[Cite as State v. Oller,
2017-Ohio-7575.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-429
v. : (C.P.C. No. 15CR-1953)
Timothy M. Oller, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 12, 2017
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik
P. Henry for appellant.
ON MOTION FOR RECONSIDERATION
BRUNNER, J.
{¶ 1} On March 7, 2017, this court issued a decision in State v. Oller, 10th Dist. No.
16AP-429, 2017-Ohio-814, holding that the Franklin County Court of Common Pleas erred
in sentencing defendant-appellant, Timothy M. Oller, when the trial court substituted its
own findings on provocation for the findings of the jury. In addressing that issue, we noted
that:
R.C. 2929.14(B)(2)(e) [] require[s] that a trial court state the
findings justifying the sentence imposed on a person pursuant
to a repeat-violent-offender specification under R.C.
2929.14(B)(2)(a) and (b). In addition, R.C. 2953.08(G)(1)
requires the trial court to "state the findings of the trier of fact
required by division (B)(2)(e) of section 2929.14 of the Revised
Code, relative to the imposition or modification of the sentence,
and if the sentencing court failed to state the required findings
on the record, the court hearing an appeal … shall remand
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No. 16AP-429
the case to the sentencing court and instruct the sentencing
court to state, on the record, the required findings."
Oller at ¶ 42. To properly remedy error with Oller's sentence, we instructed the trial court
that "if it imposes an additional period of imprisonment based on the repeat-violentoffender specification, it must 'state the findings of the trier of fact required by division
(B)(2)(e) of section 2929.14 of the Revised Code, relative to the imposition or modification
of the sentence.' R.C. 2953.08(G)(1); 2929.14(B)(2)(e)."
Oller at ¶ 70; see also id. at ¶ 53.
{¶ 2} Plaintiff-appellee, State of Ohio, now seeks reconsideration on the limited
issue that this requirement was struck down by the Supreme Court of Ohio in State v.
Foster, 109 Ohio St.3d 1,
2006-Ohio-856, and was never revived by any subsequent act of
the legislature. (Mar. 10, 2017 State's Mot. to Recons.) This has been an area lacking clarity
as applied in past cases. Compare State v. Fillmore, 10th Dist. No. 15AP-509, 2015-Ohio-
5280, ¶ 7, and State v. Clinton, 10th Dist. No. 13AP-751,
2014-Ohio-5099, ¶ 37, 39 (no need
for fact-finding before a repeat-violent-offender specification may be imposed because
statutory language was stricken by Foster and never reenacted), with
Oller at ¶ 42, 53, 70,
and State v. Goins, 10th Dist. No. 14AP-747,
2015-Ohio-3121, ¶ 41-50 (applying the statutes
as written to require the court to make findings in order to impose a repeat-violent-offender
specification). We take this opportunity to directly address the issue with assistance from
the parties briefing it.
{¶ 3} Before Foster (decided February 27, 2006), the Ohio Revised Code instructed
sentencing courts for repeat violent offenders as follows:
(2) …
(b) If the court imposing a prison term on a repeat violent
offender imposes the longest prison term from the
range of terms authorized for the offense under
division (A) of this section, the court may impose on
the offender an additional definite prison term of one,
two, three, four, five, six, seven, eight, nine, or ten
years if the court finds that both of the following apply
with respect to the prison terms imposed on the
offender pursuant to division (D)(2)(a) of this section
and, if applicable, divisions (D)(1) and (3) of this
section:
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No. 16AP-429
(i) The terms so imposed are inadequate to punish
the offender and protect the public from future
crime, because the applicable factors under
section 2929.12 of the Revised Code indicating a
greater likelihood of recidivism outweigh the
applicable factors under that section indicating a
lesser likelihood of recidivism.
(ii) The terms so imposed are demeaning to the
seriousness of the offense, because one or more of
the factors under section 2929.12 of the Revised
Code indicating that the offender's conduct is
more serious than conduct normally constituting
the offense are present, and they outweigh the
applicable factors under that section indicating
that the offender's conduct is less serious than
conduct normally constituting the offense.
See R.C. 2929.14(D)(2)(b) (2005); 2005 Am.Sub.H.B. No. 473.1
{¶ 4} In Foster, the Supreme Court held that "[b]ecause the specifications
contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial fact-finding before
repeat-violent-offender and major-drug-offender penalty enhancements are imposed, they
are unconstitutional." Foster at paragraph five of the syllabus; see also id. at ¶ 71-78. The
Foster court severed these apparently unconstitutional divisions. Id. at ¶ 99.
{¶ 5} Several months after Foster was issued, effective in August 2006, the Ohio
General Assembly repealed the version of R.C. 2929.14 at issue in Foster:
SECTION 2. That existing sections 2152.17, 2901.08, 2903.11,
2907.01, 2907.03, 2907.05, 2919.26, 2929.01, 2929.13,
2929.14, 2941.149, 2953.08, and 3113.31 of the Revised Code
are hereby repealed.
