SUPREME COURT OF OHIO AUG? 2 CLERK OF COURT IN THE SUPREME COURT OF OHIO. State of Ohio, Case Numbers and Plaintiff-Appellant,

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1 IN THE SUPREME COURT OF OHIO State of Ohio, Plaintiff-Appellant, V. Elvin Sanchez, Defendant-Appellee Case Numbers and On Appeal and Certified Conflict from the Greene County Court of Appeals, Second Appellate District, Case No CA-154 Merit Brief of Amicus the Ohio Public Defender in Support of Appellee Stephen K. Haller, Greene County Prosecutor Elizabeth A. Ellis, Assistant Prosecuting Attorney Counsel of Record 61 Greene Street Xenia, Ohio (fax) Counsel for Appellant State of Ohio Richard A. Nystrom, W. Second St., Suite 1502 Dayton, Ohio Counsel for Appellee, Elvin Sanchez Office of the Ohio Public Defender By: Stephen P. Hardwick, Assistant Public Defender 8 East Long Street - 11th floor Columbus, Ohio (614) (614) (fax) stephen.hardwick@opd.ohio.gov Counsel for Amicus Curaie, Ohio Public Defender AUG? 2 ^= L^_f CLERK OF COURT SUPREME COURT OF OHIO

2 Nancy Rogers, Ohio Attorney General William P. Marshall, Solicitor General Counsel of Record Kimberly A. Olson, Deputy Solicitor Eric A. Baum, Assistant Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio (fax) state. oh.us Counsel for Amicus Curiae Office of the Ohio Attorney General Donald W. White ( ) Clermont County Prosecutor David H. Hoffmann ( ) Assistant Prosecuting Attorney Counsel of Record 123 North Third Street Batavia, Ohio (fax) Counsel for Amicus Curiae Ohio Prosecuting Attorneys Association

3 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND THE FACTS... 1 ARGUMENT... 3 I. Summary... 3 II. This case should be dismissed as improvidently allowed because of numerous jurisdictional defects A. The certified conflict should be dismissed because the court of appeals lacked jurisdiction to certify the conflict... 5 B. The discretionary appeal should be dismissed because the trial court entry is not a final appealable order... 6 III. Anatomy of a Major Drug Offender Add-On... 8 IV. Discussion... 9 Proposition of Law: This Court will not revisit its decision to sever R.C (D)(3)(b). Accordingly, a trial court has no authority to impose a major drug offender add-on sentence. State v. Foster, 109 Ohio St.3d 1, Ohio-856; State v. Chandler 109 Ohio St.3d 223, 2006-Ohio A. This Court severed R.C (D)(3)(b) in State v. Foster, and restated that severance in State v. Chandler B. This Court's decision to sever R.C (D)(3)(b) is consistent with its severance doctrine C. Severing R.C (B)(3)(b) is consistent with the severance doctrine applied by the United States Supreme Court D. Severing only a portion of R.C (D)(3)(b) would create ex post facto and due process violations i

4 TABLE OF CONTENTS Page No. 1. The Booker severance remedy maintained significant sentencing elements of the federal sentencing statutes that the State's proposed partial severance remedy would completely remove from MDO add-on cases The Due Process Clause of the United States Constitution bars the retroactive application of the severance remedy the State proposes The State's partial severance remedy was unforeseeable and indefensible in light of the law expressed before this case E. The Rule of Lenity requires that any decision to reinstate part of R.C (D)(3)(b) should apply prospectively only CONCLUSION CERTIFICATE OF SERVICE ii

