ORItINAL. Plaintiff/Appellee. Case No.: Defendant/Appellant

Transcription

1 ORItINAL IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff/Appellee vs. RICHARD H. SABO Defendant/Appellant Case No.: On Appeal from the Union County Court of Appeals, Third Appellate District Court of Appeals Case Number: MEMORANDUM IN RESPONSE TO JURISDICTION DAVID W. PIULLIPS ( ) PROSECUTING ATTORNEY Rick Rodger ( ) Assistant Prosecuting Attorney 221 West Fifth Street Suite 333 Marysville, Ohio (937) (937) Facsimile COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF OHIO PROSECUTINGATTORNEY AssistanlProsecutors Terry L. Hord Ch ief Assista nt Richard S. Ketcham ( ) 755 South High Street Columbus, Ohio (614) COUNSEL FOR DEFENDANT/APPELLANT, RICHARD H. SABO 221 WestFifihStreet Marysville.Ohio Telephone:937E Faz: E^mail

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS 2 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF 3 PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS 4 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW 5 Proposition of Law: Before imposing consecutive sentences, Ohio trial courts must make the factual findings specified by R.C (E)(4) to overcome the presumption in favor of concurrent sentencing set forth in R.C (A) CONCLUSION 0 CERTIFICATE OF SERVICE 11 DAVIDW.PHILLIPS PROSECUTINGATTORNEV Assistan[Prosewtors Terry L. Hortl ChiefAssislant 221 West Fifth Street Marysville, Ohio Telephone: Fax 93] t prosecubr@w.union.oh.us 2

3 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION Appellant, Richard Sabo, urges this Court to reverse the decision of the Third District Court of Appeals and Order that he be re-sentenced consistent with R.C (E)(4) and (A). However, as Appellant admits, this Court determined portions of those statutes to be unconstitutional and severed such portions of those statutes. State v. Foster (2006), 109 Ohio St. 3d 1. Appellant claims that the Trial Court should have made specific findings prior to imposing consecutive sentences relying on the United States Supreme Court decision of Oregon v. Ice, 129 S.Ct. 711, 172 L.Ed.2d 517. Appellant's reliance upon Ice, supra. is misplaced as it has no application to Ohio law. This Court should not apply a law that this Court has already determined to be unconstitutional. Foster, supra. should not be re-visited as it correctly determined that the prior sentencing scheme requiring findings in order to impose consecutive sentences was violative of the Sixth Amendment of the U.S. Constitution and the Ohio Constitution regarding the right to trial by jury. Further, this Court should not seek to amend a law after excising portions of it as the power to do so rests with the Ohio Legislature. Following a jury trial, Appellant was found guilty of Aggravated Trafficking, Involuntary Manslaughter and Aggravated Possession of Drugs. The Trial Court conducted a sentencing hearing on August 31, 2009 and imposed a prison sentence of seventeen (17) months on the charge of Aggravated Trafficking; nine (9) years on the charge of Involuntary DAW G W. PHILLIPS PROSECUTINGATTORNEV AssistantProsewtors Terty L. HoM ChiefAssistant 221 WestFifihStreet MaryssAlle,Ohio43g40 Telephone:937645A190 Far:937E prosewtor@co.union.oh.us Manslaughter; and eleven (11) months on the charge of Possession of Drugs. All of the prison sentences were to be served consecutive to,one another for a total prison term of eleven (11) years and four (4) months. Appellant appealed and requested that the Third District Court of Appeals find that the old sentencing scheme previously found unconstitutional was now re- 3

