STATE of OHIO, Case No

IN THE SUPREME COURT OF OHIO 2010

STATE OF OHIO, Case No. 2010-1981

Plaintiff-Appellee, On Appeal from the Franklin County Court -vs- of Appeals, Tenth Appellate District

ROXIE STEVENS, Court of Appeals Defendant-Appellant. Case Nos. 10AP-207, lOAP-208

MEMORANDUM OF PLAINTIFF-APPELLEE OPPOSING JURISDICTION

RON O'BRIEN 0017245 Franklin County Prosecuting Attorney 373 South High Street-13a Fl. Columbus, Ohio 43215 614/462-3555

And

JOHN H. COUSINS IV 0083498 (Counsel of Record) Assistant Prosecuting Attorney [email protected]

COUNSEL FOR PLAINTIFF-APPELLEE

TIMOTHY YOUNG 0059200 Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 614-466-5394 MT^U d 'l_^jj 0 and ^ ^..^ CLERK OF COURT TERRENCE K. SCOTT 0082019 SUPREME COURT OF OHIO (Counsel of Record) Assistant State Public Defender

COUNSEL FOR DEFENDANT-APPELLANT TABLE OF CONTENTS

EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION ...... 1

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

ARGUMENT ...... 2

RESPONSE TO FIRST PROPOSITION OF LAW :...... :...... 2

UNDER R.C. 2929.41(B), A TRIAL COURT MAY IMPOSE A MISDEMEANORSENTENCE CONSECUTIVELY WITH A FELONY SENTENCE ...... 2

RESPONSE TO SECOND PROPOSITION OF LAW :...... 7

WHEN A CLAIM OF ERROR IS FORFEITED THROUGH LACK OF OBJECTION, THE APPELLANT MUST SHOW PLAIN ERROR IN ORDER TO OBTAIN APPELLATE RELIEF. AN ERROR WILL NOT RISE TO THE LEVEL OF PLAIN ERROR UNLESS THE OUTCOME CLEARLY WOULD HAVE BEEN DIFFERENT BUT FOR THE ERROR ...... 7

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11

i EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION

Neither of defendant's propositions of law seeks to resolve a conflict among the appellate districts, and neither presents a significant constitutional question. Defendant's first proposition of law argues that R.C. 2929.41(A) requires misdemeanor sentences to imposed concurrently with felony sentences. However, Ohio appellate districts have uniformly recognized that State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, severed R.C. 2929.41(A) from the remainder of the statute. Now, Ohio courts apply R.C. 2929.41(B)(1), which specifically permits consecutive sentences for misdemeanors and felonies. Thus, because the first proposition of law merely disagrees settled law, neither the bench nor the bar would benefit from a decision in this case.

Nor has defendant presented any compelling reason to review her second proposition of law. Even though she was sentenced over one year after Oregon v. Ice (2009), 129 S.Ct. 711, the defense made no objection or claim in the trial court that she should be sentenced using the consecutive-sentence findings that were formerly required before they were severed by Foster.

As a result, the issue was forfeited from lack of objection. Given defendant's substantial criminal record, the trial court could have easily justified consecutive sentencing under the former finding requirements. This forfeiture component distinguishes defendant's case from the

State v. Hodge, 2009-1997, making this case a poor candidate for review.

Because the instant case does not present questions of such constitutional substance nor of such great public interest as would warrant further review by this Court, the State respectfully requests that this Court decline jurisdiction.

1 STATEMENT OF THE CASE AND FACTS

The State incorporates the procedural and factual summary provided by the Tenth District in State v. Stevens, 10th Dist. Nos. 10AP-207, 10AP-208, 2010-Ohio-4747, ¶1.

ARGUMENT

RESPONSE TO FIRST PROPOSITION OF LAW:

UNDER R.C. 2929.41(B), A TRIAL COURT MAY IMPOSE A MISDEMEANOR SENTENCE CONSECUTIVELY WITH A FELONY SENTENCE.

In her first proposition of law, defendant argues that R.C. 2929.41(A) requires sentencing courts to impose misdemeanor sentences concurrently with felony sentences. This contention lacks merit for several reasons. First, defendant relies on a statutory provision that no longer exists. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, this Court declared R.C. 2929.41(A) unconstitutional and severed it from the remainder of the statute. Id. at paragraphs three and four of the syllabus. Because R.C. 2929.41(A) and 2929.14(E)(4) required sentencing courts to engage in judicial factfinding before consecutive prison terms could be imposed, this Court found that those provisions (along with other portions of Ohio's statutory sentencing scheme) violated the Sixth Amendment to the United States Constitution according to Blakely v.

