Petition for Writ of Certiorari — Copeland v. Ohio (No. 08-284)

Supreme Court brief2008

Ask Donna

What actually matters in this document.

Text

F \0

N®. ____@g_284 AUG 28 2008

OFPPICE OF THE CLERK

In The

William K. Suter, Clerk

Supreme Court of the Anited States

CHAD COPELAND,

Petitioner,

STATE OF OHIO,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court of Ohio

PETITION FOR A WRIT OF CERTIORARI

with Appendix

*Thomas G. Eagle

ATTORNEY AT LAW

3386 N. St. Rt. 123

Lebanon, OH 45036

937-743-2545

Counsel for Petitioner

*Counsel of Record

August, 2008

LEGAL ADVANTAGE @ 432 Walnut Street © Cincinnati, OH 45202

(800) 581-2252

QUESTION PRESENTED FOR REVIEW

1. Whether judicially severing the Ohio

statutes, that imposed presumptive minimum and

concurrent sentences, that were in effect at the

time of the offense conduct and conviction, due to

the unconstitutional, per Blakely vs. Washington,

statutory ability of a trial judge to depart from

minimum or concurrent’ sentences, thereby

retroactively imposing a longer and_ harsher

sentence based on a system that did not exist at the

time of the offenses or the convictions, violates due

process and freedom from ex post facto laws

prohibited by the United States Constitution.

TABLE OF NTENT

Page No.

QUESTION PRESENTED FOR REVIEW ............. i

"BARRE. COR CGRREG OE ia iwn tetany chsncdsicesssnnssisccccseses i

TABLE OF AUTRRORR alee ci5 sec ccccsssescicccscsccessses v

CPE T III IOG a We RE Riise ek Mba Gia kda eke ivnnssncesnoe sss 2

STATEMENT OF JURISDICTION ...................... 3

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ............ 4

STATEMENT OF THE CASE ......0.0..... eee. 5

HOW FEDERAL ISSUES WERE

RAISED AND DECIDED BELOW ...................... 10

ARGUMENT FOR

PL EAI VT ERG ee WR elecate tc tatbenchictcckessscscscces 16

CON CLAS IRS ics Doniarte ead gah Sad sicean oni aes 47

APPENDIX:

SUPREME COURT OF OHIO FILINGS:

Order Denying Motion for Reconsideration,

a anaahaice Al - Al

Order Denying Discretionary Review,

RS ESETISE Rear pgm mae ek Ren ea ECA B1- Bl

Excerpt Appellant's Memorandum in

Support of Jurisdiction,

filed 01/02/08, (pp. i, 6-11) .............02..ce eee. Cl - C15

OHIO COURT OF APPEALS, TWELFTH

DISTRICT FILINGS:

Judgment/Opinion,

ES 5 > SUISSE RAT aaa piped geen ipanatent meee ee D1 - D12

Excerpt of Appellant's Brief,

filed 05/29/07 (pp. i-v, 5-19) ........................ El - E35

Excerpt of Transcript of

Resentencing Hearing 01/18/07,

ERROR Ts COI WOP, BF) wo. cccscccccc cs ccsciscceest Fl - Fl

CONSTITUTIONAL PROVISIONS:

PU eh SO. BUD | wiphskdcndacorsccceanicodaccdnne G1-Gl

SN MM, I ca ekg d na ab sch sana edinkcannaneteatunde HI - Hi

Re NNR, PIE ic acscconcolesvabancnscispatveonsnnuncns I1 - [1

MI: OIE SUE Soo csichacannscuin channenesdeuuncauas J1-J3

STATUES:

ENE NE aos, EOE sisi s dccccndecstacicnacconsnsancas Kl - Kl

SP Mha AE Rae) occessisnsecnvecscceevassntencss LI - LI

ee, SE IAD ins sdsperssacicaceseasnvenebonnucpans Ml - M1

O.R.C. §2929.14(A), (B), (C), (B) .................. NI - N8

2 & Gig LL. + >. | eR NN O1- O02

BEER: MUIR MPU EICARD | acssecssencceceescsescaccnaneeten P1-P1

RRR aly SUN IUD giana cnccccnvdctanncnavarenancceaicnhose Ql - Ql

©... §$2963.06CA 4), (GU) .0....000..0..ccscccceceee RI - RI

TABLE OF AUTHORITIES

Page No.

CASES:

Albernaz v. United States,

RN Rt MCN NO sic cocks ie con cdccecacucsonssdanacaccaceesees 45

Apprendi v. New Jersey,

SR, ME NED oo aicc ceive sccsuncsesctccnccercaesess passim

Bell v. United States,

I a cs ccwidcucacnbuuasbeasduencaeraes 45

Bifulco v. United States,

a os as ce cease occcdvanaadencdaunecaue 44

Blakely v. Washington,

SE oa ccd ssseciccncodnactaassiavanve passim

Boute v. City of Columbia,

A I FN oss oes dak dua nuepaceceniusenscesee’ passim

Carmell v. Texas,

SUN Rs BEE TID ood oe cncicacasdncdudadnctevnancbards 26, 30

Cunningham v. California,

SO OR SE OED ios ccchasckcus Loneancewieda vats 23, 39, 40

Devine v. New Mexico Dept of Corrections,

ee Fe BOO C80 Cae. BOOS). bvcisicsisicssccce ccna 34

eras

aly

Evitts v. Lucey,

i I a ics wave vecavabaknassssnvancabacsliada 44

Hicks v. Oklahoma,

BN ei ED oiic os sscs cacdencscacsenccdcaaakandes passim

In re Ohio Criminal Sentencing Statutes Cases,

110 Ohio St.3d 264, 2006-Ohio-4475 ................... 11

In re Medley,

ee I UD uk conan casi cidavacuvacrescdesodhaceuien 27

Jones v. United States,

Re OE oie i kis cacds sckscievesesenssenconsyuncduunta 39

Lindsey v. Washington,

Be et I PE so vivccahncnacsiissacevdndasceudcaxienne 27, 29

Long v. State, 931 S.W.2d 285

Ce MeO EMG BID 5 vhssvnsccnsscyaasssrvacaasebesencesatile 39

Miller v. Florida,

I Ry UND D is ca ci vivindsscuavcesscasasocceebeavas passim

People v. Black,

Be ee SO CREE I) a snivcnccnncacocessicccsncssansnensiine 39

Rogers v. Tennessee, 532 U.S. 451 (2001) ...... 26, 37

State ex rel. Mason v. Griffin,

104 Ohio St.3d 279, 819 N.E.2d 644 (2004) ........ 33

State v. Comer, 99 Ohio St.3d 463,

703 NE 473 (2O0S) .......<<6..0....4.....5. (Diaconate passim

State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470 (2006) ........ passim

State v. Maynard,

132 Ohio App.3d 820 (1999) ..................0.........00000 17

State v. Mathis, 109 Ohio St.3d 54,

ey UME BND akicsnc ss ivccccs neste scves 19, 20, 35, 46

State v. Sheppard,

BO Ra reee Paes GO CESS 1) a nse- icin cchascseseviensccecwans 18

State v. Quisenberry,

Be CC PeRRO Gee Ce RE) onc ncn cic cc ccd ccedccscasepscetaccnnns 45

Stogner v. California,

SN WW NN ico. s cvvn sc ccusn nce sacacasennsecians 25, 37

United States v. Booker,

ie 5 cos kuancashenanaspowanbinelice 23

United States v. Bass,

NE Ma EN Ooo i Se cc ccca nan snncdkcwuttevangasccauarcancns 44

United States v. Santos, --- U.S. ---,

No. 06-1005 (U.S. Sup. Ct. June 2, 2008) ............ 47

Weaver v. Graham,

ee edecstae .32, 38

vii

CONSTITUTIONAL PROVISIONS:

Article I, Section 10,

United States Constitution .................. 4, 25, 26, 31

Fifth Amendment,

UJURRUGE CURIE TOOTROEREUEION. .........0.<cccscccccccsccsccocscess 4

Sixth Amendment,

United States Constitution ........................ 4, 15, 38

Fourteenth Amendment,

United States Constitution ......................2.... passim

STATUTES:

PE Ns EMEA shan ccgisckeinavnieasnccancMenscaceccpaieboae’ 3

I RU ea isa a vuk sate cnn onuuicdsachanes +punaceesaneneneues 45

O.R.C. §181.24(B)(1)-(8) ............ sheneautcaneucsmer anal 46

tars PIED siisvcuwicvedaiavsibeceoncsvnsssdnebeastxee 45,47

i ica oc. seiiese mciaaenavexeupssanbececesnasacineiiis 8

ho BD i u's vaicaince Sg dss hensennsdasaheam eal 43

aa NI EID ove icc sdvscncucacdestcceckanracpaaneas passim

ak MRED ian. Ssciicsnacitia sacks vinnaadusaencdentleacent 43

vill

O.R.C.

ic. sctsisenanns 43

i hisisisenseseecens 6,17

a cssensnnsavese 5

SSE 43

I Tonio cipcsscscasnscvesiascesrs 6,17

iio sailiccncessscnsaisse 46

Es OS re

oo cadcnnnseee 43

Do REESE 0 nea ee 43

his cbesssensste 18

COGGT oh ccscccscsnsss.. 36

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 2008

CHAD P. COPELAND

Petitioner,

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE OHIO COURT OF APPEALS, TWELFTH

APPELLATE DISTRICT

Petitioner Chad P. Copeland respectfully

requests this Court to issue a Writ of Certiorari to

review the judgment of the Ohio Court of Appeals,

Twelfth Appellate District, Butler County, Ohio, in

State v. Copeland, 2007-Ohio-6168, Case No.

CA2007-02-039 (November 19, 2007), discretionary

review denied, State v. Copeland, Case No. 2008-

0003, 117 Ohio St. 3d 1460, 2008-Ohio-1635, 884

N.E.2d 68 (April 9, 2008), motion for

reconsideration overruled, State v. Copeland, Case

No. 2008-0003, 118 Ohio St. 3d 1436, 2008-Ohio-

2595, 887 N.E.2d 1204 (June 4, 2008).

OPINIONS BELOW

The Opinion and Judgment of the Ohio

Court of Appeals, Twelfth Appellate District,

Butler County, Ohio, in State v. Copeland, 2007-

Ohio-6168, Case No. CA2007-02-039 (November 19,

2007), discretionary review denied, State v.

Copeland, Case No. 2008-0003, 117 Ohio St. 3d

1460, 2008-Ohio-1635, 884 N.E.2d 68 (April 9,

2008), motion for reconsideration overruled, State v.

Copeland, Case No. 2008-0003, 118 Ohio St. 3d

1436, 2008-Ohio-2595, 887 N.E.2d 1204 (June 4,

2008), is unreported and is reproduced in the

Appendix to this petition at D1. The Ohio Supreme

Court's order denying Petitioner's request for

discretionary review is reported at 117 Ohio St. 3d

1460, 2008-Ohio-1635, 884 N.E.2d 68 (April 9,

2008) and is reproduced in the Appendix to this

petition at B1. The Ohio Supreme Court's order

denying Petitioner's Motion for Reconsideration is

reported at 118 Ohio St. 3d 1436, 2008-Ohio-2595,

887 N.E.2d 1204 (June 4, 2008) and is reproduced

in the Appendix to this petition at Al.

JURISDICTION

The Ohio Court of Appeals, Twelfth

Appellate District, Butler County, Ohio, rendered

its Opinion and Judgment November 19, 2007. Pet.

App. Dl. The Ohio Supreme Court denied the

timely filed petition for discretionary review on

April 9, 2008. Pet. App. Bl. Petitioner's timely

motion for reconsideration was denied on June 4,

2008. Pet. App. Al. Petitioner now timely files

this Petition for Writ of Certiorari to the Ohio

Court of Appeals, Twelfth Appellate District. This

Court's jurisdiction is invoked under Title 28

U.S.C. §1257(A).

RELEVANT CONSTITUTIONAL PROVISIONS

AND

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part: "No person

. shall be deprived of life, liberty, or property,

without due _ process of law{.J". The Sixth

Amendment states in part: “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial by an impartial jury ... ."

The Fourteenth Amendment provides in relevant

part: "[Njor shall any State deprive any person of

life, liberty, or property, without due process of

law." Article I, Section 10 of the United States

Constitution provides in relevant part: "No State

shall ... pass any ... ex post facto Law[.]}"

The relevant provisions of the Ohio criminal

statutes underlying Petitioner's case are lengthy

and are therefore reproduced in the Appendix

beginning at K1 through R1.

STA NT OF THE CAS

This Petitioner was indicted in a 23 count

Indictment in the Butler County, Ohio, Common

Pleas Court. Counts 15-23 of the Indictment

related to the accusation of passing eight bad

checks and one aggregate count of theft for all of

them. Counts 1-14 related to a subsequent sale of

stock in a_=private closely held corporation.

Petitioner was tried and convicted by jury on all 23

counts in September 2003. The convictions ranged

from fourth-degree to first-degree felonies.

The matter came for sentencing on

November 20, 2003. The Court was advised

without dispute that Petitioner had no prior felony

convictions and no prior prison sentences. T.p

11/20/03, p. 23, 36. Nothing was _ presented

otherwise. At that time Ohio Revised Code

§2929.14(B) mandated the trial court impose the

shortest term authorized by Statute unless the trial

judge found certain facts, and a trial judge could

not impose more than a minimum sentence on a

defendant like this Petitioner without making

certain statutory findings on the record at the

sentencing hearing. State v. Comer, 99 Ohio St.3d

463, 469, 793 N.E.2d 473 (2003). Nor could a trial

judge impose any prison term for a fourth or fifth

degree felony without other factual findings. Ohio

Revised Code §2929.19(B)(2)(a). The same limits

upon judicial discretion also constrained a trial

judge's ability to impose consecutive sentences.

Ohio Revised Code §2929.14(E)(4). A trial court

had to make all the statutorily enumerated

findings and the supporting reasons for those

findings to explain why an enhanced sentence was

necessary to serve the purposes and intent of Chio's

sentencing scheme. State v. Comer, 99 Ohio St.3d

at 468, 793 N.E.2d at 477. The legislature

specifically designed those sentencing reforms to

reserve consecutive sentences "for the worst

offenses and offenders." Jd.

As a result, the maximum prison term this

Petitioner could have received was 3 years, the

minimum sentence for the most serious offense.

Nonetheless, Petitioner was sentenced to multiple

consecutive prison sentences, all more than the

minimum sentence provided by Statute, and in fact

for each Count just one month or year short of the

maximum for each offense of conviction (but for

those that were merged for sentencing) due to the

trial court reciting the specified factual findings.

The total aggregate sentence was 23 years. The

aggregate sentence was more than what the

maximum could have been imposed for even the

most serious of all offenses of conviction. The

sentence included consecutive sentences for each of

Counts 3, 4, 5 and 15 (the longest of the concurrent

sets). Judgment, Dec. 9, 2003, T.d. 284, p. 4.

: An appeal was timely filed io the Ohio

Court of Appeals, Twelfth Appellate District, for

Butler County, Ohio, which ruled partially in the

Petitioner's favor, as to the merger of two other

sentenced counts. That Court agreed that Count 1

and Count 2 should also have been merged. State

v. Copeland, No. CA2003-12-320, 2005-Ohio-5899

(But. App., Nov. 7, 2005), 4 86 (Copeland I).

Petitioner filed for discretionary review by

the Ohio Supreme Court, which was granted on the

basis that the sentence was void pursuant to State

v. Foster, 104 Ohio St.3d 1438, 819 N.E.2d 1122

(2004), which, after Petitioner's sentencing but

while his case was on direct appeal, found certain

of Ohio's sentencing statutes unconstitutional on

the basis of precedent from the United States

Supreme Court, including Apprendi v. New Jersey

and Blakely v. Washington. The Ohio Supreme

Court in Foster described the question presented as

“whether Ohio's’ felony sentencing’ structure

‘eRe

‘ae

Boa

violates the Sixth Amendment to the United States

Constitution in the manner set forth in Apprendi v.

New Jersey, 530 U.S. 466 (2000) and Blakely v.

Washington 542 U.S. 296 (2004)." State v. Foster,

109 Ohio St. 3d at 3, 845 N.E. 2d at 477. On

February 27, 2006, the Ohio Supreme Court found

those selected provisions of the relevant sentencing

statutes (Ohio Revised Code §§ 2929.14, 2929.19

and 2929.41, reproduced in the Appendix at N, O,

and Q, respectively), unconstitutional. State v.

Foster, 109 Ohio St.3d at 1, syllabus paragraphs 1,

3 and 5, and 3; 845 N.E. 2d at 475, 477. To remedy

the constitutional violations, the Ohio Supreme

Court severed those portions of the statutes

declared unconstitutional, including the provisions

for judicial fact-finding to enhance sentences, but

also the statutes mandating minimum, concurrent

sentences without such fact finding. Jd. at syllabus

paragraphs 2, 4 and 6. The Court then ordered Mr.

Foster's case remanded to the trial court for a new

sentencing hearing. Numerous other cases,

including this Petitioner's, were summarily

remanded to the Trial Courts for a new sentencing

hearing on that basis. Pursuant to Ohio precedent,

the resentencing was de novo.

EE ee eee er ee REFNO POR, LR et eM AOE AA LEI SPM SRNR OTROS RUN COT Roe, RIE ORES Nese re ete? BaP En Ip nS NL OAT RSS RT Pao ar ea ee

ee hs A : > : b : «Cas oe PERCE FSA, - % : ox nae ey,

Petitioner immediately raised _ the

constitutional infirmities of the severance remedy.

The new sentencing for Petitioner Copeland was

January 18, 2007. The Petitioner argued he should

have received no more than the minimum sentence

on each count, concurrent to each other, as was the

statutory law when his offenses of conviction were

committed. The trial judge disagreed and imposed

the same original sentence, 23 years, which for

each count was more than the minimum allowed by

statutes in effect at the time of the offense. The

new sentence also repeated the consecutive

sentences.

