State v. Thompson
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[Cite as State v. Thompson, 2010-Ohio-5154.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : No. 10AP-86 Plaintiff-Appellee, : v. and No. 10AP-91 : Kadeem M. Thompson, (C.P.C. No. 09CR03-1471) : (C.P.C. No. 09CR01-104) (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on October 21, 2010 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant. APPEAL from the Franklin County Court of Common Pleas HENDRICKSON, J. {¶1} Defendant-appellant, Kadeem M. Thompson, appeals from two separate judgments of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to negotiated guilty pleas entered by appellant. At sentencing, the trial court ordered that the jail terms imposed in the respective cases would be served consecutively. {¶2} Appellant brings the following assignment of error on appeal: The trial court erred by imposing consecutive sentences without making statutorily required findings in accordance with R.C. 2929.14(E)(4). Nos. 10AP-86 and 10AP-91 {¶3} 2 The sole issue raised by appellant is that the trial court erred by ordering consecutive sentences in the two cases without making the necessary findings once required by R.C. 2929.14(E)(4) to overcome the presumption set forth in R.C. 2929.41(A) favoring concurrent sentences. {¶4} Appellant concedes that, under the Supreme Court of Ohio's holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the requirement of judicial fact-finding pursuant to R.C. 2929.14(E)(4) was declared unconstitutional and that portion of the sentencing statute was severed and struck down. {¶5} Appellant now argues that the United States Supreme Court decision in Oregon v. Ice (2009), ___ U.S. ___, 129 S.Ct. 711, nullifies the pertinent holding in Foster and revives the statutory requirement of judicial fact-finding before imposition of consecutive criminal sentences. Appellant also argues that the Ohio legislature has from time to time "re-enacted" R.C. 2929.14(E)(4) by restating the language of that section when making amendments to other subsections of R.C. 2929.14. {¶6} This court has uniformly rejected both these lines of argument. See, e.g., State v. Johnson, 10th Dist. No. 09AP-1065, 2010-Ohio-3381, and State v. Busby, 10th Dist. No. 09AP-1119, 2010-Ohio-4516. Until the Supreme Court of Ohio considers and rules upon the impact of Ice on the holding in Foster, we remain bound by Foster. {¶7} Appellant's assignment of error is accordingly overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BROWN and FRENCH, JJ., concur. HENDRICKSON, J., of the Twelfth Appellate District, sitting by assignment in the Tenth Appellate District.
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