5 CASES: TABLE OF AUTHORITIES Page No. Ahmad v. AK Steel Corp., Slip Opinion No Ohio Apprendi v New Jersey (2000), 530 U.S passim Bouie v. Columbia ( 1964), 378 U.S ,16 Calder v. Bull (1798), 3 U.S. 386, 3 Dallas 386, 1 L. Ed Cunningham v. California (2007), _U.S._, 127 S.Ct ,13 Miller v. Florida ( 1987), 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d ,15 Ring v. Arizona (2002), 536 U.S ,8,11,12,16 State v. Arnold (1991), 61 Ohio St.3d State v. Baker, Slip Op. No Ohio State v. Bassham, 94 Ohio St.3d 269, 2002-Ohio State v. Boland, 147 Ohio App.3d 151, 2002-Ohio State v. Brown (8th Dist. 1989), 59 Ohio App.3d State v. Chandler 109 Ohio St.3d 223, 2006-Ohio passim State v. Comer, 99 Ohio St.3d 463, 2003-Ohio State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio passim State v. Garner ( 1995), 74 Ohio St.3d 49, 656 N.E.2d ,15 State v. Hoelscher, 9th Dist. No. 05CA0085-M, 2006 Ohio State v. Huntsman (March 13, 2000), 5th Dist. No CA-00282, 2000 Ohio App. LEXIS State v. Moore, 3rd Dist. No , 2007-Ohio State v. Pena, Franklin App. No. 06AP-688, 2007-Ohio iii

6 CASES: TABLE OF AUTHORITIES Page No. State v. Taylor (May 26, 1995), 4th Dist. No. 94 CA 585, 1995 Ohio App. LEXIS State v. Waters, 8th Dist. No , 2005-Ohio United States v. Booker (2005), 543 U.S ,12,13,14 Weaver v. Graham (1981), 450 U.S CONSTITUTIONAL PROVISIONS: Fourteenth Amendment, United StatesConstitution Art. I, 10, United States Constitution STATUTES: 18 U. S. C R.C R.C R. C :... 9 RULES: R.C passim R.C App.R App. R Crim. R OTHER AUTHORITY: Griffin & Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids; The Ohio Plan (2002), 53 Case W.Res.L.Rev. 1, iv

7 Statement of the Case and the Facts The trial court indicted Mr. Sanchez on eleven counts related to alleged drug trafficking activities. The State withdrew two counts before trial. The jury convicted Mr. Sanchez of five counts. The jury acquitted Mr. Sanchez of three counts. The jury could not reach a verdict on one of the counts, and the court declared a mistrial on that count. The trial court neither dismissed the remaining count nor retried Mr. Sanchez on that count. The trial court sentenced Mr. Sanchez to 24 total years in prison as follows:l Ct. Charge Result Sentence 1 Trafficking cocaine, Fl Withdrawn by n.a. state 1 Trafficking MDO add-on Withdrawn by n.a. state 2 Trafficking cocaine, Fl Not guilty n.a. 2 Trafficking MDO add-on Not guilty n.a. 3 Trafficking marijuana, F2 Not guilty n.a. 4 Trafficking marijuana, F2 Withdrawn by n.a. state 5 Trafficking cocaine, Fl Guil 4 years 5 Trafficking MDO add-on n.a. 10 ears 6 Possession cocaine, Fl Guilty 10 years 6 Possession MDO add-on n.a. 10 years 7 Trafficking marijuana, F5 Guilty 12 months 8 Trafficking marijuana, F2 No verdict, Unresolved mistrial 9 Criminal tools, F5 Guil 12 months 10 Criminal tools Not guilty2 n.a. 11 Consp. Trafficking cocaine, F2 Guilty No sentence 1 Sources: Indictment, Feb. 1, 2006; Jury Verdict Forms, Oct. 20, 2006, Amended Sentencing Entry, Dec. 19, Based on jury verdict form. The trial court did not include the verdict in the judgment entry of sentence. 1

