State v. Hodge

[Cite as State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320.]

THE STATE OF OHIO, APPELLEE, v. HODGE, APPELLANT.

[Cite as State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320.]

Constitutional law — Ohio’s former consecutive-sentencing provisions, R.C.

2929.14(E)(4) and 2929.41(A), have not been revived by Oregon v. Ice —

Criminal law — Sentencing — Trial court judges are not precluded from

engaging in judicial fact-finding prior to imposing consecutive sentences

— Trial court judges are not obligated to engage in judicial fact-finding

prior to imposing consecutive sentences.

(No. 2009-1997 — Submitted September 15, 2010 — Decided

December 29, 2010.)

APPEAL from the Court of Appeals for Hamilton County, No. C-080968.

__________________

SYLLABUS OF THE COURT

1. The jury-trial guarantee of the Sixth Amendment to the United States

Constitution does not preclude states from requiring trial court judges to

engage in judicial fact-finding prior to imposing consecutive sentences.

(Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517,

construed.)

2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S.

160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio’s former

consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and

2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

3. Trial court judges are not obligated to engage in judicial fact-finding prior to

imposing consecutive sentences unless the General Assembly enacts new

legislation requiring that findings be made.

SUPREME COURT OF OHIO

__________________

CUPP, J.

{¶ 1} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, this court held some sections and provisions of Ohio’s sentencing statutes

unconstitutional based on the decisions of the United States Supreme Court in

Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403,

and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435.

{¶ 2} Among the provisions held unconstitutional in Foster were those

requiring a trial judge to make certain findings prior to imposing consecutive

sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C.

2929.41(A). To remedy this constitutional defect, these provisions were severed

from the remaining, valid portions of the statutory sentencing framework. After

the decision in Foster, trial judges who imposed consecutive sentences did not

need to apply the provisions severed by Foster but instead were to apply the law

that was displaced by the enactment of the severed provisions. The trial court in

this case, as allowed by our decision in Foster, imposed consecutive sentences

without making factual findings under R.C. 2929.14(E)(4) or presuming that

sentences were to run concurrently under R.C. 2929.41(A).

{¶ 3} Subsequent to Foster, the United States Supreme Court, in Oregon

v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, upheld the

constitutional validity of an Oregon statute similar to Ohio’s pre-Foster

sentencing statutes that requires Oregon’s trial judges to make factual findings

prior to imposing consecutive sentences.

{¶ 4} The defendant in the case now before us asks us to hold that

Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to

consecutive sentences that were held unconstitutional in Foster. He also argues

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that certain defendants who were sentenced to consecutive terms after Foster

must be resentenced pursuant to the provisions that were invalidated in Foster.

{¶ 5} For the reasons that follow, we determine in the circumstances

present here that Ice does not revive the disputed statutory provisions and that

defendants who were sentenced by trial judges who did not apply those provisions

are not entitled to resentencing. We accordingly affirm the judgment of the court

of appeals.

{¶ 6} Although we affirm the judgment below, we acknowledge that

given the holding and reasoning of the United States Supreme Court in Ice, the

General Assembly is no longer constrained by Foster’s holdings regarding the

constitutionality of the consecutive-sentencing provisions invalidated in Foster

and may, if it chooses to do so, respond with enactment of a statutory provision in

light of Ice’s holding.

I. Facts and Procedural History

{¶ 7} Defendant-appellant, Kenneth Hodge, pleaded guilty in Hamilton

County Common Pleas Court to nine felonies with firearm specifications. In an

entry on September 18, 2008, the trial court merged several counts and imposed

an aggregate prison sentence of 18 years—three years for each of five counts of

aggravated robbery and three additional years for accompanying firearm

specifications. The three-year sentences for the multiple firearm specifications

were imposed concurrently with each other and consecutively to the aggravated-

robbery sentences.1 In imposing consecutive sentences on the aggravated-robbery

counts, the trial court did not make the findings required by R.C. 2929.14(E)(4)

and 2929.41(A) in reliance on this court’s holding in Foster that those statutes

were unconstitutional.

1. Pursuant to R.C. 2929.14(E)(1), the trial court was required to run the sentence for the firearm

specifications consecutively to the sentences for the other offenses. Thus, the consecutive

sentence on the firearm specifications is not at issue in this case.

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SUPREME COURT OF OHIO

{¶ 8} On appeal, Hodge argued in his sole assignment of error that the

trial court erred by imposing consecutive sentences without making findings

under R.C. 2929.14(E)(4) and 2929.41(A), asserting that Foster’s holding that

those statutes were unconstitutional is no longer valid in light of Oregon v. Ice.

He asserted that the statutes are, therefore, revived because they have never been

specifically repealed by the General Assembly. In rejecting this argument, the

First District Court of Appeals cited several decisions of other appellate districts

that refused to accept the same argument2 and briefly stated that it agreed with the

reasoning of those decisions: “We remain bound by the Ohio Supreme Court’s

decision in Foster. The Ohio Supreme Court has not directly addressed the effect

of Oregon v. Ice on Ohio’s sentencing law. Absent a contrary decision by the

Ohio Supreme Court, Foster still applies to consecutive sentences. The trial court

did not err when it imposed consecutive sentences without making findings of

fact.” State v. Hodge (Sept. 16, 2009), 1st Dist. No. C-080968.

