STATE OF OHIO, Case No. Plaintiff-Appellee, vs. LESLIE LONG, Defendant-Appellant. OFFICE OF THE OHIO PUBLIC DEFENDER

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, vs. LESLIE LONG, Defendant-Appellant. Case No. On Appeal from the Belmont County Court of Appeals Seventh Appellate District Case No. 07 BE 27 MEMORANDUM IN SUPPORT OF JURISDICTION OF DEFENDANT-APPELLANT LESLIE LONG OFFICE OF THE OHIO PUBLIC DEFENDER CHRISTOPHER BERHALTER # Belmont County Prosecutor (COUNSEL OF RECORD) Belmont County Prosecutor's Office 147 1/2 West Main Street St. Clairsville, OH (740) COUNSEL FOR PLAINTIFF-APPELLEE STATE OF OHIO SARAH M. SCHREGARDUS # Assistant State Public Defender (COUNSEL OF RECORD) 8 East Long Street - 11th Floor Columbus, Ohio (614) (614) Fax sarah.schregardus@opd.state.oh.us COUNSEL FOR DEFENDANT-APPELLANT LESLIE LONG

2 TABLE OF CONTENTS Pa e No. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS...1 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW...2 PROPOSITION OF LAW I: The remedy that this Court set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 violates the Ex Post Facto and Due Process Clauses of the United States Constitution...2 CONCLUSION CERTIFICATE OF SERVICE APPENDIX: State v. Leslie Long, 7th Dist. No. 07 BE 27 (March 18, 2008)... A-1 i

3 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Leslie Long is serving an unconstitutional sentence. The trial court retroactively applied this Court's remedy in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 to Ms. Long. The trial court's retroactive application of the Foster remedy violated the Due Process and Ex Post Facto Clauses of the United States Constitution. The issue as to whether a court may retroactively apply the Foster remedy is currently before this Court in State v. Elmore, Case No Therefore, Ms. Long requests that this Court accept jurisdiction, and hold her case in abeyance until this Court decides the merits of Elmore. STATEMENT OF THE CASE AND FACTS On April 11, 2005, Leslie Long pleaded guilty to Attempted Murder, a first-degree felony, with an agreement that she would serve between eight and ten years in prison. Ms. Long was sentenced to serve nine years in prison. Ms. Long appealed and the Seventh District remanded Ms. Long's case based on State v. Foster. State v. Long, 7`h District Case No. 05-BE- 32, 2007-Ohio-966. On Apri130, 2007, Ms. Long was re-sentenced to serve nine years in prison. Ms. Long appealed and the Seventh District affirmed her sentence. This memorandum in support of jurisdiction timely follows. 1

4 PROPOSITION OF LAW I The remedy that this Court set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, violates the Ex Post Facto and Due Process Clauses of the United States Constitution. On February 27, 2006, this Court found portions of R.C and to be unconstitutional. Foster at paragraphs one, three, and five of the syllabus. In order to remedy the constitutional violations, this Court severed the portions of the statutes that were declared to be unconstitutional. Id. at paragraphs two, four, and six of the syllabus. Ohio Revised Code Sections (B) and (E)(4) were among the sections that were determined to be unconstitutional and therefore severed. Id. at 61 and 67, respectively. In 2003, when the alleged offense occurred in this case, the factual findings mandated by R.C (B) were required to be made at a sentencing hearing and in a journal entry of conviction. R.C ; R.C ; State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110; State v. Comer, 99 Ohio St.3d 463, 2003-Ohio As such, during Ms. Long's sentencing hearing, the trial court was required to sentence her under the Senate Bill 2 provisions that were in effect at the time of her purported crime. And any sentence that included a nonminimum prison term - but omitted the findings required by R.C (B) - violated the Ex Post Facto and Due Process Clauses of the United States Constitution. Due process prohibits the retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue. Bouie v. Columbia (1964), 378 U.S. 347, 354. As this Court has recognized, "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law * * *," and thus violates the Due Process Clause of 2

