[Cite as State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320.]
THE STATE OF OHIO, APPELLEE, v. HODGE, APPELLANT.
[Cite as State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320.]
Constitutional law — Ohio’s former consecutive-sentencing provisions, R.C.
2929.14(E)(4) and 2929.41(A), have not been revived by Oregon v. Ice —
Criminal law — Sentencing — Trial court judges are not precluded from
engaging in judicial fact-finding prior to imposing consecutive sentences
— Trial court judges are not obligated to engage in judicial fact-finding
prior to imposing consecutive sentences.
(No. 2009-1997 — Submitted September 15, 2010 — Decided
December 29, 2010.)
APPEAL from the Court of Appeals for Hamilton County, No. C-080968.
__________________
SYLLABUS OF THE COURT
1. The jury-trial guarantee of the Sixth Amendment to the United States
Constitution does not preclude states from requiring trial court judges to
engage in judicial fact-finding prior to imposing consecutive sentences.
(Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517,
construed.)
2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S.
160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio’s former
consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
3. Trial court judges are not obligated to engage in judicial fact-finding prior to
imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.
SUPREME COURT OF OHIO
__________________
CUPP, J.
{¶ 1} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, this court held some sections and provisions of Ohio’s sentencing statutes
unconstitutional based on the decisions of the United States Supreme Court in
Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403,
and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435.
{¶ 2} Among the provisions held unconstitutional in Foster were those
requiring a trial judge to make certain findings prior to imposing consecutive
sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C.
2929.41(A). To remedy this constitutional defect, these provisions were severed
from the remaining, valid portions of the statutory sentencing framework. After
the decision in Foster, trial judges who imposed consecutive sentences did not
need to apply the provisions severed by Foster but instead were to apply the law
that was displaced by the enactment of the severed provisions. The trial court in
this case, as allowed by our decision in Foster, imposed consecutive sentences
without making factual findings under R.C. 2929.14(E)(4) or presuming that
sentences were to run concurrently under R.C. 2929.41(A).
{¶ 3} Subsequent to Foster, the United States Supreme Court, in Oregon
v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, upheld the
constitutional validity of an Oregon statute similar to Ohio’s pre-Foster
sentencing statutes that requires Oregon’s trial judges to make factual findings
prior to imposing consecutive sentences.
{¶ 4} The defendant in the case now before us asks us to hold that
Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to
consecutive sentences that were held unconstitutional in Foster. He also argues
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January Term, 2010
that certain defendants who were sentenced to consecutive terms after Foster
must be resentenced pursuant to the provisions that were invalidated in Foster.
{¶ 5} For the reasons that follow, we determine in the circumstances
present here that Ice does not revive the disputed statutory provisions and that
defendants who were sentenced by trial judges who did not apply those provisions
are not entitled to resentencing. We accordingly affirm the judgment of the court
of appeals.
{¶ 6} Although we affirm the judgment below, we acknowledge that
given the holding and reasoning of the United States Supreme Court in Ice, the
General Assembly is no longer constrained by Foster’s holdings regarding the
constitutionality of the consecutive-sentencing provisions invalidated in Foster
and may, if it chooses to do so, respond with enactment of a statutory provision in
light of Ice’s holding.
I. Facts and Procedural History
{¶ 7} Defendant-appellant, Kenneth Hodge, pleaded guilty in Hamilton
County Common Pleas Court to nine felonies with firearm specifications. In an
entry on September 18, 2008, the trial court merged several counts and imposed
an aggregate prison sentence of 18 years—three years for each of five counts of
aggravated robbery and three additional years for accompanying firearm
specifications. The three-year sentences for the multiple firearm specifications
were imposed concurrently with each other and consecutively to the aggravated-
robbery sentences.1 In imposing consecutive sentences on the aggravated-robbery
counts, the trial court did not make the findings required by R.C. 2929.14(E)(4)
and 2929.41(A) in reliance on this court’s holding in Foster that those statutes
were unconstitutional.
1. Pursuant to R.C. 2929.14(E)(1), the trial court was required to run the sentence for the firearm
specifications consecutively to the sentences for the other offenses. Thus, the consecutive
sentence on the firearm specifications is not at issue in this case.
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SUPREME COURT OF OHIO
{¶ 8} On appeal, Hodge argued in his sole assignment of error that the
trial court erred by imposing consecutive sentences without making findings
under R.C. 2929.14(E)(4) and 2929.41(A), asserting that Foster’s holding that
those statutes were unconstitutional is no longer valid in light of Oregon v. Ice.
He asserted that the statutes are, therefore, revived because they have never been
specifically repealed by the General Assembly. In rejecting this argument, the
First District Court of Appeals cited several decisions of other appellate districts
that refused to accept the same argument2 and briefly stated that it agreed with the
reasoning of those decisions: “We remain bound by the Ohio Supreme Court’s
decision in Foster. The Ohio Supreme Court has not directly addressed the effect
of Oregon v. Ice on Ohio’s sentencing law. Absent a contrary decision by the
Ohio Supreme Court, Foster still applies to consecutive sentences. The trial court
did not err when it imposed consecutive sentences without making findings of
fact.” State v. Hodge (Sept. 16, 2009), 1st Dist. No. C-080968.