{¶ 9} We accepted Hodge’s appeal under our discretionary jurisdiction

for the purpose of reviewing the question whether, as a consequence of the

decision in Ice, Ohio trial courts imposing consecutive sentences must first make

the findings specified in R.C. 2929.14(E)(4) in order to overcome the presumption

for concurrent sentences of R.C. 2929.41(A). 124 Ohio St.3d 1472, 2010-Ohio-

354, 921 N.E.2d 245.

II. Analysis

{¶ 10} In Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this

court applied the principles developed in Blakely, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403, and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435,

to determine that a number of provisions in Ohio’s sentencing statutes violated the

2. See State v. Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908; State v. Robinson, 8th Dist. No.

92050, 2009-Ohio-3379; State v. Mickens, 10th Dist. Nos. 08AP-743, 08AP-744, and 08AP-745,

2009-Ohio-2554; State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815.

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January Term, 2010

jury-trial guarantee of the Sixth Amendment to the United States Constitution.

Particularly relevant to this case, we held in Foster at paragraph three of the

syllabus: “Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of

facts not proven to a jury beyond a reasonable doubt or admitted by the defendant

before the imposition of consecutive sentences, they are unconstitutional.”

{¶ 11} Upon holding the consecutive-sentencing provisions

unconstitutional, we applied United States v. Booker (2005), 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621, to hold that the statutes were severable from the Ohio

sentencing framework, so that “[a]fter the severance, judicial fact-finding is not

required before imposition of consecutive prison terms.” Foster at paragraph four

of the syllabus. We further held that “[t]rial courts have full discretion to impose

a prison sentence within the statutory range and are no longer required to make

findings or give their reasons for imposing maximum, consecutive, or more than

the minimum sentences.” Id. at paragraph seven of the syllabus. We determined

that three of the four cases on appeal addressed within the Foster opinion and

other cases that were identified in Foster as pending on direct review had to be

“remanded to trial courts for new sentencing hearings” because Sixth Amendment

principles “as they have been articulated” had to be protected. Id. at ¶ 104.

{¶ 12} In State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887

N.E.2d 328, ¶ 18, we recognized that Foster severed and excised former R.C.

2924.14(E) and former R.C. 2929.41(A) in their entirety, and we observed that

this action left no specific statute in place to govern the imposition of consecutive

sentences beyond the basic statutes regarding the “purposes and principles of

sentencing.” We held that common-law sentencing presumptions were therefore

reinstated, giving trial judges “the discretion and inherent authority to determine

whether a prison sentence within the statutory range shall run consecutively or

concurrently.” Id. at ¶ 18-19.

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SUPREME COURT OF OHIO

{¶ 13} We reaffirmed Foster and Bates in State v. Elmore, 122 Ohio St.3d

472, 2009-Ohio-3478, 912 N.E.2d 582, holding that a trial court has the discretion

to impose consecutive sentences in the wake of those decisions and that despite

the severance of the statutory presumptions, a trial court is not required by the

rule of lenity to impose minimum or concurrent sentences. Id. at paragraph two

of the syllabus and at ¶ 36-41.

{¶ 14} In reliance on these decisions, many defendants in Ohio have been

sentenced by trial judges who have exercised their discretion to impose

consecutive sentences without applying any of the statutes severed in Foster,

including those regarding consecutive sentencing.

{¶ 15} The validity of the reasoning in Foster, however, was called into

question by the United States Supreme Court’s decision in Ice. In that case,

decided nearly three years after Foster, a five-to-four majority of the court held

that Oregon’s consecutive-sentencing statutes, which were similar to the

consecutive-sentencing provisions struck down in Foster, do not violate the Sixth

Amendment concerns set forth in Apprendi and Blakely. Ice, 555 U.S. at ___, 129

S.Ct. at 714-715, 172 L.Ed.2d 517.

{¶ 16} We briefly discussed Ice in Elmore, 122 Ohio St.3d 472, 2009-

Ohio-3478, 912 N.E.2d 582, at ¶ 34, stating that Ice “held that a jury

determination of facts to impose consecutive rather than concurrent sentences was

not necessary if the defendant was convicted of multiple offenses, each involving

discrete sentencing prescriptions. The jury historically played no role in a

decision to impose sentences consecutively or concurrently. The choice rested

exclusively with the judge, and thus the Oregon statutes did not erode any

traditional function of the jury. Further, the state had sovereign authority over the

administration of its criminal justice system, and there was no compelling reason

to diminish the state’s role by curbing the state’s limitation on the discretion of

judges in imposing consecutive or concurrent sentences.”

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January Term, 2010

{¶ 17} We declined in Elmore, however, to definitively resolve Ice’s

effect on Ohio’s sentencing laws, stating that “Foster did not prevent the trial

court from imposing consecutive sentences; it merely took away a judge’s duty to

make findings before doing so. The trial court thus had authority to impose

consecutive sentences on Elmore. We will not address fully all ramifications of

Oregon v. Ice, since neither party sought the opportunity to brief this issue before

oral argument.” (Footnote omitted.) Id. at ¶ 35.