8 The trial court ran the sentences for counts five and six consecutively to each other. The trial court ran the major drug offender add-on sentences concurrently to each other but consecutively to the sentences in count five and six. The trial court ran the sentences in counts seven and nine concurrently to each other but consecutive to the sentences in counts five and six and the major drug offender add-on sentences. Amended Sentencing Entry, Dec. 19, Mr. Sanchez appealed. On December 14, 2007, the court of appeals vacated the major drug offender add-on sentence. Twenty-six days later, the State filed a motion to certify a conflict and a "Motion for Leave to File Motion to Certify Conflict Out of Time" in the court of appeals. The court of appeals did not rule on the motion to file out of time, but certified a conflict. This Court accepted both the certified conflict and a discretionary appeal, and later permitted the Ohio Public Defender to file a brief. 2

9 Argument 1. Summary After this Court permitted Amicus to file a brief, a review of the record demonstrated several fatal procedural errors. Most notably, the judgment entry of sentence is not a final appealable order because the trial court neither dismissed the count on which the jury hung nor retried Mr. Sanchez on the count. Further, the entry does not document one of the jury's not-guilty verdicts. In addition, the certified conflict should be dismissed because the court of appeals lacked jurisdiction to grant the State's untimely motion to certify. Accordingly, this Court should dismiss the appeal as improvidently allowed. On the merits, because the major drug offender ("MDO") add-on sentence "operate[s] as `the functional equivalent of an element of a greater offense,"' Ring v. Arizona (2002), 536 U.S. 584, 609, quoting Apprendi v New Jersey (2000), 530 U.S. 466, at 494, n.19. This Court correctly adopted the remedy eventually adopted in those cases-severance of the add-on, not severance of the fact-finding requirement. Like Apprendi and Ring, Ohio's MDO system is more akin to a new offense, whereas State v. Foster, 109 Ohio St. 3d 1, Ohio-856, and United States v. Booker (2005), 543 U.S. 220, concerned how to navigate a sentencing range. Further, severance of the add-on avoids ex post facto and due process violations, and the trial courts remain empowered to impose ten year sentences for the underlying offense consecutive to any other counts. 3

10 By contrast, the partial severance remedy proposed by the State would eliminate the statutory guidance provided by R.C (D)(2)(a)(iv) and (v) and the requirement to place those findings on the record, effectively eliminating the ability of an appellate court to effectively review a sentence. This would essentially eliminate any real chance of accomplishing the legislature's goal of establishing uniformity and proportionality in Ohio's criminal sentencing. 4

11 II. This case should be dismissed as improvidently allowed because of numerous jurisdictional defects. A. The certified conflict should be dismissed because the court of appeals lacked jurisdiction to certify the conflict. The State filed its notice of certified conflict sixteen days late. Under App.R. 25, it was due on December 24, 2008, ten days after the court issued its December 14, 2007 opinion. The State asked for leave to file late, but App.R. 14(B) is clear: "The court may not enlarge or reduce the time for filing a notice of appeal or a motion to certify pursuant to App.R. 25." This Court has held that a court of appeals lacks jurisdiction when a document is filed out of time and no rule permits an extension. State v. Bassham, 94 Ohio St.3d 269, 270, 2002-Ohio-797 (State's untimely appeal under Crim.R. 12(K)). Amicus would support a rule change that permitted the enlargement of time for many of the reasons suggested in the State's motion to for leave to file the motion late. Here, the court of appeals case was decided December 14, Given the number of attorneys who take vacations at that time, and the uncertainty of the timing of court of appeals judgments, many law offices may find it difficult to file a motion to certify within ten days. A motion to certify a conflict is a simple document, but it takes knowledge of the case or significant legal research to know that one must be filed. In some situations, ten days is simply not enough time. 5