{¶ 9} We accepted Hodge’s appeal under our discretionary jurisdiction
for the purpose of reviewing the question whether, as a consequence of the
decision in Ice, Ohio trial courts imposing consecutive sentences must first make
the findings specified in R.C. 2929.14(E)(4) in order to overcome the presumption
for concurrent sentences of R.C. 2929.41(A). 124 Ohio St.3d 1472, 2010-Ohio-
354, 921 N.E.2d 245.
II. Analysis
{¶ 10} In Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this
court applied the principles developed in Blakely, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403, and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435,
to determine that a number of provisions in Ohio’s sentencing statutes violated the
2. See State v. Miller, 6th Dist. No. L-08-1314, 2009-Ohio-3908; State v. Robinson, 8th Dist. No.
92050, 2009-Ohio-3379; State v. Mickens, 10th Dist. Nos. 08AP-743, 08AP-744, and 08AP-745,
2009-Ohio-2554; State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815.
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January Term, 2010
jury-trial guarantee of the Sixth Amendment to the United States Constitution.
Particularly relevant to this case, we held in Foster at paragraph three of the
syllabus: “Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of
facts not proven to a jury beyond a reasonable doubt or admitted by the defendant
before the imposition of consecutive sentences, they are unconstitutional.”
{¶ 11} Upon holding the consecutive-sentencing provisions
unconstitutional, we applied United States v. Booker (2005), 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621, to hold that the statutes were severable from the Ohio
sentencing framework, so that “[a]fter the severance, judicial fact-finding is not
required before imposition of consecutive prison terms.” Foster at paragraph four
of the syllabus. We further held that “[t]rial courts have full discretion to impose
a prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than
the minimum sentences.” Id. at paragraph seven of the syllabus. We determined
that three of the four cases on appeal addressed within the Foster opinion and
other cases that were identified in Foster as pending on direct review had to be
“remanded to trial courts for new sentencing hearings” because Sixth Amendment
principles “as they have been articulated” had to be protected. Id. at ¶ 104.
{¶ 12} In State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887
N.E.2d 328, ¶ 18, we recognized that Foster severed and excised former R.C.
2924.14(E) and former R.C. 2929.41(A) in their entirety, and we observed that
this action left no specific statute in place to govern the imposition of consecutive
sentences beyond the basic statutes regarding the “purposes and principles of
sentencing.” We held that common-law sentencing presumptions were therefore
reinstated, giving trial judges “the discretion and inherent authority to determine
whether a prison sentence within the statutory range shall run consecutively or
concurrently.” Id. at ¶ 18-19.
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SUPREME COURT OF OHIO
{¶ 13} We reaffirmed Foster and Bates in State v. Elmore, 122 Ohio St.3d
472, 2009-Ohio-3478, 912 N.E.2d 582, holding that a trial court has the discretion
to impose consecutive sentences in the wake of those decisions and that despite
the severance of the statutory presumptions, a trial court is not required by the
rule of lenity to impose minimum or concurrent sentences. Id. at paragraph two
of the syllabus and at ¶ 36-41.
{¶ 14} In reliance on these decisions, many defendants in Ohio have been
sentenced by trial judges who have exercised their discretion to impose
consecutive sentences without applying any of the statutes severed in Foster,
including those regarding consecutive sentencing.
{¶ 15} The validity of the reasoning in Foster, however, was called into
question by the United States Supreme Court’s decision in Ice. In that case,
decided nearly three years after Foster, a five-to-four majority of the court held
that Oregon’s consecutive-sentencing statutes, which were similar to the
consecutive-sentencing provisions struck down in Foster, do not violate the Sixth
Amendment concerns set forth in Apprendi and Blakely. Ice, 555 U.S. at ___, 129
S.Ct. at 714-715, 172 L.Ed.2d 517.
{¶ 16} We briefly discussed Ice in Elmore, 122 Ohio St.3d 472, 2009-
Ohio-3478, 912 N.E.2d 582, at ¶ 34, stating that Ice “held that a jury
determination of facts to impose consecutive rather than concurrent sentences was
not necessary if the defendant was convicted of multiple offenses, each involving
discrete sentencing prescriptions. The jury historically played no role in a
decision to impose sentences consecutively or concurrently. The choice rested
exclusively with the judge, and thus the Oregon statutes did not erode any
traditional function of the jury. Further, the state had sovereign authority over the
administration of its criminal justice system, and there was no compelling reason
to diminish the state’s role by curbing the state’s limitation on the discretion of
judges in imposing consecutive or concurrent sentences.”
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January Term, 2010
{¶ 17} We declined in Elmore, however, to definitively resolve Ice’s
effect on Ohio’s sentencing laws, stating that “Foster did not prevent the trial
court from imposing consecutive sentences; it merely took away a judge’s duty to
make findings before doing so. The trial court thus had authority to impose
consecutive sentences on Elmore. We will not address fully all ramifications of
Oregon v. Ice, since neither party sought the opportunity to brief this issue before
oral argument.” (Footnote omitted.) Id. at ¶ 35.