A second appeal was timely filed. In that

second appeal Petitioner raised as error all of the

relevant issues including the unconstitutionality of

retroactive application of the Foster remedy. The

Ohio Court of Appeals, Twelfth Appellate District,

overruled all those assignments of error and issues

presented for review. State v. Copeland, 2007-

Ohio-6168, § 23-26, Case No. CA2007-02-039

(November 19, 2007) (Copeland II), Pet. App. D1.

A timely appeal was filed to the Ohio Supreme

Court by way of petitioning for discretionary

review on the same issues. The Ohio Supreme

Court denied the petition for discretionary review,

April 9, 2008, reported at 117 Ohio St. 3d 1460,

2008-Ohio-1635, 884 N.E.2d 68 (April 9, 2008) and

reproduced in the Appendix to this Petition at B1.

Petitioner further timely moved the Ohio Supreme

Court for reconsideration, which was also denied,

June 4, 2008, and is reported at 118 Ohio St. 3d

1436, 2008-Ohi0-2595, 887 N.E.2d 1204 (June 4,

2008) and is reproduced in the Appendix to this

petition at Al.

HOW THE FEDERAL ISSUES WERE RAISED

AND DECIDED BELOW

On February 27, 2006, the Ohio Supreme

Court found selected provisions of the relevant

Ohio sentencing statutes were contrary to Blakely

v. Washington and violated the Sixth and

Fourteenth Amendments to the United States

Constitution. State v. Foster, 109 Ohio St.3d 1, 845

N.E.2d 470, 475, syllabus 4 1, 3 and 5. To remedy

the constitutional violations, the Ohio Supreme

Court severed those portions of the statutes

declared unconstitutional. Jd. at syllabus 44 2, 4

and 6. This Petitioner's case, still pending on direct

review at the time and raising the same issues, was

subsequently ordered remanded to the trial court

for a new sentencing hearing. Jn re Ohio Criminal

Sentencing Statutes Cases, 110 Ohio St.3d 2°4,

2006-Ohio-4475, {| 3.

Petitioner raised the constitutional

infirmities of the severance remedy immediately

thereafter. The new sentencing for Petitioner

Copeland was January 18, 2007. The Petitioner

argued he should have received no more than the

minimum sentence on each count, concurrent to

each other, as was the statutory law when his

offenses of conviction were committed:

THE PROSECUTOR: We're here today for

purposes of resentencing Chad Copeland

pursuant to order of the Supreme Court of

Ohio.

THE COURT: This is in accordance with

' Foster, which is a series -- which is a case

that caused a series of cases now in Ohio to

he resentenced following a decision finding

that parts of the Ohio Sentencing Code were

unconstitutional.

[DEFENSE COUNSEL]: That is where we

are. I would at this time would reserve any

and all factors relevant to Mr. Copeland's

sentencing as found in the Foster case for

further review, of course, depending on the

sentencing. But any of the Foster arguments

that would apply to Mr. Copeland I am

reserving for appeal.

THE COURT: Fair enough.

[DEFENSE COUNSEL]: The minimum

sentences for first time offenders, concurrent

sentencing for first time offenders, any and

all other arguments that would apply to Mr.

Copeland's case.

70. SAGO". . 9. By Pe. SA EE.

Nonetheless, the Trial Court disagreed and

imposed the same original sentence, including for

each count more than the minimum allowed by the

statutes in effect at the time of the offense, and

many consecutive to each other. Amended

Judgment, Jan. 24, 2007, T.d. 320; T.p. 1/18/2007,

p. 39.

A second appeal was timely filed. In that

second appeal, Petitioner raised as error all of the

following relevant issues as Assignments of Error

and Issues Presented for Review:

SECOND ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED IN ITS

SENTENCING OF THE APPELLANT TO

MULTIPLE, CONSECUTIVE, AND MORE-

THAN-MINIMUM SENTENCES

First Issue Presented for Review: A prison

sentence for a first-time felony of more than

the minimum sentence, consecutive

sentences, and a total of 23 years in prison,

for one securities transaction and passing

bad checks, is an abuse of discretion and is

contrary to law

Second Issue Presented for Review: A trial

court errs in sentencing a defendant who is a

first time felon, for conduct which occurred

prior to the remedy fashioned in State v. |

Foster, more than the statutorily prescribed

minimum sentence

Third Issue Presented for Review: The

Constitutional Rule of lenity prohibits a

choice among equal statutory interpretations

resulting in increased penalties for a

criminal defendant.

And citing to the United States Constitution

and numerous United States Supreme Court

precedents that striking the application of Statutes

as Se

in effect when an offense is committed and

convicted, that mandated a minimum statutory

sentence without judicial-fact finding, and

retroactively applying a different sentencing

scheme that resulted in a much higher sentence,

was a violation of the Petitioner's Federal

Constitutional rights, including expressly to due

process of law, and of the Constitutional "Rule of

Lenity." Appellant's Brief, State v. Copeland, filed

May 29, 2007, p. i - v, and p. 5-19 (reproduced in

Pet. App. E1).

The Ohio Court of Appeals, Twelfth

Appellate District, overruled all those assignments

and issues on the merits, based on other cases it

had already decided on the same points. State uv.

Copeland, 2007-Ohio-6168, § 23-26, Case No.

CA2007-02-039 (November 19, 2007), Pet. App. D1.

A timely appeal was filed to the Ohio Supreme

Court by way of petitioning for discretionary

review. The Petitioner again presented the

following relevant propositions of law:

Proposition of Law III: A criminal defendant

who 1s a first time felon, for conduct which

occurred prior to the remedy fashioned in

State v. Foster, cannot be sentenced to more

than the statutorily prescribed minimum

sentence.

Proposition of Law IV: The Constitutional

Rule of Lenity prohibits a choice among

equal statutory interpretations resulting in

increased penalties for a criminal defendant.

And again citing to numerous precedents

from this Court raising the same _ federal

Constitutional issues. Appellant's Memorandum in

Support of Jurisdiction, State v. Copeland, No.

2008-0003, filed January 2, 2008, p. i, 6-11,

reproduced in Pet. App. Cl. The Ohio Supreme

Court denied the petition for discretionary review,

April 9, 2008, reported at 117 Ohio St. 3d 1460,

2008-Ohio-1635, 884 N.E.2d 68 (April 9, 2008) and

reproduced in the Appendix to this Petition at B1.

Petitioner further moved the Ohio Supreme Court

for reconsideration, which was also denied, June 4,

2008, and is reported at 118 Ohio St. 3d 1436,

2008-Ohio-2595, 887 N.E.2d 1204 (June 4, 2008)

and is reproduced in the Appendix to this petition

at Al.

While agreeing that the Ohio sentencing

scheme violated the Sixth Amendment, Petitioner

argued the Ohio Supreme Court's crafted remedy

increased the punishment that could be imposed at

the new sentencing hearing, in violation of the Due

Process Clause and the Ex Post Facto Clause of the

United States Constitution. Applying the

judicially-crafted sentencing scheme retroactively

to him and the hundreds of similarly situated

defendants whose offenses predated the Foster

decision at a new sentencing proceeding would

deny them due process. The Ohio Supreme Court

denied Petitioner's appeals without comment.

ARGUMENT IN SUPPORT OF

GRANTING THE WRIT

SUMMARY

Prior to 1996, Ohio followed an

indeterminate sentencing regime. However, the

1995 Criminal Sentencing Act, 146 Ohio Laws, Part

IV, 7136 (Senate Bill 2) was enacted to reform the

sentencing laws and provide "truth-in-sentencing."

The revised statutes included statutory

presumptions limiting the sentence a trial court

could impose absent certain findings. Prior to State

v. Foster, Ohio Revised Code §2929.14(B) mandated

the trial court impose the shortest term authomzed

unless the court found those certain facts and a

L Pega

trial judge could not impose more than a minimum

sentence on a first offender without making the

statutory findings on the record at the sentencing

hearing. State v. Comer, 99 Ohio St.3d 463, 469,

793 N.E.2d 473 (2003). Nor could a trial judge

impose any prison term for a fourth or fifth degree

without factual findings. O.R.C. §2929.19(B)(2)(a).

The same limits upon judicial discretion also

constrained a trial court's ability to impose

consecutive sentences. O.R.C. §2929.14(E)(4)

(prison sentences "shall" be served concurrently to

each other, unless consecutive sentences are

imposed and permitted by the requisite findings of

fact).

A trial court had to make all the statutorily

enumerated findings and the supporting reasons

for those findings to explain why an enhanced

sentence was necessary to serve the purposes and

intent of Ohio's sentencing scheme. State v. Comer,

99 Ohio St.3d at 468, 793 N.E.2d at 477. Moreover,

the legislature designed these sentencing reforms

to reserve consecutive sentences "for the worst

offenses and offenders." Jd. In fact, more than a

minimum concurrent sentence in any other

circumstance was a sentence "contrary to law,"

State v. Maynard, 132 Ohio App.3d 820 (1999),

State v. Sheppard, 124 Ohio App.3d 66, 67-68

(1997), and therefore appealable as of right. O.R.C.

§2953.08(A)(4). These statutory presumptions --

the statutory minimum and concurrent -- were the

prescribed statutory maximum penalty that could

be imposed, absent a jury finding additional

elements beyond a reasonable doubt, exactly as

described in Apprendi v. New Jersey and Blakely v.

Washington, and conceded by the Ohio Supreme

Court.

The Ohio Supreme Court, following Blakely

v. Washington, 542 U.S. 296 (2004), held in State v.

Foster that the part of Ohio's sentencing scheme

allowing judicial fact finding to enhance a sentence

past the statutory minimum or to impose

consecutive sentences was unconstitutional. The

Ohio Supreme Court then severed those provisions,

but in the process of fashioning a remedy also

removed those statutory provisions that mandated

minimum, concurrent prison terms, if there were

not those additional fact-findings. Ohio defendants

with Blakely claims pending were to be _ re-

sentenced pursuant to the judicially revised

statutes. Because the Ohio Supreme Court severed

the legislatively enacted elements required to be

found prior to imposing a sentence beyond the

minimum term, or to impose a_ consecutive

sentence, Ohio judges were then for the first time

after the enactment of the Ohio Sentencing Reform

Act unfettered discretion to impose any sentence

within the statutory ranges, which is contrary to

the legislatively enacted sentencing statutes. In

this way the Foster judicial remedy violates the

Due Process Clause and the Ex Post Facto clause,

by retroactively increasing the _ potential

punishment of convicted defendants, beyond and

above what it could have been under the Statutes

existing at the time of the offenses, due to a

judicially created remedy.

The irony is that this "remedy" allows Ohio

to effect the very result that Foster declared was an

unconstitutional violation of Blakely v. Washington:

the trial court has "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." State v. Foster,

109 Ohio St.3d at 30, 845 N.E.2d at 498. As a result

of Foster, judicially reviewable findings are only

necessary when a trial judge gives less than the

presumed sentence for first and second degree

felonies. State v. Mathis, 109 Ohio St.3d 54, 846

Fe Ee ee ye TEN TS RTE SON EEE BST RAE A eee ete een ees

N.E.2d 1 (2006), syllabus, 91. Indeed, the Ohio

Criminal Sentencing Commission wrote in its

March 28, 2006 memorandum that "Foster

eliminates guidance from the statutes designed to

assure adequate prison space for the worse [sic]

offenders and to make sentences more consistent

statewide." March 28, 2006 Memorandum from the

Ohio Criminal Sentencing Commission to Judges

and Other Interested Parties re: Felony Sentencing

after Foster, pg. 4."

This Court has also found that eliminating

appellate review was a second reason to find that a

defendant had been "substantially disadvantaged"

by the retrospective application of the revised

guidelines to his crime. Miller v. Florida, 482 U.S.

423, 433 (1987). Here, as in Miller, severance

presents another disadvantage by virtue of its

application to Petitioner by eliminating judicial

fact-finding that attended sentences exceeding the

presumptive sentence and the presumptive

sentences contained within the severed statutes:

Foster effectively forecloses appellate review.

The retroactive application of the judicially

amended sentencing statutes changes. the

'Seehttp://sentencing.typepad.com/sentencing law

and_policy/files/ocsc on_foster.doc.

re ee Ee Re ee en WS Ce Ly SME oe ee Oe eR Og) AS SAS © See eae om hea TA inte So aS eT Se ale Rage oe eh ae ote Ss ee ee .

= , ‘ : ' > 2F' Ce, i2n a ke ee [oN

punishment Petitioner may suffer and

compromises his ability to appeal his sentence.

Accordingly, the severance remedy as applied to

Petitioner will violate his right to due process. The

Ohio Supreme Court's misapplication of a 4

severance remedy resulted in the judicial creation 4

of a state sentencing scheme that contradicts the kK:

Ohio sentencing scheme enacted by Ohio General '

Assembly in 1995. Accordingly, the application of

the judicially-created sentencing scheme denies 2

Petitioner and hundreds of other Ohioans due 4

process of law.

I. The Ohio Supreme Court's remedy

of re-sentencing Petitioner and hundreds of ¥

other Ohio defendants whose offenses

occurred prior to the judicially-created

sentencing scheme imposed by State v. Foster

is unconstitutional because it effectively

raises the presumptive sentences for first-

time offenders and those convicted of fourth

and fifth degree felonies and _ eliminates

effective appellate review. As a result, the

Ohio Supreme Court's remedy violates the Ex

Post Facto and Due Process Clauses of the

United States Constitution.

In State v. Foster, the Ohio Supreme Court

held that because Ohio's sentencing statutes

unig Dey

RY ese

TER RS SO ET NR SOLS Ae Oe Ce Re Pe Oe Bee ee BSE Se ee ON NL Oe Ee Fay Lape RG Oe eee oe

"require judicial fact-finding before imposition of a

sentence greater than the maximum term

authorized by a jury verdict or admission of the

defendant, they are unconstitutional." State uv.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 475, syllabus

41, citing to Apprendi v. New Jersey and Blakely v.

Washington, supra. To remedy the constitutional

infirmity, the Ohio Supreme Court severed the

provisions that imposed judicial fact-finding

prerequisites, but also eliminated the presumptive

minimum and concurrent sentences. State ov.

Foster, 109 Ohio St. 3d at 1, 845 N.E.2d at 475-76,

syllabus 942, 4, and 6. As a result, contrary to the

legislatively enacted sentencing scheme, a judge

could impose a sentence beyond the statutory

"maximum" (which was the minimum, concurrent

term if, as here, the defendant is a first offender),

without a jury finding the additional elements

beyond a reasonable doubt.

The Ohio Supreme Court's Opinion in State

v. Foster unequivocally finds: 1) the Ohio statutory

scheme -- as it existed when this Petitioner

committed the offenses he was convicted of --

mandated a minimum and concurrent sentence

unless additional fact-finding was made justifying a

higher sentence; and 2) under’ Federal

oS.

cal

‘

“4

“A

Phe

art

Ne.

“Ga

Be ee ae POE CS Pe SS Men Pa RAN MS CEST Phir Oe CREO, = Meee ERM Fes tec SS a ee ee eee er a a a

constitutional law, it was unconstitutional for a

judge, rather than a jury, to make those fact-

findings, or to make them by any standard less

than beyond a reasonable doubt, following United

States v. Booker, 543 U.S. 220 (2005); Blakely v.

Washington, 542 U.S. 296 (2004); and Apprendi v.

New Jersey, 530 U.S. 466 (2000). See also,

Cunningham v. California, 549 U.S. 270 (2007).

Although the proper remedy was a new sentencing

hearing, Foster, supra at {103,? and that part of the

Opinion is not in reasonable dispute, it is also what

(other than the remedy fashioned) would mandate,

* The State in this case previously suggested that the

Statutes were rewritten to take out only the fact-

finding provisions, and leave in the rest, but

selectively rewrites the Statute only to also take out

policy considerations -- a “rewriting” process the Ohio

Supreme Court declined to do. State v. Foster, supra

at 30, 4102. The General Assembly's pronouncement

of what policy considerations sentences should be

based on, independent of individual fact-finding to

enhance a stated sentence, is not unconstitutional

fact-finding. Preserving such considerations is not

unlike the Federal Sentencing laws considered in

United States v. Booker, and applied to various State

laws in Apprendi and Blakely. See Cunningham v.

California, supra at 867-868, nn. 12, 13.

by statute, that this Petitioner receive only the

minimum and concurrent sentence.

The Ohio Supreme Court though went

further, and then struck the portion of the Statutes

that mandated a minimum concurrent sentence

without additional findings of fact. No where does

the Foster Opinion mention the constitutional

implications of retroactively striking a _ statute,

resulting in a longer penalty to a _ criminal

defendant whose offense was committed when the

more favorable statute was in effect, and the Ohio

Supreme Court has to date refused to address that

issue. That is the issue still to be addressed:

whether under any circumstances it could be lawful

for this Petitioner to be sentenced to anything more

than the minimum, concurrent sentence, when the

statutes in effect at the time of his offense

mandated that sentence. When the United States

Supreme Court struck down Blakely's enhanced

sentence that was based on unconstitutional fact-

finding, the State of Washington was not free to

just judicially eliminate its system of guidelines

and retroactively apply a new discretionary scheme

in order to resentence Blakely to his original term

of imprisonment. The only sentence that could be

rendered on remand was the sentence that the law

required at the time without consideration of the

unconstitutional judicial fact-finding. Blakely, 542

U.S. at 313. Prior to Foster the Sixth and

Fourteenth Amendments prohibited the State from

imposing any sentence other than the statutory

minimum. Foster, supra at 456-67. Prior to Foster,

R.C. §2929.14(B) provided that a court shall impose

the shortest prison term authorized for the offense in

the absence of additional, judicial fact-finding.

Constitutional law as it existed at the time of his

offenses mandated a minimum term. Foster, supra

at 456-67.

A. The Foster remedy acts as an Ex Post

Facto law.

Article I, § 10 of the United States

Constitution prohibit the enactment of any ex post

facto law. The ex post facto clause prohibits a

legislature for example from’ retroactively

increasing the penalty for a crime that has already

been committed. Stogner v. California, 539 U.S.

