1= 75 FEB MARCIA J. MEh9GEla, CLERK SUPREME COURT OF OHIO IN THE SUPREME COURT OF THE STATE OF OHIO : CASE NO.

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1 IN THE SUPREME COURT OF THE STATE OF OHIO STATE OF OHIO Defendant-Appellant : CASE NO. 1= 75 vs. JEFFREY BRUCE Plaintiff -Appellee On Appeal from the First District Court of Appeals For Hamilton County Court of Appeals Case No. C MEMORANDUM IN SUPPORT OF JURISDICTION ON BEHALF OF DEFENDANT-APPELLANT JEFFREY BRUCE FEB MARCIA J. MEh9GEla, CLERK SUPREME COURT OF OHIO JOSEPH T. DETERS # P HAMILTON COUNTY PROSECUTOR 230 East 9"' Street, Suite 4000 Cincinnati, Ohio (513) Counsel for Plaintiff-Appellee State of Ohio ELIZABETH E. AGAR Supreme Court # Sycamore Street Olde Sycamore Square Cincinnati, Ohio (513) fax Counsel for Defendant-Appellant Jeffrey Bruce r,

2 TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... i STATEMENT OF THE CASE i) PROCEDURAL POSTURE ) FACTS... 2 ARGUMENT IN SUPPORT OF DEFENDANT'S PROPOSITIONS OF LAW PROPOSITION OF I.AW #i THE EX POST FACTO AND DUE PROCESS CI.AUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS FORBID RETROACTIVELY IMPOSING A SENTENCE WHICH DOES NOT COMPLY WPI'H PROTECTIONS OFFERED BY THE SENTENCING STATUTES IN EFFECT WHEN THE OFFENSE WAS COMMITTED, OR IN RE-SENTENCING DEFENDANT UNDER A DIFFERENT, AND MORE ONEROUS, STATUTE PROPOSITION OF LAW # 2 THE RULE OF LENITY BARS INTERPRETATION OF A SENTENCING STATUTE IN A MANNER MOST FAVORABLE TO THE STATE AND LEAST ADVANTAGEOUS TO THE AFFECTED DEFENDANTS CONCLUSION... 6 CERTIFICATION OF SERVICE

3 EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The trial court, after remand, imposed the identical maximum sentence on Defendant which resulted in his original sentence being vacated as a result of this Court's decision in State v. Foster, io9 Ohio St.3d 1, 2oo6-Ohio-856, _NE.2d_. On appeal, the First District Court of Appeals ruled that the maximum sentence was permitted in light of this Court's decision in Foster, and held that the trial court could impose the identical sentence on remand, even though such a sentence required unconstitutional fact-finding by the judge under the law in effect at the time the offense was committed, and at the time that Defendant entered his plea. A legislative attempt to retroactively modify a criminal law to increase the potential sentence for an offense already committed would clearly violate the ex post facto clause of the constitution. The U.S. Supreme Court has held that the courts may not do by judicial interpretation that which the legislature is barred from doing. Retroactive changes in criminal statutes by judicial action violates due process. Thus Defendant's resentencing raises a substantial constitutional question. Due to the number of cases affected by the Foster decision, resolution of this issue is also of great public interest. 1

4 STATEMENT OF THE CASE i) PROCEDURAL POSTURE This matter comes before the Court on appeal from the judgment of the Court of Appeals, First Appellate District of Ohio. Jeffrey Bruce was indicted for one count of murder. A plea of guilty was eventually entered to the lesser included offense of voluntary manslaughter. On June 17, 2004, the court sentenced him to the maximum term of io years, although he was a first offender who had never served any prison term. The First District Court of Appeals affirmed the judgment of the trial court in all respects except for the imposition of a maximum sentence, which it reduced to 9 years. This Court vacated that sentence and remanded for resentencing based on the Foster decision. The trial court then reimposed the original io year sentence, despite Defendant's claim that Foster could not constitutionally modify the sentencing statutes in effect at the time of his offense and plea to increase the potential penalty, or to deprive him of the right to findings on which such a sentence was based, as well as appellate right to review of such findings. On January 19, 2007, the court of appeals affirmed the judgment of the trial court in all respects. 2) FACTS From the decision of the court of appeals, Defendant brings this appeal. On or about November 15, 2003, Defendant and his wife engaged in a violent physical struggle which ultimately resulted in her death. The initial cause of the argument was the victim's belief that her husband was engaging in an affair. Co-workers confirmed that she was jeaious and obsessive on this subject. Defendant inaintained that his w; lu' 2

5 initiated the physical violence, and initially intended to present self-defense as an affirmative defense. Defendant had no prior criminal record, and had never served a term in the penitentiary. 3