{¶ 18} Foster was not accepted for direct review by the United States
Supreme Court, and thus Ice did not specifically overrule Foster. Our decision in
Foster is final as to the issues raised by the parties in that appeal.3
{¶ 19} We recognize, however, that the decision in Ice undermines some
of the reasoning in the Foster decision that judicial fact-finding in the imposition
of consecutive sentences violates the Sixth Amendment. Although there are
differences between the Ohio provisions struck down in Foster and the Oregon
statutes upheld in Ice, these distinctions are immaterial in light of the broad
reasoning employed in Ice. After Ice, it is now settled law that Apprendi and
Blakely do not control the resolution of this issue and that the jury-trial guarantee
of the Sixth Amendment to the United States Constitution does not preclude states
from requiring trial court judges to engage in judicial fact-finding prior to
imposing consecutive sentences. See Elmore, 122 Ohio St.3d 472, 2009-Ohio-
3478, 912 N.E.2d 582, at ¶ 34 (the Oregon statutes at issue in Ice “did not erode
any traditional function of the jury”).
{¶ 20} Had we the benefit of the United States Supreme Court’s decision
in Ice regarding Oregon’s consecutive-sentencing statutes prior to our decision in
Foster, we likely would have ruled differently as to the constitutionality, and
3. The United States Supreme Court had an opportunity to review our decision in Foster when it
was appealed to that court, but denied certiorari. Foster v. Ohio (2006), 549 U.S. 979, 127 S.Ct.
442, 166 L.Ed.2d 314.
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SUPREME COURT OF OHIO
continued vitality, of our own state’s consecutive-sentencing provisions. But we
did not have that guidance, and our holding was reasonable in light of the status of
federal constitutional law at the time.4
{¶ 21} Although we acknowledge that Ice has an impact on Foster, we do
not accept Hodge’s argument that the decision in Ice automatically and
retroactively reinstates the consecutive-sentencing statutes invalidated in Foster.
Hodge’s argument is based on the fact that the severed statutory provisions
invalidated in Foster have never been repealed by the General Assembly.
{¶ 22} The gist of Hodge’s position is that we should overrule the holding
in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional and hold
that the consecutive-sentencing statutes struck down in Foster have been
reinstated or revived by the decision in Ice, with the ultimate result that Hodge is
entitled to be resentenced pursuant to the former consecutive-sentencing statutes.
However, as explained below, we decline Hodge’s request that we hold that the
statutes have been revived and accordingly also deny the relief he seeks.
{¶ 23} Some of our precedents contain statements of law that seem to
support the position that when this court holds a statute unconstitutional, the
statute can no longer have any effect and can be revived only through affirmative
action of the General Assembly. See, e.g., Middletown v. Ferguson (1986), 25
Ohio St.3d 71, 80, 25 OBR 125, 495 N.E.2d 380 (legislation that was
unconstitutional at the time of its passage is “void from its inception,” and “an
unconstitutional law must be treated as having no effect whatsoever from the date
of its enactment”);5 Franklin Cty. Bd. of Elections v. State ex rel. Schneider
4. A vigorous dissent in Ice criticized the majority for abandoning the “clear” principles of
Apprendi and Blakely, and for “its repeated exhumation of arguments dead and buried by prior
cases.” 555 U.S. at___, 129 S.Ct. at 720, 723, 172 L.Ed.2d 517 (Scalia, J., dissenting).
5. A recognized exception to the rule that a statute declared unconstitutional is wholly void, that
is, when rights have vested in reliance on the statute, has no application to this case. As we
observed in Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, at ¶ 24-26, a
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January Term, 2010
(1934), 128 Ohio St. 273, 191 N.E. 115, paragraph five of the syllabus (“An act of
the General Assembly, which was unconstitutional at the time of enactment, can
be revivified only by re-enactment”).
{¶ 24} However, a close examination of this case law reveals that it is of
limited relevance to the resolution of this case, because the contexts of those
decisions bear little resemblance to the circumstances here. Schneider, on which
the state’s amici particularly rely, does not contain any meaningful analysis that
explains the statement of law quoted above. Thus, the issue in this case regarding
the possible revival of the consecutive-sentencing statutory provisions severed by
Foster is essentially a matter of first impression for this court.
{¶ 25} At the outset, it is important to recognize the effect and
definitiveness of our holdings in Foster. In Bates, 118 Ohio St.3d 174, 2008-
Ohio-1983, 887 N.E.2d 328, ¶ 18, we stated that the severance and excision of the
consecutive-sentencing statutes “in their entirety” in Foster leave “no statute to
establish” the presumption for concurrent sentences or to require that findings be
made to impose consecutive sentences. We also referred to the severed statutes as
“former,” id., thus indicating that those statutes for enforcement purposes are no
longer considered part of the statutory framework and have no force or effect. 6
defendant sentenced pursuant to Foster’s holdings has notice of the sentencing range, which was
not changed by Foster, and “never had an irrebuttable presumption of * * * concurrent sentences.”
Since R.C. 2929.41(A) established only a rebuttable presumption for concurrent sentences, the
imposition of consecutive sentences in this situation does not affect any vested right.
6. We do not imply that the legal effect of a judicial decision “severing” a statutory provision
from the remainder of the statute is to actually repeal the invalid statutory language. Only the
General Assembly, the lawmaking branch of our constitutional government, has authority to
repeal, as well as to enact, statutory language. Rather, a statutory provision that is held to be
legally invalid, as here, becomes definitively unenforceable, and it is said to be “severed” in order
to distinguish it from the remaining portion of the statute, which remains valid and enforceable.
