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{¶ 1} In Blakely v. Washington (2004), 542 U.S. 296,124 S.Ct. 2531, 159 L.Ed.2d 403, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Shortly after the Supreme Court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me." These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum, and consecutive sentences under R.C. Chapter 2929 has now divided this court, with the result being the imminent issuance of conflicting opinions from this appellate district.
{¶ 2} Because the Ohio Supreme Court has held that Section3(B), Article IV of the Ohio Constitution requires that the certification of a conflict can only occur between districts, not within districts, see Whitelock v. Gilbane Bldg. Co. (1993),66 Ohio St.3d 594, 596-597, 613 N.E.2d 1032, we invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district. In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving
Anthony Lett, appellant herein, in an unrelated case.1
Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the Supreme Court resolves these issues definitively.
{¶ 3} As might be expected, the complexity of the issues presented in this case has left this court deeply divided. We recognize that the orderly administration of justice is the rock upon which government rests. More criminal cases are heard in this appellate district than in any other in this state. Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation in which individual defendants would be sentenced differently pending the Ohio Supreme Court's decision. All of us agree that that would be an unacceptable outcome that must be avoided; hence, we have all agreed to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.
{¶ 4} The two specific questions before this court en banc are (1) whether the statutory provisions of R.C. 2929.14(C) and2929.19(B)(2)(d), required for the imposition of maximum sentences, implicate the Sixth Amendment to the United States Constitution as construed by the United States Supreme Court inBlakely and United States v. Booker (2005), 543 U.S. ___,125 S.Ct. 738, 160 L.Ed.2d 621, and (2) whether the statutory provisions of R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2)(c), required for the imposition of consecutive sentences, implicate the Sixth Amendment as construed by the United States Supreme Court in Blakely and Booker.2
{¶ 5} Although Lett raises four assignments of error,3
the gravamen of his appeal takes issue with the trial court's imposition of maximum and consecutive sentences, which are within the scope of the en banc questions. This opinion consists of five major parts. Part I details the procedural history of the appeals. In part II, we address the relevant Sixth Amendment law. In part III, issues relating to the maximum sentence will be addressed. In part IV, a majority of
this court agrees that Blakely does not affect the imposition of consecutive sentences. We conclude in part V.
I. Procedural History of Appeals
{¶ 6} In case No. CR-447030, Anthony Lett pleaded guilty to a single count of drug trafficking, a fourth-degree felony carrying a possible prison sentence of six to 18 months. It was also agreed that the state would return a 1989 Cadillac that had been seized when Lett was arrested. In case No. CR-445593, Lett pleaded guilty to one count of possession of drugs, a felony of the third degree, punishable by a term of incarceration from one year up to five years. The court sentenced Lett to the maximum of five years' incarceration in case No. CR-445593, and ordered that that sentence be served consecutively to the sentences imposed in case No. CR-447030.
4 In total, Lett was sentenced to six and one-half years in prison. In addition, on a prior date, Lett was found to be a violator of probation and community-control sanctions and was ordered to serve the remainder of his sentence stemming from a previous drug conviction.
{¶ 7} Lett raises four assignments of error that, collectively, argue that the court erred in imposing maximum, consecutive sentences. These arguments are based on Blakely, since they claim that the court imposed the sentences by making statutorily mandated factual determinations that were not admitted by Lett at the time of his guilty pleas.
II. Sixth Amendment Law
{¶ 8} The
Sixth Amendment to the United States Constitution, made applicable to the states through the
Fourteenth Amendment, guarantees an accused the right to trial by jury. Likewise, Section
5, Article
I of the Ohio Constitution states that the "right of trial by jury shall be inviolate."
{¶ 9} In Apprendi v. New Jersey (2000), 530 U.S. 466,120 S.Ct. 2348, 147 L.Ed.2d 435, the court held that a New Jersey hate-crime statute, which doubled Apprendi's maximum sentence based on the sentencing judge's finding by a preponderance of the evidence of biased motive, was unconstitutional because it deprived Apprendi of the right to have a jury determine all essential elements of the offense. The Supreme Court stated that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.