{¶ 18} Foster was not accepted for direct review by the United States

Supreme Court, and thus Ice did not specifically overrule Foster. Our decision in

Foster is final as to the issues raised by the parties in that appeal.3

{¶ 19} We recognize, however, that the decision in Ice undermines some

of the reasoning in the Foster decision that judicial fact-finding in the imposition

of consecutive sentences violates the Sixth Amendment. Although there are

differences between the Ohio provisions struck down in Foster and the Oregon

statutes upheld in Ice, these distinctions are immaterial in light of the broad

reasoning employed in Ice. After Ice, it is now settled law that Apprendi and

Blakely do not control the resolution of this issue and that the jury-trial guarantee

of the Sixth Amendment to the United States Constitution does not preclude states

from requiring trial court judges to engage in judicial fact-finding prior to

imposing consecutive sentences. See Elmore, 122 Ohio St.3d 472, 2009-Ohio-

3478, 912 N.E.2d 582, at ¶ 34 (the Oregon statutes at issue in Ice “did not erode

any traditional function of the jury”).

{¶ 20} Had we the benefit of the United States Supreme Court’s decision

in Ice regarding Oregon’s consecutive-sentencing statutes prior to our decision in

Foster, we likely would have ruled differently as to the constitutionality, and

3. The United States Supreme Court had an opportunity to review our decision in Foster when it

was appealed to that court, but denied certiorari. Foster v. Ohio (2006), 549 U.S. 979, 127 S.Ct.

442, 166 L.Ed.2d 314.

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SUPREME COURT OF OHIO

continued vitality, of our own state’s consecutive-sentencing provisions. But we

did not have that guidance, and our holding was reasonable in light of the status of

federal constitutional law at the time.4

{¶ 21} Although we acknowledge that Ice has an impact on Foster, we do

not accept Hodge’s argument that the decision in Ice automatically and

retroactively reinstates the consecutive-sentencing statutes invalidated in Foster.

Hodge’s argument is based on the fact that the severed statutory provisions

invalidated in Foster have never been repealed by the General Assembly.

{¶ 22} The gist of Hodge’s position is that we should overrule the holding

in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional and hold

that the consecutive-sentencing statutes struck down in Foster have been

reinstated or revived by the decision in Ice, with the ultimate result that Hodge is

entitled to be resentenced pursuant to the former consecutive-sentencing statutes.

However, as explained below, we decline Hodge’s request that we hold that the

statutes have been revived and accordingly also deny the relief he seeks.

{¶ 23} Some of our precedents contain statements of law that seem to

support the position that when this court holds a statute unconstitutional, the

statute can no longer have any effect and can be revived only through affirmative

action of the General Assembly. See, e.g., Middletown v. Ferguson (1986), 25

Ohio St.3d 71, 80, 25 OBR 125, 495 N.E.2d 380 (legislation that was

unconstitutional at the time of its passage is “void from its inception,” and “an

unconstitutional law must be treated as having no effect whatsoever from the date

of its enactment”);5 Franklin Cty. Bd. of Elections v. State ex rel. Schneider

4. A vigorous dissent in Ice criticized the majority for abandoning the “clear” principles of

Apprendi and Blakely, and for “its repeated exhumation of arguments dead and buried by prior

cases.” 555 U.S. at___, 129 S.Ct. at 720, 723, 172 L.Ed.2d 517 (Scalia, J., dissenting).

5. A recognized exception to the rule that a statute declared unconstitutional is wholly void, that

is, when rights have vested in reliance on the statute, has no application to this case. As we

observed in Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, at ¶ 24-26, a

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January Term, 2010

(1934), 128 Ohio St. 273, 191 N.E. 115, paragraph five of the syllabus (“An act of

the General Assembly, which was unconstitutional at the time of enactment, can

be revivified only by re-enactment”).

{¶ 24} However, a close examination of this case law reveals that it is of

limited relevance to the resolution of this case, because the contexts of those

decisions bear little resemblance to the circumstances here. Schneider, on which

the state’s amici particularly rely, does not contain any meaningful analysis that

explains the statement of law quoted above. Thus, the issue in this case regarding

the possible revival of the consecutive-sentencing statutory provisions severed by

Foster is essentially a matter of first impression for this court.

{¶ 25} At the outset, it is important to recognize the effect and

definitiveness of our holdings in Foster. In Bates, 118 Ohio St.3d 174, 2008-

Ohio-1983, 887 N.E.2d 328, ¶ 18, we stated that the severance and excision of the

consecutive-sentencing statutes “in their entirety” in Foster leave “no statute to

establish” the presumption for concurrent sentences or to require that findings be

made to impose consecutive sentences. We also referred to the severed statutes as

“former,” id., thus indicating that those statutes for enforcement purposes are no

longer considered part of the statutory framework and have no force or effect. 6

defendant sentenced pursuant to Foster’s holdings has notice of the sentencing range, which was

not changed by Foster, and “never had an irrebuttable presumption of * * * concurrent sentences.”

Since R.C. 2929.41(A) established only a rebuttable presumption for concurrent sentences, the

imposition of consecutive sentences in this situation does not affect any vested right.

