Sixth Circuit finds no constitutional problems with Ohio's judicial Blakely fix

A helpful reader alterted me to a new Sixth Circuit ruling today in Ruhlman v. Brunsman, 09-4528 (6th Cir. Dec. 23, 2011) (available here), which sorts through a habeas challenge to how Ohio courts dealt with its Blakely issues. Though these two paragraphs from the opinion may only make sense to hard-core Blakely fans, they capture the essence of the ruling:

We disagree and conclude that Ruhlman’s due-process rights were not violated. Foster did not alter the applicable sentencing range for attempted rape, which has consistently been two to eight years. See O.R.C. §§ 2923.02, 2907.02, 2929.14(A)(2). Nor did it alter the elements of the substantive offense of attempted rape. Further, when Ruhlman committed the offense, he was subject to a sentence in excess of two years by virtue of the fact that he had served a prior prison term.  See id. § 2929.14(B)(1).   In addition, at the time he committed the offense, Ruhlman was on notice that he was subject to a longer sentence contingent upon a trial-court finding that a minimum sentence would demean the seriousness of his conduct or would not adequately protect the public from future crimes, O.R.C. § 2929.14(B)(2), and a maximum eight-year sentence if the sentencing court found him to be a sexual predator who posed the greatest likelihood of recidivism.  See id. § 2929.14(C).  Therefore, pre-Foster, Ruhlman was on notice that he could receive an eight-year sentence for his actions if the court were to make certain findings. The court made these findings at Ruhlman’s first sentencing and imposed the maximum sentence. The fact that the court imposed that very sentence post-Foster was neither “unexpected [nor] indefensible by reference to the law” that applied when Ruhlman committed his offense. Bouie, 378 U.S. at 354 (citation omitted).

The Ohio Supreme Court’s determination that the relevant portions of Ohio’s statutory sentencing scheme violated Blakely and its decision to sever those portions does not in and of itself implicate ex-post-facto-type due-process rights.   The court simply acknowledged that if a fact is necessary to support a particular sentence, that fact must be found by the jury, rather than a judge. The court remedied the problem by following Booker and severing and striking the provisions, with the result that any sentence within the range specified by statute for the offense could be imposed by the court if consistent with the remaining sentencing criteria.   Defendants committing crimes before Foster cannot claim that they have an ex-post-facto-type due-process right to have sentencing elements found by a jury, because the unconstitutionality of the sentencing scheme does not negate its existence.