12 But as the court rules now stand, courts of appeals are not permitted to entertain untimely motions to certify a conflict. Accordingly, this Court should dismiss the certified conflict. B. The discretionary appeal should be dismissed because the trial court entry is not a final appealable order. Mr. Sanchez's judgment entry of sentence is not a final appealable order because it does not dispose of all counts. Mr. Sanchez was charged with eleven counts. The State dismissed two counts before trial. He was acquitted on three counts. He was convicted on five counts: But the jury could not reach a decision on one count, Count Eight. The trial court entered a mistrial as to that eighth count, but there is no record of a retrial or of a dismissal of the count. Further, the jury verdict forms indicate that the jury found Mr. Sanchez not guilty as to Count Ten, but that finding is not documented in the judgment entry of sentence. The lower courts have reached a consensus: "[W]here a trial court's order fails to impose a sentence for each charge, that order is merely interlocutory." State v. Moore, 3rd Dist. No , 2007-Ohio-4941, 7, quoting, State v. Hoelscher, 9th Dist. No. 05CA0085-M, 2006 Ohio 3531, 10 (citations omitted); and citing, State v. Brown (8th Dist. 1989), 59 Ohio App.3d 1, 2; State v. Taylor (May 26, 1995), 4th Dist. No. 94 CA 585, 1995 Ohio App. LEXIS 2305, at *8; State v. Huntsman (March 13, 2000), 5th Dist. No CA-00282, 2000 Ohio App. LEXIS 987, at *3; State v. Waters, 8th Dist. No , 2005-Ohio-5137, 16. 6

13 The cases are in line with this court's holding in State v. Baker, Slip Op. No Ohio-3330, that a judgment entry of sentence must consist of a "single document." A trial court should not dispose of one count in one entry, another in a second entry, a third in a third entry, etc. Any other result would cause piecemeal appeals because the defendant or the State would have to file multiple appeals in a case. Any other result would also create confusion for the executive branch in enforcing the sentence. Prison or probation officials would have to decipher which parts of which entries (strewn throughout a record) are binding and which are not. The single document requirement allows all interested parties to know exactly what sentence the defendant faces. The issue in this case is worthy of this Court's attention, but even where a case presents an "important issue[,]" this Court will dismiss a case when it does not present an actual case or controversy. Ahmad v. AK Steel Corp., Slip Opinion No Ohio-4082, at 8. "To do otherwise-to simply answer a hypothetical question merely for the sake of answering it-would make this court nothing more than an advisory board." Id. at 3. Given that this case lacks a final appealable order and that the court of appeals lacked jurisdiction to certify a conflict, this Court should dismiss this appeal as improvidently allowed. 7

14 III. Anatomy of a Major Drug Offender Add-On The General Assembly created two different major drug offender ("MDO") provisions. R.C (D)(3)(a) requires a ten-year prison term. The determination that a defendant is a major drug offender is dependent upon the amount of the controlled substance, which is found by the jury. Because a jury must find the amount of the substance, the Sixth Amendment right to jury trial has been satisfied. See, Foster at 81. But under R.C (D)(3)(b), the trial court can impose a one- to tenyear add-on sentence if the trial judge makes additional findings that the standard ten-year prison terms "are inadequate to punish the offender and protect the public from future crime" and "are demeaning to the seriousness of the offense...." R.C (D)(2)(a)(iv) and (v). These findings are not part of the jury's verdict, so they "operate as `the functional equivalent of an element of a greater offense,' Ring v. Arizona (2002), 536 U.S. 584, 609, quoting Apprendi v. New Jersey (2000), 530 U.S. 466, at 494, n. 19 8

15 IV. Discussion Proposition of Law: This Court will not revisit its decision to sever R.C (D)(3)(b). Accordingly, a trial court has no authority to impose a major drug offender add-on sentence. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856; State v. Chandler 109 Ohio St.3d 223, 2006-Ohio A. This Court severed R.C (D)(3)(b) in State v. Foster, and restated that severance in State v. Chandler. If this Court reaches the merits, the opinion can be extraordinarily short. This Court need only state that because it severed R.C (D)(3)(b) in Foster and Chandler, trial courts cannot impose the add-on portion of the sentence. In State v. Foster, this Court issued conflicting dicta on the status of R.C (D)(3)(b). This Court ruled that: R.C (D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender and major-drug-offender specifications. (United States v. Booker (2005), 543 U.S. 220, followed.) R.C (D)(3)(b)... has now been severed. Foster, at paragraph six of the syllabus and at 103, n99. The statements are in tension because R.C (D)(3)(b) is the only authority to impose the major drug offender add-on. Once severed, both the fact-finding requirement and the sentencing authority are severed. By contrast, when this Court severed the fact-finding requirements of R.C and , trial courts still had authority under R.C to impose prison terms. 9

