IN THE SUPREME COURT OF OHIOCase No. 04-1771

STATE OF OHIO, :

Plaintiff-Appellant :

-vs- :

JASON QUINONES, :

Defendant-Appellee :

BRIEF OF AMICUS CURIAEOHIO ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF APPELLEE JASON QUINONES

WILLIAM D. MASON (0037540)Cuyahoga County ProsecutorLISA WILLIAMSON (0041468)Assistant Licking County Prosecutor(Counsel of Record)Justice Center, 9th Floor1200 Ontario StreetCleveland, Ohio 44113(216) 443-7800(216) 698-2270COUNSEL FOR APPELANT,STATE OF OHIO

ATTORNEY GENERAL JIM PETRODIANE RICHARDS BREY Deputy Solicitor Office of the Attorney General of Ohio30 East Broad, 17th FloorColumbus, Ohio 43215COUNSEL FOR AMICUS CURIA, ATTORNEY GENERAL JIM PETRO

RON O’BRIEN (0017245)Franklin County Prosecuting AttorneySTEVEN L. TAYLOR (0043876)(Counsel of Record)

MICHAEL T. FISHER, ESQ. (0064039)55 Public Square, Suite 1010Cleveland, Ohio 44113(440) 617-1528COUNSEL FOR APPELLEE,JASON QUINONES

ROBERT L. TOBIK (0029286)Cuyahoga County Public DefenderJOHN T. MARTIN (0020606)Assistant Public Defender(Counsel of Record)1200 West Third StreetCleveland Ohio 44113216-443-7583 216-443-3632 faxJASON MACKE (0069870)400 South 5th StreetColumbus OH 43215614-464-0011COUNSEL FOR AMICUS CURIAECUYAHOGA COUNTY PUBLIC DEFENDER AND OHIO ASSOCIATIONOF CRIMINAL DEFENSE LAWYERS

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On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District

Court of Appeals Case No. 83720

Assistant Prosecuting AttorneySETH L. GILBERT (0072929)Assistant Prosecuting Attorney373 South High Street – 13th FloorColumbus OH 43215614-462-3555614-462-6103 faxsltaylor@franklincountyohio.govCOUNSEL FOR AMICUS CURIAE OHIO PROSECUTING ATTORNEYS ASSOCIATION

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TABLE OF CONTENTS

PAGES

TABLE OF AUTHORITIES..................................................................................................... III

INTERESTS OF AMICI CURIAE.............................................................................................. 1

STATEMENT OF THE CASE AND FACTS.............................................................................1

ARGUMENT.............................................................................................................................. 2

In Opposition to Proposition of Law I (as formulated by Plaintiff-Appellant State of Ohio):. 2

Blakely v. Washington (2004), 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403, Does Not Apply to the Imposition of Maximum or Consecutive Sentences in Ohio.

I. The Rule of Blakely v. Washington................................................................................... 3

II. The History Leading to Blakely v. Washington.................................................................5

III. Sentencing Guidelines in Ohio.........................................................................................7

A. The Preference for Community-Control Sanctions for Lower Level Felonies..............8

B. The Presumption of Prison for Higher Level Felonies.................................................8

C. The Presumption In Favor of the Minimum Term of Imprisonment............................9

D. The Presumption Against the Maximum Term of Imprisonment.................................9

E. The Presumption Against Consecutive Terms............................................................10

IV. Application of Blakely to Ohio’s Sentencing Guidelines................................................11

A. The Nature of the Findings Required by Ohio Law vis-à-vis the Nature of the Findings.................................................................................................................... 11

B. Prior Conviction........................................................................................................ 14

C. Reconciling McMillan v. Pennsylvania (1986), 477 U.S. 79, and Harris v. United (2002), 536 U.S. 545................................................................................................16

D. The Error of State v. Trubee (Feb. 14, 2005), 2005 Ohio 552....................................17

E. Application of Blakely to Multiple Terms of Imprisonment.......................................19

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F. Severing the Presumptions as a Solution to Blakely ...................................................20

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CONCLUSION.......................................................................................................................... 22

SERVICE.................................................................................................................................. 22

TABLE OF AUTHORITIES

CASES

Almendarez-Torres v. United States (1998), 523 U.S. 224-------------------------------------------14Apprendi v. New Jersey (2000), 530 U.S. 466----------------------------------------------------passimBlakely v. Washington (2004), 542 U.S. ____, 124 S.Ct. 2531---------------------------------passimBuchmand v. Wayne Trace Local School District (1995), 73 Ohio St.3d 260---------------------21Harris v. United States (2002), 536 U.S. 545----------------------------------------------------------17McMillan v. Pennsylvania (1986), 477 U.S. 79----------------------------------------------------16,17Ring v. Arizona (2002), 536 U.S. 584--------------------------------------------------------------3,4,13Shepard v. United States (2005), 125 S.Ct. 1254, 1262-63-------------------------------------------14State ex rel. Mason v. Griffin (2004), 104 Ohio St.3d 279----------------------------------------11,20State v. Anthony, 96 Ohio St.3d 173, 2002-Ohio-4008, 772 N.E.2d 1167--------------------------21State v. Comer (2003), 99 Ohio St.3d 463--------------------------------------------------------------10State v. Edmonson (1999), 86 Ohio St. 3d 324------------------------------------------------------9,15State v. Martin (1999), 136 Ohio App.3d 355---------------------------------------------------------18State v. Nobles (2004), Cuyahoga App. No. 84102, 2004-Ohio-6626--------------------------------8State v. Trubee (Feb. 14, 2005), Marion App. No. 9-03-65, 2005-Ohio-552-------------------17,18United States v. Booker (2005), 125 S.Ct. 738---------------------------------------------------5,19,21United States v. Shepard (2005), 544 U.S. ____, 125 S.Ct. 1254-----------------------------------12

