[Cite as State v. Ford, 2011-Ohio-5203.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 11-CA-26
Plaintiff-Appellee :
: Trial Court Case No. 10-CR-863
v. :
:
MICHAEL FORD : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 7th day of October, 2011.
.........
ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
CHRIS TILL, Atty. Reg. #0086486, Post Office Box 723, Yellow Springs, Ohio 45387
Attorney for Defendant-Appellant
.........
HALL, J.
{¶ 1} Michael Ford appeals from his conviction and sentence following guilty pleas
to one count of rape and two counts of gross sexual imposition. Following the guilty pleas, the
trial court imposed maximum and consecutive prison terms totaling twenty years.
{¶ 2} In his sole assignment of error, Ford contends the trial court committed plain
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error by imposing three consecutive prison terms without making factual findings to justify
consecutive sentences.
{¶ 3} Ford relies on R.C. 2929.14(E)(4), which, prior to State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, required judicial fact-finding before a trial court could impose
consecutive sentences. In Foster, the Ohio Supreme Court declared R.C. 2929.14(E)(4)
unconstitutional and severed it from the Revised Code. Ford contends, however, that the
Supreme Court subsequently found fact-finding, as required by R.C. 2929.14(E)(4), to be
constitutional in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320. As a result of Hodge,
Ford contends the fact-finding requirements of R.C. 2929.14(E)(4) once again were applicable
to the trial court. Here, the trial court did not engage in fact-finding under R.C.
2929.14(E)(4), but his attorney did not object. Thus, Ford contends, as he must, that the
absence of judicial fact-finding constituted plain error.
{¶ 4} Upon review, we find no error, much less plain error, in the trial court’s failure
to make factual findings to support consecutive sentences. Contrary to Ford’s argument,
Hodge did not resurrect the fact-finding requirement of R.C. 2929.14(E)(4). The primary issue
before the Ohio Supreme Court in Hodge was whether the United States Supreme Court’s
ruling in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, automatically
revived R.C. 2929.14(E)(4) even though Foster had declared the provision unconstitutional.
The Ohio Supreme Court answered this question in the negative. In so doing, it made clear
that R.C. 2929.14(E)(4) remained unconstitutional and imposed no fact-finding obligation on
Ohio’s trial courts.
{¶ 5} Hodge’s syllabus is dispositive of the issue before us. It states:
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{¶ 6} “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.)
{¶ 7} “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.
{¶ 8} “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.”
{¶ 9} Paragraph three of the syllabus refutes Ford’s argument that Hodge obligated
the trial court to make factual findings under R.C. 2929.14(E)(4). When the trial court
sentenced Ford in April 2011, the General Assembly had not yet enacted new legislation
requiring fact-finding before consecutive sentences could be imposed.1 As a result, the trial
court had no obligation to make such findings.
{¶ 10} Ford’s assignment of error is overruled, and the judgment of the Clark County
Common Pleas Court is affirmed.
..............
FAIN and DONOVAN, JJ., concur.
1
We note that the General Assembly recently enacted new legislation requiring fact-finding for consecutive sentences. See
Am.Sub.H.B. No. 86. This legislation, which has an effective date of September 30, 2011, was not applicable to Ford.
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Copies mailed to:
Andrew R. Picek
Chris Till
Michael Ford
Hon. Douglas M. Rastatter