February 27, 2006
Ohio applies Blakely and the Booker remedy!
The Ohio Supreme Court finally released its (long-in-gestation) decisions concerning Blakely's applicability to Ohio's sentencing system. 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). It seems the Ohio Supreme Court went the extreme route.
The main decision, State v. Foster, 2006-Ohio-856 (Ohio Feb. 27, 2006) (available here), and a companion ruling, State v. Mathis, 2006-Ohio-855 (Ohio Feb. 27, 2006) (available here), have many facets, including what seems to be a ground-breaking ruling on consecutive sentencing. This will justify much commentary in the days ahead (and I hope Ohio readers will get a running start in the comments). Here is the Ohio Supreme Court's official syllabus in Foster (with cites omitted):
1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional.
2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of being severed. After the severance, judicial factfinding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant.
3. 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.
4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms.
5. Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional.
6. R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.
7. Trial 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.
February 27, 2006 at 10:28 AM | Permalink
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On first read, I hate to come off hysterical, but these opinions seem to create the worst of all possible worlds for criminal defendants. There are no longer any restrictions on the sentencing court's imposition of maximum or consecutive sentences, courts may freely impose prison on first offenders even if they are amenable to community control, and (the real kick in the teeth) courts must still make findings to justify downward departures from presumed sentences. The Foster opinion essentially eviscerates appellate review of sentences, and to boot, applies this "remedy" to all cases pending on direct review. Of course, the cases create a number of unanswered questions which we'll all be puzzling out over the coming days and weeks, but from my perspective, the biggest question is this: How can we get the U.S. Supreme Court to review these decisions?
Posted by: Jay Macke | Feb 27, 2006 12:16:23 PM
State v. Foster is fatally flawed. Ohio Revised Code 2953.08(G)(2) specifically states that "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." Instead, that section provides specific standards for appellate review of sentencing, generally including whether a sentence is contrary to law and/or when it is not supported by clear and convincing evidence. Most appellate districts considering the question have held that O.R.C. 2953.08 imposes a de novo standard of appellate review of sentences.
The Foster Court takes the position that the offending portions of the statute can be severed, and that the trial judge can exercise discretion to impose any sentence within the stated range. However, because O.R.C. 2953.08 has eliminated abuse of discretion as a standard of review, and Foster has now eliminated factual findings which are reviewable under O.R.C. 2953.08, the decision effectively eliminates any form of appellate review of any sentence in Ohio. A judge could impose any sentence within the range, even one that is "unreasonable, arbitrary or unconscionable." Without the court being required to enunciate a factual rationale for a sentence, an appellate court will never be able to conduct a de novo review.
Posted by: Charles M. Conliff | Feb 27, 2006 12:34:17 PM
As someone who has long believed that Ohio's felony sentencing scheme violated Blakely, I'm pleased with the Ohio Supreme Court's agreement on this count. However, its opinion disturbs me on four fronts.
First, the court is almost dismissive when discussing the waiver issue. Instead of directly addressing the arguments that many of its appellate court accepted, the Court simply set up a straw man and knocked it down. This leaves this opinion as less than persuasive and leaves the door open for further litigation on this issue.
Second, Ohio's appellate courts have developed a rather lengthy set of opinions explaining why they did or did not believe that the findings in the various sentencing statutes were facts that must be found by a jury. The Ohio Supreme Court ran roughshod over these arguments by simply declaring that "A fact by any other name is a fact." Once again, this conclusion without a supporting explanation leaves the opinion open to question.
Third, the court's discussion about Blakely's application to consecutive sentences leaves much to be desired. For instance, Ohio's statutes refer to conseccutive terms (as in more than one) of imprisonment. Sine the language of BLakely applies solely to a sole prison sentence for a sole crime, why does it apply to findings related to multiple crimes? The court simply gives no explanation.
Finally, the Booker-type fix that it imposes on the system is troublesome because its fix runs contrary to the broad purposes of felony sentencing described in Ohio's felony sentencing statutes. Booker at least paid lip-service to legislative intent. Foster does not seriously attempt to do so.
To this observer, it appears that the court made up its mind -- and then hurried through this opinion so it could fit everything into it in as few pages as possible. It is replete with conclusory statements which it fails to support with any analysis and with conclusions which appear to be reached without considering all the issues. So while I find the Court's recognition that Blakely applies to Ohio encouraging, that is equalled by the discouraging quality of analysis contained in the opinion. Ce la vie.