607, 612 (2003). Although the ex post facto clause

“does not of its own force apply to the Judicial

Branch of government," the United States Supreme

Court has recognized "that limitations on ex post

facto judicial decision making are inherent in the

bith Sata ee Sasi len Gadi Ne Rela I a ae eee he OB RO Lay a ee a i ek Ee iinet be nl vg i ar ig A mo ae

7 & Gide ee Baai 3 : . 3 <s ¥ Pe cP ee mE ae tes

notion of due process." Rogers v. Tennessee, 532

U.S. 451, 456 (2001). Retroactive judicial

severance of a statute places the accused in exactly

the same circumstances that he would be in if the

legislature enacted an unlawful ex post facto law.

Because a judicial severance changes the actual

terms of the statute, the ex post facto clause

applies. See Miller v. Florida, 482 U.S. 423 (1987)

(this Court struck down state sentencing guidelines

because they violated the ex post facto clause,

because at the time the defendant committed the

crime sentencing guidelines resulted in a

presumptive sentence of 3% to 4% years of

imprisonment); Carmell v. Texas, 529 U.S. 513, 533

(2000) (reaffirming that a_ state's retroactive

modification of its laws regarding evidence -- in this

case the evidence necessary to impose more than a

minimum sentence -- could constitute a viable ex

post facto challenge). As recognized in Bouie v. City

of Columbia, 378 U.S. 347, 353 (1964), "an

unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely

like an ex post facto law, such as Art. I, § 10, of the

Constitution forbids."

The United States Supreme Court has been

extremely vigilant in searching for any retroactive

increase in a defendant's sentence and quick to

strike down those increases. In In re Medley, 134

U.S. 160 (1890), the Court examined a statute that

was not in effect at the time of the offense that

mandated that the petitioner had to be held in

solitary confinement while awaiting execution. The

prior statute had no such provision and therefore

"was an additional punishment of the most

important and painful character and is therefore

forbidden by this provision [Ex. Post Facto Clause]

of the Constitution of the United States." Jd. at

171. In Lindsey v. Washington, 301 U.S. 397

(1937), this Court addressed a change in the State

of Washington's sentencing provisions from the law

in effect at the time of the offense, which provided

that the trial court could impose a sentence up to a

maximum of fifteen years, to at the time of

sentencing which required a sentence of fifteen

years in every case, but with parole discretion to

determine whether a_ shorter sentence was

appropriate. The Court prohibited the application

of the new law to that petitioner, holding that the

ex post facto clause looks to the standard of

punishment prescribed by the statute rather than

the sentence actually imposed. Lindsey, 301 U°S.

at 401.

In Miller v. Florida, 482 U.S. 423 (1987), this

Court struck down state sentencing guidelines for

violating the ex post facto clause, because at the

time the defendant committed the crime the

sentencing guidelines resulted in a presumptive

sentence of 3% to 4% years of imprisonment, and

the sentencing judge had discretion to sentence an

offender anywhere within the presumptive range

without the requirement of a written explanation,

but a departure outside of the range required clear

and convincing reasons in writing for doing so; but

by the time of the sentencing hearing, the

presumptive sentence was higher. The United

States Supreme Court unanimously reversed a

result nearly identical to this Petitioner's situation,

but which the Ohio Supreme Court refuses to

address, and no lower Ohio court will overrule. It

was immaterial that the defendant could not

definitively show he would have received a lesser

sentence under the old guidelines because

petitioner has been "substantially disadvantaged"

by the retroactive application of revised guidelines,

which allowed the judge to impose a_ higher

sentence than previously contemplated. Id. at

431-33. As the Court stated:

To impose a 7-year sentence

under’ the old guidelines, the

sentencing judge would have to depart

from the presumptive sentence range

of 3% to 4% years. As a result, the

sentencing judge would have _ to

provide clear and convincing reasons

in writing for the departure, on facts

proved beyond a reasonable doubt,

and his determination would be

reviewable on appeal. By contrast,

because a 7-year sentence is within

the presumptive range under the

revised law, the trial judge did not

have to provide any reasons,

convincing or otherwise, for imposing

the sentence, and his decision was

unreviewable. Thus, even if the

revised guidelines law did _ not

"technically .. . imcrease .. . the

punishment annexed to [petitioner's]

crime," Lindsey, supra, at 401, it

foreclosed his ability to challenge the

imposition of a sentence longer than

his presumptive sentence under the

old law. Petitioner therefore was

"substantially disadvantaged" by the

retrospective application of the revised

guidelines to his crime.

Muller, supra at 432-433.

This Court in Carmell v. Texas, 529 U.S. 513

(2000), reaffirmed that a_ state's retroactive

modification of its laws regarding evidence -- in this

Petitioner's case the evidence necessary to impose

more than a minimum sentence -- could constitute

a viable ex post facto challenge:

All of these legislative changes,

in a sense, are mere images of one

another. In each instance, the

government refuses, after the fact, to

play by its own rules, altering them in

a way that is advantageous only to the

State, to facilitate an easier

conviction. There is plainly a

fundamental fairness interest, even

apart from any claim of reliance or

notice, in having the government

abide by the rules of law it establishes

to govern the circumstances under

which it can deprive a person of his or

her liberty or life.

Id. at 533 (Thomas, J.). Similarly, once the

United States Supreme Court (and the Ohio

Supreme Court, for that matter) determined that it

is unconstitutional to impose more than the

minimum sentence- on a criminal defendant

because of the availability of a higher sentence only

after additional fact finding, it is also

- unconstitutional to retroactively apply the striking

of the statutory presumptions that mandate that

minimum sentence. In this case, that retroactive

change results in an increase from a@ maxtmum of

three years in prison (the statutory minimum and

therefore the legal maximum under the Ohio

presumptive sentence) to the result of unfettered

discretion -- 23 years in prison, a difference of 20

years.

Judicial severance that expands the

available range of punishment falls within the

proscriptions of the ex post facto clause and in

addition exceeds the limits on retroactive judicial

decisions under the Fourteenth Amendment. As

recognized in Bouie v. City of Columbia, 378 U.S.

347, 353 (1964), “an unforeseeable judicial

enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post

facto law, such as Art. I, 10, of the Constitution

forbids." Given the similar impact of judicial

decision-making and legislation on the rights of

criminal defendants, the fundamental principle

that "the required criminal law must have existed

when the conduct in issue occurred" must be

applied to restrict the retroactive application of

both. Jd. at 354. The Court explained: "If a state

legislature is barred by the Ex post facto Clause

from passing [a retroactive law], it must follow that

a State Supreme Court is barred by the Due

Process Clause from achieving precisely the same

result by judicial construction." [d. at 353. A law is

retrospective if it "changes the legal consequences

of acts completed before its effective date." Miller

v. Florida, 482 U.S. at 431, citing Weaver v.

Graham, 450 U.S. 24, 31 (1981). The Court

observed that it is "axiomatic that for a law to be ex

post facto it must be more onerous than the prior

law." Id. (internal citation omitted).

B. The Ohio Supreme Court's remedy

was unf eable and indefensible in li of the

law_e rl Foster.

Due process demands that a defendant have

fair warning of what constitutes a crime. Bouie v.

Columbia, 378 U.S. at 350. Fair warning is denied,

however, when there is an unforeseeable and

retroactive judicial expansion of statutory language

that appears narrow and precise on its face. Id. at

352. Consequently, this Court determined that if a

judicial construction of a criminal statute is

“unexpected and indefensible by reference to the

law which had been expressed prior to the conduct

in issue,’ [the construction] must not be given

retroactive effect." Id. at 354 (citation omitted).

When this Petitioner went to trial in the

Butler County Common Pleas Court, he could not

have foreseen that Ohio would judicially sever the

portions of Senate Bill 2 that replaced a trial

court's mandate to impose minimum, concurrent

sentences unless facts were found otherwise as

. provided by statute, a "guided discretion," with

unfettered, unreviewable discretion. State v.

Foster, 109 Ohio St. 3d at 27, 845 N.E.2d at 495-

496. Even after Blakely, Ohio defendants could not

have foreseen this judicially-created severance

remedy, as the Ohio Supreme Court itself had

advised prior to Foster that if the sentencing

statutes were ultimately found to _ be

unconstitutional, a trial court “should apply the

pertinent sentencing statutes without any

enhancement provisions found to. be

unconstitutional[.|" State ex rel. Mason v. Griffin,

104 Ohio St.3d 279, 282, 819 N.E.2d 644, 648

(2004) (emphasis added).

This Court has emphasized that petitioners

lacked fair warning of the new interpretation

afforded the statute as it was "clearly at variance

with the statutory language" and it did not have

"the slightest support in prior [State] decisions."

Bouie v. Columbia, 378 U.S. at 356. Subsequent

courts have held that the due process clause

likewise proscribes judicially enforced changes in

statutory interpretations unforeseeably expand

punishment beyond that which one could have

anticipated at the time of committing the crime.

See Devine v. New Mexico Dept of Corrections, 866

F.2d 339, 344-45 (10 Cir. 1989).

Retroactive application of the judicially

created Foster remedy seriously and unexpectedly

disadvantages criminal defendants. First and

foremost, they are divested of the presumption of

minimum and concurrent terms of imprisonment

when facing their sentencing judges at the trial

court -- after already pleading or going to trial on

that expectation. Second, they lose the meaningful

appellate rights that existed prior to Foster for

review of non-minimum or consecutive sentences.

Before the Foster remedy, a defendant enjoyed a

presumptive sentence no more than the statutory

minimum, and concurrent, and, if he received a

sentence greater than the presumption, he could be

assured a new sentencing hearing if the trial court

failed to make the necessary findings, made

erroneous findings or failed to provide reasons for

those findings made in support of maximum or

consecutive terms. "Pre-Foster, R.C. §2953.08(G)(1)

provided an opportunity for remand to the trial

court if required findings were missing." State uv.

Mathis, 2006-Ohio-855, |] 34, 37.

If the Foster remedy is retroactively applied

to resentencings these important rights. will

unexpectedly be lost. For the reasons expressed in

Miller, the ex post facto clause would prohibit the

Ohio General Assembly from eliminating the

statutory presumptions in Ohio's felony sentencing

law and applying that change retroactively. As in

Miller, Ohio defendants had the expectation of

presumptive sentences that could only be overcome

by judicial findings, and of appellate rights that

would ensure that any enhanced sentence rested

squarely on a permissible basis. The elimination of

any presumptive sentence and the corresponding

diminished ability to challenge on appeal a

departure from that presumptive sentence

substantially disadvantages criminal defendants.

In the instant case the remedy accomplishes

by judicial fiat that which the Ohio General

Assembly is precluded from doing by the ex post

facto clause. As explained in Bouie, the Due

To oe eRe ee eke 2 Se ee RE eS ee kee ge Ce ee Sore Cree a: Se. ee oe

aN ¥3 v : . e Ps pelea

Process Clause does not countenance such a result.

For defendants whose criminal conduct pre-dates

February 27, 2006, the severance remedy is

unavailable as a matter of constitutional law. The

decision to abolish sentencing presumptions for

criminal defendants constitutes a marked and

unpredictable departure from the law passed by the

General Assembly. See, Foster, at 87 (explaining

that "[t]he General Assembly undoubtedly never

anticipated that the judicial-finding requirements

contained within S.B. 2 would be held

unconstitutional"). How could a criminal defendant

anticipate such a change? Given this unexpected

and detrimental departure, due process precludes

the retroactive application of the now-severed

provisions to defendants whose offense conduct

pre-dates the release of the opinion in the instant

case.

C. If allowed to stand, the Ohio Supreme

Court's Foster severance remedy violates the due

process clause.

The decision in Foster did not merely

constitute judicial interpretation of the meaning of

a statute; the sentencing statutes themselves were

altered and enlarged through judicial severance.

EE ce ny Oe en ee ag Ne eR Fee oe One ee ee ey Re eS Sg eer Ce Pee, See ee eee ne oe ee

The decision in Foster violates the Fourteenth

Amendment because if "a state legislature is barred

by the ex post facto clause from passing such a law,

it must follow that a State Supreme Court is barred

by the Due Process Clause from achieving precisely

the same result by judicial construction." Bouie,

378 U.S. at 353-54. If the General Assembly had

repealed the statutory maximums which were in

place prior to the decision in Foster -- which is

essentially what Foster did -- the ex post facto

clause would have prohibited the State of Ohio

from imposing the increased penalties on this

Petitioner, who had already committed the offense,

had been convicted and was sentenced. Stogner,

Calder, supra. The Fourteenth Amendment

accordingly prohibits a court from achieving the

exact same result through an act of judicial

severance. Bouie, 378 U.S. at 353-45; accord

Rogers, 532 U.S. at 460-61.

This Court struck down the Florida law that

retroactively altered the presumptive sentencing

range for particular offenses, even though the law

allowed upward departures if the judge made

specific findings -- exactly the remedy imposed by

Foster -- citing "the lack of fair notice and

governmental restraint when _ the legislature

increases punishment beyond what was prescribed

when the crime was consummated." Miller, supra

at 430-431, citing Weaver v. Graham, 450 U.S. 24,

28-29 (1981). Asin Miller, this Petitioner had the

expectation of a presumptive sentence that could

only be overcome by jury findings or admission, and

appellate review of any enhanced sentence. The

elimination of any presumptive sentence, and the

ability to appeal a departure from that presumptive

sentence, substantially disadvantages him.

Accordingly, the Foster remedy can not be

retroactively applied to this Petitioner.

The Ohio Supreme Court instead severed the

statutory presumptions themselves from. the

statute and held that on remand judges would be

free to impose any sentence, regardless of whether

or not the penalty imposed at resentencing

exceeded that which would have been compelled by

Blakely. That part of the Foster Decision does not

address, and is incompatible with the controlling

precedent of the United States Supreme Court.

The Sixth Amendment not only prohibits the

legislature from removing predicate factual

findings from the jury, but also forbids the judiciary

from circumventing the limitations that the

legislature has placed on the availability of

criminal punishments that correspond to varying

degrees of criminal culpability. Apprendi, 530 U.S.

at 483-85. Any other rule would permit the States

to "manipulate their way out of Winship" merely by

claiming that a criminal offense is actually nothing

more than a sentencing enhancement attached toa

less-serious conviction. Jones v. United States, 526

U.S. 227, 243 (1999). Other States have come toa

similar conclusion. See Long v. State, 931 S.W.2d

285, 295 (Tex. Crim. App. 1996) (imposing a

previously unavailable penalty through the judicial

severance of the statutory maximum authorized

violates the Constitution by retroactively extending

the conduct to which a penalty can attach).

The United States Supreme Court has stated

that it was not for the courts to rewrite the stricken

sentencing Statutes, but for the legislatures.

Cunningham v. California, supra at 868, 871. In

fashioning the remedy it did, the Ohio Supreme

Court also relied at least in part or at least

considered the California Supreme Court's position

on the issue expressed in People v. Black, 113 P.3d

534 (Cal. 2005). State v. Foster, supra at 25, n.92.

The United States Supreme Court soundly rejected

that case and its reasoning. Cunningham uv.

California, supra at 868-871. The argument

Sr ieaaaies, SoA Re ii ain ea ai i oan ahaa Net aaah Sone i RG ie jist ie caval page ice pA i

repeatedly relied upon to defeat ex post facto

implications (a criminal defendant could not have

expected a guaranteed minimum sentence) was

also rejected, at least as a basis for preserving the

unconstitutional sentencing scheme. Cunningham

v. California, supra at 869.

D. The Ohio Supreme Court's severance

remed rives Petitioner of a liberty interest

without due process of law.

' Subjecting Petitioner to a new sentencing

hearing devoid of the protections originally enacted

by the Ohio legislature creates a constitutional

violation that was soundly condemned in Hicks v.

Oklahoma, 447 U.S. 343 (1980). Oklahoma had

determined that its habitual offender statute was

constitutionally infirm while Hicks's case was

pending on appeal. The Oklahoma Court of

Criminal Appeals acknowledged the

unconstitutionality of the state sentencing law, but

affirmed the sentence because it was within the

range of punishment that "could have been imposed

in any event." Hicks v. Oklahoma, 447 U.S. at 344.

Certiorari was granted to determine if Hicks was

deprived of due process of law as guaranteed by the

Fourteenth Amendment.

This Court described the liberty interest and

constitutional dilemma caused by the subsequent

affirmance of the original sentence absent the

procedural safeguards that attended the original

sentencing scheme:

It is argued that all that is involved in

this case is the denial of a procedural

right of exclusively state concern.

Where, however, a State has provided

for the imposition of criminal

punishment in the discretion of the

trial jury, it is not correct to say that

the defendant's interest in the exercise

of that discretion is merely a matter of

state procedural law. The defendant in

such a case has a substantial and

legitimate expectation that he will be

deprived of his liberty only to the

extent determined by the jury in the

exercise of its statutory discretion, and

that liberty interest is one that the

Fourteenth Amendment preserves

against arbitrary deprivation by the

State. In this case Oklahoma denied

the petitioner the jury sentence to

which he was entitled under state law,

simply on the frail conjecture that a

jury might have imposed a sentence

equally as harsh as that mandated by

the invalid habitual offender

Spied don ita Nee one a ee te ae

provision. Such an arbitrary disregard

of the petitioner's right to liberty is a

denial of due process of law.

Hicks v. Oklahoma, 447 U.S. at 346.

(Footnotes and internal citations omitted).

This Court rejected the State's claim that

Hicks did not have an absolute right to a sentence

imposed by a jury, noting that Hicks had a

statutory right to a have a jury decide his

punishment, a right that substantially affects the

sentence ultimately imposed. Id. at 347. The right

to a jury was “determinative, at least as a practical

matter, of the maximum sentence that a defendant

will receive." Id. By affirming the sentence

imposed by a jury under the invalid mandatory

statute, Oklahoma denied Hicks his liberty without

due process of law. Id.