STATUTES

R.C. 181.24--------------------------------------------------------------------------------------------------7R.C .2929.11------------------------------------------------------------------------------------------------7R.C. 2929.12-----------------------------------------------------------------------------------------------14R.C. 2929.13---------------------------------------------------------------------------------------------8,15R.C. 2929.14-------------------------------------------------------------------------------------9,10,12,15R.C. 2929.19-------------------------------------------------------------------------------------------10,19

CONSTITUTIONAL PROVISIONS

Sixth Amendment, of the United States Constitution--------------------------------------------passim

OTHER AUTHORITIES

A Plan of the Felony Sentencing in Ohio: A Formal Report of the Ohio Sentencing Commission......................................................................................................................... 7,8,20

Anderson, Ohio Criminal Sentencing Commission, Ohio Blakely and Booker Principles (April 11, 2005)...................................................................................................................................... 5

Blackstone’s Commentaries of the Laws of England (1769)......................................................5,6

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Diroll and Anderson, Ohio Criminal Sentencing Commission, Judicial Decision Making After Blakely (Sept. 28, 2004).......................................................................................................... 5,16

Diroll and Anderson, Ohio Criminal Sentencing Commission, Judicial Decision Making After Blakely and Booker (Feb. 16, 2005)............................................................................................. 5

Griffin-Katz, Ohio Felony Sentencing Law (2004 ed.), at 81....................................................8,9

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INTERESTS OF AMICI CURIAE

The Ohio Association of Criminal Defense Lawyers (OACDL), founded in 1986, is a

professional association with more than 500 members in the State of Ohio. OACDL is among

the largest professional organizations of criminal practitioners in the State. OACDL is an

advocate of progressive criminal laws and policies that are consistent with constitutional

principles, limited government intrusion into the lives of Americans, and a free society.

The Office of the Cuyahoga County Public Defender is legal counsel to more than one-

third of all indigent persons indicted for felonies in Cuyahoga County. As such the Office is the

largest single source of legal representation of criminal defendants in Ohio’s largest county.

The instant case is of great importance to the amici curiae as well as to the people of the

State of Ohio. This Court’s ruling on the issues presented will directly affect the sentences to be

imposed in tens of thousands of cases. The members of the OACDL and the attorneys in the

Cuyahoga County Public Defender’s Office have represented thousands of Ohioans who have

been or will be sentenced under Ohio’s post-1996 felony sentencing statutes, and both amici

curiae have a deep interest in the outcome of the instant case.

Throughout this brief, the phrase “your amici” will refer to the aforementioned entities.

STATEMENT OF THE CASE AND FACTS

Your amici defer to the Statement of the Case and Facts set forth in the merit brief of the

Defendant-Appellee and incorporate that statement herein as if set forth in full.

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ARGUMENT

In Opposition to Proposition of Law I (as formulated by Plaintiff-Appellant State of Ohio):

Blakely v. Washington (2004), 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403, Does Not Apply to the Imposition of Maximum or Consecutive Sentences in Ohio.

Summary

The principles enunciated in Blakely v. Washington (2004), 542 U.S. , 124 S.Ct.

2531, its ancestry, and its progeny, compel this Court to adopt the following proposition of law:

A trial judge may not impose a sentence any more severe than the sentence that can be imposed on the basis of the jury’s verdict standing alone. Any finding that is legally essential to impose a sentence more severe than that which could be imposed solely by virtue of the jury’s verdict must be a finding that, itself, was found by a jury beyond a reasonable doubt.

These principles are neither new nor surprising. They have been part of Anglo-American

jurisprudence from before the founding of this country and are at the core of the Sixth

Amendment’s right to trial by jury.

What causes Blakely to have caused such a seismic shift in the manner in which

sentences can be imposed in the United States is not the bedrock principle enunciated above.

Rather, the difficulties that have emerged are the result of a legislative innovation that has been

enacted, both federally and throughout various states, including Ohio, during the past twenty-

five years: the establishment of mandatory sentencing guidelines that require a judge to make

findings above and beyond the jury’s verdict in order to arrive at a sentence that exceeds the

more limited range of punishment permitted by the jury’s verdict alone.

Under Ohio felony sentencing statutes, the jury’s verdict, standing alone, simply

authorizes sentences of community controlled sanctions for felonies of the fourth and fifth

degree, and minimum term of imprisonment for felonies of the first, second and third degree.