5 the Fourteenth Amendment to the United States Constitution. State v. Garner (1995), 74 Ohio St.3d 49, 57, quoting Bouie v. Columbia, 378 U.S. at 353 (internal citations omitted). Accordingly, although the constitutional prohibition against ex post facto laws is applicable only to legislative enactments, judicial enlargement of a statute implicates the same concerns expressed by the Ex Post Facto Clause. State v. Garner, 74 Ohio St. 3d at 57. The Clause provides simply that "no State shall... pass any... ex post facto Law." Art. I, 10, United States Constitution. The scope of the Ex Post Facto Clause's protection includes "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull (1798), 3 U.S. 386, 390 (seriatim opinion of Chase, J.). A. When applied retroactively, the remedy that this Court adopted in State v. Foster operates as an unforeseeable judicial enlargement of Ohio's statutes. As illustrated by United States Supreme Court precedent, the retroactive application of the remedy that this Court mandated in Foster violates the Ex Post Facto and Due Process Clauses. An analogous situation occurred in Miller v. Florida (1987), 482 U.S In Miller, the Court vacated a defendant's sentence based on the same basic constitutional concerns that invalidate the remedy put forth in Foster. Id. at 432. The Court determined that the Ex Post Facto and Due Process Clauses were violated when a trial court applied Florida's revised sentencing guidelines to a defendant whose crimes occurred before the revisions took effect. Id. When the defendant committed the crime for which he was convicted, Florida's sentencing guidelines would have resulted in a presumptive sentence of 3'/z-to-4'/z years in prison. Id. at 424. But when he was sentenced, the revised guidelines called for a presumptive sentence of 5'/z-to-7 years in prison. Id. The trial court applied the guidelines in effect at the time of sentencing and imposed a seven-year sentence. Id. The revisions to Florida's state 3

6 sentencing guidelines, which occurred after the defendant's offense transpired, raised the "presumptive" sentence that the defendant could have received by approximately three years. Id. at Florida's revision of its sentencing guidelines fell within the ex post facto prohibition because it met two critical elements: first, the law was retrospective, applying to events occurring before its enactment; and second, it disadvantaged the offender affected by it. Id. at 430. A law is retrospective if it "changes the legal consequences of acts completed before its effective date." Id. at 431, citing Weaver v. Graham (1981), 450 U.S. 24, 31. As to the second element, the Court observed that it is "axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Id. (internal citation omitted). Thus, the application of a state's revised sentencing guidelines to a defendant whose crimes occurred before such revisions took effect violates the Ex Post Facto Clause and the defendant's right to due process. This Court's severance of the unconstitutional statutes operates retrospectively and disadvantages Ms. Long. According to the sentencing statutes that were in effect at the time of Ms. Long's alleged offense, there was a presumption that she would be sentenced to a minimum sentence, unless a judge made the fmdings required by statute. R.C (A)-(E). By severing the statute, this Court allowed Ms. Long to be sentenced to a nonminimum term, without the trial court's having to make any of the findings on the record, as was required under R.C (B). By eliminating the presumptive sentencing levels contained within the severed statutes and the judicial factfinding that attended the imposition of sentences exceeding the presumptive range, this Court has effectively foreclosed appellate review. In Miller the Supreme Court found that eliminating appellate review was a second reason to find that the defendant had been 4

7 "substantially disadvantaged" by the retrospective application of the revised guidelines to his crime. Miller v. Florida, 482 U.S. at 433. Additionally, the remedy that was adopted by this Court in Foster was unexpected. On the date that the alleged offense occurred, Ms. Long could not have foreseen that this Court would replace the portions of Senate Bill 2 that gave a trial court "guided discretion" with unfettered, unreviewable discretion. Foster at 89. Even after the United States Supreme Court issued its decision in Blakely v. Washington (2004), 542 U.S. 296, Ohio defendants could not have foreseen severance. See State ex rel. Mason v. Grin, 104 Ohio St.3d 279, 2004-Ohio- 6384, at 17 (prior to issuing the Foster decision, this Court held that if the sentencing statutes were ultimately found to be unconstitutional, a trial court "should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional"). B. The remedy that was adopted by this Court in State v. Foster is not analogous to the United States Supreme Court's resolution in United States v. Booker (2005), 543 U.S Although severance was constitutional in United States v. Booker (2005), 543 U.S. 220, the variances between the amended federal and state statutes evidence that severance as applied to the Ohio Revised Code was unconstitutional. In Booker only a limited portion of the federal sentencing statute was severed, and the significant parts of the statute designed to effect Congressional intent were maintained. As Foster notes the Court severed the subsection that "`require[d] sentencing courts to impose a sentence within the applicable Guideline range...and the provision that set forth standards of review on appeal."' Foster at n. 97, quoting United States v. Booker, 543 U.S. at 259. But the Foster opinion failed to discuss the fact that the majority of the federal sentencing statute was left intact in order to insure that the intent of the statute was preserved. United States v. Booker, 543 U.S. at