See R.C. 1.50 (“If any provision of a section of the Revised Code or the application thereof to any
person or circumstance is held invalid, the invalidity does not affect other provisions or
applications of the section or related sections which can be given effect without the invalid
provision or application, and to this end the provisions are severable”).
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SUPREME COURT OF OHIO
{¶ 26} Another crucial consideration is that although the Ice decision
holds that it is constitutionally permissible for a judge to engage in judicial fact-
finding to impose consecutive sentences, there is no constitutional requirement
that a judge make findings of fact before imposing consecutive sentences. Two of
the foundations of the Ice holding are the long history of giving great deference to
a trial court’s exercise of discretion in determining whether consecutive sentences
are appropriate and the common-law preference for consecutive sentences over
concurrent sentences. Id., 555 U.S. at ___, 129 S.Ct. at 717-718, 172 L.Ed.2d
517. See also id. at 719 (“All agree that a scheme making consecutive sentences
the rule, and concurrent sentences the exception, encounters no Sixth Amendment
shoal”); Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, at ¶ 16-18
(Foster’s severance of the consecutive-sentencing statutes reinstated the common-
law presumption in favor of consecutive sentences); Elmore, 122 Ohio St.3d 472,
2009-Ohio-3478, 912 N.E.2d 582, at ¶ 35 (after Foster, trial judges continue to
have the authority to impose consecutive sentences).
{¶ 27} Moreover, this court in Foster also severed a number of statutory
provisions besides the consecutive-sentencing ones on the authority of Blakely
and Apprendi. The other stricken provisions are not at issue in this case, and the
holdings in Foster regarding these provisions were not implicated in Ice. We are
unable to say that the General Assembly would intend the consecutive-sentencing
provisions to be resurrected when the other judicial fact-finding provisions, which
supported the overall sentencing framework, remain constitutionally invalid and
excised. It would be speculative to assume that the General Assembly would
wish to reinstate only the consecutive-sentencing provisions when the other
provisions struck down in Foster may not be reinstated also. This militates in
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January Term, 2010
favor of requiring positive action by the General Assembly to indicate its intent
and desire in a complicated area of the law. 7
{¶ 28} We find it of great significance that Hodge has not cited a single
Ohio case that even remotely ponders the propriety of the concept of automatic
revival. We further note that none of our precedents have suggested to the
General Assembly that a statute that has been held unconstitutional by this court
and that has never been repealed by that body may be automatically and suddenly
revived through a later court decision. Given this situation, the General Assembly
has never had a particular incentive to repeal statutes that we have held
unconstitutional, which further supports our reluctance to assume that the General
Assembly would intend the consecutive-sentencing statutes to be reinstated, in the
absence of any affirmative indications to that effect from that body.
{¶ 29} Considered in the abstract, the rule of automatic revival has the
potential to disrupt expectations of predictability and finality that attach as a
consequence of this court’s issuing of a decision holding a statute
unconstitutional. If automatic revival were recognized, parties who have acted in
reliance on this court’s determination of unconstitutionality may have the
reasonableness of their actions called into question should this court, perhaps
many years in the future, overrule the previous decision and determine that the
statute held unconstitutional was constitutional after all. A conclusion in this
7. We are aware that the General Assembly has, since Foster was decided, enacted a number of
bills to modify some aspects of R.C. 2929.14 without repealing the invalidated text in R.C.
2929.14(E)(4), one of the consecutive-sentencing provisions that was struck down and severed in
Foster. (R.C. 2929.41, which contains the other consecutive-sentencing statute invalidated in
Foster—R. C. 2929.41(A)—has not been similarly amended.) However, there has been no
affirmative reenactment of R.C. 2929.14(E)(4) indicating an intent by the General Assembly that
that statute was still meant to be effective. See Stevens v. Ackman (2001), 91 Ohio St.3d 182, 193-
195, 743 N.E.2d 901 (discussing the technical requirements, including that new matter inserted
into a statute must be capitalized, that indicate the General Assembly’s intent in amending or
enacting a statute). Consequently, the legislation amending other portions of R.C. 2929.14 has no
impact on our resolution of this case.
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SUPREME COURT OF OHIO
situation that the previously stricken statute should automatically revive because it
was never affirmatively repealed by an act of the General Assembly would
conflict with and subvert fundamental finality interests that should normally be
part and parcel of this court’s definitive holding that a statute fails to comply with
either the United States Constitution or the Ohio Constitution.
{¶ 30} Because there is no constitutional requirement that a judge make
findings of fact before imposing consecutive sentences, the disruptive effects that
would result from reviving the statutory provisions on consecutive sentences that
were invalidated and severed in Foster need to be taken into account in this case.
These practical considerations heavily tip the balance against now recognizing a
concept of automatic revival in the scenario presented here.
{¶ 31} All parties involved in our criminal-justice system—defendants,
prosecutors, judges, and victims of criminal activity—have justifiably relied on
Foster’s holdings regarding consecutive sentences since that case was decided
and reaffirmed by subsequent decisions. A determination that many defendants
(perhaps hundreds or even thousands) who have received constitutionally
acceptable consecutive sentences would nevertheless be entitled to resentencing
would disrupt reasonable and settled expectations of finality.