6. We do not imply that the legal effect of a judicial decision “severing” a statutory provision

from the remainder of the statute is to actually repeal the invalid statutory language. Only the

General Assembly, the lawmaking branch of our constitutional government, has authority to

repeal, as well as to enact, statutory language. Rather, a statutory provision that is held to be

legally invalid, as here, becomes definitively unenforceable, and it is said to be “severed” in order

to distinguish it from the remaining portion of the statute, which remains valid and enforceable.

See R.C. 1.50 (“If any provision of a section of the Revised Code or the application thereof to any

person or circumstance is held invalid, the invalidity does not affect other provisions or

applications of the section or related sections which can be given effect without the invalid

provision or application, and to this end the provisions are severable”).

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SUPREME COURT OF OHIO

{¶ 26} Another crucial consideration is that although the Ice decision

holds that it is constitutionally permissible for a judge to engage in judicial fact-

finding to impose consecutive sentences, there is no constitutional requirement

that a judge make findings of fact before imposing consecutive sentences. Two of

the foundations of the Ice holding are the long history of giving great deference to

a trial court’s exercise of discretion in determining whether consecutive sentences

are appropriate and the common-law preference for consecutive sentences over

concurrent sentences. Id., 555 U.S. at ___, 129 S.Ct. at 717-718, 172 L.Ed.2d

517. See also id. at 719 (“All agree that a scheme making consecutive sentences

the rule, and concurrent sentences the exception, encounters no Sixth Amendment

shoal”); Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, at ¶ 16-18

(Foster’s severance of the consecutive-sentencing statutes reinstated the common-

law presumption in favor of consecutive sentences); Elmore, 122 Ohio St.3d 472,

2009-Ohio-3478, 912 N.E.2d 582, at ¶ 35 (after Foster, trial judges continue to

have the authority to impose consecutive sentences).

{¶ 27} Moreover, this court in Foster also severed a number of statutory

provisions besides the consecutive-sentencing ones on the authority of Blakely

and Apprendi. The other stricken provisions are not at issue in this case, and the

holdings in Foster regarding these provisions were not implicated in Ice. We are

unable to say that the General Assembly would intend the consecutive-sentencing

provisions to be resurrected when the other judicial fact-finding provisions, which

supported the overall sentencing framework, remain constitutionally invalid and

excised. It would be speculative to assume that the General Assembly would

wish to reinstate only the consecutive-sentencing provisions when the other

provisions struck down in Foster may not be reinstated also. This militates in

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January Term, 2010

favor of requiring positive action by the General Assembly to indicate its intent

and desire in a complicated area of the law. 7

{¶ 28} We find it of great significance that Hodge has not cited a single

Ohio case that even remotely ponders the propriety of the concept of automatic

revival. We further note that none of our precedents have suggested to the

General Assembly that a statute that has been held unconstitutional by this court

and that has never been repealed by that body may be automatically and suddenly

revived through a later court decision. Given this situation, the General Assembly

has never had a particular incentive to repeal statutes that we have held

unconstitutional, which further supports our reluctance to assume that the General

Assembly would intend the consecutive-sentencing statutes to be reinstated, in the

absence of any affirmative indications to that effect from that body.

{¶ 29} Considered in the abstract, the rule of automatic revival has the

potential to disrupt expectations of predictability and finality that attach as a

consequence of this court’s issuing of a decision holding a statute

unconstitutional. If automatic revival were recognized, parties who have acted in

reliance on this court’s determination of unconstitutionality may have the

reasonableness of their actions called into question should this court, perhaps

many years in the future, overrule the previous decision and determine that the

statute held unconstitutional was constitutional after all. A conclusion in this

7. We are aware that the General Assembly has, since Foster was decided, enacted a number of

bills to modify some aspects of R.C. 2929.14 without repealing the invalidated text in R.C.

2929.14(E)(4), one of the consecutive-sentencing provisions that was struck down and severed in

Foster. (R.C. 2929.41, which contains the other consecutive-sentencing statute invalidated in

Foster—R. C. 2929.41(A)—has not been similarly amended.) However, there has been no

affirmative reenactment of R.C. 2929.14(E)(4) indicating an intent by the General Assembly that

that statute was still meant to be effective. See Stevens v. Ackman (2001), 91 Ohio St.3d 182, 193-

195, 743 N.E.2d 901 (discussing the technical requirements, including that new matter inserted

into a statute must be capitalized, that indicate the General Assembly’s intent in amending or

enacting a statute). Consequently, the legislation amending other portions of R.C. 2929.14 has no

impact on our resolution of this case.

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situation that the previously stricken statute should automatically revive because it

was never affirmatively repealed by an act of the General Assembly would

conflict with and subvert fundamental finality interests that should normally be

part and parcel of this court’s definitive holding that a statute fails to comply with

either the United States Constitution or the Ohio Constitution.

{¶ 30} Because there is no constitutional requirement that a judge make

findings of fact before imposing consecutive sentences, the disruptive effects that

would result from reviving the statutory provisions on consecutive sentences that

were invalidated and severed in Foster need to be taken into account in this case.

These practical considerations heavily tip the balance against now recognizing a

concept of automatic revival in the scenario presented here.

{¶ 31} All parties involved in our criminal-justice system—defendants,

prosecutors, judges, and victims of criminal activity—have justifiably relied on

Foster’s holdings regarding consecutive sentences since that case was decided

and reaffirmed by subsequent decisions. A determination that many defendants

(perhaps hundreds or even thousands) who have received constitutionally

acceptable consecutive sentences would nevertheless be entitled to resentencing

would disrupt reasonable and settled expectations of finality.

