STATE OF OHIO, Case No. Plaintiff-Appellee, On Appeal from the Auglaize vs. County Court of Appeals Third Appellate District ROBERT F. MILLER, C.A. Case No. 02 2007 0002 Defendant-Appellant.
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, ROBERT F. MILLER
DAVID H. BODIKER #0016590 Ohio Public Defender
EDWIN PIERCE #0023846 SHERYL TRZASKA #0079915 Auglaize County Prosecutor Assistant State Public Defender (COUNSEL OF RECORD) Auglaize County Prosecutor's Office Auglaize County Courthouse Office of the Ohio Public Defender 201 S. Willipie Street 8 East Long Street - 11 th Floor P.O. Box 1992 Columbus, Ohio 43215 Wapakoneta, Ohio 45895 (614) 466-5394 (419) 738-9688 (614) 752-5167 - Fax (419) 738-3274 - Fax
COUNSEL FOR APPELLEE, COUNSEL FOR APPELLANT, STATE OF OHIO ROBERT F. MILLER TABLE OF CONTENTS
Page Number
STATEMENT OF SUBSTANTIAL CONSTITUTIONAL QUESTION ...... 1
STATEMENT OF THE CASE AND FACTS ...... 1
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW
FIRST PROPOSITION OF LAW: The remedy that this Court set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, violates the Due Process Clauses of the Ohio and United States Constitutions ...... 2
SECOND PROPOSITION OF LAW: The Foster remedy violates the constitutional protection of the separation of powers ...... 8
THIRD PROPOSITION OF LAW: The Ohio Revised Code, in its current state, does not authorize consecutive prison terms ...... 1 l
CONCLUSION ...... 11
CERTIFICATE OF SERVICE ...... 12
APPENDIX
State v. Robert F. Miller, Auglaize County Court of Appeals, Case No. 02 2007 0002, 2007-Ohio-4744 ...... A-1
i STATEMENT OF SUBSTANTIAL CONSTITUTIONAL QUESTION
This case presents a ripe issue of whether the Foster remedy violates the Due Process
Clauses of the Ohio and the United States Constitutions. State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856. The United States Supreme Court has held that a criniinal defendant has a substantial and legitimate expectation that the defendant will be deprived of liberty only to the extent determined by the jury in the exercise of its statutory discretion. Hicks v. Oklahoma (1980), 447
U.S. 343, 346. In the 1995 Criminal Sentencing Act, 146 Ohio Laws, Part IV, 7136 ("Senate
Bill 2"), Ohio's General Assembly revised the criminal sentencing statutes to include a set of statutory presumptions that limited the sentence that a trial court could impose, based on a jury's verdict. Senate Bill 2 created a presumption for minimum, concurrent sentences, absent factual findings made by the trial court. In Blakely v. Washington (2004), 542 U.S. 296, 302, the
Supreme Court held that a jury, not a judge, must consider "any particular fact which the law makes essential to the punishment. . . ." See, also, Cunningham v. California (2007), 127 S.Ct.
856. In State v. Foster, this Court eviscerated the requirement for factual fmdings before a trial court may impose nonminimum, maximum, and consecutive prison terms. Therefore, the Ohio defendant's expectation that his or her liberty may be deprived only to the extent determined by
Senate Bill 2 has been unconstitutionally eliminated.
STATEMENT OF THE CASE AND FACTS
On October 20, 2006 Robert Miller entered a residence in Auglaize County, Ohio, and took various items, including CDs, DVDs, computer peripherals, and credit cards. He entered an outbuilding, and drove the resident's lawnmower around the property. The resident returned home, and found Mr. Miller removing his items. Mr. Miller left the residence, and the resident contacted the police. The police recovered all of the items that Mr. Miller removed from the
1 residence. When the police questioned Mr. Millar regarding the incident, he admitted to all that had occurred.
Mr. Miller was charged with one count of burglary, one count of breaking and entering, and two counts of theft. On December 5, 2006 Mr. Miller pleaded guilty to one count of burglary, and one count of breaking and entering, as part of a negotiated plea agreement. The
theft charges were dismissed. The trial court sentenced Mr. Miller to an eight-year prison term
and a $400.00 fine for the burglary offense, and a twelve-month prison term for the breaking and
entering offense. The court ordered that those prison terms be served consecutively to each
other. Mr. Miller timely appealed to the Third District Court of Appeals, and that court affirmed
his conviction on September 17, 2007. State v. Miller, Auglaize App. No. 02 2007 0002, 2007-
Ohio-4744. This appeal timely follows.
