concurring.
{¶ 27} I agree reluctantly that this de facto life sentence does not constitute cruel and unusual punishment, based upon the precedent as set forth in the majority opinion. Hairston’s activities generate no sympathy: only days after his release from prison, he broke into three homes carrying a firearm, terrorized the residents, and robbed them. At age 24, Hairston was sentenced to a total of 134 years for noncapital offenses arising from three events that fortunately did not involve serious physical harm to his four victims. Nevertheless, because his aggregate sentence consists of individual prison terms that do not exceed their statutory ranges of punishment, Hairston cannot win an Eighth Amendment challenge.1
{¶ 28} We did not accept a broad-based attack on the sentencing statutes in accepting this discretionary appeal, and therefore the holding today is narrowly stated. But because of the potential impact of this opinion, I write separately to urge the General Assembly to act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this court’s response to the United States Supreme Court decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. After the enactment of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2”), Ohio’s sentencing statutes for ten years guided judicial discretion when courts imposed either concurrent or consecutive sentences for multiple offenses.
{¶ 29} As we stated in Foster, R.C. 2929.14(E)(4) required a trial court to find that consecutive prison terms were necessary either to protect the public from future crime or to punish the offender and to find that consecutive sentences were not disproportionate to the seriousness of the conduct and to the danger posed by the offender. 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 65. The statute also instructed the court to make at least one of three other findings: that the offender was already under the control of the court due to an earlier conviction; that at least two of the offenses were committed as part of a course of conduct, and the harm was so great or unusual that no single prison term adequately reflected the seriousness of the conduct; or that the offender’s criminal history demonstrated that consecutive sentences were necessary to protect the public. See id. at ¶ 65. Under R.C. 2929.41(A), a presumption existed that sentences for multiple offenses would be imposed concurrently unless the trial judge made the necessary findings.
{¶ 30} After measuring the statutory language against the principles set forth in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, *298and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, we held that R.C. 2929.14(E)(4) and 2929.41(A) were unconstitutional but were capable of being severed. Judicial fact-finding is thus no longer required before consecutive prison terms are imposed. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraphs three and four of the syllabus.
{¶ 31} Hairston’s sentencing judge merely needed to consider certain statutory factors before imposing sentence. See id. at ¶ 36-42. Otherwise, her discretion was unfettered. The majority opinion notes that this sentence involves “an aggregate prison term that is not likely to be served” — in other words, a life sentence. Unfortunately, the majority’s affirmation of Hairston’s sentence can be interpreted as effectively legitimizing noncapital life sentences and extending them to situations where no one is killed or seriously injured. It is a rare victim who does not consider the crime committed by an offender to be undeserving of a maximum penalty. When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence. It will take a courageous judge not to “max and stack” every sentence in multiple-count cases.
{¶ 32} We were prescient in Foster but also noted this court’s limitations: “By vesting sentencing judges with full discretion, it may be argued, [severance] vitiates S.B. 2’s goals, particularly with respect to reducing sentencing disparities and promoting uniformity. * * * It may well be that in the future the Ohio Criminal Sentencing Commission may recommend Blakely-compliant statutory modifications to the General Assembly that will counteract these, among other, concerns. Nevertheless, we are constrained by the principles of separation of powers and cannot rewrite the statutes.” 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 100.
{¶ 33} If the concerns expressed over prison crowding are legitimate, and the General Assembly is considering legislation that allows for the diversion of more nonviolent offenders as well as greater clemency powers for the executive branch,2 see 2008 Sub.H.B. No. 130, it may also well consider rewriting the statutes to restore guidelines for imposing consecutive sentences. We are holding that a 134-year sentence is not cruel and unusual and does not violate the Eighth Amendment or Section 9, Article I of the Ohio Constitution. It is the General Assembly’s obligation to decide if such a sentence will become common.
Moyer, C.J., and Pfeifer, J., concur in the foregoing opinion. Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee. Clark Law Office and Toki M. Clark, for appellant.. Although appellant argued that some of the offenses were allied offenses and should have been merged, this court did not accept that proposition, limiting his appeal solely to the claim that the length of his sentence was cruel and unusual punishment.
. See Johnson, Bill Approved to Ease Prison Overcrowding, Columbus Dispatch, Apr. 16, 2008, at http://www.dispatchpolitics.com/live/content/locaL-news/stories/2008/04/16/RE-ENTER.ART_ART_ 04-16-08_B4_HF9UMO0.html?sid=101 (accessed May 6, 2008).