Does 2009 U.S. Supreme Court Decision Require Ohio to Follow Former Law In Imposing Consecutive Sentences?

Sentencing Provisions Voided as Unconstitutional in 2006 'Foster' Decision

State of Ohio v. Kenneth Hodge, Case no. 2009-1997

1st District Court of Appeals (Hamilton County)

ISSUE: In State v. Foster (2006), the Supreme Court of Ohio severed (declared unenforceable) on constitutional grounds two provisions of Ohio's criminal sentencing statute that authorized judges (rather than juries) to make factual findings that supported: 1) the imposition of a non-minimum sentence on an offender for a single criminal offense and 2) the imposition of consecutive, rather than concurrent, sentences on an offender convicted of multiple crimes. By severing those provisions, the Foster decision effectively gave Ohio trial court judges full discretion to impose any sentence within the statutory sentencing range for a defendant's offense, and to determine whether it was appropriate for an offender convicted of multiple crimes to serve his sentences for those crimes concurrently (at the same time) or consecutively (one after the other) without making the specific factual findings in support of a non-minimum or consecutive sentence that were previously required under the severed provisions. In this case, the Supreme Court of Ohio is asked to determine whether, in light of the U.S. Supreme Court's 2009 holding in Oregon v. Ice that an Oregon law authorizing judges to make factual findings to support consecutive sentences was not unconstitutional, Ohio courts must resume making the judicial findings that were required under the state's pre-Foster sentencing law in order to validly impose consecutive sentences.