# Petition for Writ of Certiorari — Copeland v. Ohio (No. 08-284) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1836%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## 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, We STATE OF OHIO, Respondent. + Petition For A Writ Of Certiorari To The Supreme Court of Ohio + PETITION FOR A WRIT OF CERTIORARI with Appendix 4 *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 oh 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 iv 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) ....... : 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 10 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 11 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 13 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 15 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 16 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), 17 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 18 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 19 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. 20 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 21 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 22 + Ss ~~ ig i 4 3 oS. cal (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 u y A ¢ a a iM i 74 e & ag om SS tr * ies £ i> i + 3 ; *# 4 E 4 4 ; ; 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 my > 8 &: : A ia : ( : 4 4 i y ‘ a“ i 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 i . 4 - 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 (C) or (D) of this section, sections of the Revised Code 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