Foster excised the various statutes that set

out the procedures permitting a sentencing court to

impose a sentence beyond a minimum concurrent

one. The Ohio law was declared unconstitutional

because it did not mandate that elements needed to

impose a sentence over the statutory minimum be

found by a jury beyond a reasonable doubt. By

eliminating on remand the statutory elements

necessary to impose a_ sentence other than

minimum and concurrent, Petitioner was denied a

substantial liberty interest that the "Fourteenth

Amendment preserves against arbitrary

deprivation by the State." Hicks v. Oklahoma, 447

U.S. at 346.

Petitioner's federal due process claim and

liberty interest arise from the sentencing elements

and procedures set out in Ohio Revised Code

§2929.14(B), (C), and (E), 2929.19(B)(2),

2929.41(A), and his appellate rights set out in Ohio

Revised Code §2953.08. Petitioner retains an

overriding liberty interest in these procedures; they

cannot be eliminated to his detriment, especially

when to do so will substantially affect the

punishment imposed.

Pursuant to the Ohio Supreme Court's

remand, the trial court may now impose any

sentence within the ranges provided in Ohio

Revised Code §2929.14(A), but without using the

statutorily prescribed procedures. State v. Foster,

109 Ohio St.3d at 30, 845 N.E.2d at 498. Yet

Petitioner has a_ substantial and _ legitimate

expectation that he will be deprived of his liberty

only to the extent determined by statute and only

in accordance with due process of law. He also has

. SU ot eT ae ae “f. i eee ee o" <a} aoe on sie rh tty A Ng a aa

ee ge, SR ee ee ee ee OE Pee Pe ee eee) AT ee ge Ve CP INS FO

a substantial liberty interest in the appellate

procedures devised by the state legislature to

insure compliance with the statutory scheme.

Evitts v. Lucey, 469 U.S. 387, 396 (1985). These are

liberty interests the Fourteenth Amendment

preserves and protects from arbitrary State

deprivation. Accordingly, any sentencing

proceeding without these protections in place will

deprive Petitioner of his liberty without due process

of law.

E. The Constitutional Rule of Lenity

prohibits a choice among equal statutory

interpretations resulting in increased penalties for

a criminal defendant.

Because of the seriousness of criminal

penalties, and because criminal punishment

usually represents the moral condemnation of the

community, legislatures and not the courts should

define criminal activity, United States v. Bass, 404

U.S. 336 (1971), and set the punishments therefor.

See, Bifulco v. United States, 447 U.S. 381 (1980).

The due process Rule of Lenity means that a court

will not interpret a criminal statute so as to

increase the penalty that it places on an individual

when such an interpretation can be based on no

more than a guess of what the legislature intended.

Albernaz v. United States, 450 U.S. 333 (1981).

The enactment of the statutory provisions struck

down in the Ohio sentencing cases strongly

suggests that the General Assembly did not intend

for judges to impose consecutive or maximum

sentences in all cases. A presupposition of our law

is to resolve doubts in enforcement of a penal code

against the imposition of harsher punishment. Bell

v. United States, 349 U.S. 81, 83 (1955). Chio has

codified this presupposition in R.C. §2901.04(A)

that "Sections of the Revised Code defining .. .

penalties shall be strictly construed against the

state, and liberally construed in favor of the

accused." See State v. Quisenberry, 69 Ohio St.3d

556, 557 (1994).

The attempt to constitutionalize Ohio's

sentencing statutes by excising all clauses that

restrict the trial court's discretion to impose higher

sentences is also contrary to the Rule of Lenity in

interpretation. The enabling statute, R.C. §181.24,

clearly intended for the statutes enacted to provide

uniformity and proportionality, "with increased

penalties for offenses based upon the seriousness of

the offense and the criminal history of the

offender,” and with judicial discretion to be limited.

R.C. §181.24(B)(1)-(3). Those goals were embodied

in the statutes ultimately enacted and

subsequently reviewed by the Court in Foster. The

expressly stated purposes and intent of Senate Bill

2 was to reserve higher sentences for the worst

offenses and offenders. State v. Comer, 99 Ohio St.

3d 463, 2003 Ohio 4165, at 421. “Consistency and

proportionality are hallmarks of the new

sentencing law." /d., citing Griffin & Katz,

Sentencing Consistency: Basic Principles Instead of

Numerical Grids: The Ohio Plan (2002), 53 Case

W.Res.L.Rev. 1, 12. While higher sentences were

permitted, imposition of such sentences required

that "findings and reasons must be articulated by

the trial court so an appellate court can conduct a

meaningful review of the sentencing decision."

Griffin & Katz, Ohio Felony Sentencing Law, at

458-459, Section 1.21.

The Ohio General Assembly's articulated

goals are now relegated to historical and statutory

notes, replaced by a judicially enacted scheme that

requires findings only when a trial court seeks to

give a “downward departure" pursuant to R.C.

§2929.20(H). State v. Mathis, 109 Ohio St.3d 54,

2006-Ohi0-855, syl. 1. Giver the Court's prior

pronouncements on the laudable goals inherent in

Senate Bill 2, this construction violates R.C.

§2901.04(A) by imposing the least lenient

construction of the Statute on a defendant being

resentenced. In this case, that retroactive change

results in an increase from a maximum of three

years in prison (the statutory minimum and

therefore the legal maximum under the Ohio

presumptive sentence) to the result of unfettered

discretion -- 23 years in prison, a difference of 20

years.

This case should be accepted to establish and

clarify that rule as it applies to a judicially created

remedy resulting in mass resentencings across the

State. See United States v. Santos, --- U.S. ---, No.

06-1005 (U.S. Sup. Ct. June 2, 2008) ("rule of

lenity" applied to narrowly construc statutory

terms).

CONCLUSION

The petition for a writ of certiorari to the

Ohio Court of Appeals should be issued. The Ohio

Supreme Court's judicially-created severance

remedy was crafted with no regard for Petitioner's

and other Ohioan's due process rights. This

Petitioner will suffer because the Ohio Supreme

Court eliminated substantial benefits inherent in

the sentencing structure under which he was

charged and convicted. The injuries he will suffer

are not ambiguous, attenuated or insubstantial.

They go to the heart of the Due Process Clause. In

this case, the retroactive change created by the

Ohio Supreme Court, and which it to date has

refused to address on the merits, results in an

increase from a maxtmum of three years in prison

(the statutory minimum and therefore the legal

maximum under the Ohio presumptive sentence

and Apprendi and Blakely) to the result of

unfettered discretion -- 23 years in prison, a

difference of 20 years. Only this Court can protect

Ohioan's rights in that regard, and in every other

State considering a judicial remedy for the denial of

the rights afforded by this Court in Blakely.

This Court should accept this case for full

review, to clarify for Ohio and all other States the

constitutional limits on judicially created re-

sentencing schemes, as it did to _ establish

nationally the rights of criminal defendants being

sentenced in the first place. This case presents the

next obvious logical step following Blakely.

oa eke oe iB a ot Maa

Clee s . 2? ne eee Le ee

Respectfully submitted,

THOMAS G. EAGLE CO., L.P.A.

Thomas G. Eagle (#0034492)

Counsel of Record for Petitioner

3386 N. State Rt. 123

Lebanon, Ohio 45036

Phone: (937) 743-2545

Fax: (937) 704-9826

Email: eaglelawoffice@cs.com

COUNSEL FOR PETITIONER

APPENDIX

SUPREME COURT OF OHIO FILINGS:

Order Denying Motion for

Reconsideration,

SR Se ne ere Al1-Al

Order Denying Discretionary

Review,

Ts ew NS as amas B1-Bl

Excerpt Appellant's Memorandum

in Support of Jurisdiction,

filed 01/02/08 (pp. i, 6-11) .......... C1-C15

OHIO COURT OF APPEALS

TWELFTH DISTRICT FILINGS:

Judgment/Opinion,

ec ees D1 - D12

Excerpt of Appellant’s Brief,

filed 05/29/07 (pp. i-v, 5-19) ........ E11 - E35

Excerpt of Transcript of

Resentencing Hearing 01/18/07,

filed 03/15/07 (Cover, p. 3) ........... Fl - Fl

Se ee oe ee ee PS Oe eek ae

ous

APPENDIX, CONTINUED

CONSTITUTIONAL PROVISIONS:

US. Const. Art. I, §10.............. G1-Gl

Rl SLR Be ss os in kta H1-H1

Tee, Se SU ss ba ee I1- [1

Rice I: POMERAT 8c 8 8 5 9 SG J1-J3

STATUES:

eee IE ie oo kw eke eke s eas K1 - K1

O2t. $IS1 2B NAS) .. . 6a L1- Ll

OR Weer ae oo oe M1 -M1

O.R.C. §2929.14(A), (B), (C), (BE) ...... N1 - N8

89S 99h Gey 2 Src O1 - O2

(7.FUA;. Beem meme). 2. 6. cA eee ke P1- Pl

2 Som eS See emer. Q1-Ql

O.R.C. §2953.08(A)(4), (G)(1) .. 2... R1 - Rl

fy is

THE SUPREME COURT OF OHIO

State of Ohio Case No. 2008-0003

Vv. RECONSIDERATION ENTRY

Chad P. Copeland Butler County

It is order by the Court that the motion for

reconsideration in this case is denied.

(Butler County Court of Appeals; No.

CA200702039)

/si/_ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

A-1

THE SUPREME COURT OF OHIO

State of Ohio Case No. 2008-0003

v. ENTRY

Chad P. Copeland Butler County

Upon consideration of the jurisdictional

memoranda filed in this case, the Court denies leave

to appeal and dismisses the appeal as not involving

any substantial constitutional question.

(Butler County Court of Appeals; No.

CA200702039)

/s/_ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

B-1

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff/Appellee,

-VS-

CHAD COPELAND,

Defendant/Appellant.

SUPREME CT. CASE NO. 08-0003

On Appeal from the Twelfth District

Court of Appeals, Butler County Ohio

Court of Appeals

Case No. CA-2007-02-039

MEMORANDUM IN SUPPORT OF

JURISDICTION OF

APPELLANT CHAD P. COPELAND

Thomas G. Eagle (#0034492)

COUNSEL OF RECORD

THOMAS G. EAGLE CO., L.P.A.

3386 N. State Rt. 123

Lebanon, Ohio 45036

Phone: (937) 743-2545

Fax: (937) 704-9826

E-mail: eaglelawoffice@cs.com

COUNSEL FOR APPELLANT, CHAD COPELAND

C-1

Se eS RE Oe: ee ae

SM TEE ee. ae

Robin Piper, Butler Co. Pros. Attorney (#0023205)

(COUNSEL OF RECORD)

Daniel G. Eichel, Ass’t Pros. Attorney (#0008259)

315 High St., 11 th Floor ;

Hamilton, Ohio 45011

Phone: (513) 785-5193

Fax: (513) 887-3489

COUNSEL FOR APPELLEE, STATE OF OHIO

. x - $ na 2 Pere ee tik ee

PRT Pe RO a er

‘ Salih

AO reer Tet aE RN SERED LEDER LTE ECR AMEALS POC BPS FIO A ETD NERS See ORT Sgt! Tee OTe ee

TABLE OF CONTENTS

TABS, OF CAP eee es oe ee ee 1

EXPLANATION OF WHY THIS CASE

IS OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A

SUBSTANTIAL CONSTITUTIONAL

UO i i ee ek ee 1

STATEMENT OF THE CASE AND FACTS .... 2—

ARGUMENT IN SUPPORT OF

PROPOSITIONS OF LAW:

Proposition of Law I: A_ criminal

defendant is entitled to have the final

opportunity to address the Court. after

the Court receives all other appropriate

information before passing sentence .... 3

Proposition of Law II: A defendant is

denied the right of allocution when the

trial judge interrupts and terminates

the defendant's proper attempt at

pth ay tN TR A asthe ee 4

Proposition of Law III: A_criminal

defendant who is a first time felon, for

conduct which occurred prior to the

remedy fashioned in State v. Foster,

cannot be sentenced to more than the

C-3

statutorily prescribed minimum

SENS REACTED Gee por BG Pa Ae Bese aN 6

Proposition of Law IV: The q

Constitutional Rule nity prohibits :

a__choice among equal statutory

interpretations resulting in increased

penalties for a criminal defendant. ..... 10

Proposition of Law V: A trial court does

not have the authority to impose

consecutive sentences after State _v.

Foster struck down the statute allowing

consecutive sentences ................ 11

Proposition of Law VI: A_ prison

sentence for a first-time felony of for a

total of 23 years in prison, for one

securities transaction and passing bad

checks, is an unconstitutionally

unreasonable sentence ............... 12

Cee TURIN Sa os Gy a) os wie so a a ees 13

eee a VPNs Se 6 ee ea ee a 13

APPENDIX: Appx. Page

Judgment/Opinion appealed from -

Butler County Court of Appeals

Creme? BO erty oe i ow kee es A-1

C-4

further addressing defendant, violation of right of

allocution). Merely asking questions of the defendant,

as the trial court did here, is not compliance.

Defiance v. Cannon (1990), 70 Ohio App.3d 821; State

v. Baker (1960), 113 Ohio App. 59 (merely asking,

“Do you have anything to say,” not compliance with

the right of allocution).

“Trial judges before sentencing should

unambiguously address themselves to the defendant

.... [JJudges should leave no room for doubt that the

defendant has been issued a personal invitation to

speak prior to sentencing.” Green v. United States

(1961), 365 U.S. 301, 305, quoted in State v. Green,

supra at 359. In this case, that ambiguity remains.

This case does not present a “painstaking” adherence

to this mandatory procedure and important right,

State v. Green, supra at 359-360, and the process at

least gives the appearance of a rush to an inevitable

result, and not a truly deliberative process. Therefore

the right was violated. Only this Court can protect

that right and prevent precedent from being used to

deny it further.

Proposition of Law No. III: A criminal

defendant whois a first time felon, for conduct which

occurred prior to the remedy fashioned in State v.

Oe eR ge en Re ee ee Oe ped Cente Me nS er PL AED ~ spe tirt A ee ©: Cg ASS Poa

Foster, cannot be sentenced to more than the

statutorily prescribed minimum sentence.

Counsel is aware that this Court has been

presented this issue in other contexts and cases, but

itis a developing and meritorious issue meriting final

resolution by this Court; and for the following

reasons. The Supreme Court did not expressly

address the constitutionality of the retroactive

application of the Foster remedy, and this Court

simply remanded the case(s) for consideration of the

Opinion. That Opinion unequivocally finds: 1) the

Ohio statutory scheme -- as it existed when this

Appellant committed the offenses he was convicted of

-- mandated a minimum and concurrent sentence

UNLESS additional fact-finding was made justifying

a higher sentence; and 2) under Federal

constitutional law, it was unconstitutional for a

Judge, rather than a jury, to make _ those

fact-findings, or to make them by any standard less

than beyond a reasonable doubt, following United

States v. Booker (2005), 543 U.S. 220; Blakely v.

Washington (2004), 542 U.S. 296; Apprendi v. New

Jersey (2000), 530 U.S. 466. State v. Foster (2006),

109 Ohio St.3d 1, 2006-Ohi0-856. See also,

Cunningham v. California (2007), --- U.S. ---, 127

S.Ct. 856. The proper remedy was a new sentencing

C-6

hearing. Foster, supra at 4103.’ This part of the

Opinion is not in reasonable dispute, and is what

(other than the remedy fashioned) would mandate, by

statute, that this Appellant receive only the

minimum and concurrent sentence.

This Court though went further, and then

struck the portion of the statute that mandated the

minimum sentence without additional findings of

fact. No where does the Opinion mention the

constitutional implications of retroactively striking a

statute, resulting in a longer penalty to a criminal

defendant whose offense was committed when the

more favorable statute was in effect. That is the issue

The State suggested that the Statutes were

rewritten to take out only the fact-finding provisions,

and leave in the rest, but selectively rewrites the

Statute to also take out the policy considerations -- a

“rewriting” process this Court declined to do. State v.

Foster, supra at 30, 4102. The General Assembly’s

pronouncement of what policies and_ general

considerations sentences should be based on,

independent of individual fact-finding to enhance a

stated sentence, 1s not unconstitutional fact-finding.

Preserving such considerations is not unlike the

Federal Sentencing laws considered in United States

v. Booker, and applied to various State laws in

Apprendi and Blakely. See Cunningham _v.

California, supra at 867-868, nn. 12, 13.

C-7

| a yas ree FE

still to be addressed: whether under any

circumstances it could be lawful for this Appellant to

be sentenced to anything more than the minimum,

concurrent sentence, when the statutes in effect at

the time of his offense mandated that sentence. When

the United States Supreme Court struck down

Blakely’s enhanced sentence that was based on

unconstitutional fact-finding, the State of

Washington was not free to just eliminate its system

of guidelines and retroactively apply a new

discretionary scheme in order to resentence Blakely

to his original term of imprisonment. The only

sentence that could be rendered on remand was the

sentence that the law required at the time without

consideration of the unconstitutional judicial

fact-finding. Blakely, 542 U.S. at 313. Prior to Foster

the Sixth and Fourteenth Amendments prohibited

the State from imposing any sentence other than the

statutory minimum. Foster, supra at 456-67. Prior to

Foster, R.C. §2929.14(B) provided that a court shall

impose the shortest prison term authorized for the

offense in the absence of additional, judicial

fact-finding. Constitutional law as it existed at the

time of his offenses mandated a minimum term.

Foster, supra at 456-67.

C-8

Although Foster held that the Sixth

Amendment would not require the imposition of

minimum and non-consecutive sentences on remand,

Foster, supra at 493-102, this is not the same thing

as saying that other provisions in the State or

Federal Constitutions would not prohibit anything

else. The Court instead severed the statutory

presumptions themselves from the statute and held

that on remaad judges would be free to impose any

sentence, regardless of whether or not the penalty

imposed at resentencing exceeded that which would

have been compelled by Blakely. That part of the

Decision does not address, and is incompatible with

the controlling precedent of the United States

Supreme Court. The Sixth Amendment not only

prohibits the legislature from removing predicate

factual findings from the jury, but also forbids the

judiciary from circumventing the limitations that the

legislature has placed on the availability of criminal

punishments that correspond to varying degrees of

criminal culpability. Apprendi, 530 U.S. at 483-85.