8 The Booker majority explained that, even without the mandatory provision, sentencing courts would still be required to consider the "Guidelines sentencing range established for... the applicable category of offense committed by the applicable category of defendant." United States v. Booker, 543 U.S. at , internal citations omitted. And the Court did not sever 18 U.S.C. 3553(c)(2), which requires the sentencing court to state its reasons for departing from the guidelines. Consequently, although the four separate standards of appellate review were severed, the statute as amended set forth an implicit standard of review-i.e., whether the imposed sentence was reasonable. United States v. Booker, 543 U.S. at 260, 261. Recently the Court held that a state court cannot apply the Booker severance to state sentencing statutes in the manner as the Ohio Supreme Court applied Booker to Ohio's statutes. In Cunningham v. Cadifornia (2007), _U.S._, 127 S.Ct. 856, 166 L.Ed. 2d. 856, the Court found that California's application of the Booker severance remedy to the California sentencing findings was improper. The Court found that California's attempt to compare its sentencing scheme with Booker was "unavailing," for the same reasons that Ms. Long argues that Ohio's Booker application is unavailing. Cunningham, 127 S.Ct. at 870. In Cunningham the Supreme Court found that California's sentencing scheme, "does not resemble the advisory system the Booker Court had in view. * * * Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies." Cunningham, 127 S.Ct. at 870. Similarly in Ohio, facts used to elevate statutorily mandated minimum sentences to a higher sentence within the range must be found by a jury or admitted by the defendant. 6

9 In People v. Black the California Supreme Court held that that state's sentencing system was not unfair to defendants, because they "cannot reasonably expect a guarantee that the upper term will not be imposed" given judges' broad discretion to impose an upper term or to keep their punishment at the middle term. Cunningham, 127 S.Ct. at 869, quoting People v. Black (2005), 35 Cal.4th 1238, , 113 P.3d 534. The California Supreme Court's examination of the sentencing scheme left it satisfied that California did not implicate the concerns underlying the Sixth Amendment's jury trial guarantee. The Supreme Court stated that its decisions, however, "leave no room for such an examination." Cunningham, 127 S.Ct. at 869. Because Califomia's system allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. Id. at 870. The Court stated that a sentencing court's "broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied." Id. at 869, quoting Blakely, 542 U.S. at 305. "It is comforting, but beside the point, that California's system requires judge-determined DSL sentences to be reasonable. Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless." Cunningham, 127 S.Ct. at 870. The severance that the Ohio Supreme Court employed in Foster gives sentencing courts unbridled discretion. While the Foster decision left intact R.C and to ensure reasonableness and to provide advisement to the sentencing court, Foster, at 98. That is not enough, as Cunningham demonstrates. 7

10 Further, the severance employed in Foster eliminated the ability of an appellate court to effectively review a sentence. The severance also disposed of any real chance of accomplishing the legislature's goal of establishing uniformity and proportionality in Ohio's criminal sentencing scheme. R.C (B)(l)-(3). See, also, Griffin & Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case W.Res.L.Rev. 1, 12 (Fall, 2002) ("[c]onsistency and proportionality are hallmarks of the new sentencing law"). Now, post- Foster, a trial court may impose consecutive sentences without considering consistency or proportionality, and without giving any reasons for the sentence. Accordingly, on the dates of the offenses herein, Ms. Long was entitled to receive a minimum prison term. Blakely v. Washington, 542 U.S. 296; R.C (A)(2); R.C (A)(5); R.C (B); R.C (C); and R.C (E)(4). Her sentence must therefore be reversed, and this case remanded for a new sentencing hearing, at which the trial court may not impose a sentence that exceeds a prison term of three years. 8

