I. En Banc {¶ 52} Initially, I write in support of the majority view that the en banc process is constitutional. I respectfully disagree with Judge Karpinski's view that Section 3(A), ArticleIV, of the Ohio Constitution limits district decisions to simply three-judge panels. I believe that the constitutional language must be read in the context of Ohio's judicial history.
{¶ 53} Although Judge Karpinski is correct that the reference to the number "three" in the Ohio Constitution did not change as appellate districts were enlarged, a review of Ohio's judicial history shows that the reference to that number reflected, in part, the limited size of the early Ohio judiciary. Historically, the number "three" had more to do with the minimum requirement of a quorum than it did with a desire to limit important district decisions to less than a majority of the court. Simply put, there were far fewer judges to decide cases in the 19th century, and three judges became the smallest acceptable number for proper review.8
{¶ 54} The en banc process is embedded in American jurisprudence. "The en banc process now authorized for the district courts is designed to help the district courts avoid conflict, assure harmonious decisions within the courts' geographic boundaries, and develop predictability of the law within their jurisdiction. Consistency of decisions within each district is essential to the credibility of the district courts."Chase Fed. Sav. Loan Assn. v. Schreiber (Fla. 1985),479 So.2d 90. Also, the United States district courts have an en banc process. See Textile Mills Securities Corp. v. Commr. ofInternal Revenue (1941), 314 U.S. 326, 62 S.Ct. 272,86 L.Ed. 249. *Page 291
{¶ 55} I recognize that our decision to consider these issues in an en banc proceeding puts us in conflict with the Tenth Appellate District in Schwan v. Riverside Methodist Hosp. (Feb. 25, 1982), Franklin App. No. 81-AP-158, 1982 WL 3997, which is cited by Judge Karpinski. It is unclear, however, whether the Tenth District had an en banc procedure in place when it decided the Schwan case. The question in that case arose only after the filing of a motion to reconsider an earlier ruling.
{¶ 56} This is not to suggest that every case or issue, or every aggrieved litigant, requires or is entitled to an en banc review. The decision to consider a case or issue en banc is left to the exclusive determination of the majority of judges in a multicourt district.9
{¶ 57} For too long, trial court judges and litigants in this district have endured the prospect of having inconsistent decisions on similar issues affect determinations of law. Further, limiting the decision-making process on critical legal issues to three judges flies in the face of the long-established and significant principle of stare decisis. As a result, I believe the en banc process is constitutional and is supported by Ohio's long judicial history. Last, consistency in our district is of paramount concern and is long overdue. For these reasons, I support the en banc process and agree to abide by the majority decision on the issues decided here in this and all future cases.
II. Consecutive Sentences {¶ 58} While I am bound by the decision of the majority and will follow and apply its rule of law in future cases, I write separately to address concerns regarding the application of theSixth Amendment to consecutive sentences imposed under the statutes adopted under S.B. 2. Judge James J. Sweeney has addressed the maximum-sentence issue, and I concur in that opinion.
{¶ 59} As the majority has noted, according to Apprendi v.New Jersey (2000), 530 U.S. 466, 490, 120 S.Ct. 2348,147 L.Ed.2d 435, "[o]ther than the fact of a prior conviction, anyfact that increases the penalty for a crime beyond theprescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) This decision has created considerable debate in Ohio legal circles over whether Sixth Amendment rights are violated by Ohio's S.B. 2 sentencing statutes.10 *Page 292
{¶ 60} Although the state of Washington and the federal system employed a "presumptive" guideline sentencing format, Ohio, like several other states, is a "presumptive" nonguideline sentencing state. The distinction, for Apprendi, Blakely, andBooker purposes, in my view, is immaterial.11
{¶ 61} In Ohio, a trial court may impose consecutive sentences on a defendant only after making specific findings outlined under R.C. 2929.14(E)(4). R.C. 2929.14(E)(4) provides that a trial court may impose consecutive sentences only when it concludes that the sentence is "(1) necessary to protect the public from future crime or to punish the offender; (2) not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) the court finds one of the following: (a) the crimes were committed while awaiting trial or sentencing, under sanction, or under post-release control; (b) the harm caused by multiple offenses was so great or unusual that a single prison term would not adequately reflect the seriousness of his offense; or (c) the offender's criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime."State v. Stadmire, Cuyahoga App. No. 81188, 2003-Ohio-873, 2003 WL 549912, ¶ 66.
