State v. Rowe
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[Cite as State v. Rowe, 2010-Ohio-5082.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 10AP-150 v. : (C.P.C. No. 09CR-08-4796) Lewis R. Rowe, Jr., : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on October 19, 2010 Ron O'Brien, Prosecuting Farnbacher, for appellee. Attorney, and Barbara A. Stephen Dehnart, for appellant. APPEAL from the Franklin County Court of Common Pleas. BRYANT, J. {¶1} Defendant-appellant, Lewis R. Rowe, Jr., appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of one count of theft and two counts of retaliation. Defendant assigns a single error: In light of Oregon v. Ice, the trial court erred in failing to make the required findings under O.R.C. 2929.14(E)(4) to justify consecutive sentences. No. 10AP-150 2 Because the trial court was not required to make the findings specified in R.C. 2929.14(E)(4), we affirm. I. Facts and Procedural History {¶2} By indictment filed August 12, 2009, defendant was charged with (1) one count of theft in violation of R.C. 2913.02, a felony of the fourth degree, (2) one count of robbery in violation of R.C. 2911.02, a felony of the second degree, (3) one count of robbery in violation of R.C. 2911.02, a felony of the third degree, and (4) two counts of retaliation in violation of R.C. 2921.05, felonies of the third degree. Pursuant to jury trial, defendant was found guilty of theft and both counts of retaliation; the trial court declared a mistrial on the two robbery counts. Pursuant to the state's request, the trial court entered a nolle prosequi on those two counts. {¶3} In a sentencing hearing held on January 19, 2010, the trial court sentenced defendant to four years on each of the retaliation charges, ordering the sentences to be served consecutively. The trial court in addition sentenced defendant to 17 months on the theft charge to be served concurrently with the sentenced imposed for the two retaliation charges. II. Assignment of Error {¶4} Defendant's assignment of error contends the trial court erred in imposing consecutive sentences because the trial court did not make the findings of fact required under R.C. 2929.14(E)(4). {¶5} As enacted pursuant to S.B. 2 in 1996, R.C. 2929.14(E) directed trial courts to make specified findings of fact before imposing consecutive sentences. Due to United States Supreme Court decisions which called into question the constitutionality of No. 10AP-150 3 provisions like R.C. 2929.14(E), the Ohio Supreme Court considered the requirements of the statute in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See Blakely v. Washington (2004), 542 U.S. 296, 303, 124 S.Ct. 2531, 2537 (determining judicial fact finding which not only increased a defendant's sentence beyond the statutory maximum for the standard range of sentences but was not based on "the facts reflected in the jury verdict or admitted by the defendant" violated the defendant's Sixth Amendment right to trial by jury); see also Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348. {¶6} Foster found R.C. 2929.14(E) to be unconstitutional. Id. at paragraph three of the syllabus. It concluded R.C. 2929.14(E) violated the principles announced in Blakely because "the total punishment increase[d] through consecutive sentences only after judicial findings beyond those determined by a jury or stipulated to by a defendant." Id. at ¶67. The Supreme Court of Ohio accordingly severed R.C. 2929.14(E) and 2929.41(A). Id. at paragraph four of the syllabus. After Foster, Ohio trial courts could impose consecutive sentences without making any findings of fact. State v. Houston, 10th Dist. No. 06AP-662, 2007-Ohio-423, ¶3, appeal not allowed, 114 Ohio St.3d 1426, 2007-Ohio2904. {¶7} Defendant argues the United States Supreme Court's recent decision in Oregon v. Ice (2009), 129 S.Ct. 711 effectively overruled Foster. In Ice the court held, "in light of historical practice and the authority of the States over administration of their criminal justice systems, that the Sixth Amendment does not exclude" a state law requiring a judge to make certain factual findings before imposing consecutive instead of concurrent sentences. Id. at 714-15. Defendant argues Ice requires trial courts to comply 4 No. 10AP-150 with the findings under severed R.C. 2929.14(E). See Evans v. Hudson (2009), 575 F.3d 560, 566. {¶8} Defendant's contentions are unpersuasive. This court, acknowledging Ice, concluded that because the "Supreme Court of Ohio has not reconsidered Foster, * * * the case remains binding on this court." State v. Franklin, 182 Ohio App.3d 410, 2009Ohio-2664, ¶18. Indeed, this court has recognized on several occasions that we are bound to follow Foster until the Supreme Court of Ohio directs otherwise. State v. Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554, ¶33; State v. Russell, 10th Dist. No. 09AP-428, 2009-Ohio-6420, ¶16; State v. Crosky, 10th Dist. No. 09AP-57, 2009-Ohio4216, ¶8; State v. Potter, 10th Dist. No. 09AP-580, 2010-Ohio-372, ¶8. III. Disposition {¶9} For the reasons set forth above, the trial court did not err in failing to make the findings specified in R.C. 2929.14(E). Accordingly, we overrule defendant's single assignment of error and affirm the judgment of the trial court. Judgment affirmed. KLATT and McGRATH, JJ., concur. _______________
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