{¶ 32} In addition, ordering resentencing in numerous cases in which

consecutive sentences have been imposed in reliance on Foster would place an

undue burden on our judicial system. It is a burden that is manifestly not

outweighed by a commensurate benefit to defendants, when one considers that the

sentence each received in reliance on Foster is not thereby constitutionally

deficient.

{¶ 33} Hodge cites cases involving somewhat analogous situations from

other jurisdictions that have held that a statute previously declared

unconstitutional by a court decision, and not thereafter legislatively repealed, is

automatically revived when the decision that held the statute unconstitutional is

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January Term, 2010

overruled by a subsequent decision. In particular, Hodge relies on Jawish v.

Morlet (D.C.App.1952), 86 A.2d 96, 97, in which the court stated:

{¶ 34} “There are comparatively few cases dealing squarely with the

question before us, but they are unanimous in holding that a law once declared

unconstitutional and later held to be constitutional does not require re-enactment

by the legislature in order to restore its operative force. They proceed on the

principle that a statute declared unconstitutional is void in the sense that it is

inoperative or unenforceable, but not void in the sense that it is repealed or

abolished; that so long as the decision stands the statute is dormant but not dead;

and that if the decision is reversed the statute is valid from its first effective date.”

{¶ 35} We are not persuaded by the reasoning of the courts in other

jurisdictions that have decided cases involving the potential revival of statutes;

those decisions are necessarily based on the factual contexts of the situations

before them. None of the cases cited by Hodge, and no cases we have discovered

in our own research, have involved a state court of last resort finding in favor of

automatic revival in a situation with all the varied attributes that are implicated in

this case. The overall circumstances of this case do not present a compelling

justification for holding that the consecutive-sentencing statutory provisions held

unconstitutional and severed in Foster are automatically revived without further

action by the General Assembly. We accordingly decline to adopt a dormant-but-

not-dead rule in the circumstances presented here.

{¶ 36} In view of all the above reasons, we conclude that the consecutive-

sentencing statutes severed by Foster are not automatically revived. Accordingly,

those statutes remain null and of no effect absent an affirmative act of the General

Assembly. At the same time, however, we discern no constitutional impediment

to the General Assembly’s legislating in this area if it chooses to do so in light of

the constitutional propriety of statutory provisions pertaining to the imposition of

consecutive sentences expressed in Ice.

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III. Conclusion

{¶ 37} In summary, Ice’s impact on Ohio law is collateral. Our decision

in Foster was not on direct appeal in Ice, and Ice did not directly overrule Foster.

Nearly five years have passed since Foster definitively and unequivocally severed

the consecutive-sentencing sections, along with other provisions, from the

statutory sentencing framework, and ordered resentencing for those defendants

whose cases were then on direct appeal.

{¶ 38} Numerous defendants have received consecutive sentences that

have met all constitutional requirements from trial court judges acting in reliance

on Foster, Bates, Elmore, and other precedents. Considering also that (1) judicial

fact-finding is not constitutionally required in order to impose consecutive

sentences, (2) none of our precedents have given notice to the General Assembly

that provisions of the Revised Code that have been held unconstitutional and have

been severed would be revived, perhaps many years after their enactment and

subsequent invalidation, and (3) other considerations against revival strongly

outweigh the considerations in favor of revival, we reject the concept of automatic

revival under the circumstances presented here.

{¶ 39} For all the foregoing reasons, we hold that the decision of the

United States Supreme Court in Oregon v. Ice does not revive Ohio’s former

consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A),

which were held unconstitutional in State v. Foster. Because the statutory

provisions are not revived, trial court judges are not obligated to engage in

judicial fact-finding prior to imposing consecutive sentences unless the General

Assembly enacts new legislation requiring that findings be made.

{¶ 40} The trial court in this case did not err in imposing consecutive

sentences without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants

such as Hodge who were sentenced without application of the statutes are not

entitled to resentencing. We affirm the judgment of the court of appeals.

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Judgment affirmed.

PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and

LANZINGER, JJ., concur.

BROWN, C.J., dissents.

__________________

BROWN, C.J., dissenting.

{¶ 41} I agree with the majority that Oregon v. Ice (2009), 555 U.S. 160,

129 S.Ct. 711, 172 L.Ed.2d 517, does not overrule this court’s decision in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, regarding Ohio’s

consecutive-sentencing statutes, and that the issuance of Ice does not

automatically revive or reinstate the consecutive-sentencing statutory provisions

held unconstitutional in Foster. But Ice does demonstrate that the analysis used

by this court in Foster regarding judicial fact-finding and consecutive sentences

was incorrect. The majority all but concedes that it erred in holding in Foster that

R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require

judicial finding of facts not proved to a jury beyond a reasonable doubt or

admitted by the defendant before the imposition of consecutive sentences.

Majority opinion at ¶ 10. Despite this court’s error in Foster, however reasonable

it may have been at the time it was issued, the majority essentially refuses to

correct this error because it believes it is too inconvenient to do so. In so holding,

the majority violates the fundamental principle of separation of powers and

ignores the intent of the General Assembly. Therefore, I dissent.