(Emphasis added.) 2006 Am.Sub.H.B. No. 95, SECTION 2.2
{¶ 6} In its place, the General Assembly enacted a new version of R.C. 2929.14. But
before that law (H.B. No. 95) had taken effect, the General Assembly again repealed R.C.
2929.14 and modified the version of R.C. 2929.14 that was to have become law under H.B.
No. 95. 2006 Am.Sub.H.B. No. 137, SECTION 2-3.3 Both H.B. No. 95 and the subsequent
1 Reported electronically at 2003 Ohio H.B. No. 473.
2 Reported electronically at 2005 Ohio H.B. No. 95.
3 Reported electronically at 2005 Ohio H.B. No. 137.
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No. 16AP-429
H.B. No. 137 (effective August 3, 2006), included the following new instructions for
sentencing repeat violent offenders:
(2)
(a) If division (D)(2)(b) of this section does not apply, the
court may impose on an offender, in addition to the
longest prison term authorized or required for the
offense, an additional definite prison term of one, two,
three, four, five, six, seven, eight, nine, or ten years if
all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a
specification of the type described in section
2941.149 of the Revised Code that the offender is
a repeat violent offender.
(ii) The offense of which the offender currently is
convicted or to which the offender currently
pleads guilty is aggravated murder and the court
does not impose a sentence of death or life
imprisonment without parole, murder, terrorism
and the court does not impose a sentence of life
imprisonment without parole, any felony of the
first degree that is an offense of violence and the
court does not impose a sentence of life
imprisonment without parole, or any felony of the
second degree that is an offense of violence and
the trier of fact finds that the offense involved an
attempt to cause or a threat to cause serious
physical harm to a person or resulted in serious
physical harm to a person.
(iii) The court imposes the longest prison term for the
offense that is not life imprisonment without
parole.
(iv) The court finds that the prison terms imposed
pursuant to division (D)(2)(a)(iii) of this section
and, if applicable, division (D)(1) or (3) of this
section are inadequate to punish the offender and
protect the public from future crime, because the
applicable factors under section 2929.12 of the
Revised Code indicating a greater likelihood of
recidivism outweigh the applicable factors under
that section indicating a lesser likelihood of
recidivism.
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No. 16AP-429
(v) The court finds that the prison terms imposed
pursuant to division (D)(2)(a)(iii) of this section
and, if applicable, division (D)(1) or (3) of this
section are demeaning to the seriousness of the
offense, because one or more of the factors under
section 2929.12 of the Revised Code indicating
that the offender's conduct is more serious than
conduct normally constituting the offense are
present, and they outweigh the applicable factors
under that section indicating that the offender's
conduct is less serious than conduct normally
constituting the offense.
(b) The court shall impose on an offender the longest
prison term authorized or required for the offense and
shall impose on the offender an additional definite
prison term of one, two, three, four, five, six, seven,
eight, nine, or ten years if all of the following criteria
are met:
(i) The offender is convicted of or pleads guilty to a
specification of the type described in section
2941.149 of the Revised Code that the offender is
a repeat violent offender.
(ii) The offender within the preceding twenty years
has been convicted of or pleaded guilty to three or
more offenses described in division (DD)(1) of
section 2929.01 of the Revised Code, including all
offenses described in that division of which the
offender is convicted or to which the offender
pleads guilty in the current prosecution and all
offenses described in that division of which the
offender previously has been convicted or to
which the offender previously pleaded guilty,
whether prosecuted together or separately.
(iii) The offense or offenses of which the offender
currently is convicted or to which the offender
currently pleads guilty is aggravated murder and
the court does not impose a sentence of death or
life imprisonment without parole, murder,
terrorism and the court does not impose a
sentence of life imprisonment without parole, any
felony of the first degree that is an offense of
violence and the court does not impose a sentence
of life imprisonment without parole, or any felony
of the second degree that is an offense of violence
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No. 16AP-429
and the trier of fact finds that the offense involved
an attempt to cause or a threat to cause serious
physical harm to a person or resulted in serious
physical harm to a person.
(c) For purposes of division (D)(2)(b) of this section, two
or more offenses committed at the same time or as
part of the same act or event shall be considered one
offense, and that one offense shall be the offense with
the greatest penalty.
(d) A sentence imposed under division (D)(2)(a) or (b) of
this section shall not be reduced pursuant to section
2929.20 or section 2967.193, or any other provision of
Chapter 2967. or Chapter 5120. of the Revised Code.
The offender shall serve an additional prison term
imposed under this section consecutively to and prior
to the prison term imposed for the underlying offense.
(e) When imposing a sentence pursuant to division
(D)(2)(a) or (b) of this section, the court shall state its
findings explaining the imposed sentence.