FIRST PROPOSITION OF LAW
The remedy that this Court set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, violates the Due Process Clauses of the Ohio and United States Constitutions.
Ohio's General Assembly enacted Senate Bill 2 to refonn Ohio's sentencing law and
provide "truth-in-sentencing." Senate Bill 2 revised the criminal sentencing statutes to include a
set of statutory presumptions that limited the sentence that a trial court could impose, absent
certain findings. Revised Code Section 2929.14(B) mandated that the court had to impose the
shortest term authorized unless the court found certain facts. A trial court could not impose a
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, 2003-Ohio-4165.
Further, a court could not impose a prison term for a fourth or fifth degree, or impose a
maximum prison term for any offense, without making certain factual findings. R.C.
2 2929.19(B)(2)(a), (C). The trial court was also required to state its reasons, on the record, explaining why an enhanced sentence was necessary to serve the purposes and intent of Ohio's sentencing scheme. Comer at ¶21.
The same limits upon judicial discretion also constrained a trial court's ability to impose consecutive sentences. R.C. 2929.14(E)(4). The sentencing reforms were designed to reserve consecutive sentences "for the worst offenses and offenders." Comer at ¶21. In order to impose consecutive sentences, the sentencing court was required to find, on the record, that the consecutive sentences are necessary to protect the public from future crime, or to punish the offender. R.C. 2929.14(E)(4), 2929.41(A). Courts were also required to find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct, or to the danger that the offender poses to the public. Id.
In Foster this Court severed the statutory presumptions and factfinding requirements in
R.C. 2929.14(B), 2929.14(E)(4), 2929.19(B)(2)(a), and 2929.41(A), and stated that Ohio judges were now free to impose any sentence within the statutory range. State v. Foster, 109 Ohio St.3d
1, 2006-Ohio-856, at paragraphs two and four of the syllabus. Robert Miller was sentenced
ahnost ten months after the Foster decision changed the way that trial courts enforced the
provisions of the Revised Code. At his sentencing, the court did not have to fmd that Mr. Miller
had committed the worst form of the offense, or that he posed the greatest likelihood of
committing future offenses, before imposing maximum sentences. Nor was it necessary for the
court to make the statutory findings before ordering that Mr. Miller's prison terms be served
consecutively to each other. Mr. Miller's sentencing was devoid of the protections originally
enacted by the Ohio legislature, resulting in a constitutional violation that the United States
Supreme Court has soundly condemned. Hicks v. Oklahoma (1980), 447 U.S. 343.
3 Under Oklahoma's criminal sentencing statutes, a convicted defendant was entitled for his or her punishment to be fixed by a jury. Hicks at 345. The Supreme Court held that when the State has provided for the imposition of criminal punishment in discretion of the jury, the defendant has a substantial and legitimate expectation that he or she will be deprived of liberty only to the extent determined by the jury in the exercise of its statutory discretion. Hicks at 346.
In Hicks, the defendant had the statutory right for the jury to fix the punishment, and that right was denied. The Court held that that right substantially affects the punishment that is imposed.
Id.
When State law creates for the defendant a liberty interest in having the jury make
particular findings, the Due Process Clause implies that appellate findings do not suffice to
protect the entitlement. Hicks at 346; Cabana v. Bullock (1986), 474 U.S. 376, 388, n4. Ohio's
statutes include a presumption for minimum, concurrent sentences. The Ohio defendant has the
statutory right that he or she will be deprived of liberty only to the extent allowed by a court in
its statutory discretion. Hicks at 346. In Foster this Court recognized that Ohio sentencing law
violated Blakely v. Washington (2004), 542 U.S. 296, because the court does not have the right to
make the factual findings necessary to increase a punishment-under Blakely, those facts must
be proven beyond a reasonable doubt to a jury, or admitted by the defendant. Id. at 301. Instead
of mandating that a jury make those findings, this Court eliminated the findings requirements
altogether, along with the statutory presumption for minimum and concurrent sentences. By
eliminating the statutory elements necessary to impose a sentence other than minimum and
concurrent, the defendant is denied the substantial liberty interest that the "Fourteenth
Amendment preserves against arbitrary deprivation by the State." Hicks at 346.
