DocketNumber: C.A. No. 21315.
Citation Numbers: 2006 Ohio 5309
Judges: DONOVAN, J.
Filed Date: 10/6/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} consecutively to the sentences on the third and fourth counts, for a total term of imprisonment of thirty years to life. Burgess was designated a sexually oriented offender.
{¶ 3} Burgess appealed his convictions, and we reversed and remanded the matter for resentencing on July 22, 2005, because the trial court failed to comply with R.C.
{¶ 4} Burgess' sole assignment of error is as follows: "THE TRIAL COURT'S RESENTENCING OF APPELLANT MUST BE VACATED AS THE FACTORS AND PORTIONS OF THE SENTENCING STATUTES CITED BY THE TRIAL COURT DURING RE-SENTENCING HAVE BEEN FOUND TO BE UNCONSTITUTIONAL BY THE OHIO SUPREME COURT."
{¶ 5} Burgess relies on State v. Foster,
{¶ 6} The State argues that "Burgess is judicially estopped from challenging his sentence."
{¶ 7} "`[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.'"New Hampshire v. Maine, 532 U.S. 742,749,
{¶ 8} "Courts have observed that `[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.'(Internal citations omitted). Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party's later position must be `clearly inconsistent' with its earlier position. (Internal citations omitted). Second, courts must regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create `the perception that either the first or second court was misled[.]' (Internal citation omitted). * * * A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. (Internal citations omitted). SeeStanley v. Miamisburg (Jan. 28, 2000), Montgomery App. No. 17912 (rejecting, on the basis of judicial estoppel, a retaliatory discharge claim by a former police officer who testified in prior proceedings that his disability prohibited him from performing the duties of a police officer); AdvancedAnalytics Laboratories, Inc. v. Kegler, Brown, Hill Ritter,
{¶ 9} The above authorities cited by the State do not support its position. They involve parties in a civil context who contradicted their own previous sworn testimony to gain an unfair advantage. The matter herein is criminal, and Burgess has been sentenced under a section of the Ohio Revised Code that is now adjudged unconstitutional. Foster mandates that matters on direct appeal be reversed and remanded for resentencing in keeping with the Sixth Amendment right to a jury trial. Burgess' assignment of error is sustained. Judgment reversed and remanded for resentencing.
Wolff, J. and Milligan, J., concur.
(Hon. John R. Milligan retired from the Fifth District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).