{¶ 10} After Apprendi, prosecutors in grid or guideline sentencing jurisdictions believed that the "maximum" penalty was that set forth by law and which included all possible upward departures authorized by statute. For example, like the federal courts, the state of Washington employed a grid system to determine the appropriate sentencing range for an offender. Sentences were determined by looking at two key factors on a grid: the offender's criminal history and the level of the crime. The intersection of those lines did not necessarily occur at the maximum level allowed by law, and various upward departures existed which might increase the sentence.
{¶ 11} Blakely involved the constitutionality of a prison sentence that was imposed under Washington's grid-style sentencing scheme. Blakely pleaded guilty to a second-degree kidnapping charge involving domestic violence and also to the use of a firearm, a second-degree class-B felony carrying a maximum punishment of ten years' imprisonment (120 months). Under Washington's sentencing statute, the "standard range" of incarceration for second-degree kidnapping with a firearm is 49 to 53 months. The sentencing statute permits a trial judge to impose a sentence above the standard range if the judge finds substantial and compelling reasons justifying an "exceptional sentence." One of the aggravating factors justifying the imposition of an exceptional sentence is whether the offender acted with "deliberate cruelty." After conducting a full evidentiary hearing, the trial judge found by a preponderance of the evidence that Blakely had acted with deliberate cruelty in carrying out the kidnapping and imposed a prison sentence of 90 months.
{¶ 12} The Supreme Court reversed the trial court's imposition of the exceptional sentence, holding that "`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'"Blakely, 542 U.S. at ___, 124 S.Ct. at 2536, 159 L.Ed.2d 403, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348,147 L.Ed.2d 435. The Supreme Court further held that the "statutory maximum" for purposes of Blakely and Apprendi is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts but the maximum the judge may impose without any additional findings. Blakely,
542 U.S. at ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403. Thus, the maximum sentence the trial judge was permitted to impose for second-degree kidnapping with the use of a firearm was 53 months — the upper end of the stated guidelines — without enhancement. Because the trial judge erroneously imposed a 90-month term based on facts not admitted to at the time of the guilty plea, the Supreme Court concluded that Washington's sentencing procedure violated
Blakely's Sixth Amendment right to a trial by jury and declared his prison sentence invalid.
{¶ 13} Blakely caused a furor within the legal community, yet the Supreme Court reaffirmed it in Booker, excising both Section 3553(b)(1), Title 18, U.S. Code ("the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure)"), and Section 3742(e), Title 18, U.S. Code ("the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range"). Booker, 543 U.S. at ___, 125 S.Ct. at 764,160 L.Ed.2d 621. The Booker court held that Section 3553(b)(1) was incompatible with its prior holdings that the Sixth Amendment requires juries, not judges, to make findings of fact relevant to sentencing. If a state makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the state labels it — must be found by a jury beyond a reasonable doubt. As a result, the Supreme Court rendered the federal sentencing guidelines advisory, instructing the federal courts to consider the guideline ranges and review the sentencing decisions for reasonableness.
{¶ 14} By making the guidelines discretionary rather than mandatory, the Supreme Court was able to reaffirm its adherence to long-standing precedent that discretion in sentencing does not implicate the Sixth Amendment. Booker, 543 U.S. at ___,125 S.Ct. at 750, 160 L.Ed.2d 621. The Supreme Court said that it never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Id., citing Apprendi, 530 U.S. at 481, 120 S.Ct. 2348,147 L.Ed.2d 435; Williams v. New York (1949), 337 U.S. 241, 246,69 S.Ct. 1079, 93 L.Ed. 1337. Moreover, the Supreme Court noted that all parties in Booker agreed that the Sixth Amendment issues presented in Apprendi and Blakely would have been entirely avoided if the provisions that make the guidelines mandatory and binding on all district judges had been omitted. Booker,
543 U.S. at ___, 125 S.Ct. at 750, 160 L.Ed.2d 621.
{¶ 15} Thus, as the law currently stands, sentencing schemes that grant a judge discretion to impose a sentence (as opposed to grid systems, which very narrowly limit a judge's choices) are permissible under the Sixth Amendment.
