{¶ 73} I respectfully dissent, first, because I find unconstitutional the en banc process this court used to arrive at a decision in this case.
I {¶ 74} I find no authority for an Ohio appellate court to rule en banc. Section 3(A), Article IV, of the Ohio Constitution provides: "In districts having additional judges, three judges shall participate in the hearing and disposition of each case." Ohio's Constitution does not provide for more than three judges to serve on an appellate panel. Thus a ruling of more than the three scheduled to serve on the panel would have no effect.
{¶ 75} In Schwan v. Riverside Methodist Hosp. (Feb. 25, 1982), Franklin App. No. 81-AP-158, 1982 WL 3997, the Tenth Appellate District overruled a motion for rehearing en banc because such a hearing is "precluded" by this provision in the Constitution. I agree with this reading of Ohio's Constitution.
{¶ 76} There is no authority for an appellate panel of more than three judges. Nor is there any authority for an entire court sitting en banc to overrule a majority decision of a three-judge panel. It would be similarly improper for an administrative judge to assign a new member to a panel for the sole purpose of writing an opinion reflective of the entire court or of providing a vote necessary to create a majority consistent with an en banc court.
{¶ 77} The basis for an en banc court in the federal judicial system sharply highlights the absence of any similar authority in Ohio. Section 46(c), Title 28, U.S. Code expressly provides for hearing or rehearing before an appellate court "in banc." That provision was first codified in 1948. So the idea of an en banc procedure was certainly known to Ohio and to the Ohio legislature during all its amendments to the Code since 1948. No such comparable authority exists in Ohio, under either the Ohio Constitution or its statutes.
{¶ 78} Congress enacted an en banc provision in response to a decision of the United States Supreme Court: Textile MillsSecurities Corp. v. Commr. (1941), 314 U.S. 326, 62 S.Ct. 272,86 L.Ed. 249. In his article The Politics of En Banc Review in the "Mini-Supreme Court" (1997), 13 J.L. Politics 377, Christopher P. Banks describes the creation of an en banc jurisdiction in the federal courts as "the result of a historical accident." As the court in Textile Mills explained: *Page 296
The Judicial Code abolished the existing circuit courts. § 297. It carried over into § 117 without substantial change the provision of § 2 of the Act of March 3, 1891 that there should be a circuit court of appeals in each circuit "which shall consist of three judges." Though this section was said merely to represent existing law, § 118 of the Judicial Code provided for four circuit judges in the Second, Seventh, and Eighth Circuits, two in the Fourth Circuit, and three in each of the others. An anomalous situation was presented if § 117 were to be taken at that juncture as meaning that the circuit court of appeals would continue to be composed of only three, in face of the fact that there were more than three circuit judges in some circuits.
Textile Mills, 314 U.S. at 329, 62 S.Ct. 272, 86 L.Ed. 249, footnote omitted. Thus the Supreme Court had to resolve this "anomalous situation."
{¶ 79} No such anomaly occurs in the Ohio Constitution, which says, "The state shall be divided by law into compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. Indistricts having additional judges, three judges shallparticipate in the hearing and disposition of each case." (Emphasis added.) Section 3(A), Article IV, Ohio Constitution.
{¶ 80} Judge Gallagher argues that the number "three" in the Ohio Constitution "historically" had more to do with the minimum requirement of a "quorum." Since the word "quorum" was deleted from both the Constitution and the statute, however, we must accord special significance to that change. Its deletion implies that the number three no longer describes a minimum as in a quorum. The replacement for "quorum" was "shall participate in."15
{¶ 81} Currently, the Revised Code specifies, "In the eighth district, any three judges shall comprise the court of appeals in the hearing and disposition of cases in accordance with any local rules of practice and procedure that may be adopted by the judges of the court." (Emphasis added.) R.C. 2501.012(A). The word "comprise" defines what the hearing court "consists of." Unlike the synonym "include," "comprise" connotes that there is nothing outside what is listed: here, "three judges."