11 CONCLUSION This case involves substantial constitutional questions, as well as questions of public or great general interest. This Court should grant jurisdiction and stay the proceedings pending this Court's disposition of State v. Elmore, Case No Respectfully submitted, FFIGE OF THE OHIO PUBLIC DEFENDER ^._n, A CIIREGAIW-E'JS'# Assistant State Public Defender (Counsel of Record) 8 East Long Street - 11 th floor Columbus, Ohio (614) (614) Fax sarah.schregardus@opd.state.oh.us COUNSEL FOR DEFENDANT-APPELLANT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing MEMORANDUM IN SUPPORT OF JURISDICTION has been served by regular U.S. Mail, postage pre-paid served by regular U.S. Mail, postage pre-paid to Christopher Berhalter, Belmont County Prosecutor, addressed to 147 ^4 West Main Street, St. Clairsville, Ohio, 43950, on May^, A',ssgtant State Oublic Defender COUNSEL FOR DEFENDANT-APPELLANT 9

12 IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, vs. LESLIE LONG, Defendant-Appellant. Case No. On Appeal from the Belmont County Court of Appeals Seventh Appellate District Case No. 07 BE 27 APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF DEFENDANT-APPELLANT LESLIE LONG

13 STATE OF OHIO ) IN THE COURT OF APPEALS OF OHIO ) BELMONT COUNTY ) SS: SEVENTH DISTRICT STATE.OF OHIO, VS. PLA1 NTI FF-APP ELLEE, CASE NO. 07 BE 27 JOURNALENTRY LESLIE LONG, DEFENDANT-APPELLANT. For the reasons stated in the opinion rendered herein, the assignments of error are without merit and are overruled. It is the final judgment and order of this Court that the judgment of the Common Pleas Court, Belmont County, Ohio is hereby affirmed. Costs taxed against appellant. JUDGES.

14 STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, -VS- CASE NO. 07 BE 27 OPINION LESLIE LONG, DEFENDANT-APPELLANT. CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 05CR62. JUDGMENT: Affirmed. APPEARANCES: For Plaintiff-Appellee: Attorney Chris Berhalter Prosecuting Attorney Attorney Helen Yonak Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio For Defendant-Appellant: Attorney Timothy Young Ohio Public Defender Attorney Sarah Schregardus Assistant State Public Defender 8 East Long Street, 11th Floor Columbus, Ohio JUDGES: Hon. Joseph J. Vukovich Hon. Mary DeGenaro Hon. Cheryl L. Waite Dated: March 18, 2008

15 -1- VUKOVICH, J. {11} Defendant-appellant Leslie Long appeals the decision of the Belmont County Common Pleas Court sentencing her to nine years for attempted murder. The issues raised in this appeal are whether State v. Foster, 109 Ohio St.3d 1, 2006-Ohio- 856, violates due process and operates as an ex post facto law and whether the trial court had the authority to sentence Long to more than the minimum sentence. For the reasons expressed below, the judgment of the trial court is affirmed. - STATEMENT OF CASE {12} This appeal is related to State v. Long, 7th Dist. No. 05BE32, 2007-Ohio- 966 (Long 1). On March 2, 2005, Long was indicted on one count of attempted murder, a violation of R.C (A), a first degree felony. Long entered into a plea agreement in which the state and Long agreed to at least a minimum sentence of eight years. The plea agreement noted that Long would be requesting an eight year sentence, while the state would be requesting a ten year sentence. As a result of the agreement, Long entered a guilty plea. The trial court accepted the plea and found her guilty. On August 26, 2005, Long received a nine year sentence for the conviction. {13} She appealed that sentence in Long I. She argued that her sentence violated Foster because the trial court made judicial fact findings in accordance with R.C (B). This court agreed and remanded the case for resentencing pursuant to Foster. It is additionally noted that in Long l, Long argued that the application of Foster would violate her due process rights and the prohibition against ex post facto laws. {14} Long was resentenced on April 30, 2007; she once again received nine years. During the sentencing hearing, Long once more argued that applying Foster to her would violate her due process rights and the prohibition against ex post facto laws. Long appeals from the sentence. FIRST ASSIGNMENT OF ERROR {15} "THE TRIAL COURT ERRED BY IMPOSING A NON-MINIMUM SENTENCE IN VIOLATION OF THE DUE PROCESS AND EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION;