{¶ 62} In addition, R.C. 2929.19(B)(2) provides that "[t]he court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: * * * (c) If it imposes consecutive sentences under section 2929.14 of the Revised Code, its reasons for imposing the consecutive sentences."
{¶ 63} Thus, a trial court is required to make at least three findings under R.C. 2929.14(E)(4) prior to sentencing an offender to consecutive sentences and must give its reasons for imposing consecutive sentences pursuant to R.C. 2929.19(B)(2)(c).Stadmire, supra; see, also, State v. Comer,99 Ohio St.3d 463, *Page 293 2003-Ohio-4165, 793 N.E.2d 473. These findings, together with the trial court's reasons for the findings, must be made on the record and must be supported by clear and convincing evidence. R.C. 2929.19(B)(2)(e); 2953.08(G)(1); State v. Comer; State v.Edmonson (1999), 86 Ohio St.3d 324, 715 N.E.2d 131.
{¶ 64} Although I concur with the majority's decision to affirm the consecutive sentences imposed, I respectfully disagree with the view that the language requiring "findings and reasons" to support imposing consecutive sentences in R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) is constitutional.
{¶ 65} I believe that Apprendi, Blakely, and Booker are applicable to R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) and would find that language mandating judicial findings in support of consecutive sentences in the S.B. 2 statutes unconstitutional. Specifically, I would sever only the offending language requiring "findings" under R.C. 2929.14(E)(4)and 2929.19(B)(2)(c) and affirm the decision to impose consecutive sentences under the "reasonableness" standard stated in Booker, as outlined below.
{¶ 66} The Sixth Amendment principles outlined in Apprendi,Blakely, and Booker apply to all of those portions of Ohio's sentencing scheme that require judicial fact-finding to justify the imposition of sentences greater than the statutory maximum. While I acknowledge the majority's principle that "each offense stands on its own," I see no distinction between unconstitutional "findings" or "reasons" justifying the imposition of one sentence and those involving consecutive sentences. Although I agree with the majority's view that Ohio courts have typically presumed the propriety of separate punishments for each offense, the statutory language in S.B. 2 created a condition in which the opposite is now true. Even the majority recognizes that under S.B. 2, absent the court's additional findings, there is a presumption of concurrent sentences.
{¶ 67} Because the findings used to impose consecutive sentences here were not admitted by Lett nor made by the jury, I would find the language in the statutes mandating the "findings" and "reasons" to deviate from the required sentence unconstitutional.
{¶ 68} R.C. 2929.14(E)(4), 2929.19(B)(2)(e), and2953.08(G)(1) create a rebuttable presumption that offenders with multiple convictions appearing for sentencing will receive concurrent sentences. Nevertheless, the legislature intended to provide for a departure from that presumption depending on whether the trial court makes findings on the record.
{¶ 69} Under a determination that it is unconstitutional for a judge to make findings of fact that increase the sentence beyond the mandatory minimum, the offending statutory provisions, including the interrelated rebuttable presumption, must be severed. Nevertheless, the court has an obligation to preserve as much *Page 294 of the legislation as is constitutionally permissible. See Stateex. rel. Hinkle v. Franklin Cty. Bd. of Elections (1991),62 Ohio St.3d 145, 149, 580 N.E.2d 767, and State ex rel. Doersamv. Indus. Comm. (1989), 45 Ohio St.3d 115, 121, 543 N.E.2d 1169.
