 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: BLAKELY State v. Bruce, No. C-040421, (First Dist. Ct. Apps., Hamilton Co., 2-4-05), 2005 Ohio 373. Jeffrey Bruce pleaded guilty to voluntary manslaughter. The court, having found that Bruce committed the worst form of the offense, sentenced the defendant to the maximum sentence of ten years. The Hamilton County Court of Appeals has changed its mind about the effect of Blakely v. Washington, (2004), 124 S.Ct. 2531 on Ohio's sentencing laws. More precisely, the Hamilton County Court of Appeals concluded in the instant case that the United States Supreme Court case of United States v. Booker, (2005), 125 S. Ct. 738 proves that the Hamilton County Court's interpretation of Blakely v. Washington, and Apprendi v. New Jersey (2000) 530 U.S. 466 was incorrect. The Hamilton County Court, and most other Ohio courts, had determined that a sentence within a maximum range was acceptable under Blakely and that Blakely applied only if a finding made by a judge allowed the judge to impose a sentence greater than the maximum of a statutory range. In rejecting its earlier opinion, the Hamilton County Court quoted from United States v. Booker, the following: "we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." That sentence, the Hamilton County Court of Appeals said, quoting from Blakely v. Washington, 124 S.Ct. at 2537, means "not 'the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.'" (court's emphasis). The Hamilton Court modified the defendant's sentence to nine years. SENTENCING: BLAKELY State v. Trubee, No. 9-03-65 (Third Dist. Ct. Apps., Marion Co., 2-14-05), 2005 Ohio 552. Adam Trubee entered a guilty plea to attempted burglary. Having denied Trubee's pre-sentence motion to withdraw his guilty plea, the trial court sentenced him to two years. On appeal, Trubee argued that the "statutory maximum," as the United States Supreme Court used the term in Blakely v. Washington,(2004), 124 S. Ct. 2531 was one year, under RC. 2929.14(A), because that section requires the court to impose a minimum sentence, unless the court finds that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others, or the offender was serving a prison term at the time of the offense or had previously served a prison term. In a thorough discussion of Blakely, Apprendi v. New Jersey (2000), 530 U.S. 466, and United States v. Booker (2005), 125 S.Ct. 738, the Marion County Court of Appeals held that Ohio's sentencing scheme was constitutional. The court relied on Justice O'Connor's dissenting opinion in Apprendi and the majority's remark in Apprendi that a system described by Justice O'Connor would be constitutional. The Marion County Court also relied upon the United States Supreme Court's remark in Booker, that the system in the United States Supreme Court cases would have been constitutional if the guidelines had been discretionary rather than mandatory. The Ohio system, the Marion County, court continued, allows but does not require the court to impose a sentence greater than the minimum if the court makes the additional findings. Therefore, the court concluded, the minimum sentence is not the "statutory maximum," as the United States Supreme Court used the term. The opinion is nineteen pages long, but the gist of the court's reasoning is as follows: In addition, it is our conclusion that Ohio's statutory scheme does not violate Blakely because the sentencing determinations made by the trial court under subsection (B) are not "legally essential to the punishment." See Blakely, 125 S.Ct. at 2536. There is no one statutory finding permitting a particular increase in the sentence, and the Ohio statute does not mandate any increase in the sentence based upon additional judicial findings. This is markedly different from the statutes in Blakely and Booker, which mandated a specific increase in the sentence based on a specific finding.R.C. 2929.14(B) requires that the court "impose the shortest prison term authorized for the offense [**24] . . . unless [one of the judicial determinations applies]." R.C. 2929.14(B). However, the plain language of the statute provides only that the court impose the minimum term available, it does not require an increase if the additional findings are made. This distinction is significant and is consistent with the Supreme Court's analysis in Booker, where the Court found that the statutory provisions making the Federal Sentencing Guidelines mandatory were unconstitutional. Booker, 125 S.Ct. at 750 ("Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges. . . ."). The Marion County Court of Appeals sua sponte certified the case to the Ohio Supreme Court as in conflict with State v. Bruce supra. SENTENCING: BLAKELY State v. Small, No 04COA04032, (Fifth Dist. Ct. Apps., Delaware Co. 1-14-05), 2005 Ohio 169. Two days after the United States Supreme Court decided United States v. Booker, and without mentioning Booker, the Delaware County Court of Appeals reaffirmed it's earlier holding that Blakely v. Washington applies only to factors that allow a court to impose a sentence greater than the maximum of a stated range. Edward Small, having been indicted for six counts of forgery and one count of possession of criminal tools, entered guilty pleas to three counts of forgery. The court sentenced him to two consecutive twelve-month prison terms and one concurrent twelve-month term. On appeal, Small argued that Blakely prohibited the court's imposing, based on additional findings under R.C. 2929.13, more than the minimum. Appellant also argued that Blakely prohibited the court's imposing maximum and consecutive sentences. The Delaware County Court of Appeals held that Blakely v. Washington prohibits exceeding the maximum sentence within a sentencing range, unless facts supporting the departure are found by the jury. As appellant's sentences were all within the maximum allowed by statute, the court held Blakely inapplicable and affirmed. SEXUAL OFFENDER: COURT MAY NOT REMOVE CLASSIFICATION FROM ADULT. State v. Turner, No. 2004-CA-36 (5th Dist. Ct. Apps., Richland Co., 12-2-04), 2204 Ohio 6573. On October 18, 2000, Alvin Turner pled guilty to two counts of attempted pandering of sexually oriented matter involving a minor. The court sentenced him to two years in prison and found him to be a sexually oriented offender. On February 5, 2004, the defendant filed a "motion for dismissal of sex offender [sic] labeling." On March 24, 2004, the trial court granted the defendant's motion. The State appealed. The Richland County Court of Appeals reversed the trial court's order. R.C. section 2950.07(B) allows a court to remove the determination that a delinquent child is a sexual predator, habitual sex offender or sexually oriented offender. When appellant was convicted, R.C. 2950.09(D) contained a similar provision applicable to adults. However, the General Assembly removed the provision in an amendment effective July 31, 2003. As Turner petitioned the court to change his status after R.C. 2950.09(D) had been amended, the appellate court said, the trial court lacked authority to grant the motion. The court reversed and remanded for proceedings consistent with the opinion. ESCAPE: AN ATTEMPT TO OVERCOME OFFICERS AND EXIT A CELL IS ESCAPE UNDER R.C. 2921.34. State v. Turner, No. 9-04-21 (Third Dist. Ct. Apps, Marion Co., 12-6-04), 2004 Ohio 6489. Jimmie Turner appealed from convictions for escape and intimidation. Turner, while an inmate in the Multi-County Correction Center in Marion on unrelated charges, tried to force his way out of his cell. Officers, who had been bringing Turner lunch, forced the door closed, injuring Turner's leg. Having been treated in the facility's medical area, Turner threatened to kill officers who were attempting to place him in a "medical cell." After additional struggle, Turner lost the fight. The Marion County Grand Jury charged Turner with escape, assault, and intimidation. The jury returned verdicts of not guilty of assault but guilty of escape and intimidation. On appeal, Turner argued that his conviction for escape was against the weight of the evidence. He asserted he lacked the mental intent to commit the offense because, he claims, he suffers from claustrophobia. Turner also argued that he was not guilty of escape because he tried to leave not the prison facility but only a room within the facility. The crime of escape is defined by R.C. 2921.34, which states in pertinent part: No person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break the detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited period, or at the time required when serving a sentence in intermittent confinement. The court rejected the second claim on the ground that "detention" is not a place but a "state of control." Admirably restraining itself from commenting on the inadvisability of a claustrophobic's choosing crime as a vocation, the court rejected Turner's theory of his mental incapacity. The court affirmed the convictions.
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