Any other rule would permit the States to

“manipulate their way out of Winship” merely by

claiming that a criminal offense is actually nothing

more than a sentencing enhancement attached to a

less-scrious conviction. Jones v. United States (1999),

C-9

526 U.S. 227, 243. See also, Long v. State (Tex. Crim.

App. 1996), 931 S.W.2d 285, 295 (imposing a

previously unavailable penalty through the judicial

severance of the statutory maximum authorized

violates the Constitution by retroactively extending

the conduct to which a penalty can attach). The

United States Supreme Court has stated that it was

not for the courts to rewrite the stricken sentencing

Statutes, but for the legislatures. Cunningham v.

California, supra at 868, 871. In fashioning the

remedy it did, the Ohio Supreme Court also relied at

least in part or at least considered the California

Supreme Court’s position on the issue expressed in

People v. Black (Cal. 2005), 113 P.3d 534. State v.

Foster, supra at 25, n.92. The United States Supreme

Court soundly rejected that case and its reasoning.

Cunningham v. California, supra at 868-871. The

argument repeatedly relied upon to defeat ex post

facto implications (a criminal defendant could not

have expected a guaranteed minimum sentence) was

also rejected, at least as a basis for preserving the

unconstitutional sentencing scheme. Cunningham v.

California, supra at 869.

Article II, § 28 of the Ohio Constitution and

Article I, § 10 of the United States Constitution

prohibit the enactment of any ex post facto law. The

C-10

;

i ee ed

ee eg ee ve eae ort

ex post facto clause prohibits the Ohie General

Assembly from retroactively increasing the penalty

for a crime that has already been committed. Stogner

v. California (2003), 539 U.S. 607, 612. Although the

ex post facto clause “does not of its own force apply to

the Judicial Branch of government,” the United

States Supreme Court has recognized “that

limitations on ex post facto judicial decision making

are inherent in the notion of due process.” Rogers v.

Tennessee (2001), 532 U.S. 451, 456. Retroactive

judicial severance of a statute places the accused in

exactly the same circumstances that he would be in

if the legislature enacted an unlawful ex post facto

law. See State v. Waddell (N.C. 1973), 194 S.E.2d 19,

29-30, abrogated on other grounds, Woodson v. North

Carolina (1976), 428 U.S. 280; see also State v.

Watkins (N.C. 1973), 196 S.E.2d 750, 755. Because a

judicial severance changes the actual terms of the

statute, the ex post facto clause applies. See Miller v.

Florida (1987), 482 U.S. 423 (the Court struck down

state sentencing guidelines because they violated the

ex post facto clause, because at the time the

defendant committed the crime sentencing guidelines

resulted in a presumptive sentence of 3 1/2 to 4 1/2

years of imprisonment); Carmell v. Texas, 529 U.S.

513, 533 (2000) (reaffirming that a state’s retroactive

C-11

modification of its laws regarding evidence -- in this

case the evidence necessary to impose more than a

minimum sentence -- could constitute a viable ex post

facto challenge). As recognized in Bouie v. City of

Columbia, (1964), 378 U.S. 347, 353, “an

unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like

an ex post facto law, such as Art. I, § 10, of the

Constitution forbids.”

It is understood that the same issue is already

before the Court in State v. Elmore, 07-475, filed

March 16,2007 (an appeal from a capital case, and

therefore of right). This case should be accepted for

resolution of the same issue.

Proposition of Law No. IV: The Constitutional

Rule of Lenity prohibits a choice among equal

statutory interpretations resulting in increased

penalties for a criminal defendant.

Because of the seriousness of criminal

penalties, and because criminal punishment usually

represents the moral condemnation of the

community, legislatures and not the courts should

define criminal activity, United States v. Bass (1971),

404 US. 336 (197)), and set the punishments

therefor. See, Bifulco v. United States (1980), 447

U.S. 381. The rule of lenity means that the Court will

C-12

not interpret a criminal statute so as to increase the

penalty that it places on an individual when such an

interpretation can be based on no more than a guess

of what the legislature intended. Albernaz v. United

States (1981), 450 U.S. 333. The enactment of the

statutory provisions struck down in the Ohio

sentencing cases strongly suggests that the General

Assembly did not intend for judges to impose

consecutive or maximum sentences in all cases. A

presupposition of our law is to resolve doubts in

enforcement of a penal code against the imposition of

harsher punishment. Bell v. United States (1955),

349 U.S. 81, 83 (1955). Ohio has codified this

presupposition in R.e. §2901.04(A) that “Sections of

the Revised Code defining ... penalties shall be

strictly construed against the state, and liberally

construed in favor of the accused.”See State v.

Quisenberry (1994),69 Ohio St.3d 556, 557.

The General Assembly’s articulated goals are

now relegated to historical and statutory notes,

replaced by a judicially enacted scheme that requires

findings only when a trial court seeks to give a

“downward departure” pursuant to R.C. §2929.20(H).

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohi0-855,

syl. 1. Given the Court’s prior pronouncements on the

laudable goals inherent in Senate Bull 2, this

C-13

toe Se ee oe a ee ee ae ee ea aa a te

construction violates R.C. §2901.04(A) by imposing

the least lenient construction of the statute on a

defendant being resentenced. This case should be

accepted to establish and clarify that rule.

Proposition of Law No. V: A trial court does

not have the authority to impose _ consecutive

sentences after State v. Foster struck down the

statute allowing consecutive sentences.

The legislature’s function is to create the law.

Courts may only impose a sentence upon a criminal

defendant that is authorized by the sentencing

statutes. State v. Smith (1989), 42 Ohio St.3d 60, 61;

State v. West (1993), 66 Ohio St.3d 508, 513,

1993-Ohio-201. Ohio Revised Code Section 2929.14

(E)(4) authorized a trial court to impose consecutive

sentences when certain findings were made, and R.C.

§2929.41 set forth the presumption that prison terms

be served concurrently. But the Ohio Supreme Court

severed R.C. §2929.14(E)(4) and R.C. §2929.41

because the judicial fact-finding requirements

included in those provisions were unconstitutional.

Foster at $99. When the Court severed the

unconstitutional provisions of R.C. §2929.14and R.C.

§2929.41, it also severed constitutional sentencing

law -- ue., the statutory authority to impose

consecutive prison terms. Courts may only impose a

C-14

. ee

foe

sentence upon a criminal defendant that is

authorized by the sentencing statutes, which the

judiciary cannot write. See State ex rel. Mason v.

Griffin (2004), 104 Ohio St.3d 279, 2004-Ohio0-6384

(lack of statutory authority for jury-sentencing trials

prohibits conduct of such trials); State v. Smith

(1989), 42 Ohio St.3d 60, 61; State v. West (1993), 66

Ohio St.3d 508, 513, 1993-Ohio-201. This Court

severed and

C-15

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- VS - CASE NO. CA2007-02-039

JUD TENTRY

CHAD P. COPELAND,

Defendant-Appellant.

The assignments of error properly before this

court having been ruled upon, it is the order of this

court that the judgment or final order appealed from

be, and the same hereby 1s, affirmed.

It is further ordered that a mandate be sent to

the Butler County Court of Common Pleas for

execution upon this judgment and that a certified

copy of this Judgment Entry shall constitute the

mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R.

H.J. Bressier, Presiding Judge

/s/ James E. Walsh

James E. Walsh, Judge

RS ge Oe ee a ee ac ONS a ae TARY 2

owell

Stephen W. Powell, Judge

yy ate te a ae ee ea ee

GOR Se Pte Sap eee RAE ES ee

D-2

ee a eh ATE IE TER: See ee Re Ee RO ee Pas ph ge Pe ay eo TS

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- VS - CASE NO. CA2007-02-039

PINION

CHAD P. COPELAND, 11/19/07

Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY

COURT OF COMMON PLEAS

Case No. CR02-10-1658

Robin N. Piper, Butler County Prosecuting

Attorney,

Daniel G. Eichel, Government Services Center,

315 High Street, 11th Floor, Hamilton, OH

45011-6057, for plaintiff-appellce

Thomas G. Eagle Co., L.P.A., Thomas G. Eagle,

3386 North State Route 123, Lebanon, OH 45036,

for defendant-appellant

POWELL, J.

{1} Defendant-appellant, Chad P. Copeland,

appeals his sentence from the Butler County Court of

D-3

Common Pleas. We affirm the decision of the trial

court.

{§2} Appellant was convicted of 21 criminal counts’

for his involvement in a check-kiting scheme and a

theft from an investment scheme. Appellant was

sentenced to 23 years in prison and ordered to pay

$216,500 in fines and $868,381.68 in restitution.

Appellant appealed his conviction and sentence to

this court in State v. Copeland, Butler App. No.

CA2008-12-320, 2005-Ohi0-5899 (“Copeland I”). In

that case, this court affirmed appellant’s convictions,

but reversed and remanded the case to the trial

court, ordering that a count of aggravated theft and

a count of grand theft be merged because they were

allied offenses of similar import. Thereafter, the Ohio

Supreme Court accepted appellant’s discretionary

appeal and reversed the judgment of this court for

resentencing based on State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856. See Jn re Ohio Criminal Sentencing

‘Appellant was convicted of two counts of aggravated

theft by deception, one count of grand theft by

deception, on count of money laundering, nine counts

of misrepresentation in the sale of securities, and

eight counts of passing bad checks. Copeland I at

q11.

D-4

" IRA yoke

wD Oo et lla Mis A aie

Statutes Cases, 110 Ohio St.3d 264, 2006-Ohio-4475.

On remand, the trial court sentenced appellant once

again to a total of 23 years in prison and ordered him

to pay $216,500 in fines and $868,381.68 in

restitution. Appellant timely appeals, raising two

assignments of error.

{{3} Assignment of Error No.1:

{14} “THE TRIAL COURT ERRED IN DENYING

THE APPELLANT THE RIGHT OF ALLOCUTION.”

{5} In his first assignment of error, appellant

argues the trial court denied appellant his right to

allocution by “interrupting” and “terminating” his

allocution.

{6} We first note that the failure of a trial court to

ask a defendant whether he has an thing to say

before sentence is imposed is not a constitutional

error. Hill v. United States (1962), 368 U.S. 424, 428,

82 S.Ct. 468. Although not considered a

constitutional right, the right of allocution is firmly

rooted in the common-law tradition. Green v. United

States (1961), 36 U.S. 301, 304, 81 S.Ct. 653.

{7} Crim.R. 32(A) states, “At the time of imposing

sentence, the court shall do all of the following:

{8} “C) Afford counsel an opportunity to speak on

behalf of the defendant and address the defendant

personally and ask if he or she wishes to make a

D-5

7 eds. *

A MZ

‘%

;

“

statement in his or her own behalf or present any

information in mitigation of punishment.

{79} “(2) Afford the prosecuting attorney an

opportunity to speak;

{410} “(3) Afford the victim the rights provided by

law;

{411} “(4) In serious offenses, state its statutory

findings and give reasons supporting those findings,

if appropriate.”

{12} “The plain language of the rule imposes a

mandatory duty upon the trial court’ to

unambiguously address the defendant and provide

him or her with the opportunity to speak before

sentencing.” State v. Green, 90 Ohio St.3d 352, 358,

2000-Ohio- 182, citing Green v. United States (1961),

365 U.S. 301, 305, 81 S.Ct. 653, 655. “A Crim.R. 32

inquiry is much more than an empty ritual: it

represents a defendant's last opportunity to plead his

case or express remorse.” Green at 359-360. If the

trial court fails to offer a defendant the right to

allocute, the remedy is a remand for resentencing.

Hamilton v. Brown (1981), 1 Ohio App.3d 165, 168.

{13} “Although the right of allocution is absolute, it

is not unlimited.” State v. Hofmann, Erie App. No.

E-03-057, 2004-0hi0-6655, 932, citing State v. Smith

(Nov. 8, 1995), Greene App. No. 94-CA-86, 1995 WL

D-6

vw So, a ee ees

655943 at *2. Crim.R. 32(A)(1) prescribes that it be a

statement or presentation in “mitigation of

punishment.” Id. at 433. “The purpose of allocution is

to allow the defendant an additional opportunity to

state any further information which the judge may

take into consideration when determining the

sentence to be imposed.” Defiance v. Cannon (1990),

70 Ohio App.3d 821, 828.

{414} At the resentencing hearing in this case, after

affording appellant’s trial counsel an opportunity to

speak, the trial court gave appellant the opportunity

to speak in mitigation. Appellant began his allocution

by stating that he has worked in the prison law

hbrary since his original conviction and conducted “a

lot of research.” Appellant then addressed the trial

judge, inquiring “are you a man of your word.” The

trial judge responded, “I am willing to listen to your

mitigation. | am not going to be cross-examined.”

Appellant continued to address the trial judge about

this question, but the judge redirected appellant to

confine his remarks to mitigation. The trial judge

instructed appellant, “You can say whatever you

want. I am not going to play whatever game that you

*** so if you want to

attempted to orchestrate here

offer some mitigation, Mr. Copeland, I suggest you

proceed.”

L)-7

{715} Thereafter, appellant ended his inquiry with

the trial judge and continued with his allocution.

Appellant discussed his view of this court’s holding in

Copeland I, and claimed that cases against him were

improperly joined for trial. Appellant argued that he

was wrongly convicted of the check-kiting scheme.

Appellant then discussed his interactions with the

investors that led to his theft and securities-related

convictions, arguing that he did nothing fraudulent.

Thereafter, appellant stated that he had “67 people

on my witness list that could have testified” and that

he did not testify at trial. Appellant criticized the

prosecutor and stated, “The main thing though, that

I wanted to see happen today is I want the justice of

this case to be based on the truth. And nothing that

happened in this courtroom was based in truth.”

Appellant then began discussing the stock market

and how the investments he made have gone up in

value since his incarceration. Further, appellant

began discussing his civil suite to recover his

investment funds.’

? Appellant's statement of allocution totaled twelve

transcript pages.

D-8

{916} At that point, the trial judge asked appellant

if he would be “available” to pay restitution and

appellant responded that he has always intended to

repay a promissory note that he had given to the

victims. Finally, the trial judge stated, “I understand

the mitigation that you are going to offer this Court

is that you were - the Court lost its way and made an

improper ruling that allowed the cases to be tried

simultaneously. In other words, ut didn’t sever the

cases. And that you were not guilty to these offenses

and the jury lost its way by findimg you guilty”

{17} Appellant responded, “Yes.”

{418} Appellant argues that the trial court denied

his right to allocution by anterrupting and

terminating the allocution. We disagree.

{419} The case at bar is similar to the situation in

State v. Hofmann, Erie App. No. E-03-057,

2004-Ohio-6655. In Hofmann, the Sixth District found

“that Hofmann was permitted to give a lengthy

statement that covered a number of topics, including

his regret for the pain caused to his family, his

medical problems and depression, his service in the

community, and how the victim started asking him

questions about sex. After Hofmann accused the

Huron Police Department of not doing its job and

being biased against him, the sentencing court did

D-9

interrupt him and told Hofmann that his guilt was

not at issue. When Hofmann again tried to talk about

the police’s manipulation of the victim, the court

stated it had heard from Hofmann and was ready to

impose the sentence. We conclude that the sentencing

court did not err when it terminated Hofmann’s

allocution. Hofmann’s accusations concerning the

police were irrelevant to the appropriate sentence to

be imposed. He had the opportunity to allocute.”

Hofmann at 434.

{{20} Like Hofmann, appellant was given his right

to allocution. In mitigation, appellant claimed that

the trial court erred by failing to sever the case, that

he was not guilty of the charges, and provided his

reasons in support. However, appellant’s allocution

turned to matters unrelated to mitigation. A trial

court may limit a defendant's allocution if it concerns

extraneous matters unrelated to the sentence and is

not about mitigation. Hofmann at 433. As Judge

Brogan stated in State v. Smith, “the mnght of

allocution does not provide an accused with the

opportunity to vent his spleen with some superfluous

diatribe.” Smith, 1995 WL 655943 at *3.

{921} Appellant’s first assignment of error 1s

overruled.

{422} Assignment of Error No.2:

D-10

{J23} “THE TRIAL COURT ERRED IN ITS

SENTENCING OF THE APPELLANT TO

MULTIPLE, CONSECUTIVE, AND MORE-THAN-

MINIMUM SENTENCES.”

{24} In his second assignment of error, appellant

argues the trial court erred by imposing multiple,

consecutive, and more-than-minimum sentences. In

support of his argument, appellant presents multiple

issues for this court’s consideration.

{425} Appellant argues that, at the time the offenses

were committed, appellant was entitled to minimum

and concurrent sentences and the _ retroactive

application of State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, is a violation of the prohibition

against ex post facto law. Appellant also argues that

the 23-year sentence is unreasonable, arbitrary, and

disproportionate for a “paper thief” to receive a

longer sentence than an individual that commits a

violent crime. Further, appellant argues that his

sentence violates the rule of lenity.

{426} This court has previously considered each of

these arguments and found them to be without merit.

See State v. Cockrell, Fayette App. No. CA2006-05-

020, 2007-Ohio-1372; State v. Kincer, Clermont App.

No. CA2006-08-055, 2007-Ohi0-3352: State v. Pesta,

D-11

Clinton App. No. CA2006-02-004, 2007-Ohio-2295;

and State v. Sheets, Clermont App. No. CA2006-04-

032, 2007-Ohio-1799.

{427} Finally, appellant claims the imposition of a

23-year prison sentence, as well as fines of

$216,500.00 and restitution of $868,381.68, is also

unreasonable. However, appellant presents no

reasoning or factual analysis to support his

argument. See State v. Watson (1998), 126 Ohio

App.3d 316.

