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2007-1254. State v. Silsby, Slip Opinion No. 2008-Ohio-3834.
Geauga App. No. 2006-G-2725, 2007-Ohio-2308. Certified questions answered and judgment affirmed.
Moyer, C.J., and Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs in part and dissents in part.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-3834.pdf
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(Aug. 6, 2008) In a decision clarifying whether certain criminal defendants are eligible for resentencing under the Supreme Court of Ohio’s 2006 decision in State v. Foster, the Court held today that in order for a criminal action to be “pending on direct review” for purposes of Foster, the criminal action must have been a) filed in the appellate court and b) awaiting an action or a decision at the time Foster was announced. The Court’s 6-1 majority opinion was authored by Justice Terrence O’Donnell.
In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the U.S. Supreme Court held that it is unconstitutional for a criminal defendant’s sentence to be enhanced beyond the minimum penalties applicable to his crime unless factual findings justifying a non-minimum sentence were made by a jury, rather than by a judge. In State v. Foster, announced on Feb. 27, 2006, the Supreme Court of Ohio analyzed Ohio's felony sentencing scheme in light of Apprendi and Blakely and ruled that the portion of the Ohio statute empowering judges to make factual findings to justify enhanced sentences was unconstitutional. The Court ordered that all criminal cases that were “pending on direct review” on the date Foster was decided must be remanded to the trial court for resentencing under post-Foster sentencing guidelines.
William Silsby of Geauga County was convicted of obstructing official business in October 2005 and was sentenced under the pre-Foster sentencing process to serve a 12-month prison term for that offense. The judge pronouncing sentence made factual findings supporting imposition of the 12-month prison term consecutively (rather than concurrently) to sentences Silsby was already serving for other crimes. Silsby did not file a direct appeal of his conviction or sentence within the statutory time limit for doing so, which expired on Nov. 18, 2005. In August 2006, six months after the Foster decision was announced, Silsby filed a motion in the 11th District Court of Appeals seeking leave to file a delayed appeal. The court granted his motion and agreed to hear his appeal, in which he alleged that the trial judge in his case had made impermissible findings of fact during sentencing, in violation of Foster.
The 11th District affirmed Silsby’s sentence. It implicitly acknowledged a Sixth Amendment violation, but reasoned that the “case was not pending on direct review at the time of the Foster decision” and that Silsby’s conviction and sentence, despite the granting of his motion for delayed appeal, “had become final long before Foster was announced.” The court of appeals decision cited prior Ohio cases distinguishing between the effects of direct and delayed appeals. The 11th District certified that its holding regarding the effect of a delayed appeal on a defendant’s eligibility for resentencing under Foster was in conflict with rulings by two other appellate districts. The Supreme Court agreed to hear arguments to resolve the conflict among districts.
In today’s decision, Justice O’Donnell acknowledged that, once a court of appeals has granted a motion for delayed appeal, “A delayed appeal granted pursuant to App.R. 5 is treated the same as a direct appeal under App.R. 4(A), and the case proceeds as if it had been timely filed.”
He added, however, that this determination did not end the Court’s inquiry regarding Silsby’s eligibility for resentencing under Foster “because we limited application of Foster to only those cases ‘pending on direct review.’ ... Black’s Law Dictionary defines ‘pending’ as ‘[r]emaining undecided’ or ‘awaiting decision.’ ... Accordingly, for a criminal action to be ‘pending on direct review’ for Foster purposes, it must have been filed in the court at the time we announced Foster and must be awaiting an action or a decision at the time of our decision in that case.”
Applying that standard to Silsby’s delayed appeal, Justice O’Donnell concluded: “The record in this case reveals that the trial court convicted and sentenced Silsby on October 19, 2005. Silsby did not file a direct appeal from that judgment, and the time to do so expired on November 18, 2005. We issued our decision in Foster on February 27, 2006, and prior to that date, Silsby had not filed a request seeking a delayed appeal. Thus, Silsby had nothing ‘pending’ as of the date we released our Foster decision. Foster therefore does not apply to Silsby’s delayed appeal, as it was not pending on the date we released Foster.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Evelyn Lundberg Stratton entered a separate opinion partially concurring and partially dissenting from the majority holdings. Justice Stratton concurred that, once a delayed appeal has been granted under App.R.5(A), it should be treated the same as a direct appeal under App.R.4(A). She disagreed, however, with the majority’s conclusion that Foster does not apply to Silsby’s delayed appeal in this case because that appeal was not “pending on direct review” on the date Foster was announced.
“(I) would hold that Silsby’s appeal is considered to be pending at the time that a direct appeal would have/should have been filed - i.e., it relates back to November 2005, before we issued Foster,” wrote Justice Stratton. “Therefore, I would hold that Silsby’s appeal was ‘pending’ when Foster was released.”
Contacts
Craig A. Swenson, 440.279.2105, for the State of Ohio and Geauga County prosecutor’s office.
Derek Cek, 330.869.6000, for William Silsby.