4 established by Oregon v. Ice, supra. The Third District Court of Appeals rejected Appellant's argument and disagreed that the Ice decision nullified Foster thus bringing the original language back into effect. The Appellate Court, upheld Foster, supra. and held that "Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge's duty to make findings before doing so", citing State v. Elmore, 122 Ohio St. 3d 472. Appellant essentially requests this Court to apply a statute already found to be unconstitutional and order him to be re-sentenced. The Court should not do so. As portions of the statute were found to be unconstitutional, it should be left to the Ohio Legislature to enact new law should it decide to do so. The Court did not err when deciding Foster. Thus, the State of Ohio respectfully requests that this Court decline to consider Appellant's proposition of law. STATEMENT OF THE CASE AND FACTS The victim, Michael Mudgett died on June 19, 2007 as a result of a drug overdose at the age of 22. The drugs were given to Mr. Mudgett by his uncle and Appellant Richard Sabo. Appellant had stolen these drugs from his 88-year old father after he was admitted to a nursing home and brought them to Union County, Ohio to "party" with the victim and a friend, Steve Latham. Appellant brought these drugs, including methadone and alcohol, and provided them to the victim who was later found dead the next morning of a drug overdose. An autopsy of the decedent found airway froth and brain swelling, consistent with and due to asphyxia or respiratory depression. The cause of death was due to the acute multiple DAVIDW,PHILLIPS PROSECUTINGATTORNEY AssistantProseaitors Terry L. Hard ChiefAssistant RickROGger MelissaA.Chase drug effects which led to the respiratory depression. At trial, the pathologist testified that of the drugs which caused respiratory depression, the "most significant one without question" was the level of methadone. 221 WestFifthStreet Marysville, Ohio TdePhone:931G Fax: prosecutor w.union.oh.us 4

5 The Union County Grand Jury indicted Appellant for Aggravated Trafficking, a felony of the fourth degree; Involuntary Manslaughter, a felony of the second degree; and Aggravated Possession of Drugs, a felony of the fifth degree. Appellant was found guilty of all three (3) charges following a jury trial. A sentencing hearing was held before the Court and Appellant was sentenced to prison for seventeen (17) months on the charge of Aggravated Trafficking; nine (9) years on the charge of Involuntary Manslaughter; and eleven (11) months on the charge of Possession of Drugs. All of the prison sentences were to be served consecutive to one another for a total prison term of eleven (11) years and four (4) months. Appellant made no objection before the Trial Court as to the failure to make any findings under R.C (E)(4) and there has been no showing that this issue rises to the level of plain error An appeal to the Third District Court of Appeals resulted in a decision dated March 29, LAW AND ARGUMENT Proposition of Law Before imposing consecutive sentences, Ohio trial courts must make the factual findings specified by R.C (E)(4) to overcome the presumption in favor of concurrent sentencing set forth in R.C (A) Appellant, at the Trial Court level, voiced no objection with the Court as to any failure to make any findings under R.C (E)(4). Because of this, Appellant forfeited the issue PROSECUTINGATTORNEV Aea'istanlPruseculnte Terry L. Hortl ChiefASSistant Rick Rotlger Melissa A. Chase 221 WenFifthStreet MarysNlle.Ohio430G0 Telephone: Fac93]frl' prosecutor@w.union.oh.us on appeal unless such an issue rose to the level of plain error. It has been held that "forfeiture is a failure to preserve an objection. A mere forfeiture does not extinguish a claim of plain error under Crim.R. 52(B). State v. Payne (2007), 114 Ohio St.3d 502; State v. Velez (2007), 5

6 2007-Ohio If a party forfeits an objection in the trial court, reviewing court may notice only plain errors or defects affecting substantial rights. Inherent in the rule are three limits placed on reviewing courts for correcting plain error. First, there must be an error. Second, the error must be plain. To be `plain', an error must be an obvious defect in the trial proceedings. Third, the error must have affected substantial rights which means that the trial court's error must have affected the outcome of the trial. State v. Barnes (2002, 94 Ohio St. 3d 21. Courts are to notice plain error only to prevent a manifest miscairiage ofjustice. State v. Long (1978), 53 Ohio St. 2d 91. The burden of demonstrating plain error is on the party asserting it. State v. Jester (1987), 32 Ohio St. 3d 147. A reversal is warranted if the party can prove the outcome would have been different absent the error. State v. Hill (2001), 92 Ohio St. 3d 191. In State v. Payne (2007), 114 Ohio St. 3d 502, the Court used this analysis when considering a case involving sentencing pre-foster. In addition to plain error, the Court considered those classes of errors that need not be analyzed using the above limits but which are subject to automatic reversal only in a very limited class of cases. State v. Perry, 101 Ohio St. 3d 118, quoting Johnson v. United States (1997), 520 U.S Those errors are considered structural errors because they permeate the entire framework within which the trial proceeds. State v. Fisher, 99 Ohio St. 3d 127, quoting Arizona v. Fulminante (1991), 499 U.S Although all structural errors are by nature constitutional errors, not all constitutional errors are structural. Chapman v. California (1967), 386 U.S. 18. As a result, some constitutional errors can be deemed nonprejudicial so long as the error is harmless beyond a PROSECUTINGATTORNEY AssistantPfosecutors Teny L. HoM Chief Assistant RickRodger MellssaA. Chase 221 WestFifihStreet Marysville,Ohio43040 Telephone: Fax proseaaar(_ (m.union.oh.us reasonable doubt. A Court must first determine if the error is structural. If it is, the inquiry ends. This Courtin Payne relied on Washington v. Recuenco (2006), 548 U.S. 212, which held that a Blakely error is not structural as, in that case, the failure to submit a sentencing 6