{28} Appellant’s second assignment of error is

overruled.

{29} Judgment affirmed.

BRESSLER, P.J. and WALSH, J., concur.

This opinion or decision is subject to further editing

by the Supreme Court of Ohio’s Reporter of Decisions.

Parties interested in viewing the -final reported

version are advised to visit the Ohio Supreme Court’s

web site at:

http://www.sconet.state.oh.us/ROD/documents/.

Final versions of decisions are also available on the

Twelfth District’s web site at:

http://www.twelfth.courts.state.oh.us/seacrch. asp

D-12

Gee Ad ae i sl talaga Bt Sint tw Fah oe ath

; Sai eS ee 20 xe 173, Sa

SR Cee ee cae ee he ngs ey

go a A

BO RAE Ve ee oe Fe

IN THE TWELFTH DISTRICT

COURT OF APPEALS

BUTLER COUNTY, OHIO

STATE OF Ohio CASE NO. CA-2007-02-039

Plaintiff/Appellee,

-Vs- Trial Court No. CR-02-10-1658

CHAD COPELAND,

Defendant/Appellant.

APPEAL FROM COURT OF COMMON PLEAS

FOR BUTLER COUNTY, OHIO

BRIEF OF APPELLANT CHAD COPLEAND

Thomas G. Eagle (#0034492)

THOMAS G. EAGLE

CO., L.P.A.

3386 N. State Rt. 123

Lebanon, Ohio 45036

Phone: (937) 743-2545

Fax: (937) 704-9826

E-mail: eaglelawoffice@cs.com

Attorney for Appellant

ers

SP CLE PO On end OTS

SE eee Oe eae, ae aa RN rece

ea ee ee

Robin Piper, Prosecuting Attorney

315 High St., 11 Floor

Hamilton; Ohio 45011-0515

(513) 785-5193

Attorneys for Appellee

aes eS eee

eT ee ee ae ee

Sak ~

TABLE OF CONTENTS

Page

IE ne kc Se ok a te wie i

I Or OS ee ara hatwia 1

I ne ey Seow Gib gw ahaha 1

TO GEC POG So oe a be oc swe 1

eres eae aa a kak Wid avece oo aoe, bm 3

FIRST ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED IN THE

TRIAL COURT ERRED IN DENYING

THE APPELLANT THE RIGHT OF

ALLOCUTION ...... AE Regie 3

First Issue Presented for Review: A defendant is

entitled to a resentencing when the trial judge

interrupts and terminates the defendant's attempt

I Seco ges Ce Lies Bese sa wd x & i

City of Hamilton v. Brown (1981),

i Chee Ape.oe 106 4... ee

Green v. United States (1961),

tS Se NR a ene ee ae

K-3

State v. Brown (2006),

166 Ohio App.3a 262 ......:.....

State v. Campbell (2000),

Ske NS SO

State v. Green (2000),

oe SE

State v. Leeth, 2006-O0hi0-3575 ....

Const., Statutes, Rules, etc.:

Ohio &. Ge. F. Saunas) ...........

SECOND ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED IN ITS

SENTENCING OF THE APPELLANT

TO MULTIPLE, CONSECUTIVE, AND

MORE- THAN-MINIMUM SENTENCES ......

First Issue Presented for Review: A prison

sentence for a first-time felony of more than

the minimum sentence, consecutive sentences,

and a total of 23 years in prison, for one

securities transaction and passing bad checks,

is an abuse of discretion and is contrary to

en MPR re ty BC | Nae 2 ay. CU aa

E-4

- %

: = ae fs af wwe ee a a

r . Pa By 2p hvcany bene St a Se Rahs "a are et lia hy gs Mei

ee Pe ee ee en Ean a Sot Remmi pine OSS a

PR Oe ST PN Fy eR PEM gE OES Ie ORMOND Py Mian A if

et a ae ee

Authorities:

Cases

State v. Anderson (2001),

146 Ohio App.3d 427 ....

State v. Colgrove (2000),

140 Ohio App.3d 306, 314

State v. Comer (20083),

99 Ohio St. 3d 463 ......

State v. Edmonson (1999),

86 Ohio St.3d 324.......

State v. Foster (2006),

109 Clio St.360. 1. 2... ...

State v. Garcia (1998),

126 Ohio App.3d 485 ....

State v. Knopf,

2006-0hi0-3806 .........

State v. Maynard (1999),

132 Ohio App.3d 820 ....

State v. Sheppard (1997),

124 Ohio App.3d 66 .....

State v. Smith (2000),

136 Ohio App.3d 343 ....

E-5

mies Cee eh ak

-_*. ft © © © @ ©

sok

Bib Ane ob te Teer. Wiener Me aeieo aslo sake haa Sten Selick ink oie oa ich Lad ea ah tone

Const.. Statutes. Rules. etc.:

ONE YS |. Een ae 6

FG. Se PD a ee be eR 6

Ai ee, i 5 cee 5

R.C. §2929.1 4(D)(2), (8) ......... 6

CBee Se) oc ce eee 5

ie ee ee ee 6

TAG. SoA) 8 cin i ee 5

As ee be ewe 6

nd Issu sented for Review:

trial court errs in sentencing a defendant

who is a first time felon. for conduct which

occurred prior to the remedy fashioned in

State v. Foster. more than the statutorily

prescribed minimum sentence ............... 7

Authorities:

Cases:

Apprendi v. New Jersey

(0G), Saw t.&. 466............ 8,9

Blakely v. Washington

(2004), 542 U.S. 296 ........... 8,9

E-6

Sic RS br nD gS a ek eo hae A outing ak MD CAL bate dati ai an BD Baits All) fd kad ae tae a aa a rik gd Be cia

Bouie v. City of Columbia I 1 >

(1964), 378 U.S. 347 ..... 13, 15, 16

Calder v. Bull,

3 U.S: 386, 1 L.Ed. 648 ......

Carmell v. Texas,

re TEER Be re

Cunningham vs. California

(2007), --- US. ---, 127 S.Ct. 856 ...

Devine v. New Mexico Dept

of Corrections (C.A. 10 1989),

I oo ee eee cee

In re Medley,

(ii bee We. 260... .......4-.

Jones v. United States

ee BS 6 9

ies

;

Lindsey v. Washington,

hig Mo BE ae: y 4, 12

Long v. State (Tex. Crim. App.

1906),931 S.W.2d 285 .......... 10

Miller v. Florida,

(1987), 482 U.S. 423...... 12, 15, 17

Pa a Se

Rogers v. Tennessee

(2001), 832 U.S. 451 ......... 11, 16

E-7

State v. Cockrell,

No. CA2006-05-020

fy \ ee SP. | y } re 7

State v . Foster (2006),

109 Ohio St.3d 1,

2006-Ohi0-856 ........ 7, 8, 9, 10, 14,

15, 16, 17

State v. Garner (1995),

yo SS Yee 16

State v. Mathis

(2006), 2006-Ohio-855 ..... 2.2... 14

State v. Waddell (N.C. 1973),

Se Ee nN a wk awcceuesisnasn ll

State v. Watkins (N.C. 1973),

UE I ee ae ae ll

Stogner v. California

(2003),5398 U.S. GOT ......... 10, 16

United States v. Booker

(As ED ana RAC ee wees 8

Weaver v. Graham (1981),

Oe Ra ks 4 ee ok bie cs ke aS 17

Woodson v. North Carolina

CEB PGs, SO Gis OO kk a wees SRS 11

E-8

Const., Statutes, Rules, etc.:

U.S. Const. Art. 1, §10....... 10, 13

8 Ree |e, , Sere 8, 9

U.S. Const. Am. XIV ...... 8, 13, 16

Ohio Const. Article II, §28....... 10

ce 6 rere 8

ae BE) 4! | ae 8

Teh. BID oo scenes 14

ted fo view: The

Constitutional Rule of lenity prohibits a

choice among equal statutory interpretations

resulting in increased penalties for a criminal

AS ECG SRE RN NCS Te Pa RA aS as 17

Authorities:

Cases:

Albernaz v. United States

bf 6a . . Se 17

Bell v. United States

(1955), 349 U.S. 81 (1955) ....... 18

Bifulco v. United States

goo: Ps BS. 5 eae 17

E-9

State v. Boland (2002),

147 Ohio App.3d 151,

PPR es cece wees

State v. Comer (2003),

99 Ohio St. 3d 463,

We I kk ce eee

State v. Foster (2006),

kk oa eee

State v. Mathis,

109 Ohio St.3d 54,

iS a

State v. Quisenberry (1994),

ep Sees eo eee ee

United States v. Bass

oe Ck oe | rn

Const .. Statutes. Rules. etc.:

ee ee ee os

R.C. §181.24(B)(1)-(3) ..........

RO. Se001GGtAD ...........

S| rer

E-10

Fourth Issue Presented for Review: The trial

court did not have the authority to impose

consecutive sentences after State vs. Foster

struck down the statute allowing consecutive

UE | as SS SEN a ks Re eaA 8 ss 19

Authorities:

Cases:

State v. Foster (2006),

TOG Core ee we es ee 19

State v. Merriw

(1980), 64 Ohio St.2d 57 ........ 19

State v. Smith (1989),

Pee eS En 19

State v. West (1993),

66 Ohio St.3d 508, 513,

pe ee iS

Const.. Statutes. Rules. etc.:

ol 19

R.C §2929014(E)(4) ............ 19

RG. See ok ck cn... 19

Fifth Issue Presented for Review: The trial.

court erred in imposing financial sanctions

on a prison inmate with a 23-vear sentence ... 19

E-11

Appellant is entitled to a new sentencing, and a new

sentencing on all counts.

SECOND ASSIGNMENT OF ERROR: THE

TRIAL COURT ERRED IN ITS SENTENCING OF

THE APPELLANT TO MULTIPLE,

CONSECUTIVE, AND MORE-THAN-MINIMUM

SENTENCES.

First Issue Presented for Review: A prison

sentence for a first-time felony of more than the

minimum sentence, consecutive sentences, and a

‘ total of 23 years in prison, for one securities

transaction and passing bad checks, is an abuse of

discretion and i ntrary to law.

The Trial Court also erred in sentencing the

Appellant to 23 years in prison. Amended Judgment,

Jan. 24, 2007, T.d. 320. This Appellant had never

been in prison before (T.p. 11/20103 p. 36), and

therefore, according to the law in effect when the

offenses were committed, he was entitled to the

minimum sentence allowed by law. R.C. §2929.14(B).

As a result of those requirements, “minimum

sentences are favored for first-time imprisonment....”

State v. Edmonson (1999), 86 Ohio St.3d 324, 325. In

fact, more than a minimum sentence in any other

circumstance was a sentence “contrary to law,” State

v. Maynard (1999), 1382 Ohio App.3d 820; State v.

E-12

Sheppard (1997), 124 Ohio App.3d 66, 67-68; and

therefore appealable as of right. R.C. §2953.08(A)(4).

Further, according to the law in effect when these

offenses were committed, prison sentences “shall” be

served concurrently to each other, unless consecutive

sentences are imposed and permitted by R.C.

§2929.14(E)(4), which it is now unconstitutional to

do. A sentence must “not [be] disproportionate to the

seriousness of the offender's conduct and to the

danger the offender poses to the public.” R.C.

§2929.14(E)(4) (emphasis added). Asentence imposed

post-Foster is reviewed for an abuse of discretion.

State v. Knopf, 2006-Ohi0-3806 at 414. The Trial

Court abused its discretion by imposing a 23-year

incarceration for this non-violent theft offender, and

reversal is accordingly required.

Appellant asks, why, in this case, 23 years in

prison is not disproportionate for a series of bad

checks, and a bad stock investment. See State v.

Garcia (1998), 126 Ohio App.3d 485; State v.

Anderson (2001), 146 Ohio App.3d 427. Although the

Court makes a boilerplate statement, missing from

the sentencing hearing, and the Entry, are any

reasons why this sentence -- 23 years --- is necessary.

See State v. Comer (2003), 99 Ohio St. 3d 463. This

Court has the right and obligation to review the

E-13

ae OL Ey ee ee en Ot Sie PEE

Mae ag han FR ORI OE ae oF

tet Be Mae gt

Pe ee ee ee ty

NL Mee i Lee

legality of a such a sentence, both for procedural and

substantive error. R.C. §2953.08(C); State v. Colgrove

(2000), 140 Ohio App.3d 306, 314.

With the lynchpin of sentences being both

necessity and proportionality, considering the

sentencing principles of conservation of resources,

R.C. §2929.13(A), and reasonableness, R.C. §2929.11

(B), and that a sentence in excess of ten years is

unreviewable for judicial release under R.C.

§2929.20, commentators on the law have noted that

sentences for thefts in excess of five years are and

should be “rare.” See, Griffin and Katz, Ohio Felony

Sentencing Law, Section 8:24, p. 801-804, 815-820

(2004 Ed.). In fact, no other reported theft or fraud

case, even those with multiple prior imprisonments,

could be located with an equal or greater sentence

than this Appellant --and his is in excess of many

other more serious, even violent offenses, and only

one longer in this Appellate District --- three

aggravated robberies with a gun. See Griffin and _

Katz, supra at Appx. A p. 561-602. A sentence of “up

to 20 years” is allowed, not mandated, for repeat

violent offenders, major drug offenders, and rapists of

children under 13. R.C. §2929.14 (D)(2), (3). If these

offenders can get no more than 20, is there any

reasonableness, logic, proportion, or necessity, for

E-14

even the worst of paper thieves to get more? Would he

have not received a lesser sentence if he walked in

with a gun and took the same money? See State v.

Smith (2000), 136 Ohio App.3d 343. With all respect

intended, it is suggested that if this sentence is not

out of some bounds of discretion, there are no such

bounds.

Second Issue Presented for Review: A trial

court errs in sentencing a defendant who is a first

time felon, for conduct which occurred prior to the

e ioned 1 v. Fo re than the

statutorily prescribed minimum sentence.

The constitutionality of the retroactive

application of the Foster remedy was not expressly

addressed by the Supreme Court at all, and simply

remanded the case(s) for consideration of the

Opinion. That opinion unequivocally fmds: 1) the

Ohio statutory scheme -- as it existed when this

Appellant committed the offenses he was convicted of

_-- mandated a minimum and concurrent sentence

UNLESS additional fact-finding was made justifying

a higher sentence; and 2) under’ Federal

constitutional law, it was unconstitutional for a

judge, rather than a jury, to make those fact-findings,

or to make them by any standard less than beyond a

reasonable doubt. This part of the Opinion is not in

B-15

. Long F 0 es Ls ee ‘ sil S oid oh Swell a »

PES Oe Geet ae ap er ee DUST Se PT ee Sat Eh ae LP Pe ST = oP ye

reasonable dispute, and is what (other than the

remedy fashioned) would mandate, by statute, that

this Appellant receive only the minimum and

concurrent sentence.

The Supreme Court though went further, and

then struck the portion of the statute that mandated

the minimum sentence without additional findings of

fact. This was a remedy, essentially procedural. No

where does the Opinion mention the constitutional

implications of retroactively striking a statute,

resulting in a longer penalty to a criminal defendant

whose offense was committed when the more

favorable statute was in effect. That is the issue still

to be addressed: whether under any circumstances it

could be lawful for this Appellant to be sentenced to

anything more than the minimum, concurrent

sentence, when the statutes in effect at the time of

his offense mandated that sentencc.'

‘Appellant is aware that that this Court has

addressed, in whole or in part, and rejected this or

similarly presented arguments. See, e.g., State v.

Cockrell, No. CA2006-05-020 (Fay.App. March 26,

2007). It is respectfully submitted that until the

highest court in the State, or the United States,

expressly addresses the same issues, the issue 1s open

to fair debate and argument.

E-16

It is now beyond dispute that under the jury

trial guarantee of the Sixth Amendment, made

applicable to the States by the Due Process Clause of

the Fourteenth Amendment, and once a legislature,

state or federal, has predicated the availability of a

criminal penalty upon proof of a particular fact, the

penalty may not be imposed unless the fact has been

admitted by the defendant or found by a jury to have

been proven beyond a reasonable doubt. United

States v. Booker (2005), 543 U.S. 220; Blakely v.

Washington (2004), 542 U.S. 296; Apprendi v. New

Jersey (2000), 530 U.S. 466; State v. Foster (2006),

109 Ohio. St.3d 1, 2006-Ohi0-856. See also,

Cunningham v. California (2007), --- U.S. ---, 127

S.Ct. 856. Foster specifically held that sentences like

this Appellant’s are void, and that the proper remedy

for a void sentence, including this Appellant’s, is a

new sentencing hearing. Foster, supra at 4103.

When the United States Supreme Court struck

down Blakely’s enhanced sentence that was based on

unconstitutional fact-fining, the State of Washington

was not free to just eliminate its system of guidelines

and retroactively apply a new discretionary scheme

in order to resentence Blakely to his original term of

imprisonment. The only sentence that could be

rendered on remand was the sentence that the law

E-17

eras v's. :

required at the time without consideration of the

unconstitutional judicial fact-finding. Blakely, 542

U.S. at 313. The Appellant in this case had never

been in prison before, and therefore, by statute, he

was presumed entitled to a minimum and concurrent

sentences. R.C. §2929.14(B); R.C. §2929.14(E) 4).

Prior to Foster the Sixth and _ Fourteenth

Amendments prohibited the State of Ohio from

imposing any sentence other than the statutory

minimum upon Appellant. Foster, supra at 456-67.

Prior to Foster. R.C. §2929.14(B) provided that a court

shall impose the shortest prison term authorized for

the offense in the absence of additional, judicial

fact-finding. According to constitutional lav’ as it

existed at the time of his offenses, the only lawful

sentence that could have been rendered against

Appellant prior to the Foster remedy was a minimum

term on each count. Foster, supra at 456-67.

Foster held, however, that the Sixth

Amerdment would not require the imposition of

minimum and non-consecutive sentences on remand.