Posted by: Brad | Feb 27, 2006 12:49:28 PM
There may be a silver lining hiding inside of this cloud. Because Blakely and Apprendi now apply to Ohio sentencing law, post release control must be unconsitutional, because by definition it imposes a sentence beyond the maximum term that a judge is authorized to impose pursuant to Foster. Although some may contend that it is the APA -- not the sentencing court -- which exercises the fact-finding, State v. Jordan and Woods v. Telb make it clear that the sentencing court must impose the sentence, and that it is merely delegating judicial power to the executive branch (that is,the APA) to determine whether to impose it or not. The Ohio Supreme Court stated:
"Instead, we deduce that the current delegation of power to the APA through post-release control is no different in terms of the separation of powers doctrine than it was under the former system of parole....Under the current system of post-release control, the judge sentences the offender from the options available under the new sentencing scheme and informs the offender that he or she may be subject to a definite period of post-release control, which may last for up to three years in the case of discretionary post-release control, [footnote omitted] and that a violation of those conditions would result in additional time up to fifty percent of the original sentence. Those terms are part of the actual sentence, unlike bad time, where a crime committed while incarcerated resulted in an additional sentence not imposed by the court. In other words, the court imposes the full sentence and the APA determines whether violations merited its imposition. The offender is fully informed at sentencing that violations of post-release control will result in, essentially, 'time and a half.'" Woods v. Telb (2000), 89 Ohio St.3d 504.
Of course, if PRC is unconstitutional, then so is Escape, O.R.C. section 2921.34, to the extent that it is based upon failing to report to a parole officer.
Posted by: Charles M. Conliff | Feb 27, 2006 1:10:39 PM
I just read Foster and I cannot believe that the Court could reach this conclusion. While I have consistently argued that Blakely applies to Ohio, I am unable to understand how the Court could strike the statutory presumptions in favor of community control and concurrent sentences. Please tell me that there is some basis to review these cases under federal law. Otherwwise, I fear that my successful appeal of a client's sentence under Blakely will earn him an additional four years in prison.
Posted by: Richard Cline | Feb 27, 2006 5:33:46 PM
Federal review of Foster will be difficult b/c of the wholly state law based severability analysis, which is the most important part of the decision. As tortured is the logic is, the Justices were smart enough to evade federal review this way.
Posted by: Andrew Mayle | Feb 27, 2006 10:20:09 PM
A quick question for the masses:
Does anyone see a method for imposing the additional 1-10 year sentences for the major drug offender and repeat violent offender specifications? It seems to me that the Court excised those provisions in their entirety and then set the Blakely/Apprendi statutory maximums at 10 years. Any thoughts on whether an MDO/RVO conviction can ever lead to 20 years?
Posted by: Ohio Appeals To Me | Mar 7, 2006 4:53:10 PM
I was released from prison on aug 1 2006 for misuse of credit cards. I was given a sentence of 6months and served the full 6 months. For the courts to beable to send back is totally retarted because I have already served my full term. How can these legal pencil pushers getaway with prc!
Why is it a city or county offical can do something worse than what I have done and get off with probation. This is another issue of the state having to much power or they own major stocks in the prison system. We all need to get together in order for the U.S. Supreme Court to hear us.Ohio should be put on trial for violating
citizens rights. Is their anyone out there with the balls to take them on? I have the balls and I am looking for support! Something has to be done about this.To send someone back to prison after already doing all your time is or should be illegal. What gives these old rich fat guys the right> This subject has really pissed me off!!!!!!
You can contact me at my email address (RANDALLCARDER@aol.com)
Posted by: Randall Carder | Sep 14, 2006 12:02:51 PM
Posted by: marcia adenuga | Nov 23, 2006 10:21:16 AM
The enhanced sentences (the additional 1-10 year terms) for RVO and MDO specs were knocked out by Foster. The legislature amended the law in August. For reasons that defy any understanding, they included the same two judicial fact-finding requirements -- that the base sentence wouldn't adequately protect the public, and that it would demean the seriousness of the crime -- that the Supreme Court struck down in Foster. Go figure.
BTW, I'm a defense attorney.
Posted by: Russ Bensing | Dec 11, 2006 8:16:30 PM
i am none of the above. Just hoped you could give me some advice. In early 1996 my husband robbed three stores in one night. One in ky, he got 3 years. one in hamilton county oh sentence ran concorant with KY. One in clermont county sentenced in july 1996 on a f3 no gun or violence, he received 3 years and 3 years post release control not ran with ky. he went into ky first then transferred to ohio in 9-25-2000. released in 11-26-03. he first had ky probation which was only from the ohio prc because he was doe with ky. he received an alcohol intox charge which put him back in ohio prison. he has returned now 4 times for not staying in ohio and going to a halfway house. he was not an ohio resident and ky would take him back i tt the supervisor. This has been going on over 10 years is there anyway to get him off this prc. please help he is wanted again and going to go back again. the law i read said he would not go back for more than half the orginal sentence which would be 1 1/2 yrs he's did more than that and hamilton county is where his prc is and he is done with them to clermont county ordered it. Do you have any advice for me please email me back. We have a two year old son now who needs a dad.
Posted by: marcia iseral | May 3, 2007 8:28:52 PM
Posted by: | Oct 14, 2008 10:29:03 PM
1. How does an offender force the Ohio APA Regional Administrator to follow the policies and procedures of the DRC when he is in breach of the directives therein. (Not responding to a Grievance)
2. What constitutes an abuse of authority and control by an APA prc officer and what avenue of remedy is available to an offender.
Posted by: Frank | Sep 20, 2009 8:34:03 PM
so what did you say ?
Posted by: papero | May 21, 2010 2:39:35 PM