6 ARGUMENT PROPOSITION OF LAW NO. i THE EX POST FACTO AND DUE PROCESS CI.AUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS FORBID RETROACTIVELY IMPOSING A SENTENCE WHICH DOES NOT COMPLY WITH PROTECTIONS OFFERED BYTHE SENTENCING STATUTES IN EFFECT WHEN THE OFFENSE WAS COMMITTED, OR IN RE-SENTENCING DEFENDANT UNDER A DIFFERENT, AND MORE ONEROUS, STATUTE. Defendant's offense and arrest predated the Foster and Blakely decisions. Although the Foster opinion asserts that R.C can be retroactively modified to eliminate this presumption, and the requirement for findings to support more than minimum sentences, the retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of Foster violates clearly established United States Supreme Court precedent regarding ex post facto and due process. The Ex Post Facto Clause of Article I, Section io of the United States Constitution prohibits, among other things, any legislation that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed. The Ex Post Facto clause looks to the standard of punishment prescribed by the statute, rather than to the sentence actually imposed. Regardless of whether the change "technically" increased the punishment for the crime, a legislative enactment falls within the ex post facto prohibition if it: i) is retrospective; and 2) disadvantages the offender affected by it. Although the Ex Post Facto Clause doesn't specifically apply to the judicial branch, the United States Supreme Court has recognized that due process imposes limitations on ex post facto judicial decisionmaking. Retroactive application of Foster seriously and unexpectedly disadvantages 4

7 Defendant, since he loses the presumption of a minimum sentence, and the requirement for special findings to justify a maximum sentence. The loss is not merely academic, because the trial court actually imposed the maximum in this case. The Supreme Court struck down a Florida law that retroactively altered the presumptive sentencing range for particular offenses, even though the previous law allowed upward departures if the judge made specific findings. The Court cited lack of fair notice and governmental restraint as the major problems with an increase in punishment beyond what was prescribed when the crime was committed. Even though the defendant could not prove he would have gotten less time under the old guidelines, a higher sentence required written reasons to support it. On appeal, the defendant could challenge those reasons. Losing both presumption and appellate review is a substantial disadvantage. These are the exact losses suffered by Defendant in the instant case. This Court should vacate his sentence and impose the minimum sentence required by the statutes and case law in effect on March 26, PROPOSITION OF LAW # 2 THE RULE OF LENITY BARS INTERPRETATION OF A SENTENCING STATUTE IN A MANNER MOST FAVORABLE TO THE STATE AND LEAST ADVANTAGEOUS TO THE AFFECTED DEFENDANTS. Retroactive interpretation of Ohio sentencing statutes to increase Defendant's sentence from three years (the presumptive minimum) to ten years violates the rule of lenity in statutory interpretation. Lenity requires that the Court not interpret a criminal statute to increase the penalty placed on an individual when such an interpretation can be based on no more than a guess of what the legislature intended. The General Assembly did not enact this elaborate sentencing scheme to encourage judges to impose maximum 5

8 sentences on middle-aged family men with no significant prior criminal contacts, for an act committed in the heat of conflict and provoked by the alleged victim. Ohio law specifies that code sections defining penalties be strictly construed against the state, and liberally construed in favor of the accused. Construing R.C to produce such a result in this case violates the spirit and intent of the rule or lenity. The decision to constitutionalize Ohio's sentencing statutes by removing all restrictions on imposition of higher sentences does not pass the test of lenity in interpretation. The enabling statute specifies, increased penalties for offenses based upon the seriousness of the offense and the criminal history of the offender, with judicial discretion to be limited by those goals. Those goals were embodied in the statutes ultimately enacted and subsequently voided by Foster. These have been replaced by ajudicial decision that findings are only required when a trial court seeks to impose a sentence below the statutory presumption. This construction imposes the least lenient construction of the statute on defendants to be sentenced after Foster. For that reason, it violates the statutory limits placed on judicial construction of legislative pronouncements. In fact, the construction placed on these statutes departs so far from the legislative purpose that it may violate the separation of powers imposed by the United States Constitution. Applying it retroactively to offenders such as this Defendant, whose crime and plea predate Foster cannot be justified. CONCLUSION Defendant's sentence failed to comply with the requirements of the sentencing statute in effect at the time of hi^ original sentencing, as this Court recognized when it 6

9 reduced his sentence on appeal. Due process requires that any change in the law created by a judicial'interpretation' of the statute which substantially disadvantages the Defendant should not be retroactively applied to his case. Furthermore, ajudicial interpretation of the statute which totally ignores the spirit and intent of the legislature, and deletes all the safeguards created to insure uniformity and fairness in sentencing, violates both the rule of lenity and the constitutional separation of powers. For all these reasons, Defendant's sentence should be vacated with instructions to the lower co,urt to impose the sentence. = CERTIFICATION OF SERVICE ELIZABETH E.^AR, # o8 Sycamore Street Olde Sycamore Square Cincinnati, Ohio (513) Attorney for Defendant-Appellant B,' vt.,,.. I hereby certify that a copy o the foregoing instrument was delivered to the office of the Prosecuting Attorney this day of )A Tvt,,

