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,