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Hodge: Another "train wreck"?

Wednesday's oral argument in State v. Hodge should have gone easily for the defendant.  After all, it's a very simple argument.  In 2006, in State v. Foster, the Ohio Supreme Court held that the 6th Amendment, as interpreted by the US Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, prohibited the legislature from requiring a judge to make certain findings of fact before imposing consecutive sentences.  Three years later, the US Supreme Court, in Oregon v. Ice, held that Apprendi and Blakely did not prevent a legislature from requiring a judge to make certain findings of fact before imposing consecutive sentences.  So Foster was wrong, we go back to the statute the way it was before, and call it a day.

Not so much.

One of the problems was the insistence of the defense in Hodge, at both argument and in their brief, that Foster "merely severed" the offending portions of the statute, but "did not repeal them."  As several justices pointed out, that confuses the role of the legislative and judicial branches.   Once a statute is declared unconstitutional, the legislature's repeal of that same statute is a pointless act.

This was an unfortunate argument, because it led to a digression about the effect of "severance," with Justice Lanzinger at one point asking if the court could "reattach" the statutes.  The digression was wholly unnecessary:  the fact remains that as long as Foster is on the books, whether the legislature has repealed the statute, or even re-enacted it (the general sentencing statute, RC 2929.14, has been amended 11 times since Foster, with no change to the provisions regarding consecutive sentencing), is immaterial:  the Foster decision prevents those provisions from being enforced.

Which brings us to the key issue:   what is the effect of Ice on Foster?  It's been the defense position that Ice automatically overrules Foster, and thereby revives the statutes regarding consecutive sentencing.  The problem with that is the different procedural posture of Hodge and Ice.  In Ice, the defendant had won in the lower courts, with the Oregon Supreme Court agreeing that the state statutes which required judicial fact-finding for imposition of consecutive sentences were a violation of Blakely.  The state appealed, and the Supreme Court held that there wasn't a problem with judicial fact-finding in that circumstance.  But Ice held that judicial fact-finding was permissible, not that it was required.  Here, Hodge is the one appealing, arguing that he was entitled to have the judge make findings of fact before imposing consecutive sentences.  But if Ice doesn't require judicial fact-finding, why is Hodge entitled to it?

There's actually an argument to support that, but it didn't get any play on Wednesday, and probably won't unless the case winds up in the Federal courts.  And it's at least somewhat academic; the court overruling Foster on its own achieves the very same effect as if Ice had abrogated Foster. 

But that brings us to the elephant in the room.  As I indicated in my discussion of the Horner decision a few weeks back, I think the Supreme Court has become acutely aware of the policy impact of several of its decisions.  The concept of finality in the law is heavily favored, and some of the court's decisions have undercut that.  Foster led to the resentencing of hundreds, if not thousands, of defendants.  Defendants and their attorneys scour journal entries from five, ten, and even twenty years ago to see if post-release controls were properly imposed, or if the journal entry of sentencing contained the jury's guilty verdict as well; failure to do either results in a "void" sentence, possibly even nullifying the original appeal from the action.

The ramifications of a reversal of Foster were articulated by Justice Pfeifer not five minutes into oral argument on Wednesday; the defense argument, as he saw it, was:

The statutes we declared unconstitutional in Foster are resurrected, and now you want to reel back in every case that has happened since Foster in which the judge did not do fact-finding, and send all of those back.  So one more train wreck is what you want.

So what's the court likely to do?  Pfeifer suggested one approach; in his reading of Foster, the Ohio constitution also served as a basis for the decision.  That's a stretch; while some of the defendants did raise the Ohio constitution -- in addition to the Federal one -- it played no real part in the court's decision.  The Ohio constitution is mentioned five times in the court's 45-page opinion; Blakely 98.  Nobody would seriously argue that, had it not been for Blakely and Apprendi, the court would have done what it did in Foster based on the Ohio Constitution.  The one obvious advantage of Pfeifer's approach is that it avoids the effect of Ice and keeps Foster intact, and immunizes that from Federal review.

But it's not clear that the court wants to keep Foster.  Several justices, including Lanzinger, who wrote the Foster opinion, have bemoaned the havoc that decision wrought on the SB2 sentencing reforms.  There's not a lot of "saving face" at issue here, either; the court could easily overrule Foster by noting that it felt compelled to make the ruling it did by the US Supreme Court's decisions, and it was the latter Court's surprising turnaround in Ice that compels a different result now.  As Henry Kissinger used to say, that explanation would have the added advantage of being true:  few commentators anticipated that Ice would come down the way it did.

On the other hand, it's fairly clear that the defense argument that the effect of Ice is to completely nullify Foster, as if the latter decision had never happened, isn't going anywhere.  That would require everybody who'd gotten consecutive sentences since Foster was handed down to be resentenced. 

O'Donnell and Pfeifer posed the possibility of a prospective-only application of overruling Foster, with Pfeifer seeming to suggest a "pure" form of that:  the decision in Hodge would apply only to Hodge and to anyone sentenced after the decision's date.  A more likely outcome would be to limit the application of the sentence to future cases and those defendants who presently have appeals pending in which they raised the Ice issue.

But before Wednesday, I was pretty sure that Foster was a goner on the consecutive-sentencing aspect.  There aren't many ways to reconcile the result in Foster on that score with Ice.  But one comes away from the argument with the sense that the court might just decide that there have been too many train wrecks recently.

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