{¶ 82} "In the construction of a statute the primary duty of the court is to give effect to the intention of the Legislature enacting it." Cochrel v. Robinson (1925), 113 Ohio St. 526,149 N.E. 871, paragraph four of the syllabus, cited by *Page 297 Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 274,744 N.E.2d 719. "In order to determine the intent of the General Assembly in enacting legislation the court must give effect to the words used in the statute." Clark, at 274, 744 N.E.2d 719, citingBernardini v. Conneaut Area City School Dist. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 387 N.E.2d 1222.
{¶ 83} The history of R.C. 2501.012(A) demonstrates that the legislature had ample opportunity to provide for an en banc procedure by which an entire court could hear a case. In 1959 the Ohio Constitution was amended to authorize the legislature to pass laws to increase the number of judges. Section 6, ArticleIV, Ohio Constitution. In 1961, three judges were added to the Eighth District. In 1970, R.C. 2501.012 gave a general provision for districts with more than three judges: "In such districts, any three judges shall comprise the court of appeals in the hearing and disposition of cases * * *." (Emphasis added.)
{¶ 84} Later, the district was specifically named. This statute was repeatedly amended in 1976, 1980, 1984, 1986, and 1990. Each time, the legislature specifically addressed the particular district: "In the eighth district, any three judges shall comprise the court of appeals in the hearing and disposition of cases * * *." (Emphasis added.) These amendments from 1976 through 1990 often added judges to the court. In 1976, the number of judges on the Eighth District Court of Appeals changed from six to nine. In 1990, the number changed from nine to twelve. Each time the number of judges changed, the legislature retained the sentence specifying the number of judges as three for comprising the panel to hear and dispose of a case.
{¶ 85} Over the years, additional judges were also added to some of the other districts. With each change, the legislature retained the language specifying a three-judge panel. Currently, the statute specifies a three-judge panel and reiterates this for each specific district in which additional judges have been added. There is a separate and identical provision for nine different districts: R.C. 2501.012(A), (B), (C), (D), and (E) and 2501.013(A), (B), (C), and (D) — a total of nine specific provisions, each time reiterating that three judges will hear and dispose of a case.
{¶ 86} The Ohio Legislature cannot be presumed to have been unaware of the en banc procedure in the federal courts — a procedure codified in 1948 for federal courts. Ohio has no such statute. Indeed, the language of the Ohio Revised Code appears to have been crafted to avoid the anomaly that the United States Supreme Court addressed.
{¶ 87} A major difference between Ohio's Article IV and Section 117 of the Judicial Code, Section 43, Title 28, U.S. Code, is that Article IV specifies three judges in the explicit context of "the hearing and disposition of each case." In contrast, the United States Supreme Court, in Textile Mills, 314 U.S. at 332, *Page 298
62 S.Ct. 272, 86 L.Ed. 249, observed that Section 117 never addresses the "sitting" court or "the number who may hear and decide a case." The explicit language of the Ohio Constitution and the Ohio Revised Code prevents any ambiguity or anomaly. Nor has any judge on this court asserted otherwise.
{¶ 88} With this history of amendments and increases in the number of judges sitting on district courts, as well as the relatively new changes in the relevant statute, and the explicit language of the statute assigning three judges to hear and dispose of a case, there can be no doubt as to the intent of the legislature. Therefore, this court is obliged to follow the plain language of the Ohio Constitution and corresponding statutes.
{¶ 89} "It is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. See, e.g., Katz v. Department of LiquorControl (1957), 166 Ohio St. 229 [2 O.O.2d 54, 141 N.E.2d 294]. If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly. Sears v. Weimer (1944), 143 Ohio St. 312 [28 O.O. 270, 55 N.E.2d 413]." Provident Bank v. Wood (1973),36 Ohio St.2d 101, 105-106, 65 O.O.2d 296, 304 N.E.2d 378. I believe that this court is at that point.