10 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO JAN I44GR z s 2vo^ STATE OF OHIO, Plaintiff-Appellee, vs. JEFFREY BRUCE, Defendant-Appellant. APPEAL NO. C TRIAL NO. B IUDGMENT ENTRY D ; This cause was heard upon the appeal, the record, the briefs, and arguments. The judgment of the trial court is affirmed for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty and orders that costs are taxed under App. R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App. R. 27. To The Clerk: Enter upon the Journal of the Court on January 19, 2007 per Order of the Court. By: Acting Presiding Judge

11 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, vs. JEFFREY BRUCE, Defendant-Appellant. APPEAL NO. C TRIAL NO. B OPINION. PRESENTED TO THE CLERK OF COURTS FOR F1LIfi;G JAN 1 9 ZOO? COURT OF APPEALS Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgrnent Entry on Appeal: January 19, 2007 Joseph T. Deters, Hamilton County Prosecuting Attontey, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Elizabeth E. Agar, for Defendant-Appellant. We have sua sponte removed this case from the accelerated calendar.

12 OHIO Fll2ST DISTRICT COURT OF APPEALS GUCKENBERGER, Judge. Jeffery Bruce appeals the sentence he received for voluntary manslaughter after his case was remanded by the Ohio Supreme Court' for resentencing consistent with State v. Foster.Z At resentencing, he received ten years' incarceration, the same sentence originally imposed. We affirm. Background Bruce caused the death of his wife during an altercation on or about November 15, He was indicted for murder, but pled guilty to, and was convicted of, voluntary manslaughter, a first-degree felony.3 He was originally sentenced on June 17, 2004, and after the remand, he was resentenced on May 23, In Foster, decided February 27, 2006, the Ohio Supreme Court held certain portions of Ohio's felony sentencing statutes unconstitutional. These included R.C (B), requiring the minimum prison term for an offense unless certain judicial findings were made,4 and R.C (C), permitting the maximum prison term for an offense only in certain judicially determined situations.5 The court "severed and excised" these provisions from Ohio's sentencing scheme 6 As a result, "[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 `In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, Ohio St.3d I, 2006-Ohia-856, 845 N.E.2d 470. R.C (B). Foster, supra, at paragraph one of the syllabus, and 61 and 83. Id. at paragraph oiie of the syllabus, and 64 and 83. Id. at 97. 2

13 OHIO FIRST DISTRICT COURT OF APPEALS reasons for imposing maximum *"* or more than the minimum sentences."r Foster additionally directed that cases "on direct review" in which sentences were in violation of Foster "must be remanded to trial courts for new sentencing hearings not inconsistent with" the court's opinion.8 Assignments of Error Bruce claims in his first assignment of error that "the retroactive application of [Foster's] remedy to persons who committed their criminal offenses prior to the release of Foster violates clearly established United States Supreme Coort precedent regarding ex post facto and due process" concepts. In his second assignment of error, Bruce claims that "[r]etroactive interpretation of Ohio sentencing statutes to increase Defendant's sentence from ehree years (the presumptive minimum) to ten years violates the rule of lenity in statutory interpretation." Analysis This court is bound to follow the decision of the Ohio Supreme Court in Foster.9 We "cannot overrule or modify Foster.sl We do not have jurisdiction to declare Foster unconstitutional." Bruce's sentence of ten years' incarceration complied with Foster. Voluntary manslaughter is a first-degree felony.tz The statutory range of imprisonment for a firstdegree felony is three to ten years.13 At resentencing, the trial court was permitted to Id. at paragraph seven of the syllabus, and 100. s Id. at 104. y State v. Green, I 1 th Dist. Nos A-0069 and 2005-A-0070, 2006-Ohio-6695, 21; State v. Alexander, 10th Dist. No. 06AP-501, 2006-Ohio-6375; State v. Crimes, 4th Dist. No. 06CAI7, 2006-Ohio-6360, 8; State v. Doyle, 12th Dist, No. CA2005-I 1-020, 2006-Ohio-5373, 47; State v. Smith, 2nd Dist. No , 2006-Ohio-0405, 31; State v. Newman, 9th Dist. No , 2006-Ohio-4082, 11. 'o Newman, supra, at 11. State v. Durbin, 2nd Dist. No CA-134, 2006-Ohio-5125, z R.C (B). R.C (A)(1). 3