{¶ 32} In addition, ordering resentencing in numerous cases in which
consecutive sentences have been imposed in reliance on Foster would place an
undue burden on our judicial system. It is a burden that is manifestly not
outweighed by a commensurate benefit to defendants, when one considers that the
sentence each received in reliance on Foster is not thereby constitutionally
deficient.
{¶ 33} Hodge cites cases involving somewhat analogous situations from
other jurisdictions that have held that a statute previously declared
unconstitutional by a court decision, and not thereafter legislatively repealed, is
automatically revived when the decision that held the statute unconstitutional is
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January Term, 2010
overruled by a subsequent decision. In particular, Hodge relies on Jawish v.
Morlet (D.C.App.1952), 86 A.2d 96, 97, in which the court stated:
{¶ 34} “There are comparatively few cases dealing squarely with the
question before us, but they are unanimous in holding that a law once declared
unconstitutional and later held to be constitutional does not require re-enactment
by the legislature in order to restore its operative force. They proceed on the
principle that a statute declared unconstitutional is void in the sense that it is
inoperative or unenforceable, but not void in the sense that it is repealed or
abolished; that so long as the decision stands the statute is dormant but not dead;
and that if the decision is reversed the statute is valid from its first effective date.”
{¶ 35} We are not persuaded by the reasoning of the courts in other
jurisdictions that have decided cases involving the potential revival of statutes;
those decisions are necessarily based on the factual contexts of the situations
before them. None of the cases cited by Hodge, and no cases we have discovered
in our own research, have involved a state court of last resort finding in favor of
automatic revival in a situation with all the varied attributes that are implicated in
this case. The overall circumstances of this case do not present a compelling
justification for holding that the consecutive-sentencing statutory provisions held
unconstitutional and severed in Foster are automatically revived without further
action by the General Assembly. We accordingly decline to adopt a dormant-but-
not-dead rule in the circumstances presented here.
{¶ 36} In view of all the above reasons, we conclude that the consecutive-
sentencing statutes severed by Foster are not automatically revived. Accordingly,
those statutes remain null and of no effect absent an affirmative act of the General
Assembly. At the same time, however, we discern no constitutional impediment
to the General Assembly’s legislating in this area if it chooses to do so in light of
the constitutional propriety of statutory provisions pertaining to the imposition of
consecutive sentences expressed in Ice.
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III. Conclusion
{¶ 37} In summary, Ice’s impact on Ohio law is collateral. Our decision
in Foster was not on direct appeal in Ice, and Ice did not directly overrule Foster.
Nearly five years have passed since Foster definitively and unequivocally severed
the consecutive-sentencing sections, along with other provisions, from the
statutory sentencing framework, and ordered resentencing for those defendants
whose cases were then on direct appeal.
{¶ 38} Numerous defendants have received consecutive sentences that
have met all constitutional requirements from trial court judges acting in reliance
on Foster, Bates, Elmore, and other precedents. Considering also that (1) judicial
fact-finding is not constitutionally required in order to impose consecutive
sentences, (2) none of our precedents have given notice to the General Assembly
that provisions of the Revised Code that have been held unconstitutional and have
been severed would be revived, perhaps many years after their enactment and
subsequent invalidation, and (3) other considerations against revival strongly
outweigh the considerations in favor of revival, we reject the concept of automatic
revival under the circumstances presented here.
{¶ 39} For all the foregoing reasons, we hold that the decision of the
United States Supreme Court in Oregon v. Ice does not revive Ohio’s former
consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A),
which were held unconstitutional in State v. Foster. Because the statutory
provisions are not revived, trial court judges are not obligated to engage in
judicial fact-finding prior to imposing consecutive sentences unless the General
Assembly enacts new legislation requiring that findings be made.
{¶ 40} The trial court in this case did not err in imposing consecutive
sentences without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants
such as Hodge who were sentenced without application of the statutes are not
entitled to resentencing. We affirm the judgment of the court of appeals.
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January Term, 2010
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and
LANZINGER, JJ., concur.
BROWN, C.J., dissents.
__________________
BROWN, C.J., dissenting.
{¶ 41} I agree with the majority that Oregon v. Ice (2009), 555 U.S. 160,
129 S.Ct. 711, 172 L.Ed.2d 517, does not overrule this court’s decision in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, regarding Ohio’s
consecutive-sentencing statutes, and that the issuance of Ice does not
automatically revive or reinstate the consecutive-sentencing statutory provisions
held unconstitutional in Foster. But Ice does demonstrate that the analysis used
by this court in Foster regarding judicial fact-finding and consecutive sentences
was incorrect. The majority all but concedes that it erred in holding in Foster that
R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require
judicial finding of facts not proved to a jury beyond a reasonable doubt or
admitted by the defendant before the imposition of consecutive sentences.
Majority opinion at ¶ 10. Despite this court’s error in Foster, however reasonable
it may have been at the time it was issued, the majority essentially refuses to
correct this error because it believes it is too inconvenient to do so. In so holding,
the majority violates the fundamental principle of separation of powers and
ignores the intent of the General Assembly. Therefore, I dissent.