Foster, supra at 493-102. The Court held instead that

the statutory presumptions that require judicial

fact-finding to depart from minimum, non-maximum

sr non-consecutive sentences were unconstitutional

racher than hold the requirement of judicial

E-18

fact-finding unconstitutional. The Court severed the

statutory presumptions themselves from the statute

and held that on remand judges would be free to

impose any sentence, regardless of whether or not the

penalty imposed at resentencing exceeded that which

would have been compelled by Blakely. That part of

the Decision does not address, and is incompatible

with the controlling precedent of the United States

Supreme Court. The holding of Apprendi results from

the constitutionally mandated balance of power

between legislature, judge and jury: the Sixth

Amendment not only prohibits the legislature from

removing predicate factual findings from the jury,

but also forbids the judiciary from circumventing the

limitations which the legislature has placed on the

availability of criminal punishments’ which

correspond to varying degrees of criminal culpability.

Apprendi, 530 U.S. at 483-85. Any other rule would

permit the States to “manipulate their way out of

Winship” mercly by claiming that a criminal offense

is actually nothing more than a_ sentencing

enhancement attached to a less-serious conviction.

Jones v. United States (1999),526 U.S. 227, 243.

Eliminating the “statutory maximum”

authorized by a plea of guilty or jury verdict for the

purpose of increasing the permissible range of

E-19

punishment against an offender who was convicted

prior to Foster is no different than eliminating an

unconstitutional element of a criminal offense for the

purpose of salvaging an otherwise invalid conviction.

Just as upholding a criminal conviction through the

judicial severance of an unconstitutional element

violates the Constitution by retroactively

criminalizing broader conduct than that which the

statute had originally been prohibited, see Long v.

State (Tex. Crim. App. 1996),931 S.W.2d 285,295,

imposing a previously-unavailable penalty through

the judicial severance of the statutory maximum

authorized by a plea of guilty violates the

Constitution by retroactively extending the conduct

to which a penalty can attach. A court cannot

retroactively eliminate the statutory directives

limiting the maximum for a criminal sentence any

more than it can retroactively eliminate an element

of the offense of conviction.

Article II, § 28 of the Ohio Constitution and

Article I, § 10 of the United States Constitution

prohibit the enactment of any ex post facto law. The

ban on ex post facto laws means “that a law shall not

be passed concerning, and after the fact, a thing

done, or action committed.” Calder v. Bull, 3 U.S.

386, 390, 1 L.Ed. 648, 650. The ex post facto clause

E-20

prohibits the Ohio General Assembly from

retroactively increasing the penalty for a crime that

has already been committed. Stogner v. California

(2003), 539 U.S. 607, 612. If the Ohio General

Assembly had pissed a law repealing the statutory

maximums (minimum sentences for first-time felons)

which were held unconstitutional and severed in

Foster, the ex post facto Clause would have prohibited

the application of any increased penalty upon this

Appellant. Id. The ex post facto clause clearly does not

permit a patently unlawful penalty to be imposed

merely because the increased statutory maximum

resulted from judicial severance instead of legislative

action. Although the ex post facto clause “does not of

its own force apply to the Judicial Branch of

government,” the United States Supreme Court has

recognized “that limitations on ex post facto judicial

decision making are inherent in the notion of due

process.” Rogers v. Tennessee (2001), 532 U.S. 451,

456. Retroactive judicial severance of a statute places

the accused in exactly the same circwnstances that

he would be in if the legislature enacted an unlawful

ex post facto law. See State v. Waddell (N.C. 1973),

194 S.E.2d 19, 29-30, abrogated on other grounds,

Woodson v. North Carolina (1976), 428 U.S. 280; see

also State v. Watkins (N.C. 1973), 196 S.E.2d 750,

K-21

755. Because a judicial severance changes the actual

terms of the statute, the ex post facto clause applies.

The United States Supreme Court has been

extremely vigilant in searching the record for any

increase in a defendant’s sentence and quick to strike

down those increases. In In re Medley (1890), 134

U.S. 160, the Court examined a statute that was not

in effect at the time of the offense and mandated that

the petitioner had to be held in solitary confinement

while awaiting execution. The prior statute had no

such provision and therefore “was an additional

punishment of the most important and painful

character and is therefore forbidden by this provision

[Ex. Post Facto Clause] of the Constitution of the

United States”. Id. at 171. In Lindsey v. Washington

(1937),301 U.S. 397, the Court addressed a change in

the State of Washington’s sentencing provisions from

the law in effect at the time of the offense, which

provided that the trial court could impose a sentence

up to a maximum of fifteen years; to at the time of

sentencing which required a sentence of fifteen years

in every case, but with parole discretion to determine

whether a shorter sentence was appropriate. The

Court prohibited the application of the new law to

that petitioner, holding that the ex post facto clause

looks to the standard of punishment prescribed by the

E-22

statute rather than the sentence actually imposed.

Lindsey, 301 U.S. at 401. In Miller v. Florida (1987),

482 U.S. 423 the Court struck down state sentencing

guidelines because they violated the ex post facto

clause, because at the time the defendant committed

the crime sentencing guidelines resulted in a

presumptive sentence of 3 1/2 to 4 1/2 years of

imprisonment, and the sentencing judge had

discretion to sentence an offender anywhere within

the presumptive range without the requirement of a

written explanation, but a departure outside of the

range required clear and convincing reasons in

writing for doing so; but by sentencing the

presumptive sentence was higher. The United States

Supreme Court unanimously reversed. It was

immaterial that the defendant could not definitively

show he would have got a lesser sentence under the

old guidelines because petitioner has’ been

“substantially disadvantaged” by the retroactive

application of revised guidelines, which allowed the

judge to impose a higher sentence than previously

contemplated. Id. at 431-33. As the Court stated:

To impose a 7-year sentence under the

old guidelines, the sentencing judge

would have to depart from the

presumptive sentence range of 3 1/2 to

E-23

US.

its laws regarding evidence -- in this case the

evidence necessary to impose more than a minimum

4 1/2 years. As a result, the sentencing

judge would have to provide clear and

convincing reasons in writing for the

departure, on facts proved beyond a

reasonable doubt, and _ his

determination would be reviewable on

appeal. By contrast, because a 7-year

sentence is within the presumptive

range under the revised law, the trial

judge did not have to provide any

reasons, convincing or otherwise, for

imposing the sentence, and his decision

was unreviewable. Thus, even if the

revised guidelines law did _ not

“technically...increase... the punishment

annexed to ({petitioner’s] crime,”

Lindsey, supra at 401, it foreclosed his

ability to challenge the imposition of a

sentence longer than his presumptive

sentence under the old law. Petitioner

therefore was “substantially disadvan-

taged” by the retrospective application

of the revised guidelines to his crime.

Miller, supra at 432-433.

The Supreme Court in Carmell v. Texas, 529

513 (2000), authored by Justice Thomas,

reaffirmed that a state’s retroactive modification of

E-24

sentence -- could constitute a viable ex post facto

challenge:

All of these legislative changes, in a

sense, are mere images of one another.

In each instance, the government

refuses, after the fact, to play bv its own

rules, altering them in a way that is

advantageous only to the State, to

facilitate an easier conviction. There is

plainly a fundamental fairness interest,

even apart from any claim of reliance or

notice, in having the government abide

by the rules of law it establishes to

govern the circumstances under which

it can deprive a person of his or her

liberty or life.

Id. at 533. Similarly, once the United States

Supreme Court (and the Ohio Supreme Court, for

that matter) determined that it is unconstitutional to

impose more than the minimum sentence on a

criminal defendant because of the availability of a

higher sentence only after additional fact finding, it ~

is also unconstitutional to retroactively apply the

striking of the statutory presumptions that mandate

that minimum sentence.

Judicial severance that expands the available

range of punishment falls outside the proscriptions of

the ex post facto clause and in addition exceeds the

E-25

limits on retroactive judicial decisions under the

Fourteenth Amendment. As recognized in Bouie v.

City of Columbia, (1964), 378 U.S. 347, 353, “an

unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like

an ex post facto law, such as Art. I, 10, of the

Constitution forbids.” Given the similar impact of

judicial decision-making and legislation on the rights

of criminal defendants, the fundamental principle

that “the required criminal law must have existed

when the conduct in issue occurred” must be applied

to restrict the retroactive application of both. Id. at

354. In short, the Court explained: “If a state

legislature is barred by the Ex post facto Clause from

passing [a retroactive law], it must follow that a

State Supreme Court is barred by the Due Process

Clause from achieving precisely the same result by

judicial construction.” Id. at 353. The Supreme Court

emphasized that the petitioners lacked fair warning

of the new interpretation afforded the statute as it

was “clearly at variance with the statutory language”

and it did not have “the slightest support in prior

South Carolina decisions.” Id. at 356. Subsequent

courts have held that the due process clause likewise

proscribes judicially-enforced changes in

interpretations of the law that unforeseeably expand

E-26

Rey age Am CUED ces PLES Soe Thr TR, RAO SE CL Ge Bee Hae SORTER ETRE CONC) ee eA AT ME

the punishment accompanying a conviction beyond

that which an actor could have anticipated at the

time of committing a criminal act. Devine v. New

Mexico Dept of Corrections (C.A. 10 1989),866 F.2d

339, 344-45.

Retroactive application of Foster seriously and

unexpectedly disadvantages criminal defendants.

First and foremost, they are divested of the

presumption of minimum, less than maximum and

concurrent terms of imprisonment when facing their

sentencing judges at the trial court -- after already

pleading or going to trial on that expectation. Second,

they lose the meaningful appellate rights that existed

prior to Foster for review of non-minimum or

consecutive sentences. Before the Foster remedy, a

defendant enjoyed a presumptive sentence within the

range specified for his offense, and, if he received a

sentence greater than the presumption, he could be

assured a new sentencing hearing if the trial court

failed to make the necessary findings, made

erroneous findings or failed to provide reasons for

those findings made in support of maximum or

consecutive terms. See State v. Mathis (2006),

2006-O0hi0-855, YY 34, 37: “Pre-Foster, R.C.

§2953.08(G)(1) provided an opportunity for remand to

the trial court if required findings were missing.” If

E-27

the Foster remedy is retroactively applied to

resentencings, these important rights, will

unexpectedly be lost. For the reasons expressed in

Miller, the ex post facto clause would prohibit the

Ohio General Assembly from eliminating the

statutory presumptions in Ohio’s felony sentencing

law and applying that change retroactively. As in

Miller, Ohio defendants had the expectation of

presumptive sentences that could only be overcome

by judicial findings, and of appellate rights that

would ensure that any enhanced sentence rested

squarely on a permissible basis. The elimination of

any presumptive sentence and the corresponding

diminished ability to challenge on appeal a departure

from that presumptive sentence’ substantially

disadvantages criminal defendants.

In the instant case, the remedy accomplishes

by judicial fiat that which the Ohio General

Assembly is precluded from doing by the ex post facto

clause. As ‘explained in- Boule. the Due Process

Clause does not countenance such a result. For

defendants whose criminal conduct’ pre-dates

February 27, 2006, the severance remedy is

unavailable as a matter of constitutional law. The

decision to abolish sentencing presumptions for

criminal defendants constitutes a marked and

E-28

EE LE Pe Ge AS Fg ae SP OE ey

eth Richa Sik sy Sahl

unpredictable departure from the law passed 'y the

General Assembly. See, Foster, at J 87 (explaining

that “[t]he General Assembly undoubtedly never

anticipated that the judicial-finding requirements

contained within S.B.2 would be _ held

unconstitutional’). How could a criminal defendant

anticipate such a change? Given this unexpected and

detrimental departure, due process precludes the

retroactive application of the now-severed provisions

to defendants whose offense conduct pre-dates the

release of the opinion in the instant case.

As stated previously, the decision in Foster did

not merely constitute judicial interpretation of the

meaning of a statute; the sentencing statutes

themselves were altered and enlarged through

judicial severance. Even assuming that the ex post

facto clause does not reach acts of judicial severance,

the decision in Foster still violates the Fourteenth

Amendment because if “a state legislature is barred

by the ex post facto clause from passing such a law, it

must follow that a State Supreme Court is barred by

the Due Process Clause from achieving precisely the

same result by judicial construction.” Bouie, 378 U.S.

at 353-54.

If the General Assembly had repealed the

statutory maximums which were in place prior to the

E-29

Re Sees a

PP RT RE RE TN Td at ST RPE et ee

BT Gs FT TT ee ee a eae

decision in Foster -- which is essentially what Foster

did -- the ex post facto clause would have prohibited

the State of Ohio from imposing the increased

penalties on this Appellant, who had already

committed the offense, had been convicted and was

sentenced. Stogner, Calder, supra The Fourteenth

Amendment accordingly prohibits a court from

achieving the exact same result through an act of

judicial severance. Bouie, 378 U.S. at 353-45; accord

Rogers, 532 U.S. at 460-61. See also, State v. Garner

(1995), 74 Ohio St.3d 49, 57, quoting Bouie v.

Columbia. 378 U.S. at 353.

The post-Foster sentencing framework may not

be applied to Appellant to impose more than the

minimum sentence. The jury trial guarantee, the ex

post facto clause, and the Fourteenth Amendment

due process limits on retroactive judicial decisions

prohibit the imposition of any penalty exceeding the

statutory maximum that was in place prior to Foster.

The Supreme Court struck down the Florida law that

retroactively altered the presumptive sentencing

range for particular offenses, even though the law

allowed upward departures if the judge made specific

findings -- exactly the remedy imposed by Foster --

citing “the lack of fair notice and governmental

restraint when the legislature increases punishment

E-30

beyond what was prescribed when the crime was

consummated.” Miller, supra at 430-431, citing

Weaver v. Graham (1981), 450 U.S. 24, 28-29.

For the reasons expressed in Miller the ex post

factolDue Process Clauses prohibit retroactive

elimination of the statutory presumptions for this

Appellant. As in Miller, Appellant had _ the

expectation of a presumptive sentence that could only

be overcome by jury findings or admission, and

appellate review of any enhanced sentence. The

elimination of any presumptive sentence, and the

ability to appeal a departure from that presumptive

sentence, substantially disadvantages him.

Accordingly, the Foster remedy can not be

retroactively applied to this Appellant. This Court

should vacate his sentence and impose the minimum

sentence required by the statutes and case law in

effect prior to Foster and without further remand.

Third Issue Presented for Review: The

_ Constitutional Rule of lenity prohibits a _ choice

among equal statutory interpretations resulting in

increased penalties for a criminal defendant.

Because of the seriousness of criminal

penalties, and because criminal punishment usually

represents the moral condemnation of the

community, legislatures and not the courts should

K-31

‘tate cae

define criminal activity, United States v. Bass (1971),

404 US. 336 (1971), and set the punishments

therefor. See, Bifulco v. United States (1980), 447

U.S.381. The rule of lenity means that the Court will

not interpret a criminal statute so as to increase the

penalty that it places on an individual when such an

interpretation can be based on no more than a guess

of what the legislature intended. Albernaz v. United

States (1981), 450 U.S. 333. The enactment of the

statutory provisions struck down in the Ohio

sentencing cases strongly suggests that the General

Assembly did not intend for judges to impose

consecutive or maximum sentences in all cases. A

presupposition of our law is to resolve doubts in

enforcement of a penal code against the imposition of

harsher punishment. Bell v. United States (1955),

349 U.S. 81, 83 (1955). Ohio has codified this

presupposition in R.C. §2901.04(A) that “Sections of

the Revised Code defining ... penalties shall be

strictly construed against the state, and liberally

construed in favor of the accused.” See State v.

Quisenberry (1994), 69 Ohio St.3d 556, 557.

The attempt to _ constitutionalize Ohio's

sentencing statutes by excising all clauses that

restrict the trial court’s discretion to impose higher

sentences is also contrary to the test of lenity in

K-32

BE Se Se RIE Nee OED age

a ae

ope

( :

‘

a“

wy .. Se {ae

interpretation. The enabling statute, R.C. § 181.24,

clearly intended for the statutes enacted to provide

uniformity, proportionality, “with increased penalties

for offenses based upon the seriousness of the offense

and the criminal history of the offender,” with

judicial discretion to be limited. R.C. §181.24

(B)()-(3). Those goals were embodied in the statutes

ultimately enacted and subsequently reviewed by the

Court in Foster. The expressly stated purposes and

intent of Senate Bill 2 was to reserve higher

sentences for the worst offenses and offenders. State

v. Comer (2003), 99 Ohio St. 3d 463, 2003 Ohio 4165,

at 421, citing State v. Boland (2002), 147 Ohio

App.3d 151, 162, 2002-Ohi0-1163. “Consistency and

proportionality are hallmarks of the new sentencing

law.” Id., citing Griffin & Katz, Sentencing

Consistency: Basic Principles Instead of Numerical

Grids: The Ohio Plan (2002), 53 Case W.Res.L. Rev. 1,

12. While higher sentences were _ permitted,

imposition of such sentences required that “findings

and reasons must be articulated by the trial court so

an appellate court can conduct a meaningful review

of the sentencing decision.” Griffin & Katz, Ohio

Felony Sentencing Law, at 458-459, Section 1.21.

The General Assembly’s articulated goals are

now relegated to historical and statutory notes,

E-33

— = eg inte ie is Pee

Pte PR OE Ea dia.

ea ee ee NS ee ee a te

replaced by a judicially enacted scheme that requires

findings only when a trial court seeks to give a

“downward departure” pursuant to R.C. §2929.20(H).

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohi0-855,

syl. 1. Given the Court’s prior pronouncements on the

laudable goals inherent in Senate Bill 2, this

construction violates R.C. §2901.04(A) by imposing

the least lenient construction of the statute on a

defendant being resentenced.

Fourth Issue Presented for Review: The trial

cou did not have the _ authorit impo

iV Vv . 8

down the statute allowing consecutive sentences.

The legislature’s function is to create the law.

Courts may only impose a sentence upon a criminal

defendant that is authorized by the sentencing

statutes. State v. Smith (1989),42 Ohio St.3d 60, 61;

State v. West (1993), 66 Ohio St.3d 508, 513,

1993-Ohio-201. Ohio Revised Code Section 2929.14

(E)(4) authorized a trial court to impose consecutive

sentences when certain findings were made, and R.C.

