March 8, 2006
Ohio defenders seek reconsideration of Foster's retroactive application
Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law. Recall that last week, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."
I have provided links to two briefs filed in support of this motion for reconsideration. Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:
Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.
Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto. However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above. Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.
UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy. The ACLU brief, which can be downloaded below, stresses separation of powers concerns. Here is a snippet:
The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.
March 8, 2006 at 04:30 PM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference Ohio defenders seek reconsideration of Foster's retroactive application:
I think the safe money is on this motion being denied without comment. On the other hand, the Court could just rely on its finding that Foster's sentence was void, i.e., the guidelines were never actually in place because they were unconstitutioal at their inception and Foster technically speaking never had the rights discussed (presumptive minimums). Then I guess you avoid challenges from those past the time of direct appeal relying on the policy of finality.
Posted by: Ohio Appeals To Me | Mar 9, 2006 10:50:29 AM
If the Ohio Supreme Court denies the motion, then I presume the defendants will appeal that decision to the United States Supreme Court. Does Doug, or anyone else who follows these things closely, find it likely that the USSC would grant cert on an issue like this? Are the issues involved momentous enough?
Posted by: Anonymous | Mar 9, 2006 3:51:38 PM
Posted by: | Oct 14, 2008 10:57:37 PM