III. Maximum Sentences {¶ 16} R.C.
2929.14(C) states:
{¶ 17} "Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future
crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section."
{¶ 18} When imposing a maximum sentence, the court must not only make the specific finding that an offender committed the worst form of the offense or would pose the greatest likelihood of committing future crime, but must state the reasons why it makes that particular finding. See R.C. 2929.19(B)(2)(d).
{¶ 19} We agree with the nearly unanimous view of the other appellate districts in this state5 that the findings a court must make before imposing a maximum sentence do not implicate an offender's Sixth Amendment right to have issues relating to the elements of an offense either admitted to by a plea or determined by a trier of fact. Ohio has a hybrid sentencing scheme that imposes determinate sentences from an indeterminate range of possible terms. At all events, the defendant knows from the point of indictment what the possible maximum term of incarceration will be for a particular charged offense.
{¶ 20} For example, in case No. CR-445593, Lett pleaded guilty to one count of possession of drugs, a felony of the third degree. A third-degree felony is punishable by a term of incarceration of one, two, three, four, or five years. The findings required under R.C. 2929.14(C) do nothing to change the maximum sentence that could be imposed — in any event, Lett could never be sentenced to more than five years for a third-degree felony.
{¶ 21} We believe that those who conclude that the findings required under R.C. 2929.14(C) constitute additional facts that implicate Blakely reach that conclusion from a faulty premise — they equate Ohio's sentencing scheme with the grid systems considered in both Blakely and Booker. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 ("S.B. 2") stands in stark contrast to the schemes invalidated in Blakely and Booker. In both of those cases the sentencing judges made factual determinations beyond those found by the jury. In each case, the facts found by the respective courts could easily have been charged as elements
of the offense because they were objective findings and thus readily amenable to disposition at trial. For example, inBooker the defendant pleaded guilty to possessing 50 grams of crack cocaine, but the sentencing judge found that Booker actually possessed 92.5 grams and sentenced him on that basis. Likewise, in Blakely, the sentencing judge went beyond the facts determined by the jury and found by a preponderance of the evidence that Blakely had committed his offense with "deliberate cruelty."
{¶ 22} Conversely, a finding that an offender committed the worst form of the offense or posed the greatest likelihood of committing future crimes is purely subjective in nature and not amenable to disposition based solely on facts found by the trier of fact or admitted in a plea. Indeed, if a defendant pleads guilty or exercises his Fifth Amendment right not to testify, it would be impossible for the trier of fact to determine the possibility of recidivism because no facts about the defendant would be forthcoming.
{¶ 23} The subjective nature of the determinations made under R.C. 2929.14(C) is fully consistent with Blakely's intent to preserve the discretion that judges have long enjoyed for sentencing purposes. To give effect to the Supreme Court's recognition that "indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion," the sentencing factors traditionally employed by judges must be considered as matters going to the judge's discretion in sentencing, not as mandatory fact-finding.Blakely, 542 U.S. at ___, 124 S.Ct. at 2540, 159 L.Ed.2d 403. This view is fully consistent with the court's precedents acknowledging that the sentencing judge may take into account any number of factors when meting out a sentence. In United Statesv. Grayson (1978), 438 U.S. 41, 55, 98 S.Ct. 2610,57 L.Ed.2d 582, the court, in considering a judge's decision to increase the punishment of a defendant on grounds that the defendant had lied during trial, stated:
{¶ 24} "Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the stand, determine — with a consciousness of the frailty of human judgment — whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society. Awareness of such a process realistically cannot be deemed to affect the decision of an accused but unconvicted defendant to testify truthfully in his own behalf."
{¶ 25} Consequently, we hold that the findings required under R.C. 2929.14(C) and 2929.19(B)(2)(d) do not implicate theSixth Amendment as construed in Blakely and Booker. Those aspects of S.B. 2 are constitutional.
{¶ 26} Applying these standards, we hold that clear and convincing evidence supported the court's findings that a maximum sentence was appropriate since Lett posed the greatest risk of reoffending in the future.
{¶ 27} The court first considered the minimum sentence and, finding it inappropriate, sentenced appellant to the maximum sentence of 18 months. The record reflects that appellant had previously been convicted of a felony and had served a prior prison sentence. Among other felony convictions, appellant has been convicted multiple times of possession of drugs, drug trafficking, and receiving stolen property. His criminal career began in 1991, when he was a juvenile, and continues through the present time. He has been paroled from prison twice and violated each time. In 2002, appellant was granted shock probation. While on probation, appellant committed the offenses charged in this case as well as the offenses charged in case Nos. CR-443458 and CR-445593. The trial court found that appellant failed to take responsibility for his actions or to show remorse. The trial court stated that an 18-month prison term would be necessary to protect the public, in view of appellant's likelihood of committing future crimes. The trial court noted the same findings and reasons when imposing the maximum five-year sentence in case No. CR-445593. All of these factors amply justify the maximum sentence for Lett's convictions of possession of drugs and drug trafficking; therefore, Lett's assignments of error relating to maximum sentences are overruled.
IV. Consecutive Sentences {¶ 28} R.C.
2929.14(E)(4) states:
{¶ 29} "If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{¶ 30} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶ 31} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 32} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 33} R.C. 2929.14(E)(4) is written in the conjunctive: the court must "make the statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing."State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,793 N.E.2d 473, paragraph one of the syllabus.
A. Historical Perspective {¶ 34} The concept of consecutive or cumulative
6
sentences existed at common law. As early as 1868, the Supreme Court of Ohio recognized that in the absence of a statute on point, courts could order that sentences be served consecutively. See, e.g.,
Williams v. State (1868),
18 Ohio St. 46,
1868 WL 6, paragraph one of the syllabus ("Where a party is convicted at the same term, of several crimes, each punishable by imprisonment in the penitentiary, it is not error, in sentencing the defendant, to make one term of imprisonment commence when another terminates"). The Supreme Court explained that it held this proposition because consecutive sentences are not additional punishment, but simply punishment for two crimes. Id. at 48. This point continued to be the law well into the 20th century. See
King v. Maxwell (1962),
173 Ohio St. 536,
537, 20 O.O.2d 152,
184 N.E.2d 380 ("The determination as to whether sentences for different offenses shall run concurrently or consecutively reposes in the discretion of the trial court. Concurrent sentences, however, require a positive act by the trial court, and, in the absence of a declaration thereof by the trial court, it is presumed such sentences will run consecutively");
Stewartv. Maxwell (1963),
174 Ohio St. 180,
181, 22 O.O.2d 116,
187 N.E.2d 888 (characterizing the imposition of concurrent sentences as a "reward" because it meant that the offender had been relieved of "paying a part of the penalty for his crimes").
{¶ 35} In 1974, the General Assembly revised the criminal statutes and made significant changes to the manner in which consecutive sentences could be imposed. Adopting the approach taken by the American Law Institute's Model Penal Code, the General Assembly ended the long-standing presumption that
sentences for multiple convictions be served consecutively. Former R.C. 2929.41 stated:
{¶ 36} "(A) Except as provided in division (B) of this section, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment. In any case, a sentence of imprisonment for misdemeanor shall be served concurrently with a sentence of imprisonment for felony served in a state penal or reformatory institution.
{¶ 37} "(B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases:
{¶ 38} "(1) When the trial court specifies that it is to be served consecutively."
{¶ 39} This change in presumption from consecutive sentences to concurrent sentences constituted a sea change in the law, yet it hardly made a ripple in the literature of that period. We can guess that the change in presumption occurred for several reasons: a backlash against prosecutorial overindictment, disparity in the manner in which consecutive sentences were imposed, frustration with the virtually unreviewable nature of consecutive sentencing, and economic considerations relating to the long-term housing of prisoners.
B. Analysis of R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) {¶ 40} As our discussion of the historical basis for imposing consecutive sentencing shows, consecutive sentences in Ohio have never been considered "additional" punishment for guilt; therefore, any findings made by the court would not implicate
Blakely or
Booker. For over 100 years the courts have presumed that the punishment for each offense would stand on its own and that the decision to run those punishments concurrently would be in the nature of a reward. If an offender was convicted of three counts, each of those counts was considered a separate offense that required a separate punishment.
{¶ 41} Even though Ohio law now presumes that sentences for multiple offenses should be imposed concurrently, that shift in presumption says nothing about the character of the punishment. Instead, it simply reflects the General Assembly's desire to promote consistency and accountability in the way that the courts impose punishment. This reading is entirely consistent with one of the stated purposes of S.B. 2, which is to ensure that a sentence is "consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B).
{¶ 42} As we understand the arguments by those who would find R.C. 2929.14(E)(4) unconstitutional, they conclude that the imposition of consecutive sentences involves impermissible fact-finding by the sentencing judge. We disagree with that position because Blakely applies only to judicial fact-finding
that increases the maximum penalty beyond that which could be found on the facts as charged and determined by the trier of fact. Of course, R.C. 2929.14(E)(4) requires the court to make certain findings before imposing consecutive sentences. While we disagree in principle that these findings are "factual" in nature, that disagreement is of no moment, for even if the court were making factual findings, the facts found by the court do not increase the maximum penalty for an individual offense.
{¶ 43} In this case, for example, Lett received a five-year sentence in one case and an 18-month sentence in another case. The court's findings rendered under R.C. 2929.14(E)(4) did nothing to increase those individual sentences — when all was said and done, Lett's sentences on the individual counts did not change. He was still required to serve five years on one count and 18 months on the other count.
{¶ 44} This brings us to what we see as the second flaw with the position of those arguing against constitutionality: they equate consecutive sentences with additional punishment. As the historical development of consecutive or cumulative sentencing demonstrates, at no time has consecutive sentencing been considered additional punishment; rather, it has been considered "full" punishment for all offenses. While the General Assembly has now made concurrent sentences presumptive, that presumption does nothing to change the essential character of consecutive sentencing.
{¶ 45} In fact, the General Assembly has long made consecutive sentencing mandatory in cases involving the use of a firearm, and it is clear that consecutive punishments of this kind do not violate principles of double jeopardy in the sense that there would be multiple punishments for one act. If the imposition of mandatory consecutive sentences does not constitute multiple or increased punishment, there can be no viable argument that the findings that a court must make under R.C. 2929.14(E)(4) increase the maximum punishment an offender can receive based on the facts determined at trial by the trier of fact. Indeed, were that the case, double-jeopardy implications would long ago have been employed to outlaw consecutive sentences as multiple punishments for the same crime. That no such holdings have emanated from any court should be enough to conclude that consecutive sentences do not constitute additional punishment.
{¶ 46} This last point bears additional emphasis — our holding here is neither original nor unique. While Blakely andApprendi have generated thousands of opinions across the United States, we are unaware of any court in Ohio that has held that a trial court's imposition of consecutive sentences implicatesBlakely or somehow violates a defendant's Sixth Amendment right to jury trial. Indeed,
every other appellate district in Ohio has held that consecutive sentences do not violate Blakely or theSixth Amendment.7
{¶ 47} In conformity with the foregoing, we hold that the findings required under R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) as a predicate for imposing consecutive sentences do not violate an offender's Sixth Amendment right to a trial by jury as construed in Blakely. Those findings are permissible because they do not increase a sentence beyond the maximum available to the offender. They simply aggregate individual sentences.
{¶ 48} The court ran the 18-month sentence in case No. CR-447030 and the five-year sentence in case No. CR-445593 consecutively to each other. Lett received a total prison sentence of six and one-half years. Before imposing the sentences in each one of these cases, the trial court made the following findings:
{¶ 49} The court found that (1) consecutive sentences were required in this case to protect the public from future crime or to punish Lett, (2) the proposed consecutive sentences are not disproportionate to the seriousness of Lett's conduct, and (3) the proposed consecutive sentence is not disproportionate to the danger that Lett poses to the public. The court then specified that Lett committed these new offenses while on probation and found that a consecutive sentence was necessary to protect the public from any future crime that Lett might commit. R.C.2929.14(E)(4)(a) and (c).
{¶ 50} The court's reasons for making the findings were manifest on the record. Lett had numerous felony convictions resulting in prison sentences, including multiple convictions of possession of drugs, drug trafficking, and receiving stolen property. His criminal career began in 1991 when he was a juvenile and continued unabated to the present time. He had twice violated parole. In 2002, Lett received shock probation. While on probation, Lett committed the offenses charged in this case as well as the offenses charged in case Nos. CR-443458 and CR-445593. The trial court found that Lett failed to take responsibility for his actions or show remorse. The trial court stated that an 18-month prison term would be necessary to protect the public and prevent Lett from committing future crimes. We have no doubt that the trial court fully
complied with R.C. 2929.14(E)(4) and 2929.12(B)(2)(c) when imposing consecutive sentences on Lett; therefore, Lett's assignments of error relating to consecutive sentences are overruled.
V. Conclusion {¶ 51} As we earlier noted, the issues raised in this case have deeply divided this court. It is our sincere hope that the Ohio Supreme Court will quickly and definitively resolve the issues raised in light of
Blakely and
Booker, yet until that time, we affirm Lett's sentences and confirm that S.B. 2 remains the law in this district.
Judgment affirmed.
MICHAEL J. CORRIGAN, J., writing for the majority on the constitutionality of maximum sentences.
PATRICIA A. BLACKMON, FRANK D. CELEBREZZE JR., COLLEEN CONWAY COONEY, ANTHONY O. CALABRESE JR., MARY EILEEN KILBANE and CHRISTINE T. McMONAGLE, JJ., concur.
MICHAEL J. CORRIGAN, J., writing for the majority on the constitutionality of consecutive sentences.
ANN DYKE, PATRICIA A. BLACKMON, KENNETH A. ROCCO, FRANK D. CELEBREZZE JR., JAMES J. SWEENEY, COLLEEN CONWAY COONEY, ANTHONY O. CALABRESE JR., MARY EILEEN KILBANE AND CHRISTINE T. McMONAGLE, JJ., concur.
SEAN C. GALLAGHER, J., concurring in part as to the constitutionality of the court's en banc procedure.
PATRICIA A. BLACKMON, FRANK D. CELEBREZZE JR., JAMES J. SWEENEY, COLLEEN CONWAY COONEY, ANTHONY O. CALABRESE JR., KENNETH A. ROCCO, MARY EILEEN KILBANE and MICHAEL J. CORRIGAN, JJ., concur.
DIANE KARPINSKI, J., dissenting as to the constitutionality of the court's en banc procedure.
CHRISTINE T. McMONAGLE, J., concurs only as to Part I of Judge KARPINSKI's dissenting opinion.
JAMES J. SWEENEY, J., dissents on the constitutionality of maximum sentences.
ANN DYKE, DIANE KARPINSKI, KENNETH A. ROCCO and SEAN C. GALLAGHER, JJ., concur.
SEAN C. GALLAGHER, J., concurs in judgment only as to the imposition of consecutive sentences, but dissents as to the constitutionality of consecutive sentences under portions of S.B. 2.
DIANE KARPINSKI, J., concurs only as to that portion of Judge GALLAGHER's dissenting opinion that would hold that the statutes requiring findings for consecutive sentences are unconstitutional.
1 State v. Lett, 104 Ohio St.3d 1438, 2004-Ohio-7033,819 N.E.2d 1122.
2 In conjunction with the release of this opinion, we also release State v. Atkins-Boozer, Cuyahoga App. No. 84151,2005-Ohio-2666, 2005 WL 1274215, in which we address issues relating to the imposition of more than the minimum sentence.
3 For his third assignment of error, Lett argues that he was subjected to multiple punishments and double jeopardy when he was required to serve a prison term after violating his probation for a third time. However, Lett was not subjected to double jeopardy when he was found to be in violation of probation and community-control sanctions and was sentenced to prison based on the fact that he had committed new crimes while under supervision. The record indicates that Lett's sentence was based on his prior criminal history and facts charged in the indictment, to which Lett pleaded guilty. Thus, Lett's third assignment of error is overruled.
4 The court also ordered that Lett serve his sentences consecutively to a sentence issued in case No. CR-443458. That case, however, was reversed in part on appeal in State v. Lett,160 Ohio App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158. That reversal does not affect the consecutive sentences ordered in case Nos. CR-445593 and CR-447030.
5 Ten of the 12 Ohio appellate districts have held that Ohio's sentencing scheme does not implicate Blakely. See Statev. Sour, 2d Dist. No. 19913, 2004-Ohio-4048, 2004 WL 1728579, ¶ 7; State v. Scarberry, 3d Dist. No. 8-04-32, 2005-Ohio-1425, 2005 WL 696829, ¶ 10, citing State v. Trubee, 3d Dist. No. 9-03-65, 2005-Ohio-552, 2005 WL 335833, ¶ 23; State v. Ward,
4th Dist. No. 04CA25, 2005-Ohio-1580, 2005 WL 737578, ¶ 14;State v. Rorie, 5th Dist. No. 2002CA00187, 2005-Ohio-1726, 2005 WL 845230, ¶ 69, quoting State v. Iddings, 5th Dist. No. 2004CAA06043, 2004-Ohio-7312, ¶ 12; State v. Adams, 6th Dist. No. S-04-017, 2005-Ohio-1548, 2005 WL 736672, ¶ 6, quoting Statev. Curlis, 6th Dist. No. WD-04-032, 2005-Ohio-1217, 2005 WL 635025, ¶ 18; State v. Goins, 7th Dist. No. 02 CA 68,2005-Ohio-1439, 2005 WL 704865, ¶ 111; State v. Burns, 9th Dist. No. 22198, 2005-Ohio-1459, 2005 WL 711927, ¶ 4-5; State v.Sieng, 10th Dist. No. 04AP-556, 2005-Ohio-1003, 2005 WL 555664, ¶ 37; State v. Rupert, 11th Dist. No. 2003-L-154,2005-Ohio-1098, 2005 WL 583796, ¶ 48; State v. Gann, 12th Dist. No. CA2004-01-028, 2005-Ohio-678, 2005 WL 406214, ¶ 16.
6 Cumulative sentences are synonymous with consecutive sentences.
7 State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181,826 N.E.2d 340, ¶ 54; State v. Sour, 2d Dist. No. 19913,2004-Ohio-4048, 2004 WL 1728579, ¶ 7; State v. Scarberry, 3d Dist. No. 8-04-32, 2005-Ohio-1425, 2005 WL 696829, ¶ 10; Statev. Wheeler, 4th Dist. No. 04CA1, 2004-Ohio-6598, 2004 WL 2827714, ¶ 23; State v. Small, 5th Dist. No. 04CAA04032,2005-Ohio-169, 2005 WL 100952, ¶ 42; State v. Holt, 6th Dist. No. E-04-004, 2005-Ohio-1554, 2005 WL 737000, ¶ 38-39; State v.Barnette, 7th Dist. No. 02 CA 65, 2004-Ohio-7211, 2004 WL 3090228, ¶ 107; State v. Stearns, 9th Dist. No. 04CA008515,2005-Ohio-870, 2005 WL 474859, ¶ 7; State v. Abdul-Mumin, 10th Dist. Nos. 04AP-485 and 04AP-486, 2005-Ohio-522, 2005 WL 315062, ¶ 30; State v. Allen, 11th Dist. No. 2004-L-038,2005-Ohio-1415, 2005 WL 694351, ¶ 30; State v. Collier, 12th Dist. No. CA2003-11-282, 2005-Ohio-944, 2005 WL 516525, ¶ 41.