dissenting.
{¶ 37} The mandate of the United States Supreme Court vacated this court’s earlier decision in this case and remanded the case “for further consideration in light of Alleyne v. United States, 570 U.S.—[133 S.Ct. 2151, 186 L.Ed.2d 314] (2013).” Willan v. Ohio, — U.S. — , 134 S.Ct. 1873, 188 L.Ed.2d 905 (2014). Because I do not believe that the majority has grasped the import of Alleyne, I respectfully dissent. I would reverse Willan’s conviction under R.C. 2923.32(A)(1), part of Ohio’s Racketeer Influenced and Corrupt Organizations (“RICO”) statute, and the ten-year sentence imposed for that offense.
{¶ 38} The portion of the judgment of the Ninth District Court of Appeals that reversed Willan’s mandatory ten-year prison term imposed for the RICO count was reversed by a majority of this court. State v. Willan, 136 Ohio St.3d 222, 2013-Ohio-2405, 994 N.E.2d 400. I dissented from that judgment on grounds of the RICO statute’s ambiguity and the majority’s failure to follow the rule of lenity. Id. at ¶ 13-21 (Lanzinger, J., dissenting). Now, with the announcement of Alleyne, the United States Supreme Court has presented Willan another reason for reversal of his RICO conviction and sentence. His Sixth Amendment right to a jury trial has been violated. Willan cannot stand convicted of a violation of R.C. 2923.32(A)(1) in this case, because the jury never found that he had engaged in a “pattern of corrupt activity” by committing false representation in the registration of securities.
{¶ 39} Alleyne says that “judicial factfinding that increases the mandatory minimum sentence for a crime” violates the Sixth Amendment. Alleyne at 2155. Alleyne follows a line of Sixth Amendment cases that recognizes the jury’s right and obligations as fact-finder. The jury must find all elements of a crime beyond a reasonable doubt. Id. at 2156. A judge cannot impose a sentence that relies on facts not reflected in the jury’s verdict. Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 304,124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
*103{¶ 40} I do not agree that these findings were findings of law rather than findings of fact and that there is accordingly no Alleyne violation. The majority ignores the effect of lack of jury findings by focusing on the judge’s role in sentencing (i.e., all the trial judge had to do was apply R.C. 2923.31(I)(2)(a) as written). While it is true that a judge does not engage in fact-finding by merely applying the law as written, the judge sentences only after the jury has properly concluded its role. What must be determined first is whether the jury made all of the required findings. See Apprendi at 477; United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The RICO statute cannot be applied until the jury determines the requisite elements beyond a reasonable doubt. Id. (the Fifth and Sixth Amendments require “criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”).
{¶ 41} For this reason, I disagree with the majority’s conclusion that James v. United States, 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), is dispositive on the point whether the trial judge engaged in fact-finding. In that case, James pled guilty in federal court to one count of possessing a firearm and admitted to the three prior felony convictions listed in his federal indictment. Id. at 195-196. During sentencing, James objected to the application of the federal 15-year mandatory minimum term on the basis that one of his prior felony convictions — for committing attempted burglary in violation of Florida state law — did not constitute a “violent felony” under the federal statute. Id. at 196— 197. He cited Apprendi in arguing that construing attempted burglary as a violent felony violated his Sixth Amendment rights because doing so constituted judicial fact-finding. Id. at 213-214. The court rejected his argument, reasoning that it had engaged in statutory interpretation, rather than fact-finding, in examining the elements of attempted burglary as defined in the Florida law to determine whether it constituted a violent felony under the federal statute. Id. at 214.
{¶ 42} James, which was decided seven years prior to Alleyne, is inapposite to the case before us for two reasons. First, prior convictions fall under an exception to the United States Supreme Court’s Apprendi analysis. In Apprendi, the court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435. The analysis of the prior conviction in James, then, is distinct from the analysis whether the state has proved each element of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1).
*104{¶ 43} James is also inapposite because it involved a defendant who admitted to the three prior felony convictions listed in his indictment. No such admission or stipulation has occurred in this case. Whether Willan engaged in false representation in the registration of securities, whether he committed aggravated theft, and whether he committed theft from the elderly were facts to be determined by the jury, as was the question of whether any of these activities amounted to engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1).
{¶ 44} The majority states: “In this case, we know that Willan was found guilty of engaging in a pattern of corrupt activity (the RICO charge) and was found guilty of three counts of false representation.” Majority opinion at ¶ 17. What the jury did not find, however, was that the three counts of false representation were the predicate “incidents of corrupt activity.” It is not enough that false representation could qualify as “corrupt activity.” The jury must find that it actually was the predicate corrupt activity.
{¶ 45} The verdict form asked the jury to fill in the blank in the following sentence with either “was” or “was not”: “We further find that at least one of the incidents of corrupt activity_False Representation in the Registration of Securities, Aggravated Theft or Theft from the Elderly.” The three potential predicate crimes are stated in the alternative.
{¶ 46} The point is, the jury never was asked whether the crime of false registration itself was a predicate incident of corrupt activity. The jury was not asked to make the finding inclusively for all three types of charges. In fact, it might have found that the evidence related to theft from the elderly or aggravated theft satisfied those elements. But we do not and cannot know whether the jury would have found that false registration of securities was included within the phrase “at least one of the incidents of corrupt activity” as stated in its verdict. We do not have a statement that the jury found all required elements as they would relate solely to the false-registration convictions upheld by the court of appeals.
{¶ 47} It is therefore possible that rather than the securities-registration violations, aggravated thefts constituted the incidents of corrupt activity. Or it is even more likely that the investors who testified at trial may have moved the jury to find that theft from the elderly constituted the incidents of corrupt activity. I do not agree with the majority’s conclusion that it was “beyond a reasonable doubt that if the jury had been asked directly, it would have listed the false-representation counts as RICO predicates.” Majority opinion at ¶ 34.
{¶ 48} The majority would also allow the trial court to supply the finding that the counts of false representation were first-degree felonies because the jury indicated on verdict forms that the value of each false-representation count was *105more than $100,000. And by considering the evidence of record to be “clear-cut,” the majority itself acts as fact-finder, concluding that the record supports a RICO conviction. Except that the jury did not so find in its verdict.
Brad L. Tammaro, Assistant Attorney General, as Special Prosecuting Attorney, and Colleen Sims, Assistant Summit County Prosecuting Attorney, for cross-appellant. William T. Whitaker Co., L.P.A., William T. Whitaker, and Andrea L. Whitaker, for cross-appellee.{¶ 49} This is not simply an analysis of the sufficiency of the evidence. With some of the possible predicate offenses having been reversed, the jury’s findings with respect to the remaining predicate offense of false representation in the registration of securities needed to be examined to determine whether the RICO conviction could still stand. The actual verdict delivered is crucial — what did the jury determine with respect to the registration convictions that remained? That point was not at issue until now. If there is no RICO verdict, there is no need to discuss sufficiency of the evidence.
{¶ 50} By leaping to the discussion of evidence sufficiency, the majority bypasses Alleyne. And in an amazing statement, it concludes that “even if we were to construe the judicial identification of the RICO predicates as an Apprendi/Alleyne error, it would be a harmless one.” Majority opinion at ¶ 28. In my view, an erroneous ten-year mandatory addition to a sentence is hardly “harmless.”
{¶ 51} I would hold that Alleyne requires reversal of Willan’s RICO conviction and mandatory ten-year sentence.