MDO and RVO specs
I know it says in the "About" tab that caveat emptor applies here, and that there's no guarantee that anything I say is right. Still, the tagline reads, "Commentary and analysis of Ohio law," not "My wild-assed guesses about what the law means." For what it's worth, I do place a good bit of importance on my credibility here, and I usually take what I believe are the appropriate steps to make sure that whatever I post here is correct.
So I got somewhat bummed when I did the Case Update over the weekend and came across this case, a 6th District decision dealing with a major drug offender. As you may remember, repeat violent offenders and major drug offenders were given special treatment by Ohio law: if the jury returned a verdict including that specification, a mandatory ten-year sentence was imposed, and the court could add an additional one to ten years if it made certain other findings. In the 6th District case, the defendant had pled out to the MDO spec, and judge had given him the ten-year mandatory and tossed two years on top of that for good measure. The appellate court found that was permissible.
So what's the problem? Well, back in December I'd written a post claiming that the additional one-to-ten year sentences for MDO and RVO specs were unconstitutional. I thought the 6th District had gotten it wrong, but they referred to the Supreme Court's decision in State v. Foster last year, and quoted language which seemed to support their view. (As if life isn't complicated enough, the 6th District decision is also State v. Foster, albeit involving a different defendant.) Specifically, the Supreme Court had found that the additional 1-10 year sentence required "judicial factfinding," as did the provisions requiring findings for more-than-minimum, consecutive, or maximum sentences. This was a no-no after the US Supreme Court's decision in Blakely v. Washington, but the Ohio Seven determined that the statute could be saved if the offending portions were severed, and, as the 6th District noted last week, quoting Foster, "After the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender and major-drug-offender specifications." So, I guess I was wrong.
Or not. Because a few months after Foster, the Supreme Court decided State v. Chandler, in which it had this to say about the MDO spec:
As the statute now stands, a major drug offender still faces the mandatory maximum ten-year sentence that the judge must impose and may not reduce. Only the add-on that had required judicial fact-finding has been severed. [My emphasis.]
So what exactly did the Supreme Court do? Did it sever the entire add-on sentence provision, or just the part of that provision which required judicial fact-finding? The Court in Chandler said, "We severed R.C. 2929.14(D)(3)(b) to remedy the constitutional violation," and that section provided:
(b) The court imposing a prison term on an offender under division (D)(3)(a) of this section may impose an additional prison term of one, two, three, four, five, six, seven, eight, nine, or ten years, if the court, with respect to the term imposed under division (D)(3)(a) of this section and, if applicable, divisions (D)(1) and (2) of this section, makes both of the findings set forth in divisions (D)(2)(b)(i) and (ii) of this section.
In short, the entire section allowing the additional prison term was severed. This is logical: the main issue of severability is whether the statute still makes sense after the offending portions have been removed, and it's hard to see how that happens when you have a statute that says, "The judge can give you 1-10 years if it finds X, Y, and Z," and you take out the part about finding X, Y, and Z.
So which is correct? While Chandler's view is the logical one, it's dicta. What's worse, as I also pointed out in December, there's now a new RVO and MDO statute: last August, they were amended to provide virtually the identical judicial fact-finding that had been declared unconsitutional in Foster.
I also did some more checking, and there haven't been any cases which have attempted to reconcile the language in Foster and Chandler. It's somewhat doubtful that the 6th District even considered the latter case; appellate counsel had filed an Anders brief seeking to withdraw, and it appears that the defendant's pro se brief is all the court had to consider.
Bottom line? I think I was right in saying that the add-ons for MDO and RVO specs are out the window. If you've got a case involving them, press the issue. Eventually, this is one the Supreme Court will have to clear up.
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