State v. Spellman , 2005 Ohio 2065 ( 2005 )

{¶ 34} This is a classic case in which the appellant should truly be cautious about what he wishes for. The peril in revisiting this sentence with its potential for "stacking" of 330 minimum six-month sentences is obvious on its face. Having said that, however, I must respectfully disagree with the majority regarding the second assignment of error. Although the majority notes that defense counsel stipulated at oral argument that this case falls outside of Blakely v. Washington, I disagree and believe this matter requires a sentencing evaluation pursuant toBlakely.¹ In its judgment in Blakely v. Washington, the United States Supreme Court made it clear that judges making "findings" outside a jury's determinations in sentencing violated constitutional guarantees.² Specifically, the court held:

{¶ 35} "Our precedents make clear, however, that the ``statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the factsreflected 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 he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts ``which the law makes essential to the punishment,' * * * and the judge exceeds his proper authority."³

{¶ 36} Thus, it is clear that the statutory judicial "findings," which provide the framework for all sentencing in Ohio, are prohibited by the United States Supreme Court.

{¶ 37} Following the United States Supreme Court's release of Blakely, this court determined that a trial court's reliance on a previous conviction as evidenced in the record would still be permissible for the purpose of imposing a sentence greater than the minimum.⁴ As stated by this court in State v.Taylor:

{¶ 38} "Under R.C. 2929.14(B)(1), the court is entitled to depart from the shortest authorized prison term if the ``offender previously had served a prison term.' Under Apprendi, the fact of a prior conviction may be used to enhance the penalty for a crime without being submitted to a jury and proven beyond a reasonable doubt.⁵ [Citations omitted.] According to Taylor's presentence investigation report, Taylor had served at least one prior prison term. * * * Therefore, the trial court's imposition of prison terms of three years, * * * 17 months * * * and 11 months * * * are all constitutionally permissible underApprendi and, by extension, Blakely."⁶

{¶ 39} It is clear that, for Blakely purposes, a trial court is permitted to take judicial notice that a defendant has served a prior prison term, for that is not a "finding." It is a judicial acknowledgement of an indisputable fact. The trial court merely acknowledges the prior prison term and does not have to weigh conflicting evidence to make a factual finding. Therefore, a defendant's Sixth Amendment rights are not compromised by the exercise.

{¶ 40} I believe that a distinction must be made between "findings," which courts make to justify consecutive sentences, and "acknowledging" the existence of a prior sentence in a criminal matter, which would permit the court to exercise its discretion in departing from a minimum sentence. Clearly,Blakely no longer permits courts in Ohio to "find" that a defendant has committed the "worst form of the offense" or that his actions predict the "greatest likelihood of recidivism" without either an admission by the defendant or a finding by the trier of fact. Spellman has no record.

{¶ 41} In the instant case, the trial court followed the Ohio statutory sentencing scheme when it imposed consecutive sentences. Specifically, the court stated:

{¶ 42} "[A]lthough there are consecutive prison terms imposed it is my finding that they are necessary to protect the public from future crime and punish you for your conduct. These sentence[s] in my opinion are not disproportionate to the seriousness of your conduct or to the danger that such conduct poses to the public, not specifically from you, but from anyone in public office that has the opportunity of abuse.

{¶ 43} "Further, since these offenses were committed as a course of conduct over approximately seven years, the harm caused by them is so great and so unusual that no single prison term for any individual offense adequately reflects the seriousness of your course of conduct."

{¶ 44} Thus, the trial court imposed sentences based upon the framework set forth in R.C. 2929.14(E)(4). However, those very independent judicial findings required by the statute do not survive the Sixth Amendment scrutiny espoused in Blakely. The particular implications of a resentencing under Blakely were not lost on defense counsel in this matter. As Spellman plead guilty to 330 counts of forgery as well as a number of other felonies, the imposition of minimum sentences alone on each count would increase his prison term tenfold. In any event, I respectfully dissent, as I believe the matter must be remanded for resentencing in accordance with Blakely.

¹ Blakely v. Washington (2004), ___ U.S. ___,124 S.Ct. 2531, 159 L.Ed.2d 403.

² Id.

³ (Emphasis in original and internal citations omitted.) Id., ___ U.S. ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403.

⁴ State v. Taylor, 158 Ohio App.3d 597, 2004-Ohio-5939,821 N.E.2d 192.

⁵ Apprendi v. New Jersey (2000), 530 U.S. 466, 490,120 S.Ct. 2348, 147 L.Ed.2d 435, citing Jones v. United States (1999), 526 U.S. 227, 243, 119 S.Ct. 1215, 143 L.Ed.2d 311, fn. 6.

⁶ State v. Taylor at ¶ 25.