State v. Moore , 2005 Ohio 3311 ( 2005 )

{¶ 116} I agree with much of the majority's opinion. Moore's indictment did not sufficiently allege the charge of conspiracy against him, so that conviction must be vacated. The trial court did not make the findings necessary to support consecutive sentences, so the case must be remanded for resentencing. The trial court did not err when refusing to merge the three counts of complicity to commit rape, since each offense was committed with a separate animus. And the trial court did not err by refusing to continue Moore's sentencing hearing. I write separately for two reasons.

{¶ 117} First, I disagree with the manner in which the panel deals with Moore's first assignment of error. I agree with the majority that the trial court erred when it refused to merge some of the firearm specifications when sentencing Moore, but disagree with its decision to limit the trial court by saying that it can impose, at most, four consecutive prison terms for the various firearm specifications. I believe that the decision over exactly how many firearm specifications should be imposed when this case is remanded should be left to the trial court. What constitutes a transaction is fact-driven, and we should leave that decision as much as possible to the trial court in its role as fact-finder.

{¶ 118} Second, and more importantly I disagree with the majority's resolution of Moore's supplemental assignment of error. In that assignment of error, Moore argues that his sentence violated his Sixth Amendment right to a jury trial as that right has been interpreted in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. The majority rejects this argument, primarily relying on this court's prior decision in State v. Barnette, 7th Dist. No. 02 CA 65,2004-Ohio-7211, 2004 WL 3090228. I dissented from that decision and will continue to do so whenever appropriate until the Ohio Supreme Court has resolved the issue.¹ Moore did not waive his Sixth Amendment argument, and his sentence violates the Sixth Amendment as interpreted by Blakely. The trial court could not sentence him to more than the minimum sentence for any of his separate offenses.

{¶ 119} Nevertheless, I cannot simply cite my prior decision as support for this dissent. The majority cites United States v.Booker (2005), 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, as further support for its position that Moore waived this argument and that Blakely-type analysis does not apply in Ohio. But this conclusion ignores the substance of the Booker decision. First, as the majority quotes, Booker states that courts should "apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain error' test." Id., 543 U.S. ___, 125 S.Ct. at 769, 160 L.Ed.2d 621. By concluding that Moore waived the issue without conducting a plain, error analysis, the majority clearly is not following the court's direction.

{¶ 120} But just as important is the majority's failure to recognize that Booker does not offer it support in its conclusion that Blakely-type analysis does not apply to Ohio. As the First District recognized in State v. Bruce,159 Ohio App.3d 562, 2005-Ohio-373, 824 N.E.2d 609, and State v.Montgomery, 159 Ohio App.3d 752, 2005-Ohio-1018, 825 N.E.2d 250,Booker demonstrates that Blakely's analysis applies to Ohio's sentencing structure. Booker does not change or alter in any way Blakely's fundamental contribution to the law, the definition of "statutory maximum" for Sixth Amendment purposes. The majority's cursory analysis to the contrary does not do the issue justice.

{¶ 121} In conclusion, I cannot fully concur with the majority's opinion for two reasons. First, I do not believe that we should tell the trial court how many consecutive gun specifications it may give in this case. Second, I believe that the trial court could not constitutionally sentence Moore to more than the minimum sentence for each of his separate offenses.

¹ These issues are currently pending before that court in the consolidated cases of State v. Foster, 5th Dist. No. 03CA95,2004-Ohio-4209, 2004 WL 1789514 (Supreme Court case No. 2004-1568), and State v. Quinones, 8th Dist. No. 83720,2004-Ohio-4485, 2004 WL 1903250 (Supreme Court case No. 2004-1771).