State v. Lett , 161 Ohio App. 3d 274 ( 2005 )

{¶ 125} I concur with the majority position that Blakely does not impact much of S.B. 2, including the imposition of consecutive sentences pursuant to R.C. 2929.14(E)(4) and R.C.2929.19(B)(2)(c). I do respectfully disagree, however, with the majority's conclusion that none of the findings listed in R.C.2929.14(C), which are required to impose maximum sentences, implicate the Sixth Amendment as construed in Blakely andBooker.

{¶ 126} I disagree with the majority as to what constitutes the "statutory maximum"¹⁹ under Ohio law. The majority defines the term solely in reference to the basic sentencing ranges set forth in R.C. 2929.14(A). However, "the individual provisions of the sentencing scheme may not be read alone."State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,793 N.E.2d 473, ¶ 10. Therefore, the "statutory maximum," as defined byBlakely, must be ascertained with regard to S.B. 2 as a whole and not one isolated provision of it.

{¶ 127} Although R.C. 2929.14(A) sets forth the basic sentencing ranges for felonies, they are expressly limited by other mandatory statutory provisions. For example, in this case, the trial court was not free to impose a maximum sentence unless at least one of four facts existed and was supported by clear and convincing evidence. R.C. 2929.14(C); R.C. 2953.08(G); State v.Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473; Statev. Edmonson (1999), 86 Ohio St.3d 324, 715 N.E.2d 131.

{¶ 128} A trial judge may impose maximum prison terms upon certain major drug offenders and upon certain repeat violent offenders. R.C. 2929.14(C). Defendants receive notice of these charges which are included as specifications in the indictment and are either admitted by the defendant or decided by a jury. Therefore, these findings do not violate the Sixth Amendment. R.C. 2929.14(D)(2) and (3). The only other instances in which a maximum term may be imposed pursuant to R.C. 2929.14(C) are upon offenders "who committed the worst forms of the offense, [or] upon offenders who pose the greatest likelihood of committing future crimes." These findings, which must be made on the record and supported by clear and convincing evidence, implicateBlakely to the extent that they are not determined by a jury or admitted by the defendant and are required to enhance a sentence to the maximum allowed under R.C. 2929.14(A).

{¶ 129} The trial court must follow Ohio's sentencing guidelines. Comer, supra, 99 Ohio St.3d 463, 2003-Ohio-4165,793 N.E.2d 473. R.C. 2929.14(C) prohibits the imposition of the maximum sentence in the absence of required statutory findings. If a trial court imposes a maximum sentence without making the required findings, the appellate court must remand for resentencing. R.C. 2953.08(G). If a trial court imposes a maximum sentence and that sentence is not supported by clear and convincing evidence, the appellate court must reverse or otherwise modify the sentence. Id.

{¶ 130} In Blakely, Washington state law provided a maximum term of ten years for Blakely's Class-B offense but provided a recommended range of 49 to 53 months. Other provisions in Washington's law permitted, but did not require, a trial judge to enhance a sentence beyond the recommended range if he or she determined that certain facts existed. However, if the trial judge wished to enhance the sentence based on a finding, he or she could only do so if that finding was supported by a preponderance of the evidence. The trial judge in Blakely increased the sentence upon a finding that Blakely had acted with "deliberate cruelty." The United States Supreme Court held that this postconviction judicial finding violated theSixth Amendment, regardless of whether the trial court was merely "allowed" (rather than required) to consider the imposition of an "exceptional sentence."

{¶ 131} The majority attempts to distinguish the R.C.2929.14(C) findings from Blakely in two respects: (1) that the "subjective" findings are not amenable to indictment and (2) that the findings are discretionary.