2006 Am.Sub.H.B. No. 95, SECTION 1; 2006 Am.Sub.H.B. No. 137, SECTION 2-3.
{¶ 7} Later, in 2011, the General Assembly again repealed R.C. 2929.14 and
reenacted the same language quoted above with three relatively inconsequential
differences: the language was moved from division (D) to division (B) of R.C. 2929.14;
references to divisions were changed to take account of organizational changes; and a
reference in division (B)(2)(d) to R.C. 2967.19 was included to account for the petition for
early release process. 2011 Am.Sub.H.B. No. 86, SECTION 1-2.4 This portion of the statute
has not changed since. Compare 2006 Am.Sub.H.B. No. 95, SECTION 1 and 2006
Am.Sub.H.B. No. 137, SECTION 2-3 with R.C. 2929.14(B)(2)(a) through (e).
{¶ 8} The State argues, and we agree, that preexisting language declared
unconstitutional by the Supreme Court, yet survives its codified section's subsequent
legislative amendment, is not tantamount to an intent by the legislature to reenact the
language notwithstanding its declared unconstitutionality. State v. Hodge, 128 Ohio St.3d
1,
2010-Ohio-6320, ¶ 27, fn. 7; see also R.C. 1.54 ("A statute which is reenacted or amended
is intended to be a continuation of the prior statute and not a new enactment, so far as it is
4 Reported electronically at 2011 Ohio H.B. No. 86.
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No. 16AP-429
the same as the prior statute."); Stevens v. Ackman, 91 Ohio St.3d 182, 193-95 (2001)
(explaining that portions of statutory text which are not altered by a repeal and amended
reenactment are considered continuations of the predecessor statute). In that context, we
note that current R.C. 2929.14(B) carries forward, essentially unchanged, the two required
findings that Foster found to be unconstitutional (findings on recidivism and whether the
sentence demeans the offense). Compare R.C. 2929.14(D)(2)(b)(i) and (ii) (2005) with R.C.
2929.14(B)(2)(a)(iv) and (v). We also recognize that the legislature was more explicit in
reenacting without relevant textual changes in amending R.C. 2929.14(E)(4) as R.C.
2929.14(C)(4) than it was with similar actions concerning R.C. 2929.14(D). That is, in the
case of R.C. 2929.14(C)(4), the legislature included a specific comment noting that it was
deliberately reviving language previously found unconstitutional. 2011 Am.Sub.H.B. No.
86, SECTION 11. No such language was included in the reenactment of R.C. 2929.14(D).
Accordingly, we conclude that the current statutory language, to the limited extent that it
includes the findings set forth in R.C. 2929.14(B)(2)(a)(iv) and (v) which were previously
contained in former R.C. 2929.14(D)(2)(b)(i) and (ii), was found unconstitutional by Foster
and was never explicitly reenacted. As a consequence, a trial court must make all the
findings required by R.C. 2929.14(B)(2) except those contained in divisions (B)(2)(a)(iv)
and (v).
{¶ 9} But the effect of the Supreme Court's holding in Foster was diluted
significantly by the United States Supreme Court's subsequent decision in Oregon v. Ice, in
which the high court held that it is in the historical and constitutionally permissible
province of the trial court to impose consecutive sentences and make limited fact-finding
about the defendant's circumstances relevant to that action. Oregon v. Ice, 555 U.S. 160,
168-72 (2009). Then, after Oregon v. Ice, the Supreme Court of Ohio in State v. Hunter
stated that "[w]hen designating an offender as a 'repeat violent offender' … , a trial court
does not violate the Sixth Amendment by considering relevant information about the
offender's prior conviction that is part of the judicial record." State v. Hunter,
123 Ohio
St.3d 164,
2009-Ohio-4147, paragraph two of the syllabus. Taken together, these decisions
suggest that it is constitutionally permissible for a trial judge, rather than a jury, to consider
an offender's offense, his or her prior record, and the factual circumstances necessary for
sentencing consecutively which may support inferences concerning the seriousness of the
offender's conduct and the danger the offender poses to the public. Compare R.C.
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No. 16AP-429
2929.14(C)(4) with R.C. 2929.14(B)(2)(a)(iv) and (v). To our view, it does not appear that
the requirements of current R.C. 2929.14(B)(2)(a)(iv) and (v) compel a sentencing court to
step beyond the permissible historical role of the sentencing court as recognized in Ice and
Hunter. Thus, if the Ohio General Assembly were to specify an intent to do so, such
divisions could be purposefully reenacted.
{¶ 10} Accordingly, we grant the State's motion for reconsideration to the extent of
and for the reasons expressed in this decision. We therefore modify our instruction to the
trial court. See Oller at ¶ 42, 53, 70. The trial court is hereby instructed to "state the findings
of the trier of fact required by division (B)(2)(e) of section 2929.14 of the Revised Code,
relative to the imposition or modification of the sentence" except it is not required to set
forth those findings required by R.C. 2929.14(B)(2)(a)(iv) and (v). See R.C. 2953.08(G)(1);
2929.14(B)(2)(e).
Motion granted
with instructions.
TYACK, P.J., and KLATT, J., concur.