{¶ 70} The result is not to require the trial court to impose concurrent sentences in such instances. As the majority has already noted, this was not the intent of the legislature, which provided a method for the imposition of consecutive sentences. Thus, only the offending mandatory language of the legislation must be severed from the statutory scheme. See R.C.1.50 and United States v. Booker (2005), 543 U.S. ___,125 S.Ct. 738, 160 L.Ed.2d 621; see, also, State ex rel. Mason v.Griffin, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, ¶ 17 (instructing that the judge should have either "(1) appl[ied] the statutes as if Blakely did not render them unconstitutional and conduct a sentencing hearing without a jury or (2) [found] the statutes unconstitutional under Blakely and refuse to impose those enhancement provisions he deemed unconstitutional").12
{¶ 71} If Apprendi, Blakely, and Booker are the illness, then the United States Supreme Court's decision in Booker is the medicine. Under the Booker analysis, with the removal of the offending statutory provisions, a determination must be made as to whether the defendant's consecutive prison sentences were reasonable in light of the record and the remaining provisions of the sentencing statutes.13 In my view, as the majority has already noted, the trial court clearly addressed the underlying original purpose and the legislative intent of the statute by the discussion on the record by the trial court summarized in the majority opinion. This determination by the trial court satisfies the "reasonableness" standard outlined inBooker.14
{¶ 72} I believe that the provisions of R.C. 2929.11 and2929.12 are guidelines, whereas the requirements of "findings" and "reasons" to deviate from the presumptive sentence are unconstitutional. While judges are certainly free and even encouraged to give reasons supporting why they selected a particular sentence, mandating that they do so under these facts clearly violates the *Page 295 United States Constitution. Thus, I believe that the imposition of consecutive sentences should be reviewed under the reasonableness standard outlined in Booker. Although I do not agree with the majority's analysis, nevertheless, I will be bound by it in future cases because of the majority en banc decision.
8 The modern courts of appeals in Ohio can trace their origin to the Constitutional Convention of 1851. The district courts were, at times, composed of two of the common pleas judges of the respective districts and one of the Supreme Court judges, any three of whom formed a quorum. They were required to hold at least one term in each county of the district annually. See F.R. Aumann, The Development of the Judicial System of Ohio (1998), 41 Journal of the Ohio Historical Society 195. Thus, the limits were largely imposed by limitations on the size of the judiciary at the time, rather than on a predetermined formula to involve only three judges in a decision.
9 The approved en banc process for the Eighth District Court of Appeals is outlined in the court's Standing Resolution of 1976 as amended through September 3, 2003, in Sections 8(b)(i), (ii), (iii), and (iv).
10 For Ohio, the debate has largely focused on four specific areas dealing with trial courts making findings or giving reasons to support deviating from presumed sentences: first, a trial court's findings involving R.C. 2929.13(B)(1), (B)(2)(a), (B)(2)(b), nd R.C. 2929.19(B)(2)(a), where a trial court makes findings in support of a decision to impose a term of incarceration or a community-control sanction in felony cases of the fourth and fifth degree; second, a trial court's findings required under R.C. 2929.14(B) when a court imposes more than the minimum sentence for offenders who have not previously served a prison term; third, the trial court's findings required to impose maximum sentences under R.C. 2929.14(C) and 2929.19(B)(2)(d) and (e); and fourth, the situation faced here, where the court must make findings under R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) to support consecutive sentences.
11 Some have viewed Ohio as an "indeterminate" sentencing state; however, that designation can be applied to sentences in Ohio only when no judicial findings are utilized. When findings are made to justify an enhanced sentence, Ohio (like Alaska, Arizona, California, Colorado, Indiana, New Jersey, and New Mexico) is a "presumptive" sentencing state with Blakely andBooker implications. A defendant is presumed to receive a designated sentence absent a trial court's findings and reasons elevating or decreasing the sentence within a range. See Jon Wool and Don Stemen, Aggravated Sentencing: Blakely v. Washington: Practical Implications for State Sentencing Systems (2004), 17 Fed.Sent.R. 60.
12 It is not the concept of consecutive sentences that is unconstitutional; rather, it is the language requiring findings and reasons to justify their imposition that is unconstitutional.
13 Once the requirement for mandatory findings and reasons is removed, the application of the clear-and-convincing standard is rendered moot and replaced by a "reasonableness" standard. SeeBooker, supra.
14 The reasonableness standard has been defined as "something more than `not arbitrary or capricious' and something less than `supported by substantial evidence.'" Wellek v. United States (N.D.Ill. 2004), 324 F.Supp.2d 905, 911, quoting Loretto v.United States (E.D.Pa. 1977), 440 F.Supp. 1168, 1172. See, also,Varjabedian v. United States (D.Mass. 2004), 339 F.Supp.2d 140,144.