4 Mr. Miller's state and federal due process claims arise from the sentencing elements and procedures set out in R.C. 2929.14(B), (C), and (B), 2929.19(B)(2), 2929.41(A), and his appellate rights set out in R.C. 2953.08. Mr. Miller retains an overriding liberty interest in these procedures; they cannot be elintinated to his detriment, especially when to do so will substantially affect the punishment imposed.
Foster authorized the Auglaize County Common Pleas Court to impose any sentence upon Mr. Miller, within the ranges provided in Ohio Revised Code 2929.14(A) and without using the statutorily prescribed procedures. However, Mr. Miller 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. Hicks at 346. He also has a substantial liberty interest in the appellate procedures devised by the state legislature to ensure compliance with the statutory scheme. Evitts v. Lucey (1985), 469 U.S. 387, 396. Those are liberty interests that the
Fourteenth Amendment preserves and protects from arbitrary State deprivation. Mr. Miller's sentence was imposed without those limitations and protections, and he has been deprived of his liberty without due process of law. Because the Foster severance remedy is unconstitutional,
Mr. Miller's sentence cannot be upheld.
A. The United States Supreme Court has determined that United States v. Booker cannot properly be applied to state sentencing law in the manner in which this Court has applied it.
In Foster this Court used United States v. Booker (2005), 543 U.S. 220, as the blueprint for the Foster remedy. Foster at ¶90. But the United States Supreme Court has held that a state court cannot apply the Booker severance to state sentencing statutes in the manner that this Court applied Booker to Ohio's statutes. In Cunningham v. California (2007), 127 S.Ct. 856, the Court found that California's application of the Booker severance remedy to the California sentencing
5 findings was inapplicable. The Court found that Califomia's attempt to compare its sentencing scheme with Booker is "unavailing," for the same reasons that Mr. Miller argues that Ohio's
Booker application is unavailing. Cunningham at 870.
In Foster this Court severed the unconstitutional portions of Ohio's sentencing law, and in doing so, managed to avoid the mandates of the Supreme Court, as well as place criminal defendants at a distinct disadvantage. While the Booker majority did sever a portion of the
Federal Sentencing Guidelines, the severance was limited and maintained the significant parts of the statute designed to effect Congressional intent. As Foster notes, the United States Supreme
Court severed the subsection that required a trial court to impose a sentence within the applicable
guidelines and the subsection setting forth the standards of review on appeal. Foster, at n. 97.
What is noticeably absent from the Foster opinion, however, is what remains in the federal
sentencing statutes to insure that congressional intent was preserved.
In Booker the Supreme Court held that the Federal Sentencing Guidelines were
incompatible with the Sixth Amendment, "because the Guidelines were `mandatory and imposed
binding requirements on all sentencing judges. "' Booker, at 233. "Merely advisory provisions,'
recommending but not requiring `the selection of particular sentences in response to differing
sets of facts,' all Members of the Court agreed, `would not implicate the Sixth Amendment"' Id.
To remedy the constitutional infirmity found in Booker, the Court severed the provisions that
rendered the system mandatory, leaving the Guidelines in place as advisory only. Id. at 245-246.
In Cunningham the Supreme Court found that California's sentencing scheme, "does not
resemble the advisory system the Booker Court had in view...Factfinding to elevate a sentence
from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a
beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the
6 preponderance of the evidence lies." Cunningham at 870. Similarly, in Ohio, facts used to elevate statutorily mandated minimum, concurrent sentences, to a higher sentence within the range, or to consecutive sentences, must be found by a jury or admitted by the defendant.
In People v. Black the California Supreme Court held that that state's sentencing system was not unfair to defendants, because they "cannot reasonably expect a guarantee that the upper term will not be imposed" given judges' broad discretion to impose an upper term or to keep their punishment at the middle tenn. Cunningham at 869, quoting People v. Black (2005), 35
Cal.4'h 1238, 1258-1259. The California Supreme Court's examination of the sentencing scheme left it satisfied that Califommia did not implicate the concerns underlying the Sixth Amendment's jury trial guarantee. The United States Supreme Court stated that its decisions, however, "leave
no room for such an examination." Cunningham at 869. Because California's system allocates
to judges sole authority to find facts permitting the imposition of an upper term sentence, the
system violates the Sixth Amendment. Id. at 870.