{¶ 90} While I see no authority for an Ohio court of appeals to hear a case en banc, I also see much reason not to. Professor Banks observed that "Frank M. Coffin, a veteran judge on the U.S. Court of Appeals for the First Circuit, once remarked that courts sitting en banc `resemble a small legislature more than a court.'" The Politics of En Banc Review in the "Mini-Supreme Court," 13 J.L. Politics at 388. He reports that "critics typically argue * * * that en banc review is counterproductive because it: promotes judicial inefficiency,16 undermines the finality of panel decision-making, threatens court collegiality, and compromises judicial integrity." Id. at 388. See Judge Edwards's concurring opinion in Bartlett v. Bowen (C.A.D.C. 1987), 824 F.2d 1240, 1243-1244.
{¶ 91} An en banc procedure is even more superfluous, to use the word of Judge Laurence Silberman, Bartlett, supra, concurring opinion, at 1246, when the Ohio Supreme Court has already accepted the same issues and both sides have submitted briefs.
{¶ 92} I also find it improvident to hear en banc a matter currently in such flux nationally. In her dissent in Apprendi, Justice O'Connor exposed a conflict in *Page 299 the various analyses provided in Jones v. United States (1999),526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311, and McMillan v.Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67. She noted that the lead opinion in Apprendi v. New Jersey endorsed the following: "`"[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts thatincrease the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."' Ante,530 U.S. 466, 120 S.Ct. at 2363, 147 L.Ed.2d 435 ([italics] added) (quoting Jones, supra, at 252-253, 119 S.Ct. 1215,143 L.Ed.2d 311 (STEVENS, J., concurring)). Second, the Court endorses the rule as restated in Justice SCALIA's concurring opinion inJones. See ante, 530 U.S. 466, 120 S.Ct. at 2363,147 L.Ed.2d 435. There, Justice SCALIA wrote: `[I]t is unconstitutional to remove from the jury the assessment of facts that alter thecongressionally prescribed range of penalties to which acriminal defendant is exposed.' Jones, supra, at 253,119 S.Ct. 1215, 143 L.Ed.2d 311 ([italics] added). * * * InMcMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimumpenalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overrulingMcMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis." (Bold added.) Apprendi, 530 U.S. at 533, 120 S.Ct. 2348,147 L.Ed.2d 435 (O'Connor, J., dissenting). This passage was also cited by Justice Thomas in his dissent in Harris v. United States (2002), 536 U.S. 545, 582, 122 S.Ct. 2406, 153 L.Ed.2d 524.
{¶ 93} This subtle shift from "increase or alter the minimum penalty" to "increase the congressionally prescribed range of penalties" or "alter" them is only one of many indications that members of the United States Supreme Court are in the process of evolving and more precisely carving out the principles upon which Ohio's sentencing system will be judged. Indeed, the makeup of the majority that voted on recent cases is also in motion.
{¶ 94} Finally, I object to the specific procedure this court has followed. In using an en banc procedure, this court has been operating under an amendment to Article 8(b) of standing resolution en banc conference, found in Appendix C of the local rules. This rule authorizes the Administrative Judge of this court to convene the court to sit en banc to resolve the issues involved in the manner described below.
(ii) In the event the assigned panel hearing an appeal determines that it is necessary to overrule a previous decision of this Court, reported or unreported, or to issue a decision in conflict therewith, any judge on the panel shall request the Chief Justice to call an en banc conference of the Court to consider the issue. The parties will be requested to file supplemental briefs on the *Page 300 conflicting issues. * * * Oral rehearing en banc will not be allowed except by majority vote of the en banc court.
(iii) Following receipt of the supplemental briefs, if any, the Chief Justice shall call an en banc conference * * *.
{¶ 95} This rule requires that a previous decision be identified for purposes of determining whether it is necessary to overrule it or, at the very least, to issue a decision in conflict with it. In the case at bar, the majority opinion does not expressly identify any such case. Since such a case is a necessary condition to commence the en banc process, it should be identified in the en banc decision.