16 But Foster was not this Court's final word. In State v. Chandler, this Court clarified that no authority remained for trial court to impose the MDO add-on: In State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, we held that R.C (D)(3)(b) is unconstitutional under Apprendi v. New Jersey (2000), 530 U.S. 466, and Blakely v. Washington (2004), 542 U.S. 296, because it required judicial factfinding before an additional ten years of prison could be imposed. Id. at paragraph five of the syllabus. We severed R.C (D)(3)(b) to remedy the constitutional violation. Id. at paragraph six of the syllabus. As the statute now stands, a major drug offender still faces the mandatory maximum ten-year sentence that the judge must impose and may not reduce. Only the add-on that had required judicial fact-findin^ has been severed. Chandler at 17, emphasis supplied. It is difficult to be more clear than, "We severed R.C (D)(3)(b) to remedy the constitutional violation[,]" or "the add-on that had required judicial fact-finding has been severed." Id. Severing the paragraph leaves no authority to impose the sanction. The Tenth District's holding that "the add-on that had required judicial fact-finding has been severed" means only that the fact-finding requirement had been severed is close to nonsensical. State v. Pena, Franklin App. No. 06AP-688, 2007-Ohio-4516, at 20. Once the add-on had been severed, no authority remained to impose the sanction. The Tenth District's decision assumes that this Court "severed only the portion" of R.C (D)(3)(b) that required factfinding is not supported by the decisions. This Court held that it severed R.C (D)(3)(b), but this Court never indicated that it was severing only part 10

17 of the section. This Court simply and repeatedly held that it was severing "R.C (D)(3)(b). B. This Court's decision to sever R.C (D)(3)(b) is consistent with its severance doctrine. As this Court held in Foster, severance is appropriate where severance "does not detract from the overriding objectives of the General Assembly, including the goals of protecting the public and punishing the offender." 109 Ohio St.3d at 98. Had this Court granted the relief Mr. Foster sought, most felons in Ohio would have faced a maximum sentence of three years in prison regardless of the severity of their offense and regardless of the number of offenses. But the relief Mr. Sanchez seeks (and the relief this Court ordered in Foster and Chandler already requires trial courts to impose the ten-year maximum sentence for the underlying MDO offense under R.C (D)(2)(a), and authorizes the trial courts to impose that sentence consecutively to other sentences. Given the rarity of single-count indictments in major drug offender cases, trial courts continue to have ample tools to impose long, consecutive prison terms to protect the public. C. Severing R.C (B)(3)(b) is consistent with the severance doctrine applied by the United States Supreme Court. The major drug offender ("MDO") add-on sentence "operate[s] as `the functional equivalent of an element of a greater offense[.]' Ring v. Arizona (2002), 536 U.S. 584, 609, quoting Apprendi v. New Jersey (2000), 530 U.S. 466, at 494, n. 19. Accordingly, this Court correctly adopted the remedy eventually adopted in those cases-severance of the add-on, not severance of 11