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Those same guidelines only authorize the imposition of concurrent terms of imprisonment where

the jury has returned verdicts of guilty for more than one offense. In order to impose a sentence

beyond these limited ranges, additional findings must be made that are not part and parcel of the

jury’s verdict. It is this latter aspect of Ohio’s sentencing guidelines that violates the bedrock

principle enunciated above, and which, as Ohio sentencing is currently being practiced, violates

the Sixth Amendment to the United States Constitution.

I. The Rule of Blakely v. Washington

As a holding of the United States Supreme Court interpreting the Sixth Amendment, this

Court is obviously bound by Blakely. Accordingly, the starting point of any analysis must be to

identify the Blakely rule of law. Blakely followed and expanded upon the United States Supreme

Court’s recent decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, and Ring v. Arizona

(2002), 536 U.S. 584.

In Apprendi, the United States Supreme Court held that, in order to sentence a defendant

to a term of imprisonment in excess of the statutory maximum, the factual circumstances

justifying the enhanced sentence must be found by the jury to exist beyond a reasonable doubt.

Ring followed and held that “[i]f a State makes an increase in a defendant’s authorized

punishment contingent on the finding of a fact, that fact – no matter how the State labels it –

must be found by a jury beyond a reasonable doubt. Ring, 122 S.Ct. at 2439, citing Apprendi, at

482-83.1 1 In Ring, the United States Supreme Court reaffirmed its holding in Apprendi and recognized that a defendant could not receive the death penalty when the jury, despite finding the defendant guilty of felony murder, which under Arizona law could be a capital offense under certain circumstances, did not go on to find the individual factual circumstances that ultimately would justify the death-penalty. Ring, 122 S.Ct. at 2437-43, 153 L.Ed.2d at 569-77.

What is particularly pertinent to the instant case is that Ring was decided upon Sixth Amendment grounds – the Ring Court held that the right to trial by jury precluded a defendant

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Blakely clarified that, while Apprendi and Ring may have factually dealt with

punishments that exceeded the statutory maximum, the Sixth Amendment’s guarantee was

actually much greater and prohibited a judge from making any finding necessary for the

imposition of a particular sentence, unless that finding was reflected in the jury’s verdict:

In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” [citation omitted] and the judge exceeds his proper authority.

Blakely, 124 S.Ct. at 2537 (emphasis in original).

Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

Blakely, 124 S.Ct. at 2538 (emphasis in original).

Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.

Id., at n. 8 (emphasis in original).

from receiving any greater sentence than that justified by the factual findings of the jury. See, Ring,122 S.Ct. at 2444-45, 153 L.Ed.2d at 578-79, (Scalia, J., concurring); id., 122 S.Ct. at 2445, 153 L.Ed.2d at 579 (Kennedy, J., concurring) (“Apprendi is now the law, and its holding must be implemented in a principled way.”)

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II. The History Leading to Blakely v. Washington

Those who view Blakely, or even the “Apprendi-Blakely” line of cases,2 as a departure

from American jurisprudential history understandably seek to limit its impact. After all, if

Apprendi-Blakely is an aberration, or even the newest Supreme Court jurisprudential fad, then,

eventually, more reasoned minds will presumably return case law to the status quo ante and the

sentencing of criminal defendants will be able to pick up where it left off prior to the decision in

2000 in Apprendi. This is a possible explanation of why the Ohio Criminal Sentencing

Commission staff’s early examination of Blakely characterized the post-Blakely landscape as

consisting of a dichotomy between competing schools of thought: those that employed a “strict

reading” of Blakely, and those that employed a more limited “historical reading” of Blakely.

Diroll and Anderson, Ohio Criminal Sentencing Commission, Judicial Decision Making After

Blakely (Sept. 28, 2004) (hereinafter “Diroll Memorandum I”); see also, Diroll and Anderson,

Ohio Criminal Sentencing Commission, Judicial Decision Making After Blakely and Booker

(Feb. 16, 2005) (“Diroll Memorandum II”). It is also a possible explanation of why most of the

district courts of appeals throughout the State have held that Ohio’s sentencing guidelines are not

disturbed by Apprendi-Blakely. See, Anderson, Ohio Criminal Sentencing Commission, Ohio

Blakely and Booker Principles (April 11, 2005) (collecting cases).

Respectfully, those that view Apprendi-Blakely as the upstart are incorrect. Apprendi-

Blakely finds its roots in pre-Revolutionary Anglo jurisprudence. Thus, the Blakely majority

relies on Blackstone’s Commentaries of the Laws of England (1769). E.g., Blakely, 124 S.Ct., at

2 Throughout this brief, the term “Apprendi-Blakely” will be used as a shorthand for the line of cases that begins with Apprendi, progresses to Ring, is further developed in Blakely, and is, most recently, approved by United States v. Booker (2005), 125 S.Ct. 738.

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2543, quoting 4 Blackstone, Commentaries, at 343. Blakely referenced with approval Apprendi’s

more detailed historical review of the common-law roots of Apprendi-Blakely:

This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure § 87, p 55 (2d ed. 1872). These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476-483, 489-490, n 15, 147 L. Ed. 2d 435, 120 S. Ct. 2348; id., at 501-518, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Thomas, J., concurring), and need not repeat them here.

