Memo
To:Prosecutor’s Staff
From:Gregg
CC:
Date:March 1, 2006
Re:Practical Analysis of State v. Foster, ___ Ohio St.3d _____, 2006-Ohio-856 and State v. Mathis, ____ Ohio St.3d ____, 2006-Ohio-855
On February 27, 2006, the Ohio Supreme Court issued two important decisions that will impact Ohio’s felony prosecutors and common pleas court judges throughout the State. The following statutes were declared unconstitutional R.C. 2929.14(B) & (C) and R.C. 2929.19(B)(2), 2929.14(B), 2929.14(E)(4), 2929.41(A), 2929.14(D)(2)(b) and (D)(3)(b). R.C. 2953.08(G) no longer applies.This memorandum attempts to provide an initial analysis of those decisions with practical suggestions of what prosecutors should do next.
I.If all these statutes have been declared unconstitutional, why are we still smiling?
Following are portions of the decisions that we should all be able to use in our future endeavors to put defendants in prison.
Paragraph 7 of the syllabus of State v. Foster states, “Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence.” The Supreme Court also held that judicial factfinding is not required before imposition of consecutive prison terms. Foster syllabus paragraph 4. The Supreme Court stated conclusively that R.C. 2929.11 and 2929.12 are a general judicial guide. Foster at page 16 of the decision announced on the web site. (Hereinafter this memorandum will just cite the page of the web site decision).
The statutory provisions in 2929.11 and 2929.12 are a non-exclusive list for the court to consider when considering how best to protect the public from future crime by the offender and others and to punish the defendant. The Court concluded the court is merely to “consider the statutory factors.” Foster at 18. The Supreme Court emphasized that trial courts may impose a prison term on fourth and fifth degree felonies without findings. Fosterat 29. (Emphasis added).
The Court found that the General Assembly provided a sentencing scheme of “guided discretion” for judges intending that the required findings guide trial courts to select sentences within a range rather than to mandate specific sentences within that range. Foster at 34, 35. The Court then rejected the criminal defendants proposed remedy of presumptive minimum sentences as the Court stated they did not believe the General Assembly would have limited so greatly the sentencing court’s ability to impose an appropriate penalty. Foster at 34, 35. Citing Justice Stevens’ clarification in Booker“If the guidelines as currently written could be read as merely advisory provisions,that recommended, rather than required, the selection of particular sentences in response to different type of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” Foster at 35.
The Supreme Court concluded:
(1) Judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. Foster at 38.
(2) Judicial factfinding is not required before imposition of consecutive prison terms. Id.
(3) Judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offenders.
(4) Trial courts have full discretion to impose a prison term within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence. Foster at 39.
II. All cases pending on direct review must be remanded to trial courts for a new sentencing hearing not inconsistent with the Foster opinion. Foster at 40.
Defendants are entitled to a new sentencing hearing although the parties may stipulate to the sentencing court acting on the record from the initial sentencing hearing. The court shall consider those portions of the sentencing code that were unaffected by the Foster decision and impose any sentence within the appropriate felony range. Foster at 41. If a defendant is sentenced to multiple prison terms, the court is not barred from requiring those terms to be served consecutively. At the new sentencing hearing while the defendant may argue for reductions in their sentence, nothing prevents the State from seeking greater penalties. Foster at 41 citing United States v. Difrancesco (1980), 449 U.S. 117. (Emphasis added).
It is incumbent upon all prosecutors to review their sentencing entries and excise all those statutes that were declared unconstitutional.
III. In the less publicized State v. Mathis case, 2006-Ohio-855, the Supreme Court held a trial court at sentencing is required to make judicial findings only for a downward departure pursuant to R.C. 2929.13(D) or judicial release pursuant to R.C. 2929.20(H).
In Mathis, the Supreme Court emphasized that Foster did not affect the state’s appeals as a matter of right for sentences where no prison terms were imposed where there is a presumption favoring prison. Both parties may also appeal as of right when a sentence is contrary to law. Mathis at 8. In those cases where a defendant receives consecutive sentencing and the aggregate prison term exceeds the maximum sentence possible for the most serious offense the defendant may seek a discretionary appeal pursuant to R.C. 2953.08(C). Sentences that are authorized by law and recommended jointly and imposed by the sentencing judge are not subject to review. Mathis at 8. Trial courts have full discretion to impose a prison sentence within the statutory range and merely have discretion to sentence within the applicable range following R.C. 2919 procedures. At the resentencing hearing parties may stipulate to the existing record and waive the taking of additional evidence. Mathis at 13.
In conclusion, both cases were unanimous decisions with Justice Resnick concurring in the paragraphs that are most pro-prosecution. I still recommend that written sentencing memorandums be provided to the court in all important cases emphasizing those factors that should convince a particular judge to give the sentence recommended by the prosecutor. In my opinion, the background of those Supreme Court judges who formerly were common pleas court judges shines through the decision.
Good luck and unless the United States Supreme Court overrules Foster and Mathis our jobs and the jobs of our terrific secretaries will be easier.
Justice prevailed!
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