Last week, I mentioned that the Supreme Court’s decision in State v. Foster had nullified the “second sentence” provided by Repeat Violent Offender and Major Drug Offender statutes.  Under those statutes, the trial judge could sentence a defendant to the maximum for the base felony, then impose an additional 1 to 10 years on top of that. 

Foster found no problem with imposing the maximum, but held that the additional sentence was barred.  The reasoning was pretty simple.  The statute permitted the court to impose more time only if it found both of the following:

(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.

(ii) The terms so imposed are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender’s conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender’s conduct is less serious than conduct normally constituting the offense.

In short, the statute required a trial court to make “judicial findings of fact” before imposing the additional sentence, and thus violated Blakely.

Well, our legislature got to work and, on August 3, an amendment went into effect on RVO and MDO sentencing.  The new statute gives the trial court five criteria that must be met before giving the additional time.  Here are the last two:

(iv) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.

(v) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender’s conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender’s conduct is less serious than conduct normally constituting the offense.

Now, maybe it’s just me, but it seems that other than a few additional words which don’t affect anything, the new section is pretty much the same as the version that the Supreme Court struck down.  In fact, in the key parts, which I’ve bolded, they’re identical:  both require the judge, before imposing the enhancement, to find that the base sentence wasn’t sufficient to protect the public, and that it demeaned the seriousness of the crime.  If this didn’t pass constitutional muster in February, it’s pretty hard to see how the intervening time has changed anything.

Bottom line:  the new statute is every bit as unconstitutional as the old one was.   At least, the enhancement is.  Keep in mind that the trial court can impose the maximum base sentence for the RVO or MDO spec without making any findings.