I. Separation of powers

{¶ 42} The separation of powers among the executive, legislative, and

judicial branches of government is a defining principle of the American form of a

free, constitutional government. See State v. Bodyke, 126 Ohio St.3d 266, 2010-

Ohio-2424, 933 N.E.2d 753, ¶ 39. “ ‘The essential principle underlying the

policy of the division of powers of government into three departments is that

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powers properly belonging to one of the departments ought not to be directly and

completely administered by either of the other departments, and further that none

of them ought to possess directly or indirectly an overruling influence over the

others.’ ” Id. at ¶ 44, quoting State ex re. Bryant v. Akron Metro. Park Dist. of

Summit Cty. (1929), 120 Ohio St. 464, 473, 166 N.E. 407. The principle of

separation of powers renders this court unable to undertake those powers

explicitly assigned to the legislature, yet the majority’s holding ascribes the

legislative power to repeal statutes to the judiciary.

{¶ 43} The General Assembly is vested with the exclusive power to enact

and repeal laws, subject only to the people’s power to propose, adopt, or reject

laws at the polls through certain procedures defined in the Ohio Constitution.

Section 1, Article II, Ohio Constitution. “This court has authority to determine

whether, in a statutory enactment, the General Assembly has exceeded any of the

limitations upon its legislative power which are provided for in the Constitution,

and to interpret the meaning of the words used by the General Assembly in a

statutory enactment; but this court does not have any authority to repeal a statute

enacted by the General Assembly * * *. The power to repeal or amend a statute is

vested by Section 1 of Article II of the Constitution in the General Assembly.”

Columbus v. Delaware Cty. (1956), 164 Ohio St. 605, 613-614, 59 O.O. 10, 132

N.E.2d 747.

{¶ 44} The majority contends that a declaration that a statute is

unconstitutional accompanied by severance of the statute definitively “removes”

or “excises”8 the offending statute from an act and therefore that a later

8. I note that the majority refers to R.C. 2929.14(E)(4) and 2929.41(A) as having been “severed

and excised” by Foster. (Emphasis added.) “Excise” is defined as “to cut out” or “remove by or as

if by cutting out.” Webster’s Third New International Dictionary (1986) 792. The use of the term

“excised” connotes that the unconstitutional statutory provision has been removed from the

Revised Code and lends support to the majority’s mistaken belief that severance is the equivalent

of judicial repeal of a statute or statutory provision. However, this court’s use of the language that

an unconstitutional statute may be severed and excised is only recent. Foster itself presents the

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determination that the statute was severed in error cannot reinstate the statute in

the absence of reenactment by the General Assembly. In essence, the majority

equates severance with repeal. Nothing in this court’s jurisprudence supports that

equation.

{¶ 45} A holding that a statutory scheme or individual statute is

unconstitutional is a determination that the scheme or statute is invalid, void, and

unenforceable. Funk v. Rent-All Mart, Inc. (2001), 91 Ohio St.3d 78, 79–80, 742

N.E.2d 127; see also State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513,

523, 644 N.E.2d 369. But a holding that a scheme or statute is unconstitutional

does not and cannot remove the offending statutes or statute from the Revised

Code. Removal of statutes from the Revised Code can be achieved only through

repeal.

{¶ 46} A holding that an unconstitutional statute or statutory provision is

subject to severance does nothing more than state that a statute within a

multistatute scheme or a section of a multipart statute is invalid, void, and

unenforceable. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶

66 (holding that two statutes that are part of the General Assembly’s Adam Walsh

Act are unconstitutional and are severed and that “after severance, they may not

be enforced”). Severance is merely a judicially imposed mechanism used to

allow the constitutional provisions to remain valid and enforceable when a

statutory scheme contains both unconstitutional and constitutional statutes or

when a multipart statute has both unconstitutional and constitutional sections.

Severance is not a judicial repeal of the offending statutory provision.

first instance in which a majority of this court articulates that unconstitutional statutory provisions

are “severed and excised.” 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 97-98. The

lengthy Foster analysis regarding the appropriateness of severance does not provide any

discussion of or support for the court’s new formulation that unconstitutional statutory provisions

may be “severed and excised” from the Revised Code, nor does R.C. 1.50, the statute addressing

severability of Revised Code provisions, provide any support for the assertion that Ohio courts

may “excise” statutory provisions.

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{¶ 47} Because the majority’s analysis of the issue of revival is premised

on its belief that R.C. 2929.14(E)(4) and 2929.41(A) have been severed and

excised or judicially repealed, I find that the analysis is flawed at the outset. In

order to preserve the principle of separation of powers, this court must begin any

analysis of the possible revival of R.C. 2929.14(E)(4) and 2929.41(A) from the

premise that Foster declared these statutory provisions unconstitutional and

unenforceable but that these provisions have not been repealed. Instead, these

provisions remain part of the Revised Code and repeatedly have been included by

the General Assembly as part of the statutory sentencing scheme after Foster.

2006 Am.Sub.H.B. No. 95, 151 Ohio Laws, Part IV, 7059; 2006 Am.Sub.H.B.

No. 137, 151 Ohio Laws, Part IV, 7622; Am.Sub.S.B. No. 260, 151 Ohio Laws,

Part I, 1915; Sub.S.B. No. 281, 151 Ohio Laws, Part II, 2240; Am.Sub.H.B. No.