Blakely, 124 S.Ct., at 2536-37.

It is not necessary to expand at length upon the historical analysis provided in Apprendi,

particularly in the concurring opinion of Justice Thomas. This Court’s review of that analysis

will lead to the conclusion that Apprendi-Blakely is consistent with pre-Constitutional English

jurisprudence, and various state decisions of America’s ante-bellum period, and that the

foundations of the Apprendi-Blakely rule are so strong that any attempt to paint those cases as an

aberration defies history.

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III. Sentencing Guidelines in Ohio

Following the emergence of efforts by Congress3 and various state legislatures to achieve

more uniformity in sentencing, the General Assembly of Ohio passed Amended Substitute

Senate Bill 2 (hereinafter “S.B. 2”), which contained Ohio’s new mandatory sentencing

guidelines. The sentencing reforms of S.B. 2 were the result of reforms proposed to the General

Assembly by the Ohio Sentencing Commission in 1993. The 1990 enabling legislation which

created the Sentencing Commission included the mandate that any sentencing reforms “assure

proportionality, uniformity and other fairness in criminal sentencing.” R.C. 181.24(A).

For approximately three years, the Commission reviewed Ohio’s sentencing framework

and compared it with those of other jurisdictions. In July 1993, a sentencing reform package

entitled “A Plan for the Felony Sentencing in Ohio: A Formal Report of the Ohio Sentencing

Commission” (hereinafter “the Plan”) was presented to the General Assembly. The Plan, which

was largely enacted verbatim by the General Assembly, called for a sentencing system that

would be reasonably calculated to “protect the public from future crimes by the offender and

others and to punish the offender” through the imposition of sentences which “should be

commensurate with, and not demean, the seriousness of the offender’s conduct and its impact

upon the victim . . . [and] consistent with sentences for other offenders with similar

characteristics who have committed by similar crimes.” Plan, at 79-80; see also, R.C.

2929.11(A)-(B) (as enacted).

In determining how to set forth such a system, the Commission rejected the “matrix”

sentencing guidelines approaches of the United States Sentencing Commission, Minnesota,

3 See generally, Sentencing Reform Act of 1984, H.J. Res. 648, pp. 151-204. The Sentencing Reform Act was part of the federal Comprehensive Crime Control Act of 1984, H.J. Res. 648.

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Oregon and Pennsylvania. Plan, at 49. The Commission found that “[s]uch guidelines limit

judicial discretion in the interest of predictability,” giving rise to the criticism that judicial

discretion is replaced by “’software sentencing.’” Id, at 19. Although matrix systems “lend

greater predictability to sentencing,” they unacceptably “negate the expertise and discretion of

judges.” Id., at 49.

Having rejected a matrix system, the Commission was left with a key question: “How to

give judges discretion to be wise without giving discretion to be capricious? The answers: state

clear purposes, use sentencing presumptions to guide judges, and monitor sentences through

appellate review.” Id., at 19. Such presumptions would be rebuttable. Id., at 21.

There are five presumptions/preferences at the core of Ohio’s sentencing guidelines.

Although only two of them – relating to imprisonment for fourth and fifth degree felonies, and

imposition of consecutive terms of imprisonment – apply to the instant case, all five will be

examined herein.

A. The Preference for Community-Control Sanctions for Lower Level Felonies

Persons convicted of fourth and fifth degree felonies should normally receive community

control sanctions. R.C. 2929.13(B). Prison is only available if the trial court makes the

affirmative finding that the defendant is not amenable to community control sanctions. “[B]efore

imposing a prison sentence the court must conclude that the offender is not amenable to available

community control sanctions.” Griffin-Katz, Ohio Felony Sentencing Law (2004 ed.), at 81

(emphasis added; footnote omitted).4 Accord, State v. Nobles (2004), Cuyahoga App. No. 84102,

2004-Ohio-6626, at par. 15.

B. The Presumption of Prison for Higher Level Felonies

4 The portion of Griffin-Katz being quoted herein was written by Professor Lewis R. Katz. Throughout the treatise, the author of each chapter (i.e. Griffin or Katz) is identified.

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In contrast, persons convicted of first- and second-degree felonies (as well as some third-

degree felonies), are presumed to be sentenced to a term of imprisonment. Because the

presumption in favor of imprisonment does not require any judicial finding beyond the jury’s

verdict in order to sentence a first- or second-degree felon to prison, Blakely is not implicated.

C. The Presumption In Favor of the Minimum Term of Imprisonment

As a general rule, there is a presumption that offenders sentenced to prison who have not

previously been imprisoned will receive the minimum term of imprisonment. R.C. 2929.14(B).

State v. Edmonson (1999), 86 Ohio St. 3d 324. A sentencing court has the discretion to

overcome that presumption in the following circumstances:

(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.

(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender’s conduct or will not adequately protect the public from future crime by the offender or others.

R.C. 2929.14(B)(1)-(2).

