« Lots of (constitutional?) issues surrounding high-profile clemency grant in Mississippi | Main | Pennsylvania Governor Ed Rendell not a wuss when it comes to clemency for lifers »

December 30, 2010

Ohio Supreme Court decides Ice did not freeze out part of its prior Blakely ruling

Yesterday, the Ohio Supreme Court issued an interesting decision that had the Ohio Justices debating a post-Blakely sentencing issue that would make a great paper topic in an advanced con law seminar. The start of the majority opinion in State v. Hodge, No. 2010-Ohio-6320 (Dec. 29, 2010) (available here), sets up the basic story:

In State v. Foster, 109 Ohio St.3d 1, this court held some sections and provisions of Ohio’s sentencing statutes unconstitutional based on the decisions of the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, and Apprendi v. New Jersey (2000), 530 U.S. 466.

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).

Subsequent to Foster, the United States Supreme Court, in Oregon v. Ice (2009), 129 S.Ct. 711, 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.

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.

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.

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.

The start of a dissent by Chief Justice Brown highlights the interesting constitutional issues that flow into this issue:

I agree with the majority that Oregon v. Ice (2009), 129 S.Ct. 711, does not overrule this court’s decision in State v. Foster, 109 Ohio St.3d 1, regarding Ohio’s consecutive-sentencing statutes, and that the issuance of Ice does not automatically revive or reinstate the consecutive-sentencing statutory provisions held unconstitutional in Foster. But Ice does demonstrate that the analysis used by this court in Foster regarding judicial fact-finding and consecutive sentences was incorrect.  The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they 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. Majority Opinion at ¶ 10.  Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so.  In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly.  Therefore, I dissent.

December 30, 2010 at 11:10 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ohio Supreme Court decides Ice did not freeze out part of its prior Blakely ruling:


This is a very interesting case, and the majority is partly wrong and partly correct.

The majority is correct in that the consecutive sentencing statute is not "retroactively" revived for all those previously sentenced under the incorrectly-severed law. It is incorrect, however, to hold that the consecutive sentencing statute should not now be revived, beginning with the instant opinion.

The Court all but admits that its holding in Foster was incorrect, at least as it concerned consecutive sentences. See para 20. I agree that Foster's holding at the time was "reasonable." Id. In fact, I think the Ohio Court got it right in Foster and the U.S. Court got it wrong in Ice. But, that is neither here nor there. Just because a prior incorrect opinion was "reasonable" does not mean that it needs no correcting when a higher Court says it was wrong.

So, the question becomes how to correct it. What the majority should have done in this case is to partially reverse Foster's holding, to wit, the holding concerning Ohio's consecutive sentencing statute. In doing so, then, as of today's date the consecutive sentencing statute would be revived, but defendants not on direct appeal would not be entitled to the reinstatement.

Such a holding is particularly necessary in light of the nature of Foster's holding, which invalidated a duly enacted statute. As somewhat pointed out by Chief Justice Brown, there are serious concerns about separation of power when the judiciary acknowledges that it incorrectly repealed a valid act of a past legislature, yet then refuses to correct the repeal and instead puts the onus on the current legislature to re-enact the statute, should it so wish.

Finally, I am not sure why the Defendant felt it necessary (or even beneficial) to argue for retroactive reinstatement. See Para 21. Such a drastic remedy raises serious practical concerns, which were obviously of central concern to the Ohio Court. See, e.g., paras. 31-32. If Mr. Hodge had only argued for prospective reinstatement, he would have obtained the benefit of the holding (since his case was on direct appeal), and the Court may have been more likely to agree with his – what is in my view – clearly correct reasoning the statute should be reinstated.

Posted by: DEJ | Dec 30, 2010 12:10:35 PM

Chief Justice Brown nicely makes a similar point in his dissent: "It may well be that a partial overruling of Foster does not mandate the resentencing of defendants whose consecutive sentences became final, as the majority assumes." Para. 55.

Posted by: DEJ | Dec 30, 2010 12:20:10 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB