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2006-1245 and 2006-1383. State v. Payne, 2007-Ohio-4642.
Franklin App. No. 05AP-517, 2006-Ohio-2552. Judgment affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Moyer, C.J., and Cupp, J., concur in part and dissent in part.
Pfeifer, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-4642.pdf
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(Sept. 26, 2007) The Supreme Court of Ohio ruled today that in cases decided after the U.S. Supreme Court's decision in Blakely v. Washington, Ohio criminal defendants who did not object at trial to receiving enhanced sentences based on factual findings made by a judge forfeited the right to later appeal their sentences based on that assignment of error. The Court's 4-3 decision was authored by Justice Maureen O'Connor.
In Blakely, decided in June 2004, the U.S. Supreme Court held that it was unconstitutional for a criminal defendant's sentence to be enhanced beyond the minimum penalty applicable to his offense unless factual findings justifying a more severe sentence were made by a jury, rather than by a judge.
In April 2005, Ronald Payne of Columbus accepted a plea bargain with Franklin County prosecutors in which he entered a Alford plea of guilty to kidnapping, felonious assault and multiple counts of rape. At Payne's sentencing hearing, the trial court judge made factual findings that were required under Ohio's then-current felony sentencing statute to justify (a) imposing a non-minimum sentence and b) requiring that a defendant convicted of multiple crimes must serve the sentences for those crimes consecutively (one after the other) rather than concurrently (at the same time). The judge then imposed non-minimum prison sentences for each of Payne's convictions totaling 35 years, and ordered that those sentences be served consecutively.
Payne subsequently appealed to the 10th District Court of Appeals, arguing that the sentence enhancement procedure followed by the judge in his case was unconstitutional under Blakely. In February 2006, while Payne's appeal was pending, the Supreme Court of Ohio issued its decision in State v. Foster. In Foster, the Court ruled that, in light of Blakely, the portion of Ohio's criminal sentencing statute empowering judges to make factual findings to justify enhanced sentences was unconstitutional. The Court severed (voided) the sections of the sentencing statute requiring judicial findings to support sentence enhancements, and left the remainder of the statute in place. The Court also ordered that cases then on appeal in which a criminal defendant was challenging a sentence that had been enhanced based on judicial findings must be remanded to the trial court for resentencing.
In light of the Foster decision, the 10th District initially granted Payne's appeal of his sentence and remanded the case to the trial court for resentencing. However, the state filed a motion for
reconsideration, arguing that because Blakely had been decided before Payne's sentencing hearing, but his attorney did not object to the procedures followed by the trial court at that time, Payne had forfeited his right to later challenge the constitutionality of his sentence based on Blakely . The 10th District agreed and reinstated Payne's original sentence. Payne sought and was granted Supreme Court review of the 10th District's ruling.
Writing for the majority in today's decision, Justice O'Connor affirmed the judgment of the court of appeals. She cited a 2006 decision in which the U.S. Supreme Court held that sentencing error under Blakely is not a “structural” error so fundamental that it renders a defendant's entire trial unfair. Justice O'Connor wrote that Payne's failure to object at the time he was sentenced to enhancements that were based on judicial fact-finding forfeited his right to raise that issue on appeal unless the sentence enhancements were shown to constitute “plain error.”
“No plain error occurred,” wrote Justice O'Connor. “Payne cannot establish that but for the Blakely error he would have received a more lenient sentence. ... Indeed, Foster represents a Pyrrhic victory for Payne and other defendants affected by its holding. Although defendants were successful in arguing the unconstitutionality of the sections of the statutes that required judicial findings for the imposition of higher than minimum sanctions, we did not adopt their proposed remedy of mandatory minimum sentences. Since Foster, trial courts no longer must navigate a series of criteria that dictate the sentence and ignore judicial discretion.”
Justice O'Connor concluded that “Payne ... has failed to establish that he was prejudiced by the judicial fact-finding requirements. If Payne were to be resentenced, nothing in the record would hinder the trial court from considering the same factors it previously had been required to consider and imposing the same sentence or even a more stringent one.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O'Donnell and Judith Ann Lanzinger.
Justice Lanzinger also entered a separate concurring opinion supporting the majority ruling and emphasizing the distinction between sentences that are “void” and sentences that are “voidable.” Quoting from Black's Law Dictionary, she wrote: “[A] void judgment is ‘a judgment that has no legal force or effect ...'” whereas “a voidable judgment is ‘[v]alid until annulled.'” Justice Lanzinger noted that although the Foster opinion stated “ ‘When a sentence is deemed void,' … we should have more clearly stated that a voidable sentence is, on appeal, subject to being vacated and remanded for resentencing. ... Cases appealed on grounds of Foster involve voidable, rather than void, sentences, and I agree that Payne forfeited the Blakely issue in not registering his objection to a nonstructural error.”
Justice Robert R. Cupp entered an opinion, joined by Chief Justice Thomas J. Moyer, concurring in part and dissenting in part from the majority holding. Justice Cupp wrote that he agreed with the majority's clarification regarding “void” and “voidable” sentences, and the consequences of such sentences. He noted, however, that the Court's decision in Foster ordered the resentencing of hundreds of defendants whose sentences had been enhanced based on judicial findings, and at that time made no distinction between appellants who had raised Blakely objections at the time of sentencing and those who, like Payne, did not invoke Blakely until they filed their notice of appeal.
“Consistency in this matter, as in all criminal sentencing, is desirable,” wrote Justice Cupp. “The majority's decision in this case, however, will result in some defendants having been granted a resentencing hearing whether or not they objected in the trial court to their initial sentence on Blakely grounds, while other defendants are being denied similar treatment. This lack of consistency is troubling. ... I would not at this late date depart from the resentencing directive (in Foster), whether overbroad or not.”
Justice Paul E. Pfeifer dissented without opinion.
Contacts
Steven L. Taylor, 614.462.3555, for
the State of Ohio and Franklin County prosecutor's office.
Paul Skendelas, 614.719.8867, for Ronald Payne.