAN, Judge.

{¶ 1} In Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Shortly after the Supreme Court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me." These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum, and consecutive sentences under R.C. Chapter 2929 has now divided this court, with the result being the imminent issuance of conflicting opinions from this appellate district.

{¶ 2} Because the Ohio Supreme Court has held that Section 3(B), Article IV of the Ohio Constitution requires that the certification of a conflict can only occur between districts, not within districts, see Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, 596-597, 613 N.E.2d 1032, we invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district. In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving Anthony Lett, appellant herein, in an unrelated case.¹ Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the Supreme Court resolves these issues definitively.

{¶ 3} As might be expected, the complexity of the issues presented in this case has left this court deeply divided. We recognize that the orderly administration of justice is the rock upon which government rests. More criminal cases are heard in this appellate district than in any other in this state. Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation in which individual defendants would be sentenced differently pending the Ohio Supreme Court's decision. All of us agree that that would be an unacceptable outcome that must be avoided; hence, we have all agreed to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.

{¶ 4} The two specific questions before this court en banc are (1) whether the statutory provisions of R.C. 2929.14(C) and 2929.19(B)(2)(d), required for the imposition of maximum sentences, implicate the Sixth Amendment to the United States Constitution as construed by the United States Supreme Court in Blakely and United States v. Booker (2005), 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, and (2) whether the statutory provisions of R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2)(c), required for the imposition of consecutive sentences, implicate the Sixth Amendment as construed by the United States Supreme Court in Blakely and Booker.²

{¶ 5} Although Lett raises four assignments of error,³ the gravamen of his appeal takes issue with the trial court's imposition of maximum and consecutive sentences, which are within the scope of the en banc questions. This opinion consists of five major parts. Part I details the procedural history of the appeals. In part II, we address the relevant Sixth Amendment law. In part III, issues relating to the maximum sentence will be addressed. In part IV, a majority of this court agrees that Blakely does not affect the imposition of consecutive sentences. We conclude in part V.

I. Procedural History of Appeals

{¶ 6} In case No. CR-447030, Anthony Lett pleaded guilty to a single count of drug trafficking, a fourth-degree felony carrying a possible prison sentence of six to 18 months. It was also agreed that the state would return a 1989 Cadillac that had been seized when Lett was arrested. In case No. CR-445593, Lett pleaded guilty to one count of possession of drugs, a felony of the third degree, punishable by a term of incarceration from one year up to five years. The court sentenced Lett to the maximum of five years' incarceration in case No. CR-445593, and ordered that that sentence be served consecutively to the sentences imposed in case No. CR-447030.⁴ In total, Lett was sentenced to six and one-half years in prison. In addition, on a prior date, Lett was found to be a violator of probation and community-control sanctions and was ordered to serve the remainder of his sentence stemming from a previous drug conviction.

{¶ 7} Lett raises four assignments of error that, collectively, argue that the court erred in imposing maximum, consecutive sentences. These arguments are based on Blakely, since they claim that the court imposed the sentences by making statutorily mandated factual determinations that were not admitted by Lett at the time of his guilty pleas.

II. Sixth Amendment Law

{¶ 8} 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. Likewise, Section 5, Article I of the Ohio Constitution states that the "right of trial by jury shall be inviolate."

{¶ 9} In Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, the court held that a New Jersey hate-crime statute, which doubled Apprendi's maximum sentence based on the sentencing judge's finding by a preponderance of the evidence of biased motive, was unconstitutional because it deprived Apprendi of the right to have a jury determine all essential elements of the offense. The Supreme Court stated 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.

{¶ 10} After Apprendi, prosecutors in grid or guideline sentencing jurisdictions believed that the "maximum" penalty was that set forth by law and which included all possible upward departures authorized by statute. For example, like the federal courts, the state of Washington employed a grid system to determine the appropriate sentencing range for an offender. Sentences were determined by looking at two key factors on a grid: the offender's criminal history and the level of the crime. The intersection of those lines did not necessarily occur at the maximum level allowed by law, and various upward departures existed which might increase the sentence.

{¶ 11} Blakely involved the constitutionality of a prison sentence that was imposed under Washington's grid-style sentencing scheme. Blakely pleaded guilty to a second-degree kidnapping charge involving domestic violence and also to the use of a firearm, a second-degree class-B felony carrying a maximum punishment of ten years' imprisonment (120 months). Under Washington's sentencing statute, the "standard range" of incarceration for second-degree kidnapping with a firearm is 49 to 53 months. The sentencing statute permits a trial judge to impose a sentence above the standard range if the judge finds substantial and compelling reasons justifying an "exceptional sentence." One of the aggravating factors justifying the imposition of an exceptional sentence is whether the offender acted with "deliberate cruelty." After conducting a full evidentiary hearing, the trial judge found by a preponderance of the evidence that Blakely had acted with deliberate cruelty in carrying out the kidnapping and imposed a prison sentence of 90 months.

{¶ 12} The Supreme Court reversed the trial court's imposition of the exceptional sentence, holding 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.'" Blakely, 542 U.S. at ___, 124 S.Ct. at 2536, 159 L.Ed.2d 403, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435. The Supreme Court further held that the "statutory maximum" for purposes of Blakely and Apprendi is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts but the maximum the judge may impose without any additional findings. Blakely, 542 U.S. at ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403. Thus, the maximum sentence the trial judge was permitted to impose for second-degree kidnapping with the use of a firearm was 53 months — the upper end of the stated guidelines — without enhancement. Because the trial judge erroneously imposed a 90-month term based on facts not admitted to at the time of the guilty plea, the Supreme Court concluded that Washington's sentencing procedure violated Blakely's Sixth Amendment right to a trial by jury and declared his prison sentence invalid.

{¶ 13} Blakely caused a furor within the legal community, yet the Supreme Court reaffirmed it in Booker, excising both Section 3553(b)(1), Title 18, U.S.Code ("the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure)"), and Section 3742(e), Title 18, U.S.Code ("the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range"). Booker, 543 U.S. at ___, 125 S.Ct. at 764, 160 L.Ed.2d 621. The Booker court held that Section...