{¶ 96} More important is the next stage: requesting parties to file supplemental briefs on the issues in conflict. Whereas the rule goes on to clearly specify that an oral rehearing is solely at the option of the majority, the rule does not describe the request for supplemental briefs as optional. Nor would a party sua sponte file a supplemental brief, since the parties have not yet been advised that their case is in an en banc process. The rule specifies the sequence to be followed: the en banc conference follows receipt of the supplemental briefs. While the rule allows for the possibility that parties might not submit briefs, it is clear that "[t]he parties will be requested to." In the case at bar, however, this court did not request supplemental briefs. Because of the significant impact to the Ohio sentencing system if it is found to be unconstitutional, there is even greater reason for this court to seek out all possible arguments.
{¶ 97} Thus I include in my dissent my objection to this court's failure to comply not only with the limitations imposed by the Ohio Constitution and the Ohio Revised Code but also with its own stated procedure.
II {¶ 98} I also dissent, however, because I disagree with the majority opinion's conclusion that Apprendi, Blakely, andBooker do not apply to consecutive sentences. To restrict the applicability of these cases to those situations in which a defendant is sentenced for a single offense is too narrow and mechanical a view of those cases. The principle underlying those cases is quite broad: only juries can make findings that justify enhancing a punishment. In Blakely, the Supreme Court held:
Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring [v. Arizona (2002)], supra [536 U.S. 584], at 602, 122 S.Ct. 2428 [153 L.Ed.2d 556] ("`the maximum he would receive if punished according to the facts reflected in the jury verdict alone'"), quoting Apprendi, supra, at 483, *Page 301 120 S.Ct. 2348 [147 L.Ed.2d 435]; Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348 [147 L.Ed.2d 435] (facts admitted by the defendant). 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," Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.
(Emphasis sic.) Id., 542 U.S. 296, ___, 124 S.Ct. at 2537,159 L.Ed.2d 403.
{¶ 99} In the case at bar, the court could order that the sentences be consecutive only by making judicial findings beyond those either determined by a jury or stipulated to by the defendant. Applying Blakely to Ohio sentencing law, I must conclude, therefore, that a judge has no authority to impose a consecutive sentence, because to do so requires additional findings other than simply a prior conviction.
{¶ 100} Blakely has not only provided a very restrictive definition of statutory maximum, it also has limited the role of the court in all "exceptional" sentences, that is, whenever state law requires additional findings (other than a prior conviction) to which a defendant has not stipulated.
{¶ 101} As the Supreme Court explained in Blakely: "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,' [1] Bishop [Criminal Procedure (2d Ed. 1872)] § 87, at 55, and the judge exceeds his proper authority." Blakely, 542 U.S. at ___, 124 S.Ct. at 2537,159 L.Ed.2d 403. There can be no doubt that a punishment is enhanced when it is prescribed as consecutive.
{¶ 102} In saying that "[n]o findings made by the trial court can enhance the sentence beyond the statutory maximum," the majority ignores the definition of "statutory maximum" specifically stated in Blakely:
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," Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.
Blakely, 542 U.S. at ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403.
{¶ 103} The majority apparently discounts this explicit definition because of its context: Ohio's hybrid sentencing scheme "imposes determinate sentences from an indeterminate range of possible terms," whereas the sentencing system in *Page 302 Blakely was a grid. This comparison does not focus, however, on what the United States Supreme Court saw as the key in constitutional analysis: required judicial findings.
{¶ 104} Recently, the Indiana Supreme Court analyzed the constitutionality of its sentencing scheme, which is also a hybrid with major features similar to Ohio's. Smylie v. Indiana (2005), 823 N.E.2d 679. The Indiana Supreme Court reviewed one particular sentence: for defendant's crime of child solicitation, the Indiana Code provides a "fixed term" of one and one-half years, with the maximum being the addition of one and one-half years for aggravating circumstances and the minimum being the subtraction of up to one year for mitigating circumstances. Ind. Code Ann. § 35-50-2-7. Finding four aggravating circumstances and two mitigating circumstances, the trial court sentenced an offender to two-year terms on each of two counts and ordered them to be served consecutively, but suspended six months; so the total was three and one-half years. Smylie, supra, at 682.