I. Separation of powers
{¶ 42} The separation of powers among the executive, legislative, and
judicial branches of government is a defining principle of the American form of a
free, constitutional government. See State v. Bodyke, 126 Ohio St.3d 266, 2010-
Ohio-2424, 933 N.E.2d 753, ¶ 39. “ ‘The essential principle underlying the
policy of the division of powers of government into three departments is that
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powers properly belonging to one of the departments ought not to be directly and
completely administered by either of the other departments, and further that none
of them ought to possess directly or indirectly an overruling influence over the
others.’ ” Id. at ¶ 44, quoting State ex re. Bryant v. Akron Metro. Park Dist. of
Summit Cty. (1929), 120 Ohio St. 464, 473, 166 N.E. 407. The principle of
separation of powers renders this court unable to undertake those powers
explicitly assigned to the legislature, yet the majority’s holding ascribes the
legislative power to repeal statutes to the judiciary.
{¶ 43} The General Assembly is vested with the exclusive power to enact
and repeal laws, subject only to the people’s power to propose, adopt, or reject
laws at the polls through certain procedures defined in the Ohio Constitution.
Section 1, Article II, Ohio Constitution. “This court has authority to determine
whether, in a statutory enactment, the General Assembly has exceeded any of the
limitations upon its legislative power which are provided for in the Constitution,
and to interpret the meaning of the words used by the General Assembly in a
statutory enactment; but this court does not have any authority to repeal a statute
enacted by the General Assembly * * *. The power to repeal or amend a statute is
vested by Section 1 of Article II of the Constitution in the General Assembly.”
Columbus v. Delaware Cty. (1956), 164 Ohio St. 605, 613-614, 59 O.O. 10, 132
N.E.2d 747.
{¶ 44} The majority contends that a declaration that a statute is
unconstitutional accompanied by severance of the statute definitively “removes”
or “excises”8 the offending statute from an act and therefore that a later
8. I note that the majority refers to R.C. 2929.14(E)(4) and 2929.41(A) as having been “severed
and excised” by Foster. (Emphasis added.) “Excise” is defined as “to cut out” or “remove by or as
if by cutting out.” Webster’s Third New International Dictionary (1986) 792. The use of the term
“excised” connotes that the unconstitutional statutory provision has been removed from the
Revised Code and lends support to the majority’s mistaken belief that severance is the equivalent
of judicial repeal of a statute or statutory provision. However, this court’s use of the language that
an unconstitutional statute may be severed and excised is only recent. Foster itself presents the
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determination that the statute was severed in error cannot reinstate the statute in
the absence of reenactment by the General Assembly. In essence, the majority
equates severance with repeal. Nothing in this court’s jurisprudence supports that
equation.
{¶ 45} A holding that a statutory scheme or individual statute is
unconstitutional is a determination that the scheme or statute is invalid, void, and
unenforceable. Funk v. Rent-All Mart, Inc. (2001), 91 Ohio St.3d 78, 79–80, 742
N.E.2d 127; see also State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513,
523, 644 N.E.2d 369. But a holding that a scheme or statute is unconstitutional
does not and cannot remove the offending statutes or statute from the Revised
Code. Removal of statutes from the Revised Code can be achieved only through
repeal.
{¶ 46} A holding that an unconstitutional statute or statutory provision is
subject to severance does nothing more than state that a statute within a
multistatute scheme or a section of a multipart statute is invalid, void, and
unenforceable. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶
66 (holding that two statutes that are part of the General Assembly’s Adam Walsh
Act are unconstitutional and are severed and that “after severance, they may not
be enforced”). Severance is merely a judicially imposed mechanism used to
allow the constitutional provisions to remain valid and enforceable when a
statutory scheme contains both unconstitutional and constitutional statutes or
when a multipart statute has both unconstitutional and constitutional sections.
Severance is not a judicial repeal of the offending statutory provision.
first instance in which a majority of this court articulates that unconstitutional statutory provisions
are “severed and excised.” 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 97-98. The
lengthy Foster analysis regarding the appropriateness of severance does not provide any
discussion of or support for the court’s new formulation that unconstitutional statutory provisions
may be “severed and excised” from the Revised Code, nor does R.C. 1.50, the statute addressing
severability of Revised Code provisions, provide any support for the assertion that Ohio courts
may “excise” statutory provisions.
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{¶ 47} Because the majority’s analysis of the issue of revival is premised
on its belief that R.C. 2929.14(E)(4) and 2929.41(A) have been severed and
excised or judicially repealed, I find that the analysis is flawed at the outset. In
order to preserve the principle of separation of powers, this court must begin any
analysis of the possible revival of R.C. 2929.14(E)(4) and 2929.41(A) from the
premise that Foster declared these statutory provisions unconstitutional and
unenforceable but that these provisions have not been repealed. Instead, these
provisions remain part of the Revised Code and repeatedly have been included by
the General Assembly as part of the statutory sentencing scheme after Foster.
2006 Am.Sub.H.B. No. 95, 151 Ohio Laws, Part IV, 7059; 2006 Am.Sub.H.B.
No. 137, 151 Ohio Laws, Part IV, 7622; Am.Sub.S.B. No. 260, 151 Ohio Laws,
Part I, 1915; Sub.S.B. No. 281, 151 Ohio Laws, Part II, 2240; Am.Sub.H.B. No.
