Ohio consecutive sentencing law

The Ohio Supreme Court yesterday ruled that the U.S. Supreme Court decision in Oregon v. Ice, last year, 1).does not revive former Ohio statutory requirements for judges imposing consecutive sentences in criminal cases; and 2) defendants sentenced by trial judges who didn’t apply those former provisions are not entitled to resentencing. [ State v. Hodge, Slip Opinion No. 2010-Ohio-6320 ]

In Oregon v. Ice, a 5-4 majority upheld as constitutional an Oregon criminal sentencing statute similar to Ohio's pre-Foster statute that required trial judges to make factual findings regarding the seriousness of the crime, the victim's likelihood of reoffending and other factors before ordering that a defendant's sentences for multiple offenses be served consecutively. Arguing that the Ice decision had overruled the Ohio Supreme Court's holding in State v. Foster with regard to consecutive sentences, and had therefore reinstated the requirement of judicial fact-finding that Foster had invalidated, Hodge asked the 1st District to remand his case to the trial court and order that he be resentenced pursuant to the requirements of Ohio's pre-Foster statutes. The 1st. District rejected Hodge's argument and affirmed the trial court's imposition of consecutive sentences as valid.

In its judgment entry, the 1st District stated that because the Ice decision directly addressed only Oregon's sentencing statute, Foster remained binding precedent for Ohio courts until, and unless, the Supreme Court of Ohio ruled on the applicability of Ice to this state’s criminal sentencing procedures. Hodge sought and was granted Supreme Court review of the 1st District's decision.

Writing for the Court in the current decision, the Court summary said "Justice Robert R. Cupp acknowledged that 'the decision in Ice undermines some of the reasoning in the Foster decision that judicial fact-finding in the imposition of consecutive sentences violates the Sixth Amendment. Although there are differences between the Ohio provisions struck down in Foster and the Oregon statutes upheld in Ice, these distinctions are immaterial in light of the broad reasoning employed in Ice’ … Justice Cupp called the impact of Ice on Ohio law 'collateral,' noting that 'there was no constitutional requirement that a judge make findings of fact before imposing consecutive sentences.'"

Chief Justice Eric Brown dissented.

"The United States Supreme Court's holding in Ice makes it clear that the Foster holding regarding the unconstitutionality of the consecutive-sentencing provisions of the comprehensive reform enacted by [S.B. 2] was in error," he wrote. "The judicial fact-finding required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of consecutive sentences is not now unconstitutional nor was it ever unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been repealed, a conclusion that the Foster analysis regarding consecutive sentences was in error must result in the overruling of those infirm portions of Foster, the removal of our judicially imposed holding that these provisions are unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and 2929.41(A)."