{¶ 105} The Supreme Court of Indiana provided this analysis: "Because the judge has to find additional facts to impose a sentence higher than the presumptive sentence, the presumptive sentence is the `relevant statutory maximum.'" Id. at 684. Applying Blakely's definition of "statutory maximum," the Indiana Supreme Court decided that Indiana's "fixed terms" were "much like Washington's presumptive ranges." The court explained:
Indiana's sentencing scheme provides a "fixed term" presumptive sentence for each class of felonies. * * * These statutes also create upper and lower boundaries for each felony sentence. In deciding on whether to depart from the presumptive sentence, the trial judge must consider seven enumerated factors and may consider various other aggravating and mitigating factors. * * *
* * *
For Blakely purposes, Indiana's "fixed term" is the functional equivalent of Washington's "standard sentencing range." Both establish a mandatory starting point for sentencing criminals based on the elements of proof necessary to prove a particular offense and the sentencing class into which the offense falls. The trial court judge then must engage in judicial fact-finding during sentencing if a sentence greater than the presumptive fixed term is to be imposed. (Emphasis added.)
Smylie, 823 N.E.2d at 683.
{¶ 106} The court emphasized:
It is this type of judicial fact-finding that concerned the Court in Blakely. "When a judge inflicts punishment that the jury's verdict alone does not allow, *Page 303 the jury has not found all the facts `which the law makes essential to the punishment.'" Blakely, 542 U.S. at ___, 124 S.Ct. at 2537, 159 L.Ed.2d 403 (quoting 1 J. Bishop, Criminal Procedure § 87 (2d ed. 1872)).
{¶ 107} The Indiana Supreme Court concluded that it saw "little daylight between the Blakely holding and the Indiana system." Smylie, supra, 823 N.E.2d at 683. The court, therefore, held that portions of the Indiana sentencing scheme were unconstitutional.
{¶ 108} Like Indiana's system, Ohio's system has presumptions: the presumption of the minimum, of less than the maximum, and of concurrent sentences.17 These presumptions can be overcome if the judge makes additional findings. For example, in Ohio the aggravating factor for more than the minimum is the finding that the offender has served a prison term or that the minimum term would "demean the seriousness of the offense" or "will not adequately protect the public from future crime by the offender or others."
{¶ 109} A comparison with McMillan v. Pennsylvania (1986),477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67, helps to focus on the significance of these findings to the application of Blakely. In McMillan, the sentence did not run afoul of Sixth Amendment rights, because the state permitted the trial judge to order more than the minimum sentence even if the judge did not make anyfindings. Not so in Ohio, where judges are required to make findings when they impose a sentence that goes to a maximum in the prescribed range or above the minimum for someone who has not been in prison. It is that requirement of findings that is the key and the basis on which Blakely distinguished McMillan.Blakely, 542 U.S. at ___, 124 S.Ct. at 2538, 159 L.Ed.2d 403.
{¶ 110} The majority also observes that Ohio's sentencing scheme specifies possible terms and, therefore, defendants know what the possible maximum term will be for their crimes. This specificity is also in Indiana's scheme. The Indiana Supreme Court observed that the "unexpected increase" that Justice Scalia discussed did not arise in Indiana, because defendants were "aware of the maximum sentence that can be imposed for any given felony, namely, the range listed in the sentencing statutes." The Indiana court noted that "Washington's system gave similar notification"; that is, "a sentence may be increased to a statutory upper limit if `substantial and compelling reasons justify an exceptional sentence.'" The court further observed, however, that the "increase was `unexpected' in one important sense, namely that the aggravators used to support a *Page 304 departure from the presumptive are not charged in the indictment." Smylie, 823 N.E.2d at 684-685. Nor are they in Ohio.
