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February 5, 2005

Big Blakely/Booker case from Ohio

I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here).  To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and this memo from last month provides a great overview of the Blakely caselaw in Ohio before Booker hit the scene.  As the memo notes (and as previously reported here), most of Ohio's intermediate appellate courts have found, on various grounds, that Blakely is largely inapplicable in Ohio. 

But, in a major development that is well covered in this newspaper article, a decision yesterday from the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concludes that Booker significantly changes the Blakely analysis in Ohio.  Here's the court's explanation:

After the Blakely decision, this court and the Ohio Sentencing Commission speculated that Apprendi and Blakely did not materially affect the Ohio sentencing scheme.  Unlike the sentencing guidelines in the state of Washington and the federal criminal system, Ohio's scheme does not permit a sentencing court to deviate from a prescribed range of sentences for any felony.  Thus, the term "statutory maximum" was believed to be synonymous with "statutory range," or the range of years of imprisonment set by the General Assembly for each felony punishment.  Since a sentencing court cannot exceed "the statutory range authorized by law," the consensus then was that the Sixth Amendment was not implicated by Ohio’s sentencing statutes.

The statutory range for a first-degree felony is three to ten years. Under our previous reasoning, the sentencing court would have discretion to impose the longest sentence within that range as long as it made the factual finding that the defendant was an offender who had committed the "worst form[]" of the offense or posed the greatest likelihood of recidivism. The sentencing statutes "vest the exclusive responsibility to make th[is] determination[] in the court and not in a jury." Unlike the additional findings made by the sentencing courts in Apprendi or Blakely, we reasoned, the finding that a defendant had committed the worst form of the offense did not increase the sentence beyond the statutory range.

In light of the recent decision of the United States Supreme Court in United States v. Booker, it is clear that this interpretation was wrong.  In Booker, the Court reexamined its analysis in Apprendi and its progeny and held that "we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The prescribed statutory maximum sentence is not "the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

The holding, as reaffirmed in Booker, applies to "all cases on direct review or not yet final." Accordingly, the Blakely definition of "prescribed maximum sentence" applies to this case.  Here, the trial court imposed a sentence upon Bruce that was within the statutory range authorized by the Ohio General Assembly for first-degree felonies.  But the maximum sentence the trial court could impose without additional facts proved to a jury or admitted to by Bruce was nine years, not ten. The additional fact necessary to impose the tenth year of imprisonment -- that Bruce was among those offenders "who [had] committed the worst forms of the offense" -- was found by the trial court at the sentencing hearing, after Bruce's plea had been accepted. Therefore, the Sixth Amendment prohibited the imposition of the longest term of imprisonment. R.C. 2929.14(A)(1) and 2929.14(C) are unconstitutional to the extent that they permit a sentencing court to impose a sentence exceeding the maximum term authorized by the facts admitted by the defendant or proved to a jury beyond a reasonable doubt.

February 5, 2005 at 09:11 AM | Permalink

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Comments

Someone explain to me how Booker made the difference in whether Blakely applies to Senate Bill 2 sentencing in Ohio. What did the Court say in Booker, relevant to SB2 & Ohio, that it didn't say in Blakely? Nothing, that's what.

These guys are using Booker as an excuse to avoid having to say "we were wrong" when we held before that Blakely didn't apply. These guys thought for sure that Booker would back off of Blakely and make it unnecessary for them to eat their knee-jerk "Blakely doesn't apply to Ohio because if it did we'd be just as screwed as the feds" opinions.

Won't matter, though, because we all know that the OSC is going to find a way to say that Blakely doesn't apply. The real fun's going to start if the USSC takes cert from that decision. Stay tuned.

Posted by: Anonymous | Feb 5, 2005 7:03:04 PM

I agree with the last post, but think that the court should be more strongly criticized. I find it curious that the appellate court found that the trial court cannot make the finding required by R.C. 2929.14(C) for the maximum sentence, but didn't decide whether the trial court could make the findings required by R.C. 2929.14(B) for more than the minimum sentence. I don't see much of a distinction for Blakely-purposes between those two sets of findings. And if Blakely does apply to R.C. 2929.14(B), then the modified sentence is also "contrary to law." It appears to me that by avoiding this result, the appellate court is blinding itself to the ramifications of its decision.

Of course, it would be helpful if the case had given more facts -- maybe the offender had served a prior prison term and the trial court wasn't required to make the R.C. 2929.14(B) findings. If this were truly the case, then I suppose I should cut them some slack. But the appellate court should have at least mentioned this in its opinion. (Since this is a case of a husband murdering a wife and the trial court did not find that he was most likely to recidivate, I doubt that the offender had previously served a prison term.)

Frankly, I also find it doubtful that the Ohio Supreme Court will apply Blakely to Ohio's felony sentencing laws. But it will have to face the issue soon.

As a final thought, Doug has consistently said that Ohio is a bellweather when it comes to Blakely issues. Of course, he is infinitely better suited to make that comparison between states than I am. But this fact leads me to believe that an Ohio case would be an excellent case for the US Supreme Court on these issues. I hope that both the Ohio and United States Supreme Courts agree to hear cases dealing with these issues to clarify how all states should apply Blakely to their sentencing schemes.

Posted by: Another Anonymous | Feb 7, 2005 9:09:03 AM

Wondering how the State of Michigan is applying The Blakely case and where I can find rulings.

Posted by: P Brown | Feb 15, 2005 7:59:12 AM

If all this is true how is my daughter doing 4 years in prison for Robbery 1st offense (actual thing was shoplifting resisting arrest) which made it a robbery that only carries a 12 month sentence for a felony 4 correct? She plead guilty received strict community control basicly house arrest ended up breaking probation and now is serving the remaining 4 years in prison she has been there over 2 1/2 years now with 15 months to go??? What can we do anything???? She was 2 months pregnant when she went in and they told her they would shock her out at 6 months but never did I now have the child seen birth she is almost two. Please Help!

Posted by: Jan Begin | May 11, 2005 8:52:50 PM

I am a rape victim's mother (she was 3 at the time)and received a letter from the Ohio Parole Board notifying me the offender would be entitled to a rehearing. I am trying to understand SB2 and am interested in learning what the sentencing would have been under SB2 for the above offense. Naturally I wish for him to remain incarcerated for the maximum sentence (he received 5 - 25 years). I would appreciate any layman's explanation you can share with me.

Posted by: Karen Parker | Aug 13, 2005 2:31:25 PM

I am reviewing the sentencing scheme of ohio because I have a concern not only about the maximum sentencin, but also consecutive
sentences. The law of the Ohio revised code
states that a judge has to make a findin
and give its reason for the finding if
he imposes the mas sentence or consecutive
sentencing. Does apprendi v new jersey
apply to ohios sentencing scheme

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