State v. Bigsby , 2005 Ohio 3590 ( 2005 )

{¶ 14} I concur with the majority that defendant's sentences are proportionate to sentences imposed for similar crimes. I write separately, however, to address an issue arising fromBlakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403, which was decided after defendant was sentenced, but while this appeal was pending. Even though defendant did not raise Blakely in the court below, I believe this court should sua sponte apply Blakely to the sentencing issues raised herein. The United States Supreme Court "has established precedent that when a decision of its court results in a new rule, that rule applies to all criminal cases, both state and federal, still pending on direct review." State v. Duffield, Cuyahoga App. No. 84205, 2005-Ohio-96, 2005 WL 77086, at ¶ 36, citing Schriro v. Summerlin (2004), 542 U.S. 348,124 S.Ct. 2519, 159 L.Ed.2d 442.

{¶ 15} Under Blakely, defendant could argue that in running his sentences on Counts 1 and 4 consecutively to one another and consecutively to the four years he received on Counts 8 and 9, the trial court violated his Sixth Amendment rights.

{¶ 16} In Blakely, the court held:

Our precedents make clear, however, 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. See Ring [v. Arizona (2002), 536 U.S. 584,] 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 ("the maximum he would receive if punished according to the facts reflected in the jury verdict alone" (quoting Apprendi [v. New Jersey (2000), 530 U.S. 466,] 483 [120 S.Ct. 2348, 147 L.Ed.2d 435])); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348, 147 L.Ed.2d 435 (facts 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. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," (citation omitted) and the judge exceeds his proper authority.

Blakely, supra, at 2537. (Emphasis sic.)

{¶ 17} Consecutive sentences are governed by R.C.2929.14(E)(4), which, as summarized in State v. Fair, Cuyahoga App. No. 82278, 2004-Ohio-2971, 2004 WL 1277153, ¶ 35, provides:

The court must find that consecutive sentences are: (1) necessary to protect the public from future crime or to punish the offender; (2) not disproportionate to the seriousness of the defendant's conduct; and (3) not disproportionate to the danger the defendant poses to the public. In addition to these three findings, the trial court must also find one of the following: (1) the defendant committed the offenses while awaiting trial or sentencing on another charge; (2) the harm caused was so great that no single sentence would suffice to reflect the seriousness of defendant's conduct; or (3) the defendant's criminal history is so egregious that consecutive sentences are needed to protect the public. R.C. 2929.14(E)(4)(a)-(c).

{¶ 18} Arguably, under Blakely, such judicial findings would violate defendant's Sixth Amendment right to trial by jury.

{¶ 19} This court, however, recently addressed this argument in its en banc decision of State v. Lett, 161 Ohio App.3d 274,2005-Ohio-2665, 829 N.E.2d 1281, and held that imposing consecutive sentences under R.C. 2929.14(E) does not implicate the Sixth Amendment as construed in Blakely.

{¶ 20} In conformity with this court's en banc decision inLett, I would acknowledge that its application in the case at bar would result in finding that defendant's consecutive prison terms do not violate Blakely. I therefore would proceed to the analysis the majority has provided, but I do so reluctantly because I believe that the en banc procedure this court used inLett is unconstitutional, and I dissented for that reason, as well as on the merits. With that reservation, I thus concur with the majority opinion in its decision to affirm the trial court.