461, 151 Ohio Laws, Part V, 9293; 2007 Am.Sub.S.B. No. 10; 2008 Sub.S.B. No.
184; 2008 Sub.S.B. No. 220; 2008 Am.Sub.H.B. No. 280; and 2008
Am.Sub.H.B. No. 130.
{¶ 48} The majority acknowledges that there has been no significant
analysis of these issues by any Ohio courts.9 But other courts that have
considered analogous situations have held that statutes that have been declared
unconstitutional and unenforceable but have not been repealed by the legislature
return to effectiveness upon a later determination that the statutes were declared
unconstitutional in error. See Jawish v. Morlet (D.C.App.1952), 86 A.2d 96, 97;
see also Pierce v. Pierce (1874), 46 Ind. 86, 95; State ex rel. Badgett v. Lee
(1945), 156 Fla. 291, 295, 22 So.2d 804; McCollum v. McConaughy (1909), 141
Iowa 172, 119 N.W. 539, 541.
9. The only two cases in which this court has addressed similar issues even in passing are easily
distinguishable from this case. See Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 80, 25
OBR 125, 495 N.E.2d 380; Franklin Cty. Bd. of Elections v. State ex rel. Schneider (1934), 128
Ohio St. 273, 191 N.E. 115. In both cases, this court refers to legislation that was
unconstitutional, and therefore void, at the time it was enacted. Despite the holding of Foster,
R.C. 2929.14(E)(4) and 2929.41(A) were not unconstitutional at the time of their enactment.
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January Term, 2010
{¶ 49} The United States Supreme Court’s holding in Ice makes it clear
that the Foster holding regarding the unconstitutionality of the consecutive-
sentencing provisions of the comprehensive reform enacted by Am.Sub.S.B. No.
2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2”) was in error. The judicial fact-finding
required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of
consecutive sentences is not now unconstitutional nor was it ever
unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been
repealed, a conclusion that the Foster analysis regarding consecutive sentences
was in error must result in the overruling of those infirm portions of Foster, the
removal of our judicially imposed holding that these provisions are
unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and
2929.41(A).
II. Intent of the General Assembly
{¶ 50} The majority also contends that R.C. 2929.14(E)(4) and
2929.41(A) should not be revived because it is unclear whether the General
Assembly would intend these consecutive-sentencing provisions to be enforced
when the other judicial fact-finding sentencing provisions that were severed in
Foster remain unenforceable. This reasoning is unpersuasive.
{¶ 51} Although the majority declines to “speculate” whether the other
sentencing provisions that were declared unconstitutional in Foster could be
severed from the consecutive-sentencing provisions and the remaining provisions
of S.B. 2, this is precisely the analysis the court would have been required to
perform in Foster if the court had not erred in holding the consecutive-sentencing
provisions unconstitutional. Had this court in Foster held the consecutive-
sentencing provisions to be constitutional, but still held the other statutory
provisions at issue to be unconstitutional,10 this court would have applied the
10. R.C. 2929.14(B) and (C) and 2929.19(B)(2) (statutory provisions that require judicial fact-
finding before imposition of a sentence greater than the maximum term authorized by a jury
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SUPREME COURT OF OHIO
severance test established by Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160
N.E. 28, to determine whether the unconstitutional provisions of S.B. 2 could be
severed from the constitutional provisions. The Geiger test requires this court to
consider three questions before finding severance appropriate: “ ‘(1) Are the
constitutional and the unconstitutional parts capable of separation so that each
may be read and may stand by itself? (2) Is the unconstitutional part so connected
with the general scope of the whole as to make it impossible to give effect to the
apparent intention of the Legislature if the clause or part is stricken out? (3) Is the
insertion of words or terms necessary in order to separate the constitutional part
from the unconstitutional part, and to give effect to the former only?’ ” Id. at 466-
467, quoting State v Bickford (1913), 28 N.D. 36, 147 N.W. 407, paragraph
nineteen of the syllabus. Why the majority now declines to use the Geiger test to
determine whether the constitutional consecutive-sentencing provisions of S.B. 2
may be enforced in the absence of those S.B. 2 provisions that remain
unconstitutional and unenforceable after Foster is baffling.
{¶ 52} In S.B. 2, the General Assembly adopted a comprehensive
statutory framework that established broad sentencing reforms to introduce
certainty and proportionality in felony sentencing. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, at ¶ 34. This court recognized that the S.B. 2
sentencing-reform statutory scheme is extremely complex. Id. at ¶ 49. Although
Foster severed seven discrete S.B. 2 statutory subsections, including R.C.
2929.14(E)(4) and 2929.41(A), the vast majority of the S.B. 2 sentencing-reform
scheme remains in place. There has been no significant action taken by the
General Assembly to alter the sentencing-reform scheme in light of this court’s
decision in Foster and the unconstitutionality of several subsections. Indeed, the
verdict or admission of the defendant) and R.C. 2929.14(D)(2)(b) and (D)(3)(b) (statutory
provisions that require judicial fact-finding before repeat-violent-offender and major-drug-
offender penalty enhancements are imposed).