The first of these circumstances relates specifically to the serving of “prison time.” It is

not triggered merely by conviction for a felony, nor is it triggered by forms of incarceration

other than prison, such as incarceration in a local jail. Edmonson.

D. The Presumption Against the Maximum Term of Imprisonment

As a general rule, there is a presumption that offenders will not receive the maximum

term of imprisonment. The maximum term is to be imposed:

only upon offenders who have committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under

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division (D)(3) [of R.C. 2929.14], and upon certain repeat violent offenders in accordance with division (D)(2) of this section.5

R.C. 2929.14(C).

E. The Presumption Against Consecutive Terms

As a general rule, consecutive terms of imprisonment should not be applied to multiple

offenses. R.C. 2929.14(E)(4). A sentencing court has the discretion, however, to impose

consecutive punishments if, and only if, it sets forth statutorily required findings and reasons

aligned in support thereof. R.C. 2929.19 (B)(1)(2)(c). See, State v. Comer (2003), 99 Ohio St.3d

463.6

With respect to the imposition of consecutive terms, R.C. 2929.14 (E)(4) states:

If multiple prison terms are imposed on an offender for convictions of multiple offense, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed the multiple offense while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17 or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.

5 Blakely’s application to repeat violent offenders and major drug offenders is not at issue in the instant case.

6 While this Court in Comer divided over the issue of how the reasons and findings must be set forth (i.e. at the sentencing hearing or via journal entry), the Court was unanimous in recognizing that findings must be made.

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(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

(Emphasis added).

IV. Application of Blakely to Ohio’s Sentencing Guidelines

The various presumptions and preferences discussed above share a common

characteristic. In each scenario, the only means to avoid imposing the presumptive/preferred

sentence is for the trial judge to make findings beyond the jury’s verdict. State ex rel. Mason v.

Griffin (2004), 104 Ohio St.3d 279 (Ohio law does not permit jury’s to make sentencing findings

in non-capital cases). This violates the basic tenet of Blakely. As applied to Mr. Quinones, the

trial court’s findings with respect to consecutive sentences are not contained within the jury’s

verdict. Accordingly, the sentence has been imposed in violation of Mr. Quinones’ Sixth

Amendment rights.

Several aspects of the Ohio sentencing guidelines are deserving of more particularized

analysis.

A. The Nature of the Findings Required by Ohio Law vis-à-vis the Nature of the Findings Required in Apprendi-Blakely.

Appellant and its amici argue that some of the findings required under Ohio’s sentencing

structure are “sentencing factors” and not “elements” and thus not the type of factual findings

contemplated in Blakely. (Brief of Appellant at 10) The Ohio Prosecuting Attorneys Association

argues that the statutory findings are, “at best, only findings that certain penological goals are

being considered.” Brief of Amicus Curiae Ohio Prosecuting Attorneys Association, at 8

(specifically referencing R.C. 2929.14(B)(2) findings).

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It is true that some of the findings necessary to overcome some of the presumptions are

not as factual as many of the determinations that juries normally make, but it should be noted at

the outset that this is not always the case. For example, the presumption in favor of a minimum

sentence can be overcome by finding that the defendant has already served a prison term. This is

certainly the type of objective issue that falls under the category of “fact.”7 Similarly, whether

the defendant committed the offense while awaiting trial or sentencing in another case, which is

one of the alternative findings that can contribute to justifying consecutive terms of

imprisonment, under R.C. 2929.14(E)(4)(a), is, once again, a “fact.”

That having been said, Appellant and its amici are correct that others of the statutory

findings set forth in the sentencing scheme are not as susceptible to a jury’s determination

because they require a comparative analysis of the characteristics of the offender and offense

conduct in the instant case with the characteristics of the offender and offense conduct in other

cases.

While this distinction exists, it ultimately makes no difference under Apprendi-Blakely.

The essence of Apprendi-Blakely lies not in determining what types of findings are being made,

as Appellant and its amici argue, but who is making those findings. And Apprendi-Blakely

makes it perfectly clear that the “who” must be a jury working under a standard of proof beyond

a reasonable doubt:

Petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had acted with "deliberate cruelty." The Framers would not have thought it too much to

7 As discussed in your amici’s merit brief, having served a prison term is not the same as having been previously convicted of a felony, and does not fall under the “prior conviction” exception of Apprendi-Blakely, particularly in light of United States v. Shepard (2005), 544 U.S. , 125 S.Ct. 1254.

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demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.

Blakely, 124 S.Ct. at 2543.

If this Court accepts the invitation of Appellant and its amici to focus on the type of

finding, as opposed to the type of factfinder (i.e. jury or judge), then it will ignore the

foundations of Apprendi-Blakely in the Sixth Amendment right to trial by jury. It was in this

spirit that Ring eschewed any distinction between “sentencing factors” and “elements” of the

offense.

Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an "element" or a "sentencing factor" is not determinative of the question "who decides," judge or jury.

Ring, at 604-05.