The Court stated that a sentencing court's "...broad discretion to decide what facts may
support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any
particular case, does not shield a sentencing system from the force of our decisions. If the jury's
verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to
impose the longer term, the Sixth Amendment requirement is not satisfied." Id. at 869, quoting
Blakely at 305. "It is comforting, but beside the point, that California's system requires judge-
determined DSL sentences to be reasonable. Booker's remedy for the Federal Guidelines, in
short, is not a recipe for rendering our Sixth Amendment case law toothless." Cunningham at
870.
7 The severance that this Court employed in Foster gives sentencing courts unbridled discretion. It cut a wide swath through the sentencing statutes, eliminated presumptions (save those favoring incarceration), eliminated a trial court's duty to explain its reasons for departing from the sentencing guidelines, effectively eliminated the ability of an appellate court to review a sentence, and essentially eliminated any real chance of accomplishing the General Assembly's goal of establishing unifonnity and proportionality in Ohio's criminal sentencing.
The Foster decision left intact R.C. 2929.11 and 2929.12, to ensure reasonableness, and to provide advisement to the sentencing court. Foster at ¶98. But, as Cunningham demonstrates, that is not enough. Because the Foster remedy has substantially disadvantaged the hundreds of defendants affected by the decision, the remedy violates the Ex Post Facto and Due Process
Clauses of the United States Constitution.
SECOND PROPOSITION OF LAW
The Foster remedy violates the constitutional protection of the separation of powers.
The separation of governmental powers is fundamental to our system of governance. The
United States Constitution and the Ohio Constitution separate the powers of the legislative, judicial, and executive branches of government. Articles II, III, and IV of the Ohio Constitution
describe the legislative, executive and judicial powers, respectively, and specify where those
powers are vested. State v. Warner (1990), 55 Ohio St.3d 31, 33-34. See State v. Harmon
(1877), 31 Ohio St. 250, 258. It is inherent in our theory of government, "that each of the tbree
grand divisions of the government, must be protected from the encroachments of the others, so
far that its integrity and independence may be preserved...." South Euclid v. Jemison (1986), 28
Ohio St.3d 157, 159, quoting Fairview v. Gif^'ee (1905), 73 Ohio St. 183, 187. State v.
8 Hochhausler (1996), 76 Ohio St.3d 455, 463; Cleveland Bar Assn. v. Picklo (2002), 96 Ohio
St.3d 195, 196.
Those principles dictate that just as the General Assembly may not instruct this Court how to rule, this Court may not legislate. Courts "have no legislative authority and should not make their office of expounding statutes a cloak for supplying something omitted from an act by the General Assembly. . . ." State ex rel. Foster v. Evatt (1944), 144 Ohio St. 65, 66. Courts may not "add to, enlarge, supply, expand, extend or improve the provisions of the statute to meet a situation not provided for." Id. As this Court recognized in State v. Foster, "we are constrained by the principles of separation of powers and cannot rewrite the statutes." Foster at
¶100.
State v. Foster is incompatible with United States Supreme Court precedent that protects the constitutionally mandated balance of power between legislature, judge, and jury. Further, post-Foster criminal sentencing violates the Federal Constitution. 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 v. New Jersey (2000), 530 U.S. 466, 483-85, citing Mullaney v. Wilbur (1975), 421
U.S. 684.
This Court came to the erroneous conclusion that having found certain sections of Ohio's
sentencing law unconstitutional, it was obliged to repair the damage to the sentencing law.
"[W]e must decide on a remedy. The question becomes, which remedy to apply?" Foster at
¶84. However, the remedy - a new sentencing law - is the province of the General Assembly.
The fact that the General Assembly did not envision this concem when it enacted sentencing
9 reform in 1996 does not change its role in ensuring that the law comports with the Sixth
Amendment, and the Supreme Court's rule.
In the simplest terms, courts shall not legislate. This Court contemplated doing exactly that, although it described the task as a reinterpretation of the law. "A second way to comport with Blakely would be to accept the criminal defendants' request that we interpret all the affected statutes as imposing only the minimum sentence ...." Foster at ¶26. In fact, that would simply effect the basic holding of Blakely. To do more is to violate the basic tenet that courts should not interpret that which is clear:
"To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the general assembly. *** An unambiguous statute is to be applied, not interpreted."
Sears v. Weimer (1944), 143 Ohio St. 312, 316, quoting 37 Ohio Jurisprudence, 514, Section
278.
