The Supreme Court occasionally ventures out of Columbus to hold arguments in various courthouses around the state.  The venue last week was the Columbiana Courthouse, and Chief Justice Moyer began the proceedings by noting that the court was returning to Columbiana for the first time in 260 years, which was off by only a century; Ohio didn’t become a state until 1803.   

The amenities out of the way, the court settled down to hear State v. Hunter, which featured the question of the constitutionality of the repeat violent offender specification.  But several comments during argument about the US Supreme Court’s January decision in Oregon v. Ice raised questions about the major ramifications that decision could have on Ohio sentencing law. 

 The RVO spec, like its name suggests, allows harsher punishment of people who’ve previously committed violent crimes:  on top of the maximum sentence, the judge can impose an additional one to ten years if he makes certain findings.

And that’s the problem.  Back in 2006, in State v. Foster, the court had held that all the provisions of Ohio law which required judicial factfinding before imposing more-than-minimum, maximum, or consecutive sentences ran afoul of the US Supreme Court decisions in Apprendi and Blakely.  The add-on for RVO specs had the same problem, so they had to go, too.

Well, as they say in the Hertz commercials, not exactly.  Although the court in Foster declared at one point that “any additional penalty [under the spec] would have required judicial factfinding and would have violated Blakely,” in another part of the opinion they stated they were simply excising the factfinding requirement from the statute, after which “judicial factfinding is not required before imposition of additional penalties” for RVO specs.  But then, a few months later in State v. Chandler, in a case involving the Major Drug Offender specification, which works almost identically to the RVO spec, the court said that the entire add-on provision had been severed.  But then a year later, in State v. Evans, the court again seemed to suggest that only the factfinding requirements had been excised.

The argument in Hunter last week focused on one aspect of the required judicial factfinding.  Everybody agreed that the two of those facts — that the defendant had previously been convicted of a crime of violence, and that he’d served a prison term for it — didn’t pose any problems, because Apprendi et al. specifically exclude “the fact of a prior conviction” from the jury trial requirement.  The third fact, though, is that the previous crime involved physical harm, and in Hunter’s case the State presented testimony to the judge on that at the RVO hearing. 

How that’s going to come out is up in the air, although nobody spent any time discussing why what the court may have done in Foster wasn’t an option:  declare that the judge can do the add-ons, without going to the bother of making any factual findings to support it.  The more interesting aspect of the argument was the effect of the Supreme Court’s decision in January in Oregon v. Ice.  As I explained when the decision came down, in Foster the court held that the Ohio’s statutes, which required judges to make certain factual findings before imposing consecutive sentences, were unconstitutional under Blakely.  In Ice, the US Supreme Court held that Oregon’s statutes, which required judges to make certain factual findings before imposing consecutive sentences, were fully constitutional under Blakely.

Ice got brief mention during the appellant’s portion of the oral argument, but the attorney for the State brought it up again during his portion, arguing that Ice clearly permitted judicial fact-finding for the imposition of consecutive sentences, and could therefore support enhanced sentencing for an RVO spec.  Justice Lanzinger, who’s previously voiced discomfort with the current state of Ohio’s sentencing law, especially the frequency with which Draconian consecutive sentences are being imposed nowadays, seemed to buy into that analogy, asking whether the court should revisit Foster and, in light of Ice, hold that the legislature was right in mandating that judges make certain findings before imposing additional sentences for the RVO and MDO specs.

I don’t buy the argument that Ice gives any legitimacy to judicial factfinding for RVO specs.  Ice was limited to the issue of consecutive sentencing, while the RVO add-ons are much closer to the enhanced penalties struck down in Apprendi and Blakely.  But if the court’s willing to give Foster another look on Ice’s effect on that, it will be hard to avoid Ice’s effect on what Ice plainly applies to:  consecutive sentencing.  At some point, the court is going to have to recognize that Ice allows the legislature to require that judges make certain findings before imposing consecutive sentences, and that the revisions to the statute since Foster still include those requirements.  That point may have come nearer last week.