{¶ 111} The majority further distinguishes Booker andBlakely on the basis that the facts the court relied upon for sentencing could "easily have been charged as elements of the offense because they were objective findings and thus readily amenable to disposition at trial." I appreciate this distinction and it might some day be the basis of a new direction for the Supreme Court. However the court has not enunciated this distinction, at least not in its most emphatic statements explaining the underlying principles of the recent sentencing cases. Rather, it focuses on what can be derived from the jury verdict alone, not on what could be derived from a jury verdict if the facts were amenable to and had been specified in the indictment.
{¶ 112} Since Blakely was issued, the United States Supreme Court has again enunciated this principle and explicitly reaffirmed its holding in Apprendi. "Any fact (other than aprior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Emphasis added.) United States v. Booker (2005), 543 U.S. ___, ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621.
{¶ 113} In a recent decision, the United States Supreme Court has further clarified just how far even a prior conviction can be used. Shepard v. United States (2005), ___ U.S. ___,125 S.Ct. 1254, 161 L.Ed.2d 205. A finding that relies upon "a fact about a prior conviction" is also questionable. In other words, to find that the public needs protection from a defendant because of his "prior judicial record" has gone a step beyond the specific fact of the conviction itself.
{¶ 114} It does not matter for purposes of Sixth Amendment analysis whether there are one or two sentences. Indeed, the order that sentences are consecutive is not a separate sentence; it is part of a sentence. In Harris v. United States,536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524, the Supreme Court, distinguishing between mandatory minimum and maximum, explained: "Read together, McMillan [v. Pennsylvania, 477 U.S. 79,106 S.Ct. 2411, 91 L.Ed.2d 67] and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of the constitutional analysis." Harris at 567, 122 S.Ct. 2406,153 L.Ed.2d 524. When the court in the case at bar ordered that the sentences be served consecutively, it set "the outer limits of a sentence." I, therefore, see no justification for excluding the application of Apprendi, Blakely, and Booker to consecutive sentences.
{¶ 115} I agree with Judge Gallagher's dissent in his conclusion that under Apprendi, Blakely, and Booker the Ohio statutes requiring findings for consecutive sentences are unconstitutional. I disagree, however, with the remedy he *Page 305 presents. Eliminating reasons, as well as findings, as a requirement will leave reviewing courts with no clear explanation of a sentence. Appellate courts will then be given the burden of searching for reasons. Because trial courts are more familiar with the facts of a case, the explanation for a sentence is best begun at that stage.
{¶ 116} This shift from requiring statutory findings and supporting reasons to a test for reasonableness belies the underlying question: whether the imposition of a particular sentence removes from the jury the "assessment of facts" that alter or increase "the prescribed range of penalties to which a criminal defendant is exposed." To add the requirement of "reasonableness" does not resolve this question, although I acknowledge that this is the criterion that the United States Supreme Court adopted for the federal guidelines.
{¶ 117} Booker expressly grounds its reasonableness criterion in a section of the pre-2003 text of the U.S. Code — a section that
directed appellate courts to review sentences that reflected an applicable Guidelines range for correctness, but to review other sentences — those that fell "outside the applicable Guideline range" with a view toward determining whether such a sentence "is unreasonable, having regard for * * * the factors to be considered in imposing a sentence, as set forth in Chapter 227 of this title; and * * * the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c)." 18 U.S.C § 3742(e)(3) (1994 ed.) (emphasis added).
Booker, 543 U.S. at ___, 125 S.Ct. at 765, 160 L.Ed.2d 621.
{¶ 118} The court noted that Section 3553(a), which "sets forth numerous factors that guide sentencing," "remains in effect." Booker, 543 U.S. at ___, 125 S.Ct. at 766,160 L.Ed.2d 621. In part, relying upon the 1994 statute, the court added that "a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly." The court also inferred "appropriate review standards from related statutory language, the structure of the statute, and the `sound administration of justice.'" Ultimately, the Supreme Court explained its standard of review as consistent with the principles of a prior case: "Pierce requires us to judge the appropriateness of our inference based on the statute's language and basic purposes."Booker, 543 U.S. at ___, 125 S.Ct. at 766, 160 L.Ed.2d 621, citing Pierce v. Underwood (1988), 487 U.S. 552, 558-560,108 S.Ct. 2541, 101 L.Ed.2d 490.