The argument of Appellant and its amici that application of Blakely to S.B. 2 is

inconsistent with the traditional role of judges in sentencing ignores the reality that it is S.B. 2

that has changed the playing field – Blakely is still applying traditional rules. Traditionally, and

in Ohio prior to S.B. 2, judges had broad discretion to impose sentences within statutory

parameters on the basis of the jury’ verdict alone. The trial judge needed to say nothing more in

order to impose a particular sentence. And, so long as the trial judge was exercising discretion in

a system that did not require specific findings, the trial judge was free to consider a myriad of

“sentencing factors” – because none of them was necessary to impose a particular sentence.

Everything the trial judge needed was contained in the jury’s verdict. In contrast, under S.B. 2,

judges are not free to impose any sentence desired in the sentencing range simply upon their own

evaluation of what sentence is appropriate. Rather, particular findings are made to overcome

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certain presumptive sentences.

This does not mean that judges can no longer consider factors relating to the individual

offense conduct and the individual offender’s characteristics when imposing sentence. Under

S.B. 2, a trial judge could, and should, continue to consider all of the various factors set forth in

R.C. 2929.12, and other relevant considerations. The judge can find that certain factors exist and

others do not, so long as the trial judge does not use those findings to go beyond where the jury’s

verdict, alone, permits.

For example, the R.C. 2929.12 aggravating factors about the defendant’s abuse of a

position of trust, may influence the decision to imprison for a third-degree felony where there is

no presumption either for or against imprisonment because, even without this finding, the judge

could have sentenced the defendant to imprisonment. But, when the trial judge makes a finding

to impose the maximum term of imprisonment because the trial judge finds that the presence of

one of the worst forms of the offense, then the trial judge goes too far – because the finding that

was necessary for imposition of the maximum term was not reflected in the jury’s verdict alone.

B. Prior convictions

Neither Blakely nor Apprendi extend its application to the fact of a prior conviction.

Blakely, 124 S.Ct. at 2536-38; Apprendi, 530 U.S. at 490.8 Nonetheless, the United States

Supreme Court recently made clear that consideration of a prior conviction that goes beyond the

mere consideration of a “prior judicial record” and delves into “a fact about a prior conviction,”

8 The continued viability of Almendarez-Torres v. United States (1998), 523 U.S. 224, is dubious in light of Apprendi-Blakely. See, Shepard v. United States (2005), 125 S.Ct. 1254, 1264 (Thomas, J., concurring) (noting that five justices of the current Court have opined that Almendarez-Torres is wrongly decided).

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raises a serious risk of unconstitutionality. Shepard v. United States (2005), 125 S.Ct. 1254,

1262-63.

Under Ohio’s sentencing guidelines, a prior conviction, without more, does not overcome

any of the presumptions/preferences for less severe sentences discussed above. The only

provisions that even arguably discuss prior convictions as helping or enabling a trial court to

overcome a presumption or preference are those relating to the preference for community control

sanctions for lower-level felonies, R.C. 2929.13(B)(1)(g), and the presumption in favor of

minimum terms of imprisonment, R.C. 2929.14(B)(1). In each case, however, the statutorily

enumerated operative fact is that “the offender was serving a prison term at the time of the

offense, or the offender previously had served a prison term.” R.C. 2929.14(B)(1); see also, R.C.

2929.13(B)(1)(g).

But whether an offender has actually been to prison requires a two-step analysis that goes

well beyond the fact of a prior conviction. First, the determination must be made as to what

sentence was imposed. Second, an entirely new factual determination must be made as to

whether the defendant actually reported to prison for the service of his sentence – as opposed to

remaining in a county jail because of other pending charges,9 being released on bond pending

appeal and never actually reporting to prison, or, for that matter, having escaped before ever

setting foot inside the prison.

Nor should it be surprising that the Sixth Amendment protects against a trial judge’s

unilateral determinations of matters relating to criminal history when those matters become

essential to the imposition of a sentence. Apprendi, 530 U.S. at 514-518 (Thomas, J.,

concurring) (collecting cases about criminal history and noting, at 518, “this traditional

9 This Court has recognized that “prison” was not the same as incarceration in a jail facility. Edmonson. at n. 1 and accompanying text.

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understanding – that a “crime” includes every fact that is by law a basis for imposing or

increasing punishment.”). Accordingly, even defendants with prior convictions are protected

under Apprendi-Blakely by the presumptions/preferences in Ohio’s sentencing guidelines.

C. Reconciling McMillan v. Pennsylvania (1986), 477 U.S. 79, and Harris v. United States (2002), 536 U.S. 545.

McMillan v. Pennsylvania (1986), 477 U.S. 79, has caused some to believe that Ohio’s

sentencing guidelines survive Apprendi-Blakely. See generally, Diroll Memorandum I, at 3-4.

McMillan upheld the constitutionality of a sentencing scheme that established a range of

punishment but then required the trial judge to impose a sentence that was greater than the

minimum sentence contained within that range on the basis of judicial findings alone. Some

maintain that this is precisely what Ohio has enacted – a system of sentencing ranges where (for

example) a trial judge is permitted to impose more than the minimum term of imprisonment

upon findings that are outside the jury’s verdict.