18 the fact-finding requirement. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio- 856; State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio Like Apprendi and Ring, Ohio's MDO system is more akin to a new offense, whereas Foster and Booker concerned how to navigate a sentencing range. Further, severance of the add-on avoids ex post facto and due process violations, and the trial courts remain empowered to impose ten-year sentences for the underlying offense consecutive to any other counts. By contrast, the partial severance remedy proposed by the State would eliminate the statutory guidance provided by R.C (D)(2)(a)(iv) and (v) and the requirement to place those findings on the record, effectively eliminating the ability of an appellate court to effectively review a sentence, and essentially eliminating any real chance of accomplishing the legislature's goal of establishing uniformity and proportionality in Ohio's criminal sentencing. Further, the United States Supreme Court has rejected a severance remedy that is nearly identical to the remedy the State seeks here. In Cunningham v. California (2007), _U.S._, 127 S.Ct. 856, the Court noted that: California's Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham's sentencing judge had no discretion to select a sentence within a range of 6 to 16 years. His instruction was to select 12 years, nothing less and nothing more, unless he found facts allowing the imposition of a sentence of 6 or 16 years. 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. 12

19 Cunningham, 127 S.Ct. at 870. Similarly, under Ohio's statute, the trial judge was required to impose a ten-year prison term on Mr. Sanchez based the jury's verdict, "nothing less and nothing more, unless he found facts allowing the imposition of a sentence of [an addition 1] or [10] years." Id. Pursuant to Cunningham, the trial court was only permitted to impose the ten-year prison term, not the additional one to ten-year add on. D. Severing only a portion of R.C (D)(3)(b) would create ex post facto and due process violations. When applied to the MDO add-on, the severing only the fact-finding requirement remedy would violate the Ex Post Facto and Due Process Clauses because it effectively changes the presumptive sentence to the detriment of the defendant. Miller v. Florida (1987), 482 U.S. 423, 432, 107 S. Ct. 2446, 96 L. Ed. 2d The Booker severance remedy maintained significant sentencing elements of the federal sentencing statutes that the State's proposed partial severance remedy would completely remove from MDO add-on cases. Although the Booker majority did sever a portion of the sentencing statute, the severance was limited and maintained the significant parts of the statute designed to effect Congressional intent. As Foster notes, the United States Supreme Court severed the subsection that required a trial court to impose a sentence within the applicable guidelines and the subsection setting forth the standards of review on appeal. Id., n. 97. But Booker maintained significant portions of the federal sentencing statutes to insure that the intent 13

20 of the statute was preserved. In the case of MDO add-ons, the State seeks to destroy the limitations that the General Assembly imposed. Booker still demands that a trial court consider the guideline ranges established for a particular offense category as applied to a particular category of defendant to accomplish the congressional goal of uniformity. Booker, 543 U.S. at 259. Significantly, the United States Supreme Court did not sever 18 U.S.C. 3553(c)(2), which mandates that a trial court state its reasons for departing from the guidelines. Consequently, although the four separate standards of appellate review were severed, the statute as amended allows either party to seek appellate review to determine the reasonableness of the trial court's sentence. Booker, 543 U.S. at 260, The Due Process Clause of the United States Constitution bars the retroactive application of the severance remedy the State proposes. Severance operates as an ex post facto law. It is well-established that due process prohibits retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which was expressed before 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 the Fourteenth Amendment to the United States Constitution. State v. Garner (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, quoting Bouie, 378 U.S. at 353 (internal citations omitted). 14

21 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. 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, 3 Dallas 386, 390, 1 L. Ed. 648 (seriatim opinion of Chase, J.). Based upon these basic constitutional concerns, the United States Supreme Court vacated a state prisoner's sentence because a state's revised sentencing guidelines, as applied to a defendant whose crimes occurred before the revisions took effect, violated the Ex Post Facto Clause and thus violated the prisoner's right to due process. Miller, 482 U.S. at 432. In Miller, revisions to Florida's sentencing guidelines, after the defendant's offense transpired, raised the "presumptive" sentence that the defendant could receive when he was finally sentenced. 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. Miller at 430. A law is retrospective if it "changes the legal consequences of acts completed before its effective date." Miller at 431, citing Weaver v. Graham (1981), 450 U.S. 24, 31. As to the second element, the Supreme Court observed that it is "axiomatic 15