7 factor to the jury is akin to failure to submit an element to an offense to the jury which has been previously determined not to render the trial fundamentally unfair. Neder v. United States (1999), 527 U.S. 1. Thus, a Blakely violation, if one existed, should be treated identically because sentencing factors and elements of an offense are treated the same under the Sixth Amendment. This Court followed Recuenco, supra. and held that the constitutional error involved in this type of case is not structural. Appellant raised no objection at the Trial Court level and forfeited this issue. Appellant has made no showing that this issue rises to the level of plain error or that the issue is structural. This Court should not accept jurisdiction in this case. Further, Appellant requests that this Court revisit Foster and reinstate R.C (E) into Ohio law. This Court previously excised the findings contained within that statute. Because this statute has been excised, the Trial Court did not err when imposing consecutive sentences and the Appellate Court properly affirmed the sentence imposed. After this Court excised the requirement for findings, the provision in that statute no longer existed as law. Only the Ohio Legislature can affirmatively pronounce any change in the sentencing scheme. In Foster, this Court examined Ohio's felony sentencing structure as enacted in 1996 by Senate Bill 2 in light of the U.S. Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, and Blakely v. Washington, 542 U.S In those cases, the United States Supreme Court determined that the Sixth Amendment right to trial by jury requires that the jury find any fact that increases the maximum punishment authorized for a crime; excepting the fact or PROSECUTINGATTORNEY AsslstantPresecutors Teay L. Hord ChiefASSislant 221 West Fifth Street Marysville, Ohio43fMU Telephone:937^845A190 Fsx931^ proseuulor(aco.union.oh.us existence of a prior conviction. This Court held prior Ohio sentencing law requiring finding to impose consecutive sentences and such findings fell under the umbra of Apprendi and Blakely; it then excised the findings as found in R.C (E). Foster, supra. In so finding, this 7

8 Court relied upon the United State's Supreme Court's pronouncement of Sixth Amendment principles and upon Section 5, Article I of the Ohio Constitution, which Article guarantees that the "right to trial by jury be inviolate." This Court should reject Appellant's proposition that a trial court must make findings before imposing consecutive sentences as this is no longer Ohio law. In State v. Bates, 118 Ohio St. 3d 174, this Court held: "The severance and excision of former R.C (E)(4) and former R.C (A) in their entirety by Foster, 109 Ohio St. 3d 1, paragraph four of the syllabus, leaves no statute to establish, in the circumstances before us, presumptions for concurrent and consecutive sentencing or to limit trial court discretion beyond the basic "purposes and principles of sentencing" provision articulated and set forth in R.C and As a result, the conunon law presumptions are reinstated. 73 American Jurisprudence 2d (2007), Statutes, Sectiori 271 (the repeal of a statute that abrogates the: common law operates to reinstate the common-law rule). Such a conclusion is also consistent with the perspective of the Ohio Criminal Sentencing Commission, which opined that after Foster, judges have broader discretion within felony ranges to impose definite and consecutive sentences. Diroll, A Decade of Sentencing Reform, A Sentencing Commission Staff Report (Mar. 2007) 19. In particular, "judges are no longer guided to give concurrent sentences unless circumstances argue that consecutive sentences are more appropriate." Id. "Accordingly, the trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently, and we hold that the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio Court. Foster, 109 Ohio St. 3d 1." See Bates, supra. Appellant's argument to this Court is misplaced. There no longer exists a statute requiring findings to be made by sentencing Courts. Rather, such a.rguments should be made to the Ohio Legislature as that is the appropriate body to act to reinstate such a requirement of UAVIOW.PHILLIPS PROSECU7INGATfORNEY Assistant Pnoseoutors Terry L. HoM ChiefAssistant findings if such is to be the law in Ohio. For this reason, Appellant's argument should not be the subject of jurisdiction by this Court. Further, this Court decided that R.C (E) was unconstitutional under both U.S. 221 WestFifihStreet Marysville,Ohio43040 Telephone: Fac piosealor(a}w.unlon.oh.us Constitutional principles and the Ohio Constitution. The holding in Oregon v. Ice, 129 S.Ct 8

