2009 U.S. Supreme Court Decision Does Not Require Ohio to Follow Former Consecutive Sentencing Law

State v. Hodge, Slip Opinion No. 2010-Ohio-6320.
Hamilton App. No. C-080968. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6320.pdf

(Dec. 29, 2010) The Supreme Court of Ohio ruled today that: 1) a 2009 U.S. Supreme Court decision does not revive former Ohio statutory requirements for judges imposing consecutive sentences in criminal cases; and 2) defendants sentenced by trial judges who didn’t apply those former provisions are not entitled to resentencing.

The Court’s 6-1 decision, which affirmed a decision of the 1st District Court of Appeals, was authored by Justice Robert R. Cupp.

In July 2008, Kenneth Hodge of Cincinnati entered guilty pleas to five counts of aggravated robbery, each of which included a firearm specification, for his role in the armed robbery of a group of boy scouts and their fathers who were selling Christmas trees in the city’s Northside neighborhood. Pursuant to Ohio’s sentencing procedures that have been in place since the Ohio Supreme Court’s 2006 decision in State v. Foster, the trial judge sentenced Hodge to three years’ imprisonment for each of the robbery counts and an additional three years for the firearm specification. Without making factual findings that would have been required under the pre-Foster statutes, the judge ordered that each of Hodge’s sentences be served consecutively. The result was a total prison term of 18 years.

Hodge appealed his sentence. In January 2009, while Hodge’s appeal was pending before Ohio’s 1st District Court of Appeals, the U.S. Supreme Court announced its decision in Oregon v. Ice. In that decision, a 5-4 majority upheld as constitutional an Oregon criminal sentencing statute similar to Ohio’s pre-Foster statute that required trial judges to make factual findings regarding the seriousness of the crime, the victim’s likelihood of reoffending and other factors before ordering that a defendant’s sentences for multiple offenses be served consecutively. Arguing that the Ice decision had overruled the Supreme Court of Ohio’s holding in Foster with regard to consecutive sentences, and that Ice had therefore reinstated the requirement of judicial fact-finding that Foster had invalidated, Hodge asked the 1st District to remand his case to the trial court and order that he be resentenced pursuant to the requirements of Ohio’s pre-Foster statutes.

The court of appeals rejected Hodge’s argument and affirmed the trial court’s imposition of consecutive sentences as valid. In its judgment entry, the 1st District stated that because the Ice decision directly addressed only Oregon’s sentencing statute, Foster remained binding precedent for Ohio courts until and unless the Supreme Court of Ohio ruled on the applicability of Ice to this state’s criminal sentencing procedures. Hodge sought and was granted Supreme Court review of the 1st District’s decision.

Writing for the Court in today’s decision, Justice Cupp acknowledged that “the decision in Ice undermines some of the reasoning in the Foster decision that judicial fact-finding in the imposition of consecutive sentences violates the Sixth Amendment. Although there are differences between the Ohio provisions struck down in Foster and the Oregon statutes upheld in Ice, these distinctions are immaterial in light of the broad reasoning employed in Ice.”

“Although we acknowledge that Ice has an impact on Foster, we do not accept Hodge’s argument that the decision in Ice automatically and retroactively reinstates the consecutive-sentencing statutes invalidated in Foster,” Justice Cupp wrote. “Hodge’s argument is based on the fact that the severed statutory provisions invalidated in Foster have never been repealed by the General Assembly.”

In explaining the Court’s reasons for rejecting Hodge’s arguments, Justice Cupp called the impact of Ice on Ohio law “collateral.” He noted that “there is no constitutional requirement that a judge make findings of fact before imposing consecutive sentences.” He also cited a number of “disruptive effects” that would result from reviving statutory provisions on consecutive sentences, a lack of prior case law cited by Hodge regarding the concept of automatic revival, and the fact that Foster also severed other statutory provisions that were not implicated in Ice.

“We are unable to say that the General Assembly would intend the consecutive-sentencing provisions to be resurrected when the other judicial fact-finding provisions, which supported the overall sentencing framework, remain constitutionally invalid and excised,” wrote Justice Cupp. “It would be speculative to assume that the General Assembly would wish to reinstate only the consecutive-sentencing provisions when the other provisions struck down in Foster may not be reinstated also. This militates in favor of requiring positive action by the General Assembly to indicate its intent and desire in a complicated area of the law.”

Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.

Chief Justice Eric Brown entered a dissent in which he agreed with the majority that Ice does not overrule Foster and that Ice does not automatically revive or reinstate the consecutive-sentencing provisions. However, he pointed out that Ice renders the Foster court’s analysis incorrect.

“The United States Supreme Court’s holding in Ice makes it clear that the Foster holding regarding the unconstitutionality of the consecutive-sentencing provisions of the comprehensive reform enacted by [S.B. 2] was in error,” he wrote. “The judicial fact-finding required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of consecutive sentences is not now unconstitutional nor was it ever unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been repealed, a conclusion that the Foster analysis regarding consecutive sentences was in error must result in the overruling of those infirm portions of Foster, the removal of our judicially imposed holding that these provisions are unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and 2929.41(A).”

He continued: “The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences. Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so. In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly.”

Contacts
Ronald W. Springman Jr., 513.946.3052, for the state and Hamilton County Prosecutor's Office.

Janet Moore, 513.600.4757, for Kenneth Hodge.