§2929.41 set forth the presumption that prison terms

be served concurrently. But the Ohio Supreme Court

severed R.C. §2929.14(E)(4) and R.C. §2929.41

because the judicial fact-finding requirements

included in those provisions were unconstitutional.

E-34

Ses ee Se oe

Eee ee Oe ee

Foster at 499. When the Court severed the

unconstitutional provisions of R.C. §2929.14 and R.C.

§2929.41, it also severed constitutional sentencing

Jaw -- t.e., the statutory authority to impose

consecutive prison terms. The trial court did not have

the authority to impose consecutive prison terms. See

State v. Merriweather (1980), 64 Ohio St.2d 57; 59

{sections of the Revised Code defining offenses or

penalties shall be strictly construed against the state,

and liberally construed in favor of the accused).

ifth Issu for view: trial

oi Hie ; aed "

prison inmate _wi,th a 23-year sentence.

K-35

Sai Se ae ee a ee ee Oe en eee eee eee oe eee ery So ee at ee Oe) cy

MORNING SESSION

TRANSCRIPT OF PROCEEDINGS

KEKE KA KEKE KE KR *E

THE PROSECUTOR: State of Ohio versus

Chad Copeland. CR 2002-10-1658. We’re here today

for purposes of resentencing Chad Copeland pursuant

to order of the Supreme Court of Ohio.

THE COURT: This is in accordance with

Foster, which is a series -- which is a case that

caused a series of cases now in Ohio to be resentenced

following a decision finding that parts of the Ohio

Sentencing Code were unconstitutional.

MR. SCHIAVONE: That is where we are. I

would at this time would reserve any and all factors

relevant to Mr. Copeland's sentencing as found in the

Foster case for further review, of course, depending

on the sentencing. But any of the Foster arguments

that would apply to Mr. Copeland I am reserving for

appeal.

THE COURT: Fair enough.

MR. SCHIAVONE: The minimum sentences

for first time offenders, concurrent sentencing for

first time offenders, any and all other arguments that

would apply to Mr. Copeland’s case.

THE COURT: All right. Thank you. Are

F-1

UNITED STATES CODE ANNOTATED

CONSTITUTION OF THE UNITED STATES

ANNOTATED

ARTICLE I-THE CONGRESS

Section 10, Clause 1. Treaties, Letters of Marque and

Reprisal; Coinage of Money; Bills of Credit; Gold and

Silver as Legal Tender; Bills of Attainder; Ex Post

Facto Laws; Impairment of Contracts; Title of

Nobility

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal;

coin Money; emit Bills of Credit; make any Thing but

gold and silver Coin a Tender in Payment of Debts;

pass any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or grant any

Title of Nobility

G-1

UNITED STATES CODE ANNOTATED

CONSTITUTION OF THE UNITED STATES

ANNOTATED

AMENDMENT V—GRAND JURY

INDICTMENT FOR CAPITAL CRIMES;

DOUBLE JEOPARDY; SELF-

INCRIMINATION; DUE PROCESS OF LAW;

JUST COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

UNITED STATES CODE ANNOTATED

CONSTITUTION OF THE UNITED STATES

ANNOTATED

AMENDMENT VI-JURY TRIAL FOR

CRIMES, AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defence.

I-1

UNITED STATES CODE ANNOTATED

CONSTITUTION OF THE UNITED STATES

ANNOTATED

AMENDMENT XIV. CITIZENSHIP;

PRIVILEGES AND IMMUNITIES; DUE

PROCESS; EQUAL PROTECTION;

APPOINTMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS; PUBLIC

DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

Section 2. Representatives shall be apportioned

among the several States according to their

respective numbers, counting the whole number of

persons in each State, excluding Indians not taxed.

But when the right to vote at any election for the

choice of electors for President and Vice President of

J-1

Base

the United States, Representatives in Congress, the

Executive and Judicial officers of a State, or the

members of the Legislature thereof, is denied to any

of the male inhabitants of such State, being twenty-

one years of age, and citizens of the United States, or

in any way abridged, except for participation in

rebellion, or other crime, the basis of representation

therein shall be reduced in the proportion which the

number of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in

such State.

Section 3. No person shall be a Senator or

Representative in Congress, or elector of President

and Vice President, or hold any office, civil or

military, under the United States, or under any

State, who, having previously taken an oath, as a

member of Congress, or as an officer of the United

States, or as a member of any State legislature, or as

an executive or judicial officer of any State, to

support the Constitution of the United States, shall

have engaged in insurrection or rebellion against the

same, or given aid or comfort to the enemies thereof.

But Congress may by a vote of two-thirds of each

House, ‘remove such disability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts

incurred for payment of pensions and bounties for

services in suppressing insurrection or rebellion,

shall not be questioned. But neither the United

States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or

emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this

article.

J-3

One RAL TTA

Bk Seca

28 USCS § 1257

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari where the validity of a treaty or statute

of the United States is drawn in question or where

the validity of a statute of any State is drawn in

question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or

where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or

the treaties or statutes of, or any commission held or

authority exercised under, the United States.

(b) For the purposes of this section, the term “highest

court of a State” includes the District of Columbia

Court of Appeals.

ORC Ann. 181.24 (2008)

§ 181.24. Recommendation of comprehensive criminal

sentencing structure; projections; draft version

(B) The comprehensive criminal sentencing

structure recommended by the commission shall

provide for all of the following:

(1) Proportionate sentences, with

increased penalties for offenses based upon the

seriousness of the offense and the criminal history of

the offender;

(2) Procedures for ensuring that the

penalty imposed for a criminal offense upon similar

offenders is uniform in all jurisdictions in the state;

(3) Retention of reasonable judicial

discretion within established limits that are

consistent with the goals of the overall criminal

sentencing structure;

L-1

Deere Ba eR ee et AE py SNe Ee OT yh EO, MER Rare ae oe hae Rie NT eR Seen

ORC Ann. 2901.04 (2008)

§ 2901.04. Rules of construction; references to

previous conviction; interpretation of statutory

references that define or specify a criminal offense

(A) Except as otherwise provided in division

defining offenses or penalties shall be strictly

construed against the state, and liberally construed

in favor of the accused.

~ 5S ns sli Zhe oN py eid a bibs Fae Tuer gl ieee es ny Sieh eS EGA A ees SF SD Ors awk ee eet Rite te

Roh ee : AA Tyree ee : Pee et ateg VE 2 Wie Be <a rea 3 eae Se ae Mee he tier a es

ORC Ann. 2929.14 (2008)

§ 2929.14. Basic prison terms

(A) Except as provided in division (C), (D)(1),

(D)(2), (D)(3), (D)(4), (D)(5), (D)(6), (G), (1), J), or (L)

of this section and except in relation to an offense for

which a sentence of death or life imprisonment is to

be imposed, if the court im-posing a sentence upon an

offender for a felony elects or is required to impose a

prison term on the offender pursuant to this chapter,

the court shall impose a definite prison term that

shall be one of the following:

(1) For a felony of the first degree, the

prison term shall be three, four, five, six, seven,

eight, nine, or ten years.

(2) For a felony of the second degree, the

prison term shall be two, three, four, five, six, seven,

or eight years.

(3) For a felony of the third degree, the

prison term shall be one, two, three, four, or five

years.

(4) For a felony of the fourth degree, the

prison term shall be six, seven, eight, nine, ten,

eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months.

(5) For a felony of the fifth degree, the

prison term shall be six, seven, eight, nine, ten,

eleven, or twelve months.

(B) Except as provided in division (C), (D)(),

(D)(2), (D)(8), (D)(5), (D)(6), (G), (), (), or (L) of this

section, in section 2907.02 or 2907.05 of the Revised

Code, or in Chapter 2925. of the Revised Code, if the

court imposing a sen-tence upon an offender for a

felony elects or is required to impose a prison term on

the offender, the court shall impose the shortest

prison term authorized for the offense pursuant to

division (A) of this section, unless one or more of the

following applies:

(1) The offender was serving a prison

term at the time of the offense, or the offender

previously had served a prison term.

(2) The court finds on the record that the

shortest prison term will demean the seriousness of

the offender's con-duct or will not adequately protect

the public from future crime by the offender or

others.

this section or in Chapter 2925. of the Revised Code,

the court im-posing a sentence upon an offender for

a felony may impose the longest prison term

authorized for the offense pursuant to division (A) of

N-2

ba Sd 7 eet oe co a SE

this section only upon offenders who committed the

worst forms of the offense, upon offenders who pose

the greatest likelihood of committing future crimes,

upon certain major drug offenders under division

(D)(3) of this section, and upon certain repeat violent

offenders in accordance with division (D)(2) of this

section.

(E}-(1) (a) Subject to division (E)(1)(b) of this

section, if a mandatory prison term is imposed upon

an offender pur-suant to division (D)(1)(a) of this

section for having a firearm on or about the offender's

person or under the offender's control while

committing a felony, if a mandatory prison term is

imposed upon an offender pursuant to division

(D)(1)(c) of this section for committing a felony

specified in that division by discharging a firearm

from a motor vehi-cle, or if both types of mandatory

prison terms are imposed, the offender shall serve

any mandatory prison term imposed under either

division consecutively to any other mandatory prison

term imposed under either division or under division

(D)(1)(d) of this section, consecutively to and prior to

any prison term imposed for the underlying felony

pursuant to division (A), (D)(2), or (D)(3) of this

section or any other section of the Revised Code, and

consecutively to any other prison term or mandatory

N-3

Ree ce EE OT POT TORR SR. LP MN Re SEE Se aS Oe NE SE eee Se Eee mente

Wi VOTO AY, ON le IRIE Oe Cys ORT OR. US, SMR ew Peon tA Ce Ae Oe pl OPE le RT ey PALE BOY Te koe

prison term previously or subsequently imposed upon

the offender.

(b) If a mandatory prison term is

imposed upon an offender pursuant to division

(D)(1)(d) of this section for wearing or carrying body

armor while committing an offense of violence that is

a felony, the offender shall serve the mandatory term

so imposed consecutively to any other mandatory

prison term imposed under that division or under

division (D)(1)(a) or (c) of this section, consecutively

to and prior to any prison term imposed for the

underlying felony under division (A), (D)(2), or (D)(3)

of this section or any other section of the Revised

Code, and consecutively to any other prison term or

mandatory prison term previously or subsequently

imposed upon the offender.

imposed upon an offender pursuant to division

(D)(1)(f) of this section, the of-fender shall serve the

mandatory prison term so imposed consecutively to

and prior to any prison term imposed for the

underlying felony under division (A), (D)(2), or (D)(3)

of this section or any other section of the Revised

Code, and consecutively to any other prison term or

mandatory prison term previously or subsequently

imposed upon the offender.

N-4

(2) If an offender who is an inmate in a jail,

prison, or other residential detention facility violates

section 2917.02, 2917.03, 2921.34, or 2921.35 of the

Revised Code, if an offender who is under detention at

a detention facility commits a felony violation of

section 2923.131 [2923.13.1] of the Revised Code, or if

an offender who is an inmate in a jail, prison, or

other residential detention facility or is under

detention at a detention facility commits another

felony while the offender is an escapee in violation of

section 2921.34 of the Revised Code, any prison term

imposed upon the of-fender for one of those violations

shall be served by the offender consecutively to the

prison term or term of imprison-ment the offender

was serving when the offender committed that

offense and to any other prison term previously or

subsequently imposed upon the offender.

(3) Ifa prison term is imposed for a violation of

division (B) of section 2911.01 of the Revised Code, a

violation of division (A) of section 2913.02 of the

Revised Code in which the stolen property is a

firearm or dangerous ordnance, or a felony violation

of division (B) of section 2921.331 [2921.33.1] of the

Revised Code, the offender shall serve that prison

term consecutively to any other prison term or

N-5

Dae Sa.

as eS a ea

iis eI ee aE ho a ee Bh a es ee ent SF a Ek Meats i he a gt :

mandatory prison term previously or subsequently

imposed upon the offender.

(4) If multiple prison terms are imposed on an

offender for convictions of multiple offenses, the court

may require the offender to serve the prison terms

consecutively if the court finds that the consecutive

service is necessary to protect the public from future

crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the

offender poses to the public, and if the court also

finds any of the following:

(a) The offender committed one or more

of the multiple offenses while the offender was

awaiting trial or sen-tencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under

post-release control for a prior offense.

(b) At least two of the multiple offenses

were committed as part of one or more courses of

conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or

unusual that no single prison term for any of the

offenses committed as part of any of the courses of

conduct adequately reflects the seriousness of the

of-fender's conduct.

N-6

FE TR, Oe ES ee RT oe a Ay oe nS Re Te ee ee ee

conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by

the offender.

(5) Ifa mandatory prison term is imposed upon

an offender pursuant to division (D)(5) or (6) of this

section, the offender shall serve the mandatory prison

term consecutively to and prior to any prison term

imposed for the underlying violation of division (A)(1)

or (2) of section 2903.06 of the Revised Code pursuant

to division (A) of this section or section 2929.142

[2929.14.2] of the Revised Code. If a mandatory

prison term is imposed upon an offender pursuant to

division (D)(5) of this section, and if a mandatory

prison term aiso is imposed upon the offender

pursuant to division (D)(6) of this section in relation

to the same violation, the offender shall serve the

mandatory prison term imposed pur-suant to division

(D)(5) of this section consecutively to and prior to the

mandatory prison term imposed pursuant to di-vision

(D)(6) of this section and consecutively to and prior to

any prison term imposed for the underlying violation

of division (A)(1) or (2) of section 2903.06 of the

Revised Code pursuant to division (A) of this section

or section 2929.142 [2929.14.2] of the Revised Code.

N-7

(6) When consecutive prison terms are imposed

pursuant to division (E)(1), (2), (3), (4), or (5) or

division (J)(1) or (2) of this section, the term to be

served is the aggregate ofall of the terms so imposed.

ORC Ann. 2929.19 (2008)

§ 2929.19. Sentencing hearing

(B)(2) The court shall impose a sentence and

shall make a finding that gives its reasons for

selecting the sentence imposed in any of the following

circumstances:

(a) Unless the offense is a violent sex

offense or designated homicide, assault, or

kidnapping offense for which the court is required to

impose sentence pursuant to division (G) of section

2929.14 of the Revised Code, if it imposes a prison

term for a felony of the fourth or fifth degree or for a

felony drug offense that is a violation of a provision of

Chapter 2925. of the Revised Code and that is

specified as being subject to division (B) of section

2929.13 of the Revised Code for purposes of

sentencing, its reasons for imposing the prison term,

based upon the overriding purposes and principles of

felony sentencing set forth in section 2929.11 of the

Revised Code, and any factors listed in divisions

(B)(1)(a) to Gi) of section 2929.13 of the Revised Code

that it found to apply relative to the offender.

(b) Ifit does not impose a prison term for

a felony of the first or second degree or for a felony

drug offense that is a violation of a provision of

O-1

es ta St etn ae ei aE eK eae icra ta huey aki an ole Bay ils Waits ho ho

Chapter 2925. of the Revised Code and for which a

presumption in favor of a prison term is specified as

being applicable, its reasons for not imposing the

prison term and for overriding the presumption,

based upon the overriding purposes and principles of

felony sentencing set forth in section 2929.11 of the

Revised Code, and the basis of the findings it made

under divisions (D)(1) and (2) of section 2929. 13 of the

Revised Code.

under section 2929. 14 of the Revised Code, its reasons

for imposing the consecutive sentences;

(d) If the sentence is for one offense and

it imposes a prison term for the offense that is the

maximum prison term allowed for that offense by

division (A) of section 2929.14 of the Revised Code or

section 2929.142 [2929.14.2] of the Revised Code, its

reasons for imposing the maximum prison term;

(e) If the sentence is for two or more

offenses arising out of a single incident and it

imposes a prison term for those offenses that is the

maximum prison term allowed for the offense of the

highest degree by division (A) of section 2929. 14 of the

Revised Code or section 2929.142 [2929.14.2] of the

Revised Code, its reasons for imposing the maxi-mum

prison term.

ORC Ann. 2929.20 (2008)

§ 2929.20. Judicial release

(H)(2) A court that grants a judicial release to

an eligible offender under division (H)(1) of this

section shall specify on the record both findings

required in that division and also shall list all the

factors described in that division that were presented

at the hearing.

ORC Ann. 2929.41 (2008)

§ 2929.41. Multiple sentences

(A) Except as provided in division (B) of this

section, division (EF) of section 2929.14, or division (D)

or (E) of section 2971.03 of the Revised Code, a prison

term, jail term, or sentence of imprisonment shall be

served concurrently with any other prison term, jail

term, or sentence ofimprisonment imposed by a court

of this state, another state, or the United States.

Except as provided in division (B) (3) of this section,

a jail term or sentence of imprisonment for

misdemeanor shall be served concurrently with a

prison term or sentence of imprisonment for felony

served in a state or federal cor-rectional institution.

ORC Ann. 2953.08 (2008)

§ 2953.08. Grounds for appeal by defendant or

prosecutor of sentence for felony; appeal cost

oversight committee

(A) In addition to any other right to appeal and

except as provided in division (D) of this section, a

defendant who is convicted of or pleads guilty to a

felony may appeal as a matter of right the sentence

imposed upon the defendant on one of the following

grounds:

(4) The sentence is contrary to law.

(G) (1) If the sentencing court was required to

make the findings required by division (B) or (D) of

section 2929.13, division (D)(2)(e) or (E)(4) of section

2929.14, or division (H) of section 2929.20 of the

Revised Code relative to the imposition or

modification of the sentence, and if the sentencing

court failed to state the required findings on the

record, the court hearing an appeal under division

(A), (B), or (C) of this section shall remand the case to

the sentencing court and instruct the sentencing

court to state, on the record, the required findings.

R-1

“#

~ -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.