9 711, has no application here and, thus, this Court should not revisit Foster. This Court's decision that the Ohio Constitution, Section 5 Article I's guarantee that "right to trial by jury be inviolate" was, in fact, violated when the Legislature required trial courts to find facts no found by the jury to increase the maximum punishment that could be imposed upon Defendant's convicted of multiple felonies. Formerly, R.C (E)(4) required specific findings to be made by the sentencing Court when ordering sentences to be served consecutively. This Court held, "because the total punishment increases through consecutive sentences only after judicial fmdings beyond those determined by ajury or stipulated to by a defendant, R.C (E)(4) violates principles announced in Blakely." Foster, supra. This holding is correct. In a dissenting opinion, Justice Scalia, joined by three Justices, noted: "If the jury's verdict alone does not authorize the sentence, if, instead the judge must find an additional fact to impose a longer term, the Sixth Amendment requirement is not satisfied." Cunningham v. California, 549 U.S If the doubling or tripling of a defendant's jail time through fact-dependent consecutive sentencing does not meet this description, nothing does." In Ice, the majority found that there is a distinction between a sentence for a single offense and the imposition of consecutive sentences for multiple offenses. However, such reasoning ignores the reality this Court found in Foster, the imposition of consecutive sentences based upon statutes providing for judicial fact-finding does violate the right to trial by jury where the sentence imposed if increased, regardless of whether the sentence is for one PROSECUTINGATTORNEY AssistantProSEtntora Terry L. Hord ChiefAssistaot Rick Rodger 221 WestFMhSVeet Maryssdlle,Ohb43040 Telephone: 937E Faic 937E piosecutor@co.union.oh.us charge or multiple charges. The imposition of consecutive sentences should not be exempted from the Apprendi line of cases based upon " a distinction without a difference." Ice, supra. The Court did not err in Foster, supra. The determination that judicial factfinding to impose consecutive sentences violates the Ohio Constitution. The decision in Ice, supra, did 9

10 not overrule or abrogate Foster and did not revive the portions of the sentencing statute that were severed or excised by Foster. Accordingly, there is no need to revisit whether or not R.C. Section (E) and its requirement for judicial factfinding is constitutional as independent grounds support the decision that the findings under R.C (E) violate a Defendant's "inviolate" right to a trial by jury. For these reasons, this Court should not grant jurisdiction upon Appellant's proposition of law. CONCLUSION This Court need not accept Appellant's Proposition of Law. Appellant's argument that a sentencing Court must make findings is misplaced. Ohio law, after Foster, contains no provision for such findings. For these reasons, the State of Ohio respectfully requests that this Court not accept jurisdiction of this matter. Respectfully submitted,, PROSECUTOR Rick Rodger ( ) Assistant Prosecuting Attorney 221 West Fifth Street Suite 333 Marysville, Ohio (937) (937) Facsimile PROSECUTINGATTORNEV AssislznlProsecutors Terry L. Hord ChiefAssistant Melissa A. Chase 221 WestFlfihSVeet Marysville, Ohio Telephone: Fac prosewtor m.union.oh.us 10

11 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing has been served upon Mr. Richard S. Ketcham, Esq., 755 South High Street, Columbus, Ohio, by ordinary U.S. Mail, this --(^ day of September, Rick Rodger j Assistant Prosecuting Attorney PROSECUTINGATTORNEV AssistantPresecutars Terry L. Hord ChiefAssistant 221 WestFifihStreet Marysville,Ohio43040 Telephone: Fac937E prosecutorqco.union.oh.us 11