461, 151 Ohio Laws, Part V, 9293; 2007 Am.Sub.S.B. No. 10; 2008 Sub.S.B. No.

184; 2008 Sub.S.B. No. 220; 2008 Am.Sub.H.B. No. 280; and 2008

Am.Sub.H.B. No. 130.

{¶ 48} The majority acknowledges that there has been no significant

analysis of these issues by any Ohio courts.9 But other courts that have

considered analogous situations have held that statutes that have been declared

unconstitutional and unenforceable but have not been repealed by the legislature

return to effectiveness upon a later determination that the statutes were declared

unconstitutional in error. See Jawish v. Morlet (D.C.App.1952), 86 A.2d 96, 97;

see also Pierce v. Pierce (1874), 46 Ind. 86, 95; State ex rel. Badgett v. Lee

(1945), 156 Fla. 291, 295, 22 So.2d 804; McCollum v. McConaughy (1909), 141

Iowa 172, 119 N.W. 539, 541.

9. The only two cases in which this court has addressed similar issues even in passing are easily

distinguishable from this case. See Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 80, 25

OBR 125, 495 N.E.2d 380; Franklin Cty. Bd. of Elections v. State ex rel. Schneider (1934), 128

Ohio St. 273, 191 N.E. 115. In both cases, this court refers to legislation that was

unconstitutional, and therefore void, at the time it was enacted. Despite the holding of Foster,

R.C. 2929.14(E)(4) and 2929.41(A) were not unconstitutional at the time of their enactment.

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January Term, 2010

{¶ 49} The United States Supreme Court’s holding in Ice makes it clear

that the Foster holding regarding the unconstitutionality of the consecutive-

sentencing provisions of the comprehensive reform enacted by Am.Sub.S.B. No.

2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2”) was in error. The judicial fact-finding

required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of

consecutive sentences is not now unconstitutional nor was it ever

unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been

repealed, a conclusion that the Foster analysis regarding consecutive sentences

was in error must result in the overruling of those infirm portions of Foster, the

removal of our judicially imposed holding that these provisions are

unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and

2929.41(A).

II. Intent of the General Assembly

{¶ 50} The majority also contends that R.C. 2929.14(E)(4) and

2929.41(A) should not be revived because it is unclear whether the General

Assembly would intend these consecutive-sentencing provisions to be enforced

when the other judicial fact-finding sentencing provisions that were severed in

Foster remain unenforceable. This reasoning is unpersuasive.

{¶ 51} Although the majority declines to “speculate” whether the other

sentencing provisions that were declared unconstitutional in Foster could be

severed from the consecutive-sentencing provisions and the remaining provisions

of S.B. 2, this is precisely the analysis the court would have been required to

perform in Foster if the court had not erred in holding the consecutive-sentencing

provisions unconstitutional. Had this court in Foster held the consecutive-

sentencing provisions to be constitutional, but still held the other statutory

provisions at issue to be unconstitutional,10 this court would have applied the

10. R.C. 2929.14(B) and (C) and 2929.19(B)(2) (statutory provisions that require judicial fact-

finding before imposition of a sentence greater than the maximum term authorized by a jury

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severance test established by Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160

N.E. 28, to determine whether the unconstitutional provisions of S.B. 2 could be

severed from the constitutional provisions. The Geiger test requires this court to

consider three questions before finding severance appropriate: “ ‘(1) Are the

constitutional and the unconstitutional parts capable of separation so that each

may be read and may stand by itself? (2) Is the unconstitutional part so connected

with the general scope of the whole as to make it impossible to give effect to the

apparent intention of the Legislature if the clause or part is stricken out? (3) Is the

insertion of words or terms necessary in order to separate the constitutional part

from the unconstitutional part, and to give effect to the former only?’ ” Id. at 466-

467, quoting State v Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph

nineteen of the syllabus. Why the majority now declines to use the Geiger test to

determine whether the constitutional consecutive-sentencing provisions of S.B. 2

may be enforced in the absence of those S.B. 2 provisions that remain

unconstitutional and unenforceable after Foster is baffling.

{¶ 52} In S.B. 2, the General Assembly adopted a comprehensive

statutory framework that established broad sentencing reforms to introduce

certainty and proportionality in felony sentencing. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, at ¶ 34. This court recognized that the S.B. 2

sentencing-reform statutory scheme is extremely complex. Id. at ¶ 49. Although

Foster severed seven discrete S.B. 2 statutory subsections, including R.C.

2929.14(E)(4) and 2929.41(A), the vast majority of the S.B. 2 sentencing-reform

scheme remains in place. There has been no significant action taken by the

General Assembly to alter the sentencing-reform scheme in light of this court’s

decision in Foster and the unconstitutionality of several subsections. Indeed, the

verdict or admission of the defendant) and R.C. 2929.14(D)(2)(b) and (D)(3)(b) (statutory

provisions that require judicial fact-finding before repeat-violent-offender and major-drug-

offender penalty enhancements are imposed).

