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Foster and ex post facto application

Every week, the Ohio Supreme Court hands down anywhere from two to six published decisions:  carefully crafted opinions brimming with reasoned prose, serving as precedential beacons to guide the lower courts.

At least, that's the way it's supposed to work.

Sometimes you also need to check the unpublished decisions, though.  Those are the ones in which they either accept or reject cases for review, the latter outnumbering the former by about a 19-1 ratio.  Last week, John Martin, who does a super job as the head of the appellate division for the Cuyahoga County Public Defender's office, tipped me off that the Court had rejected a bunch of appeals which raised the issue of whether the decision in State v. Foster could be applied retroactively to defendants who'd committed their crimes before Foster was decided, but were sentenced after it was handed down.

For those coming late to the party, imagine this scenario:  Joe commits a robbery in 2005, is caught, and brought to trial in February of 2006.  At that time, Ohio law provides that the sentence for robbery is between two and eight years, but that he can't be given more than a minimum sentence unless the judge finds that he caused serious harm to the victim.  The day before he goes on trial, the legislature changes the law to eliminate the "serious harm" requirement.  Joe is convicted, and the judge gives him the max.

Joe claims on appeal that applying the change in the law to him violated the Constitution's Ex Post Facto Clause: at the time he committed the crime, he was entitled to the minimum sentence unless the judge found that he caused serious harm, and that's the law that should have applied to him.  Joe's got a real good argument; in fact, the US Supreme Court decided a roughly similar case like that back in 1984, in Miller v. Florida, holding that any change in the law which disadvantaged a defendant couldn't be applied to him retroactively.

Something similar happened with Foster.  Before Foster, a first-time offender was entitled to a minimum sentence unless the judge made certain findings.  Foster held that was judicial fact-finding, barred by Blakely v. Washington, and simply read that out of the statute; in other words, the judge no longer has to (or can) make any findings.  The result is that a first-time offender can be given more than a minimum sentence.  (The Court did the same with the presumptions against maximum and consecutive sentences.)  Does this mean that Foster violates the Ex Post Facto Clause when it's applied to someone who committed their crime before the decision came down?

There are some differences, of course:  Miller involved a statutory change, while Foster is of course a judicial opinion.  There's also case law, though, holding that a judicial opinion which creates an "unforeseeable" change in the law cannot be applied retroactively, although that's more properly labeled a due process rather than ex post facto violation.  The lower courts in Ohio, which have repeatedly rejected the ex post facto argument on Foster, have primarily hung their hats on that argument:  Foster wasn't unforeseeable, because the US Supreme Court decisions in Apprendi v. New Jersey in 2000 and Blakely in 2004 "gave notice" that a change in the sentencing law was forthcoming.

There are all kinds of problems with that argument.  Prior to Foster, every district except the First had rejected the contention that Blakely invalidated Ohio's sentencing scheme.  As for Apprendi, Nostradamus himself couldn't have predicted that it would affect that scheme; the first time Apprendi was even mentioned by any Ohio court was a week after Blakely came down.

That's not to suggest that the argument that applying Foster to cases arising before it was handed down is airtight.  Foster didn't simply change the law, as a legislature would, it held that the law was unconstitutional.  While a defendant may have a right to have the law as it existed applied to him, he certainly doesn't have the right to have an unconstitutional law applied to him -- he can't claim that he's entitled to judicial fact-finding before a more-than-minimum sentence is imposed on him, if judicial fact-finding violates his Sixth Amendment rights.  The net result of buying into the ex post facto argument here is that no first offender who committed his crimes before Foster could be given more than a minimum sentence, and that no one (again, pre-Foster) could be given maximum or consecutive sentences, because all of those required judicial fact-finding, which is no longer allowed.  And that's going to be a tough sell.

The identity of the buyer is the next question.  John advised me that the Ohio Public Defenders Office is deciding whether to seek certiorari in the US Supreme Court from the spate of rejections last week, or just go into habeas.  I think that's a no-brainer.  As Doug Berman over at Sentencing Law and Policy has pointed out, the US Supreme Court is the most pro-defendant sentencing court in the country.  Maybe the only one, in fact.

One thing to keep in mind.  If you're representing a defendant who committed his crimes before Foster was handed down, you've got to preserve the issue, which means raising it at trial as well as on appeal.  If you need some language and law for it, you can check out the Memorandum in Support of Jurisdiction that was filed by the OPD in this case.

By the way, sorry this is getting up on the site relatively late for today.  I'm now into my 6th day without home internet or phone service, as AT&T is surpassing standards of suckitude which even I had thought them incapable of achieving.  I had this half-written last night when I left the office, but forgot to save it, and it was lost when Microsoft decided I needed an update to my office computer, and also decided it needed to reboot the computer after installing it.

I think the Luddites might have had a point.

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