14 OHIO FIRST DISTRICT COURT OF APPEALS increase or decrease Bruce's original sentence within the appropriate felony range." The court was not required to make findings or to give reasons for imposing the maximum sentence.15 Ex Post Facto and Due Process Issues Moreover, the application of Foster to this case does not violate ex post facto and due process concepts. The Ex Post Facto Clause is a limitation on legislative powers.1b It does not apply to the "Judicial Branch of government,"" "courts"18 or "judicial decisionmaking."19 Retroactive judicial decision-making is limited by the due process concept of fair warning, not by the Ex Post Facto Clause? With respect to judicial decisions, fair waming is violated when the judicial interpretation is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue."21 Bruce had fair warning of the Foster decision. As Foster points out, Apprendi v. New JerseJ2z and Ring v. Arizoncr2 1 were the beginnings of the United States Supreme Court's decisions declaring judicial fact-finding in the sentencing context unconstitutional.z" Bruce commitfed voluntary manslaughter on or about November 15, Apprendi was decided June 26, 2000, and Ring was decided June 24, 2002, both well before Bruce's offense. 14 See Foster, supra, at Id. at paragraph seven of the syllabus, and Rogers v. Tennessee (2001), 532 U.S. 451, 456, 121 S.Ct 'ld. Id. at 460. ld. at Id. at 459. " Id. at 461 and 462, quoting Bouie v. Columbia (1964), 378 U.S. 347, 354, 84 S.Ct. 1697, 22 (2000), 530 U.S. 466, 120 S.Ct. 2348, ' (2002), 536 U.S. 584, 122 S.Ct Foster, supra, at

15 OHIO FIRST DISTRICT COURT OF APPEALS Foster examined Ohio's felony sentencing structure in lightzs of Apprendi and Blakely v. Washington.26 Blakely was decided June 24, Foster then applied a severance remedy27 based on United States v. Booker, decided January 12, Foster was not "unexpected and indefensible by reference to the law which had been expressed priori29to Bruce's offense.3o The application of Foster to Bruce's sentencing does not violate due process for another reason. Foster did not change the elements of voluntary manslaughter. Nor did it change the potential punishment of three to ten years' incarceration for the offense 3i Bruce was aware that his sentence within this range would depend on statutory considerations by the trial court 32 These considerations have not changed 33 As a result, Bruce was aware of the possible punishment he faced when he corntnitted the offense and his due process rights were not violated.34 Consequently, we overrule Bruce's first assignment of error: The Rule of Lenity. In his second assignment of error, Bruce claims that the retroactive application of the judicially modified sentencing statutes to allow him to be incarcerated for the maximum term of ten years violates the rule of lenity. The rule of lenity is codified in 's Foster, supra, at 1. zb (2004), 542 U.S. 296, 124 S.Ct ' Foster, supra, at paragraphs iwo, four, and six of the syllabus, and 1 and (2005), 543 U.S. 220, 125 S.Ct Rogers, supra, at , quoting Bouie, supra, at See Green, supra, at 22; State v. Schweitzer, 3rd Dist. No , 2006-Ohio-6087, 13; State v. McGhee, 3rd Dist. No , 2006-Ohio-5162, 17. R.C (A)(1). 'Z See, e.g., R.C ; R.C ; R.C. 2929,13; Foster, supra, See Fosrer, supra, at 98 and 105; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, 38 (after Foster, court must consider R.C and at sentencing). 36 State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899, 18; Grimes, supra, at 10; Doyle, supra, at 50; State v. Paynter, 5th Dist. CT , 2006-Ohio-5542, 40; McGhee, supra, at 16. See, also, Smith, supra, at (same analysis, but concludes "Foster does not violate the ex post facto clause.") 5

16 OHIO FIRST DISTRICT COURT OF APPEALS R.C (A) and states that "* * * sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."3s The rule of lenity does not change the result in Bruce's case. As the Third Appellate District has aptly stated, "While courts are required to strictly construe statutes defining criminal penalties against the state, the rule of lenity applies only where there is ambiguity in a statute or conflict between multiple states [sic]. [Citations oniitted.] There exists no ambiguity in the sentencing statutes in Ohio because the Supreme Court of Ohio held that portions of Ohio's felony sentencing framework was unconstitutional and void in State v. Foster, supra. Therefore, the rule of lenity has no bearing on the present case because Foster can be easily understood to state that portions of the sentencing framework are uticonstitutional and provides no ambiguity as to the unconstitutionality of certain statutes."36 We, therefore, overrule Bruce's second assignment of error and affirm the trial court's judgment. Judgment affirmed. HILDEBRANDT, P.J., and SUNDERMANN, J., concur. Please Note: The court has placed of record its own entry in this case on the date of the release of this Opinion. 's Green, supra, at 24; Schweitzer, supra, at 15. 'b Schweitzer, supra, at 16. 6