holding that to establish plain error, the appellant must show a deviation from the legal rule that is both an obvious and affected the trial's outcome
How later courts described this case
- holding that to establish plain error, the appellant must show a deviation from the legal rule that is both an obvious and affected the trial's outcome
- suggesting that the court had not properly used the term “void” and instead should have used the term “voidable” in referring to the sentences at issue in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 103
- noting that “[i]t is axiomatic that imposing a sentence outside the statutory range, contrary to the statute, is outside a court’s jurisdiction, thereby rendering the sentence void”
- noting that “Foster represents a Pyrrhic victory” for defendants because “trial courts no longer must navigate a series of criteria that dictate the sentence”
Written by the judges who cited it.
The opinion
Cupp, J.,
concurring in part and dissenting in part.
{¶ 36} I welcome and approve today’s needed clarification of when a sentence is void and when it is merely voidable, and the legal consequences of each. I concur in that portion of the decision.
{¶ 37} The main issue to be resolved, however, is whether this court’s sweeping resentencing mandate in State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470 , should be modified by applying the traditional principles of waiver or forfeiture or whether this court should, for purposes of consistency, adhere to the Foster resentencing mandate now that, presumably, most defendants subject to the requirement have already been resentenced. I would adhere to the resentencing directive of Foster for the purpose of consistency, and I therefore respectfully dissent from that portion of the majority’s decision.
{¶ 38} In Foster, after holding various provisions of Ohio’s sentencing statutes unconstitutional under Blakely v. Washington (2004), 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 , this court adopted several remedies similar to those adopted in United States v. Booker (2005), 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 . However, one of the remedies in Foster differed from the remedies in Booker in a significant way.
{¶ 39} Consistent with Booker, Foster first adopted a severance remedy. That is, the court severed the provisions of the sentencing statutes that violated the Sixth Amendment to the United States Constitution from the remainder of the *510 sentencing statutes. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470, ¶ 93-102 . Second, the court applied its holding to all cases pending on direct review, a remedy also consistent with Booker . Id. at ¶ 104. Third, this court ordered all cases pending on direct review “remanded to trial courts for new sentencing hearings.” Id. It is the apparent scope of this third remedy that differs from Booker*s remedial outline.
{¶ 40} Although Booker applied its holding to “all cases on direct review,” Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 , it did not order new sentencing hearings. Rather, the United States Supreme Court directed that federal courts, in deciding whether resentencing is necessary, “apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test.” Id. Foster did not include this directive.
{¶ 41} This distinction is a significant one and bears upon our decision in the instant case. The majority herein reasons that because Foster adopted remedies fashioned after those in Booker , the Booker language regarding waiver, plain error, and harmless error are also applicable here. That may be. However, the language of this court’s decision in Foster ostensibly made Foster broader than Booker by its specific order to resentence.
{¶ 42} Resentencing has already been conducted in hundreds of criminal cases around the state based on the Foster directive. 4 Consistency in this matter, as in all criminal sentencing, is desirable. The majority’s decision in this case, however, will result in some defendants having been granted a resentencing hearing whether or not they objected in the trial court to their initial sentence on Blakely grounds, while other defendants are being denied similar treatment. This lack of consistency is troubling.
{¶ 43} The resentencing ordered in Foster of all cases on direct review, without the Booker qualification, appeared to be a clear directive to trial and appellate courts. These courts have responded by undertaking or ordering new sentencing hearings. As a result, continued application of the resentencing requirement is the most consistent way of resolving the matter at hand. It is likely the most efficient way, too, considering the related claims that are sure to flow from today’s decision.
{¶ 44} Because I do not find Booker to be controlling in light of the particular language used in Foster, I would not at this late date depart from the resentenc *511 ing directive, whether overbroad or not. For these reasons, I dissent from that part of the majority’s decision.
Yeura R. Venters, Franklin County Public Defender, and Paul Skendelas, Assistant Public Defender, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee.
Moyer, C.J., concurs in the foregoing opinion.
. As the majority notes, this court remanded a large number of eases for resentencing in the months following the Foster decision. See majority opinion at ¶ 9 and footnote 1.