22 that for a law to be ex post facto it must be more onerous than the prior law." Id. (internal citation omitted). The State's proposed severance remedy would operate retrospectively and disadvantage Mr. Sanchez. His situation illustrates why the Foster remedy will subject him to an ex post facto change in the law. Under the sentencing statutes and case law in effect at the time of the alleged offense, the State could only impose an MDO add-on if the trial court found certain facts to exist. By partially severing the statute, the State would eliminate the elements of the MDO add-on. This "remedy" allows the court to effect the very result that was deemed to be unconstitutional in Apprendi and Ring. 3. The State's partial severance remedy was unforeseeable and indefensible in light of the law expressed before this case. In Bouie v. Columbia, the United States Supreme Court observed that due process demands that a defendant have fair warning of what constitutes a crime. Bouie at 350. Fair warning is denied, however, when there is an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face. Id. at 352. Consequently, the Court determined that if a judicial construction of a criminal statute is "`unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' [the construction] must not be given retroactive effect." Id. at 354 (citation omitted). When the alleged crimes occurred, Mr. Sanchez could not have foreseen that this might eliminate the elements of the MDO add-on and give the trial 16

23 court discretion to impose the sanction as it deems appropriate. Similarly, defendants who committed their MDO offenses after Foster and Chandler had a due process right to rely on the holdings in those cases that R.C (D)(3)(b) had been severed. The State's proposed partial severance remedy would also indefensible by reference to prior law governing the sentencing scheme. The enabling statute, R.C , intended for the enacted statutes to provide uniformity and proportionality "with increased penalties for offenses based upon the seriousness of the offense and the criminal history of the offender," and with judicial discretion to be limited by those goals. R.C (B)(1)-(3). Those goals were embodied in the statutes R.C (D)(3)(b) as part of Senate Bill 2. This Court expressly stated that the intent of Senate Bill 2 was to reserve higher sentences for the worst offenses and offenders. State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, at 21, citing State v. Boland, 147 Ohio App.3d 151, 162, 2002-Ohio "Consistency and proportionality are hallmarks of the new sentencing law." Id., citing Griffin & Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids; The Ohio Plan (2002), 53 Case W.Res.L.Rev. 1, 12. The State's proposed remedy would frustrate those laudable goals. Given the Court's prior pronouncements, the State's partial severance remedy is indefensible by reference to prior law. 17

24 E. The Rule of Lenity requires that any decision to reinstate part of R.C (D)(3)(b) should apply prospectively only. This Court must has held that it is "required to strictly construe statutes defining criminal penalties against the state, see R.C (A)...." State v. Arnold (1991), 61 Ohio St.3d 175, 178, and that the "'rule of lenity' applies only where there is ambiguity in or conflict between the statutes." Here, as explained previously, the reading of Chandler and Foster most favorable to the State creates confusion as to whether trial courts can or cannot impose MDO add-ons. If this Court is to resurrect the add-ons, it should do so only prospectively. Conclusion This Court should dismiss this appeal as improvidently allowed. If this Court reaches the merits, it should affirm the decision of the court of appeals. Respectfully submitted, Office of the Ohio Public Defender,^gy: Sfephen P. fiar`dwick ( ) Assistant Public Defender Counsel of Record 8 East Long Street - l lth floor Columbus, Ohio (614) (614) (Fax) 18

25 Certificate of Service I certify that on August 22, 2008, the foregoing was served via regular U.S. mail on Richard A. Nystrom, 120 W. Second St., Suite 1502, Dayton, Ohio 45402, Elizabeth A. Ellis, Assistant Prosecuting Attorney, 61 Greene Street, Xenia, Ohio 45385, David H. Hoffmann, Assistant Prosecuting Attorney, 123 North Third Street, Batavia, Ohio and William P. Marshall, Ohio Solicitor General, 30 East Broad Street, 17th Floor, Columbus, Ohio '^-"^Z^ jo^ - tephen P`Hardwick Assistant Public Defender N