Washington (2004), 542 U.S. 296. Id. at paragraph three of the syllabus. To remedy this violation, this Court severed R.C. 2929.14(E)(4) and 2929.41(A) from the remaining statutory provisions. Id. at paragraph four of the syllabus; see, also, State v. Elmore, 122 Ohio St.3d 472,

2009-Ohio-3478, ¶32 ("Foster severed and excised R.C. 2929.14(E)(4) and 2929.41(A) in their entirety.").

Including the Tenth District's decision in this case, six appellate districts agree that

Foster severed R.C. 2929.41(A), and those districts now apply R.C. 2929.41(B). See State v.

2 Hughley, 8th Dist. Nos. 92588, 93070, 2009-Ohio-5824, ¶10 (Because Foster declared that

"R.C. 2929.41(A) is unconstitutional and severed it from the remainder of the statute[,] * * * we are left with R.C. 2929.41(B) * **."); State v. Walters, 6th Dist. No. L-08-1238, 2009-Ohio-

3198, ¶30; State v. Trainer, 2nd Dist. No. 08-CA-04, 2009-Ohio-906, ¶10 ("In the wake of

Foster, we are left with R.C. 2929.41(B) * * * ."); State v. Terry, 171 Ohio App.3d 473, 2007-

Ohio-1096, ¶9; State v. Elkins, 5th Dist. No. 05 CA 0008, 2006-Ohio-3997.

In this case, the trial court complied with R.C. 2929.41(B) by imposing defendant's misdemeanor sentence and her felony sentence consecutively to each other. R.C. 2929.41(B) provides:

(B)(1) A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifzes that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code.

When consecutive sentences are imposed for misdemeanor under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months.

(emphasis added).

Ohio appellate districts have recognized that, post-Foster, "R.C. 2929.41(B) authorizes a trial court to order a misdemeanor sentence to be served consecutively to a felony sentence."

Hughley, ¶12, citing Trainer; Terry; and Elkins. Because the provision permits consecutive prison terms for misdemeanors and for "any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively," misdemeanor sentences and felony sentence can be imposed consecutively so long as the court specifies that it is imposing consecutive sentences.

3 Here, the trial court complied with R.C. 2929.41(B). It specifically stated at the hearing

and in its entry that both sentences were to be served consecutively to each other. (2/8/10 Tr. 6;

10AP-208 R. 31; 10AP-207 R. 72) Accordingly, the consecutive sentences in this case were

lawful. See Elkins at ¶23 ("Pursuant to R.C. 2929.41(B)(1), since the trial court specifically

ordered, in the sentencing judgment entry, that the misdemeanor violation under R.C. 4549.02 be

served consecutively to the other two offenses, we find no error."); see, also, Terry at ¶7; Trainer

at ¶ 21; Hughley at ¶12.

Defendant contends that, even if R.C. 2929.41(B)(1) governed at sentencing, the trial

court violated the second sentence in R.C. 2929.41(B)(1) by imposing consecutive sentences that

exceed an aggregate term of 18 months. To support her argument, defendant cites State v.

Downing, 3rd Dist. No. 11-02-07, 2002-Ohio-6310-a case decided four years before Foster.

This same argument was rejected in Trainer. There, the court of appeals held that the 18- month limitation only applies to consecutive prison terms for "multiple misdemeanors." Trainer,

¶15. Thecourt cited State v. Miller (2001), 12th Dist. No. CA200-11-225, noting that "appellate

courts have reached the conclusion that the language of R.C. 2929.41(B)(1) limits the total term

of imprisonment for all misdemeanors to eighteen months, including cases in which the

sentences are imposed at different times or by different courts." Id.

The court in Trainer recognized that courts have reached the same conclusion under a prior version of R.C. 2929.41 containing similar language. Id: citing State v. Kesterson (1993),

91 Ohio App.3d 263, 265. Before the enactment of Senate Bi112 in 1996, the prior version of

R.C. 2929.41 read:

(D) Subject to the maximum provided in division (E) of this section, when consecutive sentences of imprisonment are imposed for misdemeanor, the term to be served is the aggregate of the consecutive terms imposed.

4 (E) Consecutive terms of imprisonment imposed shall not exceed:

**+

(3) An aggregate term of eighteen months, when the consecutive terms imposed are for misdemeanors.

See Kesterson, 91 Ohio App.3d at 265. Thus, prior law only placed an 18-month limitation on consecutive misdemeanor sentences. The law never intended to restrict a court's ability to impose consecutive felony sentences.

