State v. Blackburn , 2009 Ohio 5902 ( 2009 )

[Cite as State v. Blackburn, 2009-Ohio-5902.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-09-18
v.
FANTAZIA BLACKBURN, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2008-CR-287
Judgment Affirmed
Date of Decision: November 9, 2009
APPEARANCES:
Neil S. McElroy for Appellant
Drew A. Wortman for Appellee
Case No. 5-09-18
WILLAMOWSKI, J.,
{¶1} Defendant-Appellant, Fantazia K. Blackburn, (“Blackburn”) appeals
the judgment of the Hancock County Court of Common Pleas imposing
consecutive sentences for her felony drug trafficking convictions. Blackburn
contends that, based upon a recent ruling by the United States Supreme Court, the
trial court should have made findings justifying the imposition of consecutive
sentences. For the reasons set forth below, the judgment of the trial court is
affirmed.
{¶2} On March 19, 2009, Blackburn appeared in court and entered guilty
pleas to five counts of drug trafficking: Count 1 – trafficking in marijuana (5th
degree felony); Counts 2 and 4 – aggravated trafficking in drugs (2nd degree
felonies); Counts 3 and 5 – aggravated trafficking in drugs (1st degree felonies).
{¶3} On May 7, 2009, Blackburn was sentenced to eleven months in
prison for count one, six years in prison for each of counts two through four, and
eight years in prison for count five. The court ordered the first four counts to be
served concurrently with one another and consecutively to the sentence in count
five, for an aggregate sentence of fourteen years. The trial court did not state any
specific findings for the imposition of consecutive sentences.
{¶4} It is from this sentence that Blackburn appeals, raising the following
assignment of error.
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The trial court erred when it ordered sentences to be served
consecutively without making the findings required by State v.
Comer which are required again in light of the recent United
States Supreme Court ruling in Oregon v. Ice.
{¶5} Blackburn argues that in light of the United States Supreme Court’s
decision in Oregon v. Ice (2009), --- U.S. ---, 129 S.Ct. 711, 172 L.Ed.2d 517,
Ohio trial courts must return to the felony sentencing statutory requirements that
was in effect prior to the Ohio Supreme Court’s decision in State v. Foster, 109
Ohio St.3d 1, 855 N.E.2d 470, 2006-Ohio-856. Specifically, Blackburn maintains
that the decision in Ice means that judges must again make certain findings on the
record before imposing consecutive sentences. Blackburn asks that her case be
remanded to the trial court for re-sentencing so that appropriate findings can be
made a part of the record.
{¶6} Prior to the Ohio Supreme Court’s decision in State v. Foster, Ohio
courts were required to make statutorily enumerated findings supporting
consecutive sentences and give reasons supporting those findings at the sentencing
hearing. State v. Comer, 99 Ohio St.3d 463, 793 N.E.2d 473, 2003-Ohio-4165,
paragraph one of the syllabus; R.C. 2929.14(E)(4) and 2929.19(B)(2)(c). In
Foster, the Ohio Supreme Court held that the statutes which required judicial fact-
finding before the imposition of consecutive sentences were unconstitutional
violations of the Sixth Amendment under Blakely v. Washington (2004), 542 U.S.
296, 124 S.Ct. 2531, and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct.
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2348. Foster, supra. As a result, the Ohio Supreme Court severed those
provisions from Ohio’s sentencing framework and held that trial courts “have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.” Foster, at ¶100.
{¶7} Earlier this year, the United States Supreme Court examined an
Oregon statute,1 similar to Ohio’s R.C. 2929.14, which required judges to find
certain facts before imposing consecutive rather than concurrent sentences.
Oregon v. Ice, supra; State v. Eatmon, 8th Dist. No. 92048, 2009-Ohio-4564, ¶23.
In Ice, the Supreme Court upheld the constitutionality of Oregon’s statute and did
not find that it violated the Sixth Amendment concerns set forth in Apprendi and
Blakely. 129 S.Ct. at 719. The United States Supreme Court held that, in light of
historical practices and the right of states to administer their criminal justice
systems, the Sixth Amendment did not prevent states from allowing judges, rather
than juries, to make any finding of facts necessary to the imposition of
consecutive, rather than concurrent, sentences. Id, at.716-720.
{¶8} In light of the decision in Oregon v. Ice, Blackburn argues that the
severed portion of the Ohio statute (that required judicial fact-finding for the
imposition of consecutive sentences) is not unconstitutional. Therefore, she
maintains that the severance performed by Foster was inappropriate judicial
1
Specifically, the Oregon statute “provided that sentences shall run concurrently unless the judge finds
statutorily described facts.” Ice at 715, citing Ore.Rev.Stat. §137.123(1) (2007).
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Case No. 5-09-18
rewriting of the statute and that the prior statutory requirement of judicial fact-
finding must be “resurrected.”
{¶9} Several Ohio appellate courts have already addressed this issue and
noted that the United States Supreme Court did not expressly overrule Foster in
the Ice decision. See, e.g., State v. Lewis, 12th Dist. No. CA2009-02-012,
CA2009-02-016, 2009-Ohio-4684, ¶10. While a re-examination of Ohio’s
sentencing statutes might be appropriate considering the decision in Ice, such a
review can only be performed by the Ohio Supreme court. See State v. Crosky,
10th Dist. No. 90AP-57, 2009-Ohio-4216, ¶7; State v. Miller, Lucas App. No. L-
08-1314, 2009-Ohio-3908, ¶18. We are bound to follow the law and decisions of
the Supreme Court, unless or until they are reversed or overruled. State v.
Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554. The Ohio Supreme Court
has not reconsidered Foster in light of Ice, and therefore, Foster remains binding
on this Court. State v. Franklin, 10th Dist. No. 08AP-900, 2009-Ohio-2664, ¶18.
{¶10} Recently, in State v. Elmore, 122 Ohio St.3d 472, 912 N.E.2d 582,
2009-Ohio-3478, the Ohio Supreme Court briefly discussed Ice, although it did
not fully address all the ramifications of Ice because neither party had briefed the
issue before oral argument. In its affirmance of the trial court’s authority to
impose consecutive sentences on the defendant, the Ohio Supreme Court stated
that “Foster did not prevent the trial court from imposing consecutive sentences; it
merely took away a judge's duty to make findings before doing so.” Id. at ¶36.
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Although the Court has not yet fully analyzed the implications of Ice relative to
Foster, it appears to continue to follow the principles set forth in Foster. See
Crosky, 2009-Ohio-4216, at ¶8.
{¶11} Until the Ohio Supreme Court states otherwise, Foster remains
binding. The trial court had full discretion to impose a prison sentence within the
statutory range and it did not err when it ordered consecutive sentences without
articulating any judicial fact-finding. Blackburn’s assignment of error is
overruled.
Judgment affirmed
PRESTON, P.J., and ROGERS, J., concurs.
/jnc
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