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January Term, 2010
amendments made to the sentencing-reform scheme have not altered the
fundamental scheme originally enacted in S.B. 2, and the statutory provisions
declared unconstitutional and unenforceable in Foster have not been repealed in
the course of amending the sentencing scheme.
{¶ 53} The continued viability of most of S.B. 2 and the lack of
significant changes to the scheme after Foster indicate that the General
Assembly’s intent is to maintain as much of the S.B. 2 sentencing reform as is
constitutionally permissible. This court’s review of the constitutionality of a
statute starts with a presumption of constitutionality based in part upon this
court’s deference to the legislative branch on matters of public policy. State ex
rel. Ohio Cong. of Parents and Teachers v. State Bd. of Ed., 111 Ohio St.3d 568,
2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20, 73. Furthermore, in the context of
criminal sentencing, the courts grant substantial deference to the broad authority
of the General Assembly. See State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-
2338, 888 N.E.2d 1073, ¶ 22. That same deference should result in this court’s
recognizing the General Assembly’s intent, conceding that its analysis in Foster
regarding consecutive sentencing is no longer valid, overruling Foster in part, and
declaring the constitutionally sound consecutive-sentencing provisions
enforceable. Requiring the General Assembly to yet again manifest its intent to
adopt the sentencing reform set forth in S.B. 2, including the consecutive-
sentencing provisions, is unnecessary and places an undue burden upon the
General Assembly to correct an error, albeit a reasonable one, of this court.
III. Practical considerations
{¶ 54} The majority’s refusal to overrule Foster in part following the
decision in Ice is based upon its desire to avoid the perceived disruptive effects
such a holding would cause. The majority believes that overruling Foster in part
would entitle the many defendants who have received consecutive sentences after
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SUPREME COURT OF OHIO
Foster to resentencings and that those resentencings would disrupt reasonable and
settled expectations of finality and place an undue burden on the judicial system.
{¶ 55} It is critical to recognize the scope of legal issues that must be
decided in this case. The court must determine in this case only whether Ice
abrogates those portions of Foster related to consecutive sentences and whether
R.C. 2929.14(E)(4) and 2929.41(A) may now be enforced to require judicial fact-
finding before the imposition of consecutive sentences. Hodge affirmatively
raised these issues in the lower courts, and these issues remain pending on direct
appeal. While it is appropriate to give some consideration to the potential issues
that may arise regarding the effect of the ruling requested by Hodge on defendants
who have received consecutive sentences after Foster without the statutory
judicial fact-finding, and whose cases have become final, these potential issues
should not dictate the outcome of this case, particularly given that this case does
not involve these issues, and the court has not had the benefit of adequate briefing
on them. It may well be that a partial overruling of Foster does not necessitate
the resentencing of defendants whose consecutive sentences became final, as the
majority assumes.
{¶ 56} Furthermore, matters of convenience should not dictate this court’s
substantive decisions. This is particularly true when the legal issue does not arise
with frequency. The majority acknowledges that the statutory-revival issue
before the court in this case is a matter of first impression. Majority opinion, ¶
24. In 200 years of adjudication, this case is the first time that this court has been
presented with these procedural facts and legal issues. Neither has the statutory-
revival issue arisen with significant frequency in other jurisdictions, as
demonstrated by the limited number of cases cited by the parties and the majority.
While I do not doubt that this court’s error in Foster may cause some
inconvenience to rectify, I cannot conclude that acknowledgment of the error will
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January Term, 2010
result in widespread chaos or that concerns regarding perceived chaos should
prevent this court from overruling precedent that is clearly wrong.
IV. Conclusion
{¶ 57} Although the majority concedes that its consecutive-sentencing
analysis in Foster is no longer valid based upon Ice, and the majority invites the
General Assembly essentially to reenact R.C. 2929.14(E)(4) and 2929.41(A)
verbatim without fear of constitutional infirmity, it refuses to overrule the
consecutive-sentencing portions of Foster. The majority makes clear that it
believes that severance in effect judicially repeals a statute, regardless of whether
later events undermine the severance, and that severed statutes cannot be revived
without reenactment. Accordingly, the majority could still overrule the erroneous
analysis of the consecutive-sentencing portions of Foster without reviving the
severed statutes. I find it troubling that the majority refuses to overrule even the
erroneous portions of Foster. Accordingly, I disagree with the majority’s refusal
to acknowledge its error in Foster and overrule those portions of Foster that have
been abrogated by Ice.
{¶ 58} Because I also find that principles of separation of powers and
deference to the will of the General Assembly require that statutory provisions
that were rendered unenforceable by this court in error, but that have not been
repealed, must be returned to enforceability, I dissent from the majority’s holding
that a statute declared unconstitutional in error cannot be revived absent
reenactment by the General Assembly.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr. and Rachel Lipman Curran, Assistant Prosecuting Attorneys, for
appellee.
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SUPREME COURT OF OHIO
Janet Moore, Attorney at Law L.L.C., and Janet Moore; and Ohio Justice
and Policy Center, David A. Singleton, Angelina N. Jackson, and Peter C. Link,
for appellant.
Kenneth W. Oswalt, Licking County Prosecuting Attorney, urging
affirmance for amicus curiae Licking County Prosecuting Attorney.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven
DiMartino, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Ohio Prosecuting Attorneys Association.
_______________________
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