Trainer also rejected the Downing decision that defendant relies on. Specifically, the court held:

Downing is of limited value in the present case because the potential inconsistency it reconciled no longer exists. Simply put, we have no occasion to read R.C. 2929.41(A) and (B)(1) in pari materia because Foster excised the fonner provision from the Revised Code after Downing was decided. As set forth above, the starting point now is R.C. 2929.41(B)(1), which unambiguously states that "[a] jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term * * * when the trial court specifies that it is to be served consecutively[.]" The trial court so specified in Trainer's case. Therefore, it did not commit plain error when it ordered his ninety-day jail sentence to be served consecutively to his felony sentences.

Id. at ¶18.

Thus, defendant's argument, and the cases upon which her argument is based, rely on a statutory provision that no longer exists. In this case, defendant did not receive consecutive prison terms for multiple misdemeanors. Instead, the trial court sentenced her to one 18-month felony sentence and to one 180-day misdemeanor sentence. Accordingly, the trial court complied with R.C. 2929.41(B)(1), and the Tenth District correctly affirmed.

Defendant raises several alternative arguments as to why the trial court was still bound by R.C. 2929.41(A)-none of which are persuasive. First, defendant contends that Foster does not apply to misdemeanor sentencing. This statement incorrectly implies that R.C. 2929.41(A)

5 only applies to misdemeanors, and it also misinterprets Foster. While Ohio's "felony-sentencing structure" was undoubtedly at issue in Foster, id. at ¶28, this Court did not purport to leave intact the provisions of R.C. 2929.41(A) dealing with misdemeanor sentencing; it expressly severed

"R.C. 2929.41(A)" from the Revised Code. See Foster at paragraphs three and four of the syllabus.

Defendant argues that R. C. 2929.41(A) was statutorily reenacted by the United States

Supreme Court's decision in Oregon v. Ice (2009), 129 S.Ct. 711. As explained in the State's response to defendant's second proposition of law, this argument fails for several reasons. The

State incorporates those reasons into this response but also notes that defendant never raised an

Ice-based objection at sentencing, even though Ice was decided one year earlier.

Defendant also argues that R.C. 2929.41(B), after Foster, is ambiguous and that it violates the rule of lenity as codified in R.C. 2901.04(A). However, "the rule of lenity applies to the construction of ambiguous statutes and not to determinations of a remedy for a statute's unconstitutionality ***." State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶40

(collecting cases). The rule is not necessary "merely because it [is] possible to articulate a construction more narrow than that urged by the Government." Moskal v. United States (1990),

498 U.S. 103, 108. Nor is the rule applicable "unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seized every thing from which aid can be derived, it is still left with an ambiguous statute. The rule of lenity comes into operation at the end of the process of construing what [the legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Chapman v.

United States (1991), 500 U.S. 453, 463 (internal quotation marks and brackets omitted).

6 Here, there is no "grievous ambiguity or uncertainty" in R.C. 2929.41(B)(1), even after

Foster. This Court has made clear that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make fmdings or give their reasons for maximum, consecutive, or more than the minimum sentences." Elmore, 2009-Ohio-

3478, ¶41, citing Foster, ¶100. Indeed, six appellate districts have found no difficulty interpreting R.C. 2929.41 after Foster. See Stevens, Elkins, Terry, Trainer, Hughley, and

Walters. Strict construction of R.C. 2929.41 is unnecessary.

Accordingly, defendant's first proposition of law does not warrant review.

RESPONSE TO SECOND PROPOSITION OF LAW:

Defendant asks that this case be accepted and held for State v. Hodge, 2009-1997, a case currently pending before this Court, based on the argument that the United States Supreme

Court's decision in Oregon v. Ice (2009), 129 S.Ct. 711, reenacted the statutory finding requirement severed by the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856. But a key difference separates this case from Hodge. Despite the Ice decision having been issued one year before defendant's sentencing hearing, the defense never raised Ice in the trial court. By not objecting, defendant has forfeited all but plain error. Crim. R. 52(B); State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642. Given defendant's substantial criminal record, the trial court could have easily justified consecutive sentencing under the former finding requirements, thereby making this case an inappropriate candidate for review.

7 Regardless, defendant cannot show any error, let alone plain error. Effective in 1996,

Senate Bil12 generally required findings in order to support consecutive sentencing. See R.C.

2929.14(E)(4). There was a presumption of concurrent sentencing set forth in R.C. 2929.41(A), which could be overcome if the (E)(4) findings were made, or if some other provision required/allowed consecutive sentencing.