The problem with this argument is that, unlike the Pennsylvania scheme in McMillan,

where the trial judge could have given more than the minimum sentence without making any

findings, a trial judge in Ohio cannot impose more than the minimum term of imprisonment

unless the trial judge makes findings outside the jury’s verdict. This was the basis on which

Blakely distinguishes McMillan. Blakely, 124 S.Ct. at 2538. And this critical difference in what

a trial judge is permitted to do without making any additional findings is what causes Ohio’s

guidelines, like Washington’s in Blakely, to run afoul of the Sixth Amendment. Put a different

way, the trial judge in McMillan could have accepted the jury’s verdict and imposed the same

sentence without uttering another word. In contrast, the trial judge in the instant case could not

have imposed the sentence that was imposed without first having opened his mouth to make

findings and align those findings with reasons in support.

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Similarly, in Harris v. United States (2002), 536 U.S. 545, the trial court, based on the

jury’s verdict, was authorized to impose an additional term of imprisonment of at least five

years because the jury’s verdict found beyond a reasonable doubt that a firearm was involved in

the commission of the offense. Based on an additional finding as to how the firearm was

involved, a finding that was made by the trial judge alone, the trial judge was required to impose

this additional prison term for a period of at least seven years. However, there was nothing to

have stopped the trial judge from imposing a seven-year or more sentence without the additional

finding.

Thus, McMillan-Harris is compatible with Apprendi-Blakely, so long as one keeps in

mind the fundamental distinction between:

Mandatory minimum sentences that a trial judge must impose upon finding certain circumstances, but which the trial judge can also impose without making those findings (as in McMillan and Harris),

and

Sentences that can only be imposed upon finding the existence of certain circumstances (as in Apprendi-Blakely).

This distinction explains Justice Scalia’s concurrence in Harris and his authorship of the

majority opinion in Blakely. Blakely, 124 S.Ct. at 2538.

D. The Error of State v. Trubee (Feb. 14, 2005), 2005 Ohio 552.

Appellant and its amici rely on the Third Appellate District’s decision in State v. Trubee

(Feb. 14, 2005), Marion App. No. 9-03-65, 2005-Ohio-552. Trubee held that Ohio’s sentencing

guidelines are not unconstitutional. In arriving at this decision, Trubee engages in an analysis

that relies, albeit incorrectly, on much of the same precedent discussed herein.

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Trubee maintains that Ohio only establishes a range of punishment that is triggered by

the jury’s verdict alone, and that the presumptions discussed above “merely limit judicial

discretion in sentencing within that range.” Id., at par. 24. The problem with this statement is

that Trubee fails to realize that judicial discretion is not merely limited but foreclosed unless the

trial judge makes findings beyond the jury’s verdict. Put a different way, if the trial judge in the

instant case imposed the consecutive terms of imprisonment imposed upon Mr. Quinones, on the

basis of the jury’s verdict and without saying another word, the court of appeals would have

reversed the imposition of consecutive terms. Cf. State v. Martin (1999), 136 Ohio App.3d 355.

Relying on a majority footnote and a dissenting opinion, Trubee interprets Apprendi as

acquiescing in systems such as Ohio’s. Trubee, at par. 25. However, as discussed above,

Apprendi dealt with a situation where the actual sentence imposed exceeded the punishment

contained in the statute defining the offense; accordingly the “statutory maximum” in Apprendi

was that set forth by the New Jersey legislature. Blakely has since clarified that Apprendi’s

statutory maximum is not important when dealing with guidelines sentencing. Rather, the

operative “maximum” is the maximum that can be imposed when a judge remains silent and

adds nothing to the jury’s verdict:

When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” [citation omitted] and the judge exceeds his proper authority.

Blakely, 124 S.Ct. at 2537 (emphasis in original). While Trubee relies on Apprendi’s dicta,

Trubee cannot be reconciled with this holding in Blakely.

In addition, Trubee relies upon the “prior conviction exception” in imposing more than

the minimum term of imprisonment. Trubee, at par. 39. As discussed above, Ohio does not have

a “prior conviction” provision – only a prior “imprisonment” provision. See Part IVA, supra.

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E. Application of Blakely to Multiple Terms of Imprisonment

Appellant and its amici argue that Blakely does not apply to the imposition of

consecutive vis-à-vis concurrent terms of imprisonment. This is incorrect. In Ohio, there is but

one sentence imposed in a case. R.C. 2929.19(A)(1) (“The court shall hold a sentencing hearing

before imposing a sentence.” Emphasis added). That sentence may include, inter alia, multiple

terms of imprisonment, a term of post-release control, and a fine. The punishment for any

particular offense is part of the unitary sentence imposed. Ohio has decreed that terms of

imprisonment will run concurrently on the basis of the jury’s verdict alone, see supra. This ends

the inquiry under Blakely.

However, regardless of whether one views Mr. Quinones’ consecutive terms as one

sentence or multiple sentences, reality of his situation is that all of his prison time has to run

concurrently if the trial judge simply accepts the jury’s verdict alone and says nothing more.

Judicial factfinding above and beyond the jury’s verdict is essential for the imposition of

consecutive prison time under the statutory scheme. This violates Blakely.