Ohio's sentencing law was clear. Courts could enhance sentences only if judges made factual findings. But Blakely's holding mandated that to comport with the constitution, juries, not judges, had to make those findings. The Blakely holding may have prompted the General
Assembly to revise the law. But Blakely does not authorize this Court to make that revision on the General Assembly's behalf Yet that is precisely what this Court did, stating that it did "not believe that the General Assembly would have limited so greatly the sentencing court's ability to
impose an appropriate penalty." Foster at ¶89. The sentence imposed on Mr. Miller was the
result of a judicially mandated change to Ohio's sentencing statutes that was, in effect, thinly
disguised legislation. The Foster decision affects Ohio sentencing law, in violation of the
principle of separation of powers.
10 THIRD PROPOSITION OF LAW
The Ohio Revised Code, in its current state, does not authorize consecutive prison terms.
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, 537 N.E.2d 198; State v. West, 66 Ohio St.3d 508, 513, 1993-Ohio-201, 613
N.E.2d 622. The only authorization for consecutive prison terms is found in R.C. 2929.14(E)(4).
And R.C. 2929.41 sets forth the presumption that prison terms be served concurrently. This
Court severed R.C. 2929.14(E)(4), and R.C. 2929.41, because it found that the judicial factfinding requirements included in those provisions were unconstitutional. Foster at ¶83.
When it severed those provisions, this Court also severed sentencing law that was not unconstitutional-the presumption for concurrent prison terms, and the statutory authority to impose consecutive prison terms. After Foster severed R.C. 2929.14(E)(4), there is no law in effect that authorizes consecutive prison terms.
Under R.C. 2901.04, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused. State v.
Merriweather (1980), 64 Ohio St.2d 57, 59, 413 N.E.2d 790. Therefore, Mr. Miller was illegally sentenced to consecutive prison terms. Mr. Miller's sentence should be modified to concurrent prison terms.
CONCLUSION
This case involves substantial constitutional questions, as well as questions of public or great general interest. This Court should grant jurisdiction and decide the case on its merits, so that those questions may be answered definitively.
11 Respectfully submitted,
DAVID H. BODIKER #0016590 Ohio Public Defender
SHERYL ThZASKA #0079915 Assistant State Public Defender (COUNSEL OF RECORD)
Office of the Ohio Public Defender 8 E. Long Street - 11`h Floor Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 - Fax
COUNSEL FOR APPELLANT, ROBERT F. MILLER
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing MEMORANDUM IN SUPPORT OF
JURISDICTION OF APPELLANT, ROBERT F. MILLER was forwarded by regular U.S. Mail to the office of Edwin Pierce, Auglaize County Prosecutor, Auglaize County Prosecutor's Office,
201 S. Willipie Street, P.O. Box 1992, Wapakoneta, Ohio 45895 this day of October, 2007.
I v RYL TRZ SKA #0079915 Assistant State Public Defender (COUNSEL OF RECORD)
COUNSEL FOR APPELLANT, ROBERT F. MILLER
#266350
12 IN THE SUPREME COURT OF OHIO
STATE OF OHIO, Case No. Plaintiff-Appellee, On Appeal from the Auglaize vs. County Court of Appeals Third Appellate District ROBERT F. MILLER, C.A. Case No. 02 2007 0002 Defendant-Appellant.
APPENDIX TO MEMORANDUM IN. SUPPORT OF JURISDICTION OF APPELLANT, ROBERT F. MILLER IN THE COURT OF APPEALS THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-07-02
V.
ROBERT MILLER, OPINION
DEFENDANT-APPELLANT.
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court
JUDGMENT: Judgment Affirmed
DATE OF JUDGMENT ENTRY: September 17`h, 2007
ATTORNEYS:
DAVID H. BODIKER Reg. #0016590 SHERYLTRZASKA Reg. #0079915 Ohio Public Defender's Office 8 East Long Street -11th Floor Columbus, Ohio 43215 For Appellant
EDWIN PIERCE Auglaize County Prosecuting Attorney Reg. #0023846 AUGLAIZE COUNTY 201 South Willipie Street COUf?T OF APPEALS ;= !'... f _ D P. O. Box 1992 Wapakoneta, Ohio 45895 SP 17 2907 For Appellee SUE ELLE;I';u^iLER CLEnri Case No. 2-07-02
PRESTON, J.
{¶1} Defendant-appellant, Robert F. Miller (hereinafter "Miller"), appeals the Auglaize County Court of Common Pleas' decision to sentence him to multiple and consecutive prison terms totaling nine years. For the reasons that follow, we affirm the trial court's decision.
