Four years ago in State v. Foster, the Ohio Supreme Court held that the provisions of Ohio’s sentencing laws which required a trial judge to make findings of fact before imposing consecutive sentences violated the US Supreme Court’s holdings in Apprendi v. New Jersey and Blakely v. Washington, and severed those provisions from the sentencing statutes.  A year ago the US Supreme Court held in Oregon v. Ice that requiring a trial judge to make findings of fact before imposing a consecutive sentence didn’t violate the Apprendi/Blakely rule.  Everybody’s known that sooner or later, the Ohio Supreme Court was going to have to confront the issue of Ice’s impact on Foster.  As the Chambers Brothers would say, time has come today.  Or yesterday, rather, when the court accepted the appeal in State v. Hodge.

The defendant’s argument in Hodge is relatively simple:  as I pointed out the day after Ice came down, it’s virtually impossible to distinguish the Oregon statute upheld in Ice from the Ohio statute struck down in Foster.  Any lingering doubt on that score is dispelled by the Court’s statement in Ice that “state high courts have divided over whether the rule of Apprendi governs consecutive sentencing decisions.  We granted review to resolve the question.”  In a footnote at that point, the Court cited State v. Foster as one of the decisions holding Apprendi applicable. 

The State’s argument opposing jurisdiction was the essence of the old legal principle, if you’ve got the facts, pound on the table with the facts.  And facts the State did have.  Hodge earned his eighteen years in prison — three years for five separate counts of aggravated robbery, plus a three-year gun spec, all run consecutively — by engaging in a virtual parody of criminal excess:  he and two cohorts robbed a group of Boy Scouts who were selling Christmas trees, and Hodge punched a Boy Scout and his father before the three ran off with $130.  I suppose if one of the fathers had been dressed as Santa Claus, they would have shot him, if only for emphasis.  (It’s always interesting to contrast the statements of facts in briefs; in Hodge’s brief, we learn that he was getting his GED, helping his father with his construction business, trying to enlist in the military, and, presumably, working on a cure for cancer in his spare time.)

Of course, the facts only take you so far, and once you’re in the Supreme Court, they don’t take you far at all.  The problem for the State is that, to be blunt, there is simply no intellectually honest way of claiming that Ice doesn’t contradict Foster.  And the Ohio Supreme Court wouldn’t have to hold that they were wrong in Foster, but that Ice clarified an area of law that was murky.  Such a claim would have the added advantage of being true:  Ice was only a 5-4 decision, and came as a surprise to many court watchers. 

The court wouldn’t necessarily have to do this.  This is where things get a little tricky, because many people, including a lot of defense attorneys, misread Ice and its effect on Foster.  Keep in mind that in Ice, it was the state that was appealing, and the question was whether the state was constitutionally barred from requiring judicial fact-finding before imposing consecutive sentences.  That’s not the same as saying that a defendant is constitutionally entitled to judicial fact-finding before consecutive sentences are imposed on him. 

That distinction means this case is unlikely to go beyond the Ohio Supreme Court; if the court would reaffirm Foster, SCOTUS would most likely deny cert on appeal because that decision doesn’t deprive a defendant of any constitutional rights.  Ice simply gives the state the right to do something, and it’s up to the state to decide whether they want to do it.  The Ohio Supreme Court could say they’re sticking with the severance remedy in Foster, being relatively assured that the decision wouldn’t be reviewed further.

Whether that’s workable is another story, because Ice completely eliminates the justification for the severance remedy, and there’s still the legislature:  it has amended RC 2929.14 eleven times sinces Foster, and two since Ice, each time leaving the provision concerning consecutive sentences untouched.  What if the legislature passes the same law again after Hodge?  The court certainly isn’t going to reach the same result on that law as it did in Foster; Ice forecloses that possibility.

The court might still choose that as an alternative to reversing Foster out of fear that the latter course would throw in doubt all the consecutive sentences that were imposed after that decision.  You can certainly count on that last argument being the one the state harps on.  It’s not much of an argument, though.  Application of  a decision reversing Foster would be limited to future cases and those pending in court or on direct appeal; that’s usually the rule even in cases of a constitutional violation, and you don’t have that here.  What’s more, the court had no problem requiring in Foster resentencing in every case prior to that where the judge used judicial findings in imposing more than minimum, maximum, or consecutive sentences, on the basis that such sentences were void.  (Or, at least they were until the court later decided they were merely voidable in State v. Payne.)  And the resentencings there were the ultimate token act:  it was impossible to imagine a scenario where a judge who’d gone to the trouble of making findings of fact before imposing consecutive sentences would, if given a chance, hand down a lesser sentence where he didn’t have to make any findings at all.

What effect a reversal of Foster on this score will have is another story; a valid argument could be made that the findings required under the old law were sufficiently non-specific and elastic that a judge could easily master the talismanic phrasing he needed to allow a sentence to withstand judicial review.  But that’s a debate we’ll have after Foster is overruled.  Because it will be.