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Foster and RVO, MDO Specs

For those of you expecting the Weekly Roundup, that's moving to Mondays.  The major reason is that the 8th District cases don't come down until Friday, so I can't include the most recent ones.  Plus, that post takes longer than any of the others I do -- right now, it's early Thursday morning, and there have been over 100 court of appeals decisions handed down since last Thursday -- and it's easier for me to knock that out on a weekend.

Not sure whether to keep the name "Weekly Roundup," though; that seems a better title for a Friday wrap-up than a Monday.  So I'm holding a contest to pick a new name for it.  Email me your suggestions.  The winner gets a free t-shirt with The Official Briefcase Motto:  "Lawyers do it in their briefs."

Hmmm, there's an appealing visual, huh?  Okay, let's get back to the law.  One of the more confusing aspects of State v. Foster, which nullified parts of Ohio's sentencing scheme, was its handling of Repeat Violent Offender (RVO) and Major Drug Offender (MDO) specifications, which were contained at RC 2929.14(D)(2) and (3).  Prior to Foster, if defendant was found guilty of an RVO or MDO specification, he was essentially subject to having his sentence doubled.  One of the questions the Foster court had to resolve was whether this complied with the Supreme Court's ruling in Blakely v. Washington and its progeny, which held that sentences not based on findings made by a jury were unconstitutional.

The determination of whether a defendant was an RVO or MDO wasn't a problem; the latter was based solely upon the weight of the drugs, and the former upon whether the defendant had previously been convicted of a crime of violence that was a second degree felony or above.  (The RVO spec could only be applied if the instant crime was also that type of offense.)  It was the sentencing part that caused trouble.  With an RVO spec, the court could give the defendant up to the maximum sentence (and had to max him out if the offense caused serious physical harm), and then could give him anywhere from 1 to 10 additional years if it found that the basic terms were "inadequate to protect the public" or "demeaned the seriousness of the offense."  The MDO spec worked the same way:  a base term of up to ten years if drugs were over a certain amount, and then 1 to 10 on top of that if the judge made the specified findings.

The Foster court found that the first part of the sentencing wasn't a problem, even the trial court's determination of physical harm:  since there was nothing to prevent the court from handing down the maximum without that finding, the finding was essentially immaterial to the result, and didn't violate Blakely.  The second part -- the imposition of the 1 to 10 additional years -- is where the law ran into difficulty, because it required "judicial factfinding" of the same sort that Foster ruled was impermissible in other contexts. 

Does that mean RVO and MDO specs are dead?  Well, as they say in the car commercial, "not exactly."  First, there's no problem in the court imposing the maximum sentence; it's just the additional time that Foster bars.  Second, the RVO and MDO specs have been resurrected in a new bill passed by the legislature which went into effect last August.  I've got some serious problems with the new law, and I'll do a post next week going into that in more detail; I really don't see how they cure the problem identified in Foster.  Like I said, though, I'll get into that next week. 

One more thing:  while before the RVO spec arguably did not apply to aggravated murder or other crimes involving life imprisonment, under the new statute it can be imposed for any crime where the sentence is not death or life without parole.

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