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January Term, 2010

amendments made to the sentencing-reform scheme have not altered the

fundamental scheme originally enacted in S.B. 2, and the statutory provisions

declared unconstitutional and unenforceable in Foster have not been repealed in

the course of amending the sentencing scheme.

{¶ 53} The continued viability of most of S.B. 2 and the lack of

significant changes to the scheme after Foster indicate that the General

Assembly’s intent is to maintain as much of the S.B. 2 sentencing reform as is

constitutionally permissible. This court’s review of the constitutionality of a

statute starts with a presumption of constitutionality based in part upon this

court’s deference to the legislative branch on matters of public policy. State ex

rel. Ohio Cong. of Parents and Teachers v. State Bd. of Ed., 111 Ohio St.3d 568,

2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20, 73. Furthermore, in the context of

criminal sentencing, the courts grant substantial deference to the broad authority

of the General Assembly. See State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-

2338, 888 N.E.2d 1073, ¶ 22. That same deference should result in this court’s

recognizing the General Assembly’s intent, conceding that its analysis in Foster

regarding consecutive sentencing is no longer valid, overruling Foster in part, and

declaring the constitutionally sound consecutive-sentencing provisions

enforceable. Requiring the General Assembly to yet again manifest its intent to

adopt the sentencing reform set forth in S.B. 2, including the consecutive-

sentencing provisions, is unnecessary and places an undue burden upon the

General Assembly to correct an error, albeit a reasonable one, of this court.

III. Practical considerations

{¶ 54} The majority’s refusal to overrule Foster in part following the

decision in Ice is based upon its desire to avoid the perceived disruptive effects

such a holding would cause. The majority believes that overruling Foster in part

would entitle the many defendants who have received consecutive sentences after

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Foster to resentencings and that those resentencings would disrupt reasonable and

settled expectations of finality and place an undue burden on the judicial system.

{¶ 55} It is critical to recognize the scope of legal issues that must be

decided in this case. The court must determine in this case only whether Ice

abrogates those portions of Foster related to consecutive sentences and whether

R.C. 2929.14(E)(4) and 2929.41(A) may now be enforced to require judicial fact-

finding before the imposition of consecutive sentences. Hodge affirmatively

raised these issues in the lower courts, and these issues remain pending on direct

appeal. While it is appropriate to give some consideration to the potential issues

that may arise regarding the effect of the ruling requested by Hodge on defendants

who have received consecutive sentences after Foster without the statutory

judicial fact-finding, and whose cases have become final, these potential issues

should not dictate the outcome of this case, particularly given that this case does

not involve these issues, and the court has not had the benefit of adequate briefing

on them. It may well be that a partial overruling of Foster does not necessitate

the resentencing of defendants whose consecutive sentences became final, as the

majority assumes.

{¶ 56} Furthermore, matters of convenience should not dictate this court’s

substantive decisions. This is particularly true when the legal issue does not arise

with frequency. The majority acknowledges that the statutory-revival issue

before the court in this case is a matter of first impression. Majority opinion, ¶

24. In 200 years of adjudication, this case is the first time that this court has been

presented with these procedural facts and legal issues. Neither has the statutory-

revival issue arisen with significant frequency in other jurisdictions, as

demonstrated by the limited number of cases cited by the parties and the majority.

While I do not doubt that this court’s error in Foster may cause some

inconvenience to rectify, I cannot conclude that acknowledgment of the error will

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January Term, 2010

result in widespread chaos or that concerns regarding perceived chaos should

prevent this court from overruling precedent that is clearly wrong.

IV. Conclusion

{¶ 57} Although the majority concedes that its consecutive-sentencing

analysis in Foster is no longer valid based upon Ice, and the majority invites the

General Assembly essentially to reenact R.C. 2929.14(E)(4) and 2929.41(A)

verbatim without fear of constitutional infirmity, it refuses to overrule the

consecutive-sentencing portions of Foster. The majority makes clear that it

believes that severance in effect judicially repeals a statute, regardless of whether

later events undermine the severance, and that severed statutes cannot be revived

without reenactment. Accordingly, the majority could still overrule the erroneous

analysis of the consecutive-sentencing portions of Foster without reviving the

severed statutes. I find it troubling that the majority refuses to overrule even the

erroneous portions of Foster. Accordingly, I disagree with the majority’s refusal

to acknowledge its error in Foster and overrule those portions of Foster that have

been abrogated by Ice.

{¶ 58} Because I also find that principles of separation of powers and

deference to the will of the General Assembly require that statutory provisions

that were rendered unenforceable by this court in error, but that have not been

repealed, must be returned to enforceability, I dissent from the majority’s holding

that a statute declared unconstitutional in error cannot be revived absent

reenactment by the General Assembly.

__________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.

Springman Jr. and Rachel Lipman Curran, Assistant Prosecuting Attorneys, for

appellee.

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Janet Moore, Attorney at Law L.L.C., and Janet Moore; and Ohio Justice

and Policy Center, David A. Singleton, Angelina N. Jackson, and Peter C. Link,

for appellant.

Kenneth W. Oswalt, Licking County Prosecuting Attorney, urging

affirmance for amicus curiae Licking County Prosecuting Attorney.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven

DiMartino, Assistant Prosecuting Attorney, urging affirmance for amicus curiae

Ohio Prosecuting Attorneys Association.

_______________________

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