It should be noted that Ohio is similar to the federal sentencing guidelines in that both

start from the proposition that concurrent terms of imprisonment will be imposed United States

Sentencing Guidelines, Section 5G1.2 (sentence will consist of concurrent terms unless

consecutive terms necessary to “produce a combined sentence equal to the total punishment”

prescribed by the federal sentencing guidelines). The Supreme Court’s complete silence about

the significance of multiple terms in its decision in Booker indicates a recognition by the Court

that guidelines relating to the imposition of multiple terms of imprisonment, like guidelines

relating to the imposition of a single term of imprisonment, are equally controlled by Blakely.

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F. Severing the Presumptions as a Solution to Blakely

Finally, your amici urge this Court to reject the remedy of excising the presumptions of

minimum and concurrent terms of imprisonment for higher-level felonies and the preference for

community control sanctions for lower level felonies, should this Court find Ohio’s sentencing

structure runs afoul of Apprendi-Blakely.

This Court has already resolved this issue in State ex rel. Mason v. Griffin (2004), 104

Ohio St.3d 279, 2004-Ohio-6384. There, a unanimous Court held that, if a judge were to find

that Ohio’s sentencing provisions violated Blakely, then a judge “should apply the pertinent

sentencing statutes without any enhancement provisions found to be unconstitutional.” Id. at

par. 17 (emphasis added). Principles of stare decisis dictate that this Court decline the invitation

of Appellant and its amici to reject so recent a precedent of a unanimous Court.

Moreover, this Court’s unanimous decision was correct. As discussed supra, the

presumptions and preference are integral to the consistency and proportionality in sentencing

that are at the heart of S.B. 2’s sentencing reforms. The Sentencing Commission contemplated

that Ohio’s sentencing would have three components: clear purposes, sentencing presumptions,

and appellate review. A Plan for the Felony Sentencing in Ohio: A Formal Report of the Ohio

Sentencing Commission” (hereinafter “the Plan”), at 19. Each component was deemed necessary

in order to “give judges discretion to be wise without giving discretion to be capricious[ ]” Id.

Removing the presumptions and preference not only takes one of the three legs of the

Plan away, it effectively removes a second leg because, without the presumptions and

preference, there can be no meaningful appellate review. Deference to the trial court will dictate

that any sentence within the statutory limits be “reasonable.” Lack of deference to the trial court

will result in “reasonableness” being the function of an appellate court’s judgment made without

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first-hand awareness of the trial and sentencing. Either way, consistency is lost.

To simply apply a “reasonableness” test will return Ohio to a system fraught with the

same type of sentencing inconsistencies that were present prior to S.B. 2 -- a system that the

General Assembly flatly and unambiguously altered in S.B. 2. Indeed, it will be worse because

there will be no Parole Board review to even out inconsistencies within the bounds of an

indeterminate sentence. The removal of the presumptions and preference will pervert S.B. 2, not

fix it. See, Buchman v. Wayne Trace Local School Dist. (1995), 73 Ohio St.3d 260, 652 N.E.2d

952, (a court should interpret a statute to avoid constitutional difficulties when such an

interpretation is "reasonably possible").

In contrast to Booker’s effort to remedy Blakely under a system that already permitted

trial judges to depart from the federal sentencing guidelines, Ohio's statutes cannot be construed

to permit exceptional sentences in the absence of the required findings because there are no

words in the Ohio Revised Code that give judges the authority to impose non-minimum,

maximum, or consecutive prison terms without the trial court making the required findings.

Where statutes are unambiguous, statutory interpretation begins and ends with the words the

legislature put on paper. State v. Anthony, 96 Ohio St.3d 173, 2002-Ohio-4008, 772 N.E.2d

1167, at ¶10 ("[w]here the meaning of the statute is clear and definite, it must be applied as

written.”).

Removing the presumption will be an exercise in judicial legislation in which this Court

should not engage. If a legislative remedy is required, the General Assembly is well equipped to

address the matter promptly and effectively.

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CONCLUSION

Wherefore, this Court should affirm the decision of the court of appeals.

Respectfully Submitted,

JOHN T. MARTIN, ESQ.Assistant Public Defender, Cuyahoga County

OhioCounsel for Amici Curiae

SERVICE

A copy of the foregoing Appellee's Amicus was mailed via U.S. Mail to the following:

A copy of the foregoing Appellee's Amicus was sent via U.S. Mail to

Lisa Williamson, Assistant County Prosecutor, Office of the Cuyahoga County ProsecutorJustice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113 Counsel for Appellant

Diane Richards Brey Deputy Solicitor Office of the Attorney General of Ohio30 East Broad, 17th FloorColumbus, Ohio 43215Counsel for Amicus Curiae, Attorney General Jim Petro

Steven L. TaylorAssistant Prosecuting AttorneyFranklin County Prosecutor’s Office373 South High Street, 13th FloorColumbus, Ohio 43215Counsel for Amicus Curiae, Ohio ProsecutingAttorneys Association

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Michael T. Fisher55 Public Square, Suite 1010Cleveland, Ohio 44113Counsel for Appellee

JOHN T. MARTIN, ESQ.Assistant Public Defender

Cuyahoga County OhioCounsel for Amici Curiae

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