State v. Foster

Page 470

845 N.E.2d 470

109 Ohio St.3d 1

2006-Ohio-856

The STATE of Ohio, Appellee, v. FOSTER, Appellant.

The State of Ohio, Appellant, v. Quinones, Appellee.

The State of Ohio, Appellee, v. Adams, Appellant.

The State of Ohio, Appellee, v. Horn, Appellant.

No. 2004-1568.

No. 2004-1771.

No. 2005-0735.

No. 2005-2156.

Supreme Court of Ohio.

Submitted July 26, 2005.

Submitted August 10, 2005.

Submitted February 10, 2006.

Decided February 27, 2006.

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Robert L. Becker, Licking County Prosecuting Attorney, and Kenneth W. Oswalt, Assistant Prosecuting Attorney, for appellee in case No. 2004-1568.

David H. Bodiker, Ohio Public Defender, and Theresa G. Haire, Assistant Public Defender, for appellant in case No. 2004-1568.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Diane Richards Brey and Franklin E. Crawford, Deputy Solicitors, urging affirmance for amicus curiae Ohio Attorney General in case No. 2004-1568.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor and Seth L. Gilbert, Assistant Prosecuting Attorneys, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association in case No. 2004-1568.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender; and Jason Macke, urging reversal for amici curiae Ohio Association of Criminal Defense Lawyers and Cuyahoga County Public Defender in case No. 2004-1568.

Jeffrey M. Gamso, Toledo, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc., in case No. 2004-1568.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz Williamson and Jon W. Oebker, Assistant Prosecuting Attorneys, for appellant in case No. 2004-1771.

Michael T. Fisher, Dover, for appellee in case No. 2004-1771.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender; and Jason Macke, urging affirmance for amici curiae Cuyahoga County Public Defender and Ohio Association of Criminal Defense Lawyers in case No. 2004-1771.

John E. Wells Sr., urging affirmance on his own behalf in case No. 2004-1771.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Diane Richards Brey and Franklin E. Crawford, Deputy Solicitors, urging reversal for amicus curiae Ohio Attorney General in case No. 2004-1771.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor and Seth L. Gilbert, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association in case No. 2004-1771.

Charles E. Coulson, Lake County Prosecuting Attorney, and Alana A. Rezaee, Assistant

Prosecuting Attorney, for appellee in case No. 2005-0735.

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Supervising Attorney-Appellate Division, for appellant in case No. 2005-0735.

Lorrain R. Croy, Assistant Prosecuting Attorney, for appellee in case No. 2005-2156.

David H. Bodiker, Ohio Public Defender, and Charles B. Clovis, Assistant Public Defender, for appellant in case No. 2005-2156.

LANZINGER, J.

{¶ 1} The question presented in these four¹ cases, consolidated sua sponte, is whether Ohio's felony-sentencing structure violates the Sixth Amendment to the United States Constitution in the manner set forth in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Because we determine that portions of the applicable statutes are unconstitutional, we apply a severance remedy similar to that adopted in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. This opinion will (1) summarize the Sixth Amendment principles of Apprendi and Blakely, (2) present the histories of the Foster, Quinones, Adams, and Horn appeals, (3) provide an overview of Ohio sentencing statutes, (4) measure the statutes against the requirements of the Sixth Amendment, and (5) apply a remedy for the constitutional violation.

I. Sixth Amendment Principles

{¶ 2} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to trial by jury. Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Likewise, Section 5, Article I of the Ohio Constitution states that the "right of trial by jury shall be inviolate," and Section 10, Article I confirms the right to "speedy public trial by an impartial jury." These sections preserve for the accused "all essential and distinguishing features of the trial by jury" known to the common law in Ohio. Work v. State (1853), 2 Ohio St. 296, syllabus.

{¶ 3} It was not anticipated that jury rights may be implicated in sentencing until Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. In Apprendi, the Supreme Court of the United States examined New Jersey's "hate crime" statute, which allowed an enhanced sentence if the judge found by a preponderance of the evidence that racial bias was a motive for the offense. After the judge made this finding in his case, Apprendi was sentenced to 12 years in prison, two years above the maximum for the second-degree crime of which he had been convicted. The Supreme Court ruled that Apprendi's sentence, by exceeding the statutory maximum based only on judicial fact-finding, violated his Sixth Amendment rights because the jury, rather than judge, must find all facts essential to punishment. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.

{¶ 4} Two years later, the Apprendi rule was applied to an Arizona capital statute that permitted the death penalty solely on a judicial finding of statutory aggravating circumstances. Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. Because the aggravating factor found by the judge operated as "`the functional equivalent of an element of a greater offense,'" it required submission to a jury and proof beyond a reasonable doubt. Id. at 609, 122 S.Ct. 2428, 153 L.Ed.2d 556, quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348, 147 L.Ed.2d 435, fn. 19.

{¶ 5} Until now, we have not had occasion to rule on the effect of Apprendi, Ring, or Blakely on our noncapital sentencing law. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107, ¶ 7 (adequate remedy in extraordinary-writ case prevented consideration of constitutional claim); State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, at ¶ 69-70 (Ring not applicable to Ohio's capital-sentencing scheme). In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, the Apprendi rule was broadened. We now examine our statutes in light of Blakely.

{¶ 6} Blakely pleaded guilty in a Washington state court to second-degree kidnapping involving domestic violence and use of a firearm, a class-B felony carrying a ten-year maximum prison penalty. Other sentencing provisions specified a "standard range" of 49 to 53 months for second-degree kidnapping with a firearm. The sentencing judge imposed a prison term of 90 months, after making a finding of "deliberate cruelty," one of the statutorily enumerated grounds that justified an exceptional sentence. Thus, the sentence fell below the ten-year statutory maximum, but well above the 53-month maximum of the "standard range."

{¶ 7} The United States Supreme Court held that Blakely's sentence violated his Sixth Amendment right to trial by jury because a jury did not find the facts that permitted an "exceptional" sentence. Id., 542 U.S. at 304, 124 S.Ct. 2531, 159 L.Ed.2d 403. Although the state argued that the court had not violated Apprendi because the statutory maximum was ten years, the court held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Emphasis sic and citations omitted.) Id. at 303-304, 124 S.Ct. 2531, 159 L.Ed.2d 403. Thus, aside from the exception for prior criminal convictions² and the defendant's consent to judicial fact-finding, the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions at a plea hearing.

{¶ 8} Commentators expected that as a consequence of Blakely, juries would be required to take a more active sentencing role in determinate guideline states.³ But the Supreme Court created a different remedy for a Blakely violation by converting the Federal Sentencing Guidelines to an advisory, rather than mandatory plan. United States v. Booker, 543 U.S. at 227, 125 S.Ct. 738, 160 L.Ed.2d 621.

{¶ 9} Having heard evidence that Booker had been found with 92.5 grams of crack cocaine, a federal jury found him guilty of possession with intent to distribute "at least 50 grams" of crack cocaine. The federal range for the offense was ten years to life. Booker's criminal history and the quantity of drugs found by the jury gave him a guideline "base" prison sentence of 210 to 262 months. Nevertheless, after a hearing, the trial judge concluded that Booker had possessed an additional 566 grams of crack cocaine and was guilty of obstructing justice and consequently imposed a sentence of 30 years.

{¶ 10} The Supreme Court held that the guidelines violated the Sixth Amendment because they required the judge rather than jury to make findings of...