{¶2} On October 20, 2006, Miller entered a residence in Auglaize County,
Ohio. While there, Miller took various items, including CDs, DVDs, computer peripherals, and credit cards. Miller also broke into an outbuilding which was unattached to the residence and drove the resident's lawnmower. The resident found Miller taking the items from the residence, and Miller then fled the residence.
{¶3} On November 14, 2006, the Auglaize County Grand Jury indicted
Miller on one count of burglary in violation of R.C. 2911.12(A)(1), and a second degree felony; one count of breaking and entering in violation of R.C. 2911.13(A), and a fifth degree felony; and two counts of theft, violations of R.C.
2913.02(A)(1) and fifth degree felonies.
{¶4} On December 5, 2006, Miller entered into a plea agreement.
Pursuant to the agreement, Miller pled guilty to one count of burglary and one
count of breaking and entering. In exchange, the prosecution dismissed the two
theft counts. The trial court accepted Miller's guilty plea and found Miller guilty.
2 Case No. 2-07-02
{^S} That same day, the trial court sentenced Miller to an eight year prison term for the burglary charge and a twelve month prison term for the breaking and entering charge. The trial court ordered the terms of imprisonment be served consecutively.
{$6} Miller now appeals to this court and sets forth one assignment of error for our review.
ASSIGNMENT OF ERROR
The trial court erred when it sentenced Mr. Miller to serve maximum and consecutive prison terms. Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Section 16, Article I, Ohio Constitution.
{¶7} In his sole assignment of error, Miller argues that the Ohio Supreme
Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E. 2d
470, eliminated fmdings and the statutory presumption of minimum and concurrent sentences. Miller argues he had a legitimate expectation that he would be "deprived of his liberty only to the extent determined by statute" and that since he was sentenced without those protections, he was deprived of his liberty without due process. Miller also argues that courts may only impose a sentence that is authorized by the sentencing statutes and that after Foster severed R.C.
2929.14(E)(4) there is no law that authorizes consecutive prison terms. Miller argues that "with no statutory guidance regarding whether consecutive or
3 Case No. 2-07-02 concurrent sentences should be imposed, the trial court had a statutory duty to impose concurrent prison terms in Mr. Miller's case."
{¶8} This court has previously held that the Ohio Supreme Court's decision in Foster does not violate the due process clause. State v. McGhee, 3d
Dist. No. 17-06-05, 2006-Ohio-5162, at ¶114-20. For the reasons expressed by this court in McGhee, we find that Miller's due process argument lacks merit.
{¶9} In addition, the Foster decision was released by the Ohio Supreme
Court on February 27, 2006. Foster, 2006-Ohio-856. Miller committed his crimes on October 20, 2006, which was several months after the Foster decision was released. Thus, Miller was aware when he committed the offenses that the trial court had "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." Foster,
2006-Ohio-856, paragraph seven of the syllabus. And, the trial court sentenced
Miller within the applicable statutory range of sentences for the crimes which he was convicted. See R.C. 2929.14(A).
{¶10} Moreover, this court has previously held that the trial court has the authority to impose consecutive sentences after the Foster decision. State v.
Gonzales, 3d Dist. No. 5-06-43, 2007-Ohio-3132, at ¶¶ 11-13, quoting State v.
4 Case No. 2-07-02
Worrell, 10th Dist. No. 06AP-706, 2007-Ohio-2216. For those same reasons, we find that Miller's argument lacks merit.
{¶11} For the foregoing reasons, we oveirule Miller's sole assignment of error.
{¶12} Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgnient Affirnzed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
5 IN THE COURT OF APPEALS OF THE THIRD APPELLATE JUDICIAL DISTRICT OF OHIO
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-07-02
V.
ROBERT MILLER, 3 O U R N A L ENTRY DEFENDANT-APPELLANT.
For the reasons stated in the opinion of this Court rendered herein, the
assignments of error are overruled, and it is the judgment and order of this Court
that the judgment of the trial court is affirmed at the costs of the appellant for
which judgment is rendered and that the cause be remanded to that court for
execution.
It is further ordered that the Clerk of this Court certify a copy of this
judgment to that court as the mandate prescribed by Appellate Rule 27 or by any
other provision of law, and also fiunish a copy of any opinion filed concurrently
herewith directly to the trial judge and parties of record.
AUGLAIZE COUN TY COURT OF APPEALS r; S:LJ SP 17 2007
...,a.SUE ELI^v_h;Ji4?J ,,, ^ DE /jlr