DocketNumber: No. 06AP-706.
Citation Numbers: 2007 Ohio 2216
Judges: PETREE, J.
Filed Date: 5/3/2007
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} In August 2002, the Franklin County Grand Jury indicted defendant on three counts of rape, first-degree felonies, in violation of R.C.
{¶ 3} Defendant appealed from that judgment to this court and set forth eight assignments of error, two of which challenged the validity of his non-minimum consecutive sentences. On March 31, 2005, this court overruled all eight of defendant's assignments of error and affirmed the judgment of the trial court. On May 3, 2006, the Supreme Court of Ohio reversed in part the judgment of this court, and remanded the cause to the trial court for resentencing consistent with State v. Foster,
{¶ 4} Defendant timely appeals from that judgment and asserts the following two assignments of error for our review:
I. THE TRIAL COURT, UPON REMAND BY THE OHIO SUPREME COURT AFTER VACATION OF DEFENDANT'S SENTENCE FOR MULTIPLE FELONY COUNTS PURSUANT TO THE RULING IN STATE V. FOSTER, 109 OHIO ST. 3D 1 (2006) LACKED STATUTORY AUTHORITY TO *Page 3 IMPOSE CONSECUTIVE SENTENCES AND SAID SENTENCE IS THEREFORE CONTRARY TO LAW.
II. THE SENTENCE IMPOSED BY THE TRIAL COURT UPON REMAND BY THE OHIO SUPREME COURT WHEREIN CONSECUTIVE NON MINIMUM SENTENCES WERE IMPOSED DEPRIVED THE DEFENDANT OF DUE PROCESS, EQUAL PROTECTION AND 6TH AMENDMENT RIGHTS GUARANTEED HIM PURSUANT TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.
{¶ 5} Because defendant's two assignments of error are interrelated we will address them together. By his first assignment of error, defendant argues that the trial court lacked the statutory authority to impose consecutive sentences, and, therefore, the sentences are contrary to law. In his second assignment of error, defendant argues that the trial court imposed consecutive non-minimum sentences in violation of due process, equal protection, and the
{¶ 6} Defendant contends that, before the Foster decision, the authority of a trial court to impose consecutive sentences derived from R.C.
{¶ 7} Before the Foster decision, judicial fact-finding was required before consecutive sentences could be imposed, except when certain enumerated statutes imposing nondiscretionary consecutive terms applied. See Foster, at ¶ 66. In Foster, the Supreme Court of Ohio, followingBlakely v. Washington (2004),
{¶ 8} In view of the Foster court's severance of the unconstitutional provisions, "[t]rial 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." Id. at paragraph seven of the syllabus. The Foster court additionally stated: "If an offender is sentenced to multiple prison terms, the court is not barred from requiring those terms to be served consecutively." Id. at ¶ 105.
{¶ 9} Thus, pursuant to Foster, trial courts generally have the discretionary power to impose consecutive sentences. See State v.Saxon,
{¶ 10} However, according to defendant, the trial court lacked the authority to impose consecutive sentences. Thus, despite theFoster decision, defendant urges this court to find that the trial court in this case acted contrary to law by imposing consecutive sentences. Such a finding would be contrary to the Foster decision. As an intermediate appellate court, we will not make a determination that conflicts with a decision of the Supreme Court of Ohio that has not been reversed or overruled. "A court of appeals is bound by and must follow decisions of the Ohio Supreme Court, which are regarded as law unless and until reversed or overruled." Sherman v. Millhon (June 16, 1992), Franklin App. No. 92AP-89, citing both Battig v. Forshey (1982),
{¶ 11} Furthermore, to the extent the Foster court did not expressly discuss the source of a trial court's authority to impose consecutive sentences, we note that previous Ohio Supreme Court decisions expressly endorsed the idea that the authority of a court to impose consecutive sentences derives from the common law. In Henderson v. James (1895),
* * * As we have no statute authorizing cumulative sentences for crime, it would seem at first blush that such sentences should not be permitted in this state; but this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute.
* * * The great weight of authority is in favor of cumulative sentences, and they should be upheld on principle. The severe punishments which induced judges to invent technicalities to aid the acquittal of those on trial, on criminal charges, no longer exist; and, under our just and humane statutes, those who violate the law should be duly punished for each offense. * * *
See, also, State ex rel. Stratton v. Maxwell (1963),
{¶ 12} Based on the foregoing, we find defendant's first assignment of error to be without merit and it is accordingly overruled. Additionally, because we find no merit in defendant's first assignment of error, we also overrule his second assignment of error.
{¶ 13} Having overruled both of defendant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
SADLER, P.J., and BROWN, J., concur.*Page 1
State v. Napper, 07ca2975 (5-28-2008) , 2008 Ohio 2555 ( 2008 )
State v. Miller, 2-07-02 (9-17-2007) , 2007 Ohio 4744 ( 2007 )
State v. Jordan, 07-Ap-52 (9-27-2007) , 2007 Ohio 5097 ( 2007 )
State v. Gonzales, 5-06-43 (6-25-2007) , 2007 Ohio 3132 ( 2007 )
State v. Taylor, Ca2006-09-039 (6-11-2007) , 2007 Ohio 2850 ( 2007 )
State v. Scott, 07ca5 (6-27-2007) , 2007 Ohio 3543 ( 2007 )
State v. Brill , 2023 Ohio 404 ( 2023 )
State v. Rigsbee , 2007 Ohio 6267 ( 2007 )
State v. Buckmaster, 2007-L-105 (3-21-2008) , 2008 Ohio 1336 ( 2008 )