{¶ 132} The majority suggests that the judicial fact-finding at issue in Blakely (i.e., whether the offender acted with deliberate cruelty) and Booker (amount of controlled substance) could have easily been charged as elements of the offenses because they were "objective" facts. Conversely, the majority considers the findings required by R.C. 2929.14(C) to be "subjective" and consistent with an intent to preserve the discretion that judges historically have had for sentencing purposes. From that, the majority concludes that R.C. 2929.14(C) does not implicate the Sixth Amendment. This misses the point. That a fact is not amenable to indictment does not obviate theSixth Amendment concern. The Sixth Amendment is implicated when an offender's sentence is enhanced postconviction beyond the "statutory maximum" as a result of a factual determination that is neither determined by a jury nor admitted by the offender.²⁰ The holdings in Blakely and Booker are driven by the prerequisite to make the finding that enhances a sentence beyond the statutory maximum and not by the alleged objective or subjective nature of any such fact.

{¶ 133} It is not disputed that trial judges have traditionally enjoyed discretion in sentencing. For the most part, S.B. 2 provides this very discretion. However, the Ohio legislature clearly limited that discretion in terms of imposing maximum sentences pursuant to R.C. 2929.14(C), 2929.19(B)(2)(c), and 2953.08(G). It is because trial courts must make these findings in order to impose the maximum sentence that theSixth Amendment is implicated. See Booker, supra (wherein the United States Supreme Court corrected the Sixth Amendment violations in the United States Code by making the federal sentencing guidelines discretionary rather than mandatory). In other words, if Ohio trial courts could impose a maximum sentence withoutmaking any additional postconviction findings, there would be no problem.

{¶ 134} The "`statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum the judge may impose without any additional findings."Blakely, 542 U.S. at ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403. If Ohio trial court judges can impose maximum sentences at their discretion without any additional findings, why have we, since the inception of S.B. 2, remanded scores of cases for resentencing when a trial court fails to make the required findings?

{¶ 135} Second, the fact that the trial judge may exercise his or her discretion to not impose a maximum sentence is immaterial to the Sixth Amendment analysis. The focus is on the fact that in order to impose the maximum sentence the trial judgemust make the findings. In Blakely, the United States Supreme Court noted that "[t]his distinction is immaterial. Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." More pointedly, in footnote 8 the Supreme Court expounded: "Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." Blakely, 542 U.S. 296, ___, 124 S.Ct. at 2538, 159 L.Ed.2d 403. In this case, it cannot be disputed that the greatest sentence the trial court could have imposed on Lett for each offense without making anyadditional findings, was a term less than the maximum allowed by R.C. 2929.14(A).

{¶ 136} Unless certain statutory provisions are ignored,Blakely unavoidably applies to portions of S.B. 2, including the imposition of maximum sentences on those who commit the "worst form of the offense" or "pose the greatest likelihood of committing future crimes." The Ohio Supreme Court has already declared that a jury may not make those determinations and has directed courts to either "(1) apply the statutes as if Blakely did not render them unconstitutional and conduct a sentencing hearing without a jury or (2) find the statutes unconstitutional under Blakely and refuse to impose those enhancement provisions * * * deem[ed] unconstitutional." State ex Rel. Mason v.Griffin, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, at ¶ 17. I would declare the judicial findings of R.C. 2929.14(C), required to enhance an offender's sentence to the maximum term, unconstitutional under the authority of Blakely and Booker. Being in the minority on this issue, it is unnecessary to elaborate on what the ramifications would be had these provisions been deemed unconstitutional.

¹⁹ Blakely held that the "statutory maximum" 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. 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,'Bishop, supra § 87, at 55, and the judge exceeds his proper authority." Id., 542 U.S. at ___, 124 S.Ct. at 2537,159 L.Ed.2d 403.

²⁰ The vague phrases "worst form of the offense" and "greatest likelihood of committing future crimes" are explained and supported by the R.C. 2929.12 seriousness and recidivism factors. This arguably increases the Sixth Amendment concern since an offender in Ohio has even less notice of what R.C.2929.12 factors the court may rely on to enhance the sentence.