Believing that such fact-finding by the sentencing judge violated the defendant's right to a jury trial under Blakely v. Washington (2004), 542 U.S. 296, this Court concluded in Foster that such fmding requirements were unconstitutional. The Court severed the findings from the

statutory scheme, severed the presumption of concurrent sentencing, and held that consecutive

sentences could be imposed without such findings.

A subsequent case confirmed that sentencing courts retained the authority to impose

consecutive sentences after the Foster severance. Absent a statutory prohibition, courts have the

inherent ability to impose sentences consecutively. State v. Bates, 118 Ohio St.3d 174, 2008-

Ohio-1983, ¶113, 18. Bates also confirmed that the (E)(4) findings and the presumption were

severed and excised, "leav[ing] no statute" in place that presumes concurrency or that requires

findings. Id. at ¶ 18. Bates equated the Foster severance/excision of these provisions to a repeal

of the provisions. Id. at ¶ 18.

In Ice, the United States Supreme Court concluded that judicial factfinding as a predicate

to consecutive sentencing does not violate Blakely. Ice held that there is no right to a jury trial

on whatever findings state law might require to justify consecutive sentencing.

Defendant now claims that Ice serves to revive Ohio's consecutive-sentence finding

requirements and the presumption of concurrent sentencing, all of which Foster had severed.

But the issue must be split into two parts. Insofar as the federal constitutional right to a jury trial

8 is concerned, the State concedes that Ice would control over Foster, and the Ohio courts are bound by Ice, not Foster, on the issue of what the federal jury-trial right entails.

On the other hand, the issue of severance is a state-law issue, not a federal issue. Virginia v. Hicks (2003), 539 U.S. 113, 121 ("[w]hether these provisions are severable is of course a matter of state law"). So Ice could not serve to reenact or revive the severed consecutive- sentence fmding requirements. The status of severance (and possible revival) regarding the consecutive-sentence findings and the presumption of concurrent sentencing are state-law questions on which Ice could not control.

Accordingly, Ice itself could not revive the (E)(4) findings or the concurrency presumption. As confirmed by Bates, Foster constituted a judicial act in 2006 that, then and there, severed and excised these provisions. Given this positive act of judicial rescission, the statute no longer contains these provisions, and it would take a reenactment to reinstate them.

See Bd: of Elections v. State, ex rel. Schneider (1934), 128 Ohio St. 273, paragraph five of the syllabus ("An act of the General Assembly, which was unconstitutional at the time of enactment, can be revivified only by re-enactment.").

Some have contended that the findings have already been reenacted. The (E)(4) provisions have been restated in several Acts that have amended R.C. 2929.14 since Foster. But these are not reenactments of the excised statutory language for the reasons stated in Stevens v.

Ackman (2001), 91 Ohio St.3d 182. The repetition of old statutory language in an Act amending the statute in other respects does not constitute a reenactment or enactment of the old language.

Id.

Defendant also cannot show plain error under the facts of this case. Payne, at ¶ 25

(applying plain-error standard). The "error" was not "plain" at the time it was committed, nor

9 was the purported error clearly outcome determinative. State v. Barnes (2002), 94 Ohio St.3d

21, 27-28; State v. Long (1978), 53 Ohio St.2d 91. The facts show that consecutive sentencing would have been easily justified under the former finding requirements, given defendant's criminal record, the seriousness of her offenses, and her lack of any genuine remorse. The issue of whether Ice overtakes Foster on the severance issue is truly insignificant in this case.

Just as much as in Payne, the presence or absence of the findings can be measured against the existing appellate record in determining whether the defendant has been prejudiced.

Just as in Payne, the purported error is not "structural." Defendant simply cannot show that the omission of the purportedly-required findings was outcome determinative under the plain-error standard of review. Defendant's second proposition of law does not warrant review.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that the within appeal does not present questions of such constitutional substance nor of such great public interest as would warrant further review by this Court. It is respectfully submitted that jurisdiction should be declined.

Respectfully submitted,

RON O'BRIEN 0017245 Prosecuting Attorney

OUSItd'S IV 0083498 osecuting Attomey igh Street 13' Fl. us, Ohio 43215 614/462-3555 [email protected]

Counsel for Plaintiff-Appellee

10 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent by regular U.S. Mail this day,

December 0,'"2010, to TERRENCE K. SCOTT, 250 East Broad Street, Suite 1400, Columbus,

Ohio 43215; Counsel for Defendant-Appellant.