16 -2- BLAKELY V. WASHINGTON (2004), 542 U.S. 296; UNITED STATES V. BOOKER (2005), 543 U.S APRIL 30, 2007, JUDGMENT ENTRY. SECOND ASSIGNMENT OF ERROR {16} "THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED MS. LONG DUE PROCESS OF LAW BY IMPOSING A NON-MINIMUM SENTENCE. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. APRIL 30, 2007, JUDGMENT ENTRY." {17} These assignments of error are addressed simultaneously since their arguments are related. Long asserts that Foster violates the prohibition against ex post facto laws and violates due process. {18} This court has already held that Foster neither violates due process or the prohibition against ex post facto laws. State v. Palmer, 7th Dist. No. 06JE20, 2007-Ohio See, also, State v. Harris, 7th Dist. No. 06JE36, Ohio-3173, 15-21; State v. Balwanz, 7th Dist. No. 07BE20, 2007-Ohio-5041, In Palmer, citing to other districts, we reasoned that the Supreme Court's severance of the unconstitutional sections of the statute did not affect the range of punishment an offender would face; the offender would still be subject to the range set forth in R.C (A). Id. at 65, 67, 71. Thus, Foster did not judicially increase the range of punishment and thus was not a judicial enlargement which would violate the prohibition against ex post facto laws. State v. Mallette, 8th Dist. No , Ohio-715, 47; State v. Hawkins, 7th Dist. No. 07JE14, 2008-Ohio-. Furthermore, we explained the presumptions of minimum or concurrent sentences, which were excised from the felony sentencing statutes, were only presumptions and not guarantees. Palmer, 7th Dist. No. 06JE20, 2007-bhio-1572, 72. Hawkins, 7th Dist. No. 07JE14, 2008-Ohio-_ Thus, there was no ex post facto violation. We also reasoned that there is a basic rationale that we must follow the mandates of the Ohio Supreme Court and that we lack the authority to declare such a mandate unconstitutional. Palmer, 7th Dist. No. 06JE20, 2007-Ohio-1572, 69; Harris, 7th Dist. No. 06JE36, 2007-Ohio-3173, 16. Lastly, we rationalized that the Ohio Supreme Court denied a reconsideration motion in Fosterthat urged the Court to find that Foster

17 -3- violated the ex post facto clause and, as such, it seemed to have implicitly found no merit with the argument. Palmer, 7th Dist. No. 06JE20, 2007-Ohio-1572, 74. {19} Long presents no new arguments that have not already been considered by this court. Thus, as this court has continually done, we find no merit with the ex post facto/due process arguments and once again reaffirm our holding in Palmer. See State v. Balwanz, 7th Dist. No. 07BE20, 2007-Ohio-5041 (reaffirming our holding in Palmer). These assignments of error are meritless. THIRD ASSIGNMENT OF ERROR {110} "THE TRIAL COURT DID NOT HAVE THE AUTHORITY TO IMPOSE A NON-MINIMUM SENTENCE. APRIL 30, 2007, JUDGMENT ENTRY." {111} Under this last assignment of error, Long contends that after the Supreme Court's severance of R.C (B) (the presumption of the minimum unless certain findings are made), the trial court was.without authority to sentence Long to more than the minimum sentence (which is three years for a first degree felony). {112} This argument is not supported by law. The Ohio Supreme Court in Foster held: {113} "Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to making findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus (emphasis added). {114} Furthermore, recently the Supreme Court has reaffirmed that statement. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio It explained: - {115} "Indeed, Foster represents a Pyrrhic victory for Payne and other defendants affected by its holding. Although defendants were successful in arguing the unconstitutionality of the sections of the statutes that required judicial findings for the imposition of higher than minimum sanctions, we did not adopt their proposed remedy of mandatory minimum sentences." Id. at 25.

18 -4- { 16} Thus, the trial court was not required to impose the minimum sentence. It had the authority to impose more than the minimum sentence. Consequently, this assignment of error lacks merit. {117} For the foregoing reasons, the judgment of the trial court is hereby affrmed. DeGenaro, P.J., concurs. Waite., J., concurs. APPROVED: ^ JOS PH J. VUKOVICH, JUDGE