{¶ 119} The standard by which sentences in Ohio may be reviewed, therefore, must arise fundamentally from Ohio's statutes, not solely from Booker, which derived the basis of its review from federal statutes. Ohio's statutes do not articulate a reasonableness standard. Nor was this standard the previous statutory basis for appeal. Booker, on the other hand, does provide one way to *Page 306 view the "sound administration of justice."18 It is doubtful that adding the nebulous standard of "reasonableness," however, will honor the goal of consistency and proportionality, especially if judges are not required to explain their decisions.
{¶ 120} By forcing a certain intellectual framework on a judge's sentencing decision, Ohio's sentencing system provided a basis for comparison and imposed a certain analytical rigor upon trial judges — often not to their liking, but usually propaedeutic. We should not abandon the fundamental principle in Ohio's sentencing statutes that trial judges explain the basis of their sentences.
{¶ 121} Nor do I find in Booker any indication that the federal district courts no longer have to provide a "[s]tatement of reasons for imposing a sentence," as required under Section 3553(c), Title 18, U.S.Code. Booker expressly excised Sections 3553(b)(1) and 3742(e); it did not excise Section 3553(c), which reads: "The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence * * *."
{¶ 122} If this court excises the requirement of making findings, it need not also excise the requirement of providing reasons, even though they serve a different end than originally intended. This court may direct the court to provide an explanation consistent with the general purposes, that is, consistency and proportionality, and consistent with statutory factors, that is, the seriousness and recidivism factors of R.C.2929.12. Indeed, if the general purpose of consistency and proportionality was to be achieved through the statutes regarding mandatory findings, there is no reason that purpose could not be served, and the legislative intent thereby preserved, by excising the requirement for specific findings but still requiring an explanation.
{¶ 123} If the trial court is freed from providing any explanations, I believe the burden will fall on appellate courts to provide the rationale. That was never the intent of the legislature. Nor is it wise to turn a reviewing court into mice scurrying about through a transcript without a clear focus. Thus I would not remove the requirement that the trial court provide an explanation. I therefore additionally dissent for this separate reason.
{¶ 124} I also join Judge Sweeney's dissent from the majority opinion on the maximum-sentence issue.
15 In 1959, Section 6, Article IV of Ohio's Constitution was amended and also renumbered as Section 3. At that time, the statute specified: "In districts having additional judges, three judges shall participate in the hearing and disposition of each case." That language is identical to that found in the Ohio Constitution.
16 I note, furthermore, that the en banc procedure in a court of 12 judges is potentially even more inefficient because of the possibility of a tie vote. There is a special reason for having panels of three judges: the likelihood of a majority. With an en banc panel, on the other hand, a tie vote throws the case back to the three-judge panel from which the matter arose — after much waste of judicial time.
17 Indiana has two of these presumptions. The Indiana court did not find its sentencing for multiple counts running afoul ofBlakely, because Indiana statutes "do not erect any target or presumption concerning concurrent or consecutive sentences."Smylie, supra, 823 N.E.2d at 686. Ohio, however, has a presumption of concurrent sentences, with a few exceptions. R.C.2929.41.
18 The next generation of judges, I fear, will spend considerable time trying to get a hold of the word "reasonableness," as well as what is meant by "fact." Already federal district courts are trying to decide whether the federal guidelines are to be given "great weight," United States v.Wilson (D.Utah 2005), 350 F.Supp.2d 910, or not, United Statesv. Ranum (E.D.Wis. 2005) 353 F.Supp.2d 984 ("heavy" weight or the equivalent is not appropriate or necessary). *Page 307