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Court Holds Resentencing Guidelines Set in 2006 Decision Do Not Violate Offenders’ Constitutional Rights

2007-0475.  State v. Elmore, Slip Opinion No. 2009-Ohio-3478.
Licking C.P. No. 02 CR 275.  Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cannon, JJ., concur.
Timothy P. Cannon, J., of the Eleventh Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-3478.pdf

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(July 28, 2009) The Supreme Court of Ohio ruled today that the resentencing of criminal offenders pursuant to the Court’s February 27, 2006  decision in State v. Foster for crimes committed before that date does not violate offenders’ Sixth Amendment right to a jury trial or their rights under the Ex Post Facto or Due Process clauses of the U.S. Constitution.

In a 7-0 decision authored by Justice Judith Ann Lanzinger, the Court also held that a trial court resentencing an offender pursuant to Foster is not required to impose the minimum prison term for each offense for which the defendant  was convicted, and has discretion to order that  sentences for multiple convictions be served either concurrently (at the same time) or consecutively (one after the other).

In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the U.S. Supreme Court held that it is unconstitutional for a criminal defendant’s sentence to be enhanced beyond the minimum penalties applicable to his crime based on factual findings made by a trial court unless those findings are made by a  jury (rather than by the judge). In State v. Foster, announced on Feb. 27, 2006, the Supreme Court of Ohio analyzed Ohio’s felony sentencing scheme in light of Apprendi and Blakely and ruled that the portions of Ohio’s criminal sentencing statute requiring judges to make factual findings to support non-minimum and consecutive sentences were unconstitutional. 

To cure the constitutional defect, the Foster court followed a third U.S. Supreme Court case, U.S. v. Booker by severing (deleting) from Ohio’s sentencing statutes all requirements of judicial fact-finding to support non-minimum or consecutive sentences, and ordered that all criminal cases that were pending on appeal in Ohio courts on the date Foster was decided must be remanded to the trial court for resentencing under post-Foster guidelines. In setting those guidelines, the Court held that, with the former judicial fact-finding provisions removed, the remaining language of Ohio’s criminal sentencing statute gives judges discretion to resentence an offender to any term of imprisonment within the prescribed statutory range for that offender’s crime, and also gives judges unrestricted discretion to determine whether multiple sentences imposed on a defendant for separate crimes must be served concurrently  or consecutively.

Today’s decision involved a challenge to the constitutionality of the post-Foster resentencing guidelines by Phillip Elmore of Newark. Elmore is currently under a death sentence for the 2002 murder of Pamela Annarino. However, this case did not involve either his conviction for aggravated murder or his death sentence, both of which were affirmed by the Supreme Court in December 2006.

In addition to aggravated murder, Elmore was convicted of kidnapping, aggravated burglary, aggravated robbery and grand theft based on the events leading up to and following the killing of Annarino. Because the trial judge made factual findings supporting non-minimum prison terms for Elmore’s non-capital crimes, and supporting consecutive rather than concurrent sentences for three of those counts, when the Supreme Court affirmed Elmore’s death sentence it also remanded his non-capital sentences to the Licking County Court of Common Pleas for resentencing consistent with Foster. On remand, the trial court imposed exactly the same sentence it had  imposed originally: maximum 10-year prison terms for the kidnapping, aggravated robbery and aggravated burglary convictions plus an additional 18 months for grand theft, with the latter three terms to be served consecutively.

Elmore appealed, alleging that the resentencing guidelines set forth in Foster and the trial court’s reimposition of non-minimum and consecutive sentences for his non-capital convictions pursuant to Foster violated his rights under multiple provisions of the U.S. Constitution. Writing for a unanimous Supreme Court in today’s decision, Justice Lanzinger affirmed the trial court’s resentencing order and rejected each of Elmore’s constitutional claims. 

She wrote: “Much of Elmore’s argument rests on a misunderstanding of Foster and the remedy of severance. We held in Foster that a court may not be required to make findings before imposing more than a minimum prison term pursuant to R.C. 2929.14(B); however, we have never held that the presumptive minimum prison term equated to a statutory maximum term. A defendant convicted of an offense has always been on notice that the statutory maximum is the greatest prison term within a felony range. While the Foster decision severed the requirement that judges make findings before imposing a non-minimum prison term, the severance does not make it necessary that defendants receive a minimum prison term if findings were not made. Elmore argues that after Foster, a trial court may never impose non-minimum or consecutive sentences because before Foster, judges were required to make findings of fact in order to depart from the minimum sentence. Elmore then argues that he is entitled to no more than minimum concurrent terms. But we had specifically considered and rejected this very outcome in Foster ... And we clarified that trial courts have full discretion to impose a prison sentence within the statutory range without the mandatory findings.”

With regard to Elmore’s claim that the changes in sentencing procedure mandated by Foster amounted to an ex post facto (after the fact) increase in the penalties applicable to his pre-Foster offenses, Justice Lanzinger wrote: “Elmore cites Miller v. Florida (1987) ... to argue that the Foster remedy changed the actual terms of the sentencing statutes and must be viewed as an implied legislative change that is barred by ex post facto limitations.  In Miller, Florida’s presumptive prison range for an offense was changed by the legislature from 3 1/2 to 4 1/2 years to 5 1/2 to 7 years. ... Miller, however, is distinguishable from Elmore’s situation.  Before Foster, Elmore was always subject to a 3 to 10 year sentence for his conviction of each of the first-degree felonies and a 6 to 18 month sentence for his conviction of the fourth-degree felony (grand theft, auto). After Foster, there is no increased presumptive sentence, which was the ex post facto violation in Miller. Moreover, Elmore maintained his right to appeal any sentence. ... Therefore, Elmore’s resentencing was not an ex post facto violation.”

Justice Lanzinger also rejected Elmore’s contention that the trial court acted without jurisdiction in resentencing him to consecutive prison terms.  She wrote: “Elmore argues that the trial court lacked the authority to impose consecutive sentences because Foster, as part of its remedy, excised in their entirety R.C. 2929.14(E)(4) and 2929.41(A), the statutory provisions that authorized consecutive sentences.  Thus, he contends that the trial court lacked any statutory or constitutional basis to impose consecutive sentences in his case.”

“We addressed this issue in State v. Bates (2008). ... We held in Bates that in the absence of statutory authority, ‘the common-law presumptions are reinstated.’ ... We also stated that ‘in the absence of statute [stating otherwise], it is a matter solely within the discretion of the sentencing court as to whether sentences shall run consecutively or concurrently.’ In Bates, we held that after Foster, a ‘trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently.’” 

In conclusion, Justice Lanzinger wrote: “We hold that resentencing pursuant to State v. Foster ... for offenses that occurred prior to February 27, 2006, does not violate the Sixth Amendment right to a jury trial, or the Ex Post Facto or Due Process Clauses of the United States Constitution. A trial court, upon resentencing pursuant to Foster, has discretion to impose consecutive sentences and, despite the Foster severance of statutory presumptions, is not required by the rule of lenity to impose a minimum prison term. The resentencing of Elmore on his noncapital offenses was conducted in accordance with this court’s direction on remand. ... We accordingly affirm the judgment of the Licking County Court of Common Pleas.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer, Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell, and Judge Timothy P. Cannon of the 11th District Court of Appeals, who sat by assignment in the case in place of Justice Robert R. Cupp.

Kenneth W. Oswalt, 740.670.5255, for the state and Licking County prosecutor’s office.

Keith A. Yeazel, 614.885.2900, for Phillip Elmore.