[Cite as State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478.]




            THE STATE OF OHIO, APPELLEE, v. ELMORE, APPELLANT.
         [Cite as State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478.]
Criminal law — Resentencing pursuant to State v. Foster — Nonminimum and
        consecutive sentences permitted — Retroactive application of State v.
        Foster.
     (No. 2007-0475 — Submitted May 19, 2009 — Decided July 28, 2009.)
           APPEAL from the Court of Common Pleas of Licking County,
                                     No. 02 CR 275.
                                  __________________
                               SYLLABUS OF THE COURT
1. Resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
        845 N.E.2d 470, for offenses that occurred prior to February 27, 2006,
        does not violate the Sixth Amendment right to a jury trial or the Ex Post
        Facto or Due Process Clauses of the United States Constitution.
2. A trial court, upon resentencing pursuant to Foster, 109 Ohio St.3d 1, 2006-
        Ohio-856, 845 N.E.2d 470, has discretion to impose consecutive sentences
        and, despite the Foster severance of statutory presumptions, is not
        required by the rule of lenity to impose a minimum prison term.
                                  __________________
        LANZINGER, J.
                                   I. Case Procedure
        {¶ 1} Appellant, Phillip E. Elmore, was convicted by a jury of
aggravated murder with four death specifications, murder, kidnapping, aggravated
robbery, aggravated burglary, and grand theft of a motor vehicle in the June 2002
death of Pamela Annarino. He was sentenced to death for the capital offense of
aggravated murder. On the noncapital offenses, the trial court merged Count 2,
                              SUPREME COURT OF OHIO




murder, with Count 1, aggravated murder, and imposed a ten-year term of
imprisonment for Counts 3, 4, and 5, and an 18-month term of imprisonment for
Count 6. Count 3 was ordered to be served concurrently with all other counts,
while Counts 4, 5, and 6 were ordered to run consecutively to one another and
consecutively to the death sentence imposed for Count 1. Thus, Elmore’s total
prison term for the noncapital offenses was 21 and 1/2 years.
       {¶ 2} Elmore’s convictions and death sentence were affirmed by this
court on December 13, 2006. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-
6207, 857 N.E.2d 547, ¶ 169. However, we held that the trial court’s fact-finding
in support of maximum and consecutive sentences for the noncapital offenses
violated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, which
declared parts of Ohio’s felony-sentencing scheme unconstitutional. Elmore at ¶
139. Consequently, this court remanded Elmore’s case to the trial court for a new
sentencing hearing on the noncapital offenses in accordance with Foster. Elmore
at ¶ 140. On remand, the trial court resentenced Elmore to exactly the same
sentence.
       {¶ 3} Elmore then filed this appeal as a matter of right to challenge his
resentencing. We hold that Elmore’s post-Foster resentencing was proper and
therefore affirm the judgment of the Licking County Court of Common Pleas.
                            II. Analysis of Propositions
       {¶ 4} In summary, Elmore challenges the Foster remedy as it has been
applied to him. He contends that the trial court should have imposed no more
than minimum and concurrent prison terms for a total prison term of three years
and that his resentencing pursuant to Foster (1) violates his right to a jury trial, (2)
is an ex post facto violation, (3) is a due process violation, (4) was imposed by a
court that lacked jurisdiction to impose consecutive sentences, and (5) is




                                           2
                                     January Term, 2009




forbidden by the rule of lenity.1 We disagree and affirm the judgment of the court
of common pleas, now addressing Elmore’s five propositions of law separately.
                                  A. Right to Trial by Jury
        {¶ 5} In proposition of law one, Elmore argues that the Foster remedy
cannot be applied retroactively to his noncapital sentencing because it violates his
Sixth Amendment right to a jury trial based upon principles articulated in three
cases that hold that the jury must determine any fact (other than the existence of a
prior conviction) that increases the maximum authorized punishment. Apprendi v.
New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; Blakely v.
Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; and United
States v. Booker (2005), 543 U.S. 220, 125 S.Ct.738, 160 L.Ed.2d 621.
        {¶ 6} In Foster, we examined Ohio’s felony-sentencing structure and
held that certain statutes violated Sixth Amendment principles as stated in the
Apprendi line of cases. Consequently, we applied the Booker remedy and severed
the unconstitutional statutes requiring judicial factfinding. State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 90. Elmore, who committed his
crimes in June 2002, resists the retroactive application of Foster because, he
avers, he was deprived of “constitutional statutory presumptions” that were in
effect when he committed the offenses.
        {¶ 7} Much of Elmore’s argument rests on a misunderstanding of Foster
and the remedy of severance. We held in Foster that a court may not be required
to make findings before imposing more than a minimum prison term pursuant to
R.C. 2929.14(B); however, we have never held that the presumptive minimum


1. In Elmore’s previous appeal to this court, the state argued that Elmore’s challenge to the
noncapital sentences was rendered moot by Elmore’s death sentence. State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 139. The state has reiterated that argument in
the present appeal; however, because we held in the original appeal that the trial court’s reliance
upon unconstitutional sentencing statutes when imposing maximum and consecutive sentences on
the noncapital offenses violated Elmore’s constitutional rights, our review of Elmore’s
resentencing is proper.




                                                3
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prison term equated to a statutory maximum term. A defendant convicted of an
offense has always been on notice that the statutory maximum is the greatest
prison term within a felony range. While the Foster decision severed the
requirement that judges make findings before imposing a nonminimum prison
term, the severance does not make it necessary that defendants receive a
minimum prison term if findings are not made.
       {¶ 8} Elmore argues that after Foster, a trial court may never impose
nonminimum or consecutive sentences because before Foster, judges were
required to make findings of fact in order to depart from the minimum sentence.
Elmore then argues that he is entitled to no more than minimum concurrent terms.
But we had specifically considered and rejected this very outcome in Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 88-89. And we clarified that
trial courts have full discretion to impose a prison sentence within the statutory
range without the mandatory findings. Id. at ¶ 100.
       {¶ 9} Elmore faced no greater penalty on resentencing than he did at his
original sentencing. And both in Foster and the companion case of State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, we made clear that
sentencing courts in this state must still consider all of the remaining sentencing
factors contained in several sections of R.C. Chapter 2929. “Courts shall consider
those portions of the sentencing code that are unaffected by today’s decision and
impose any sentence within the appropriate felony range.” Foster, ¶ 105.
Unaffected sections “include R.C. 2929.11, which specifies the purposes of
sentencing, and R.C. 2929.12, which provides guidance in considering factors
relating to the seriousness of the offense and recidivism of the offender. In
addition, the sentencing court must be guided by statutes that are specific to the
case itself.” Mathis at ¶ 38.
       {¶ 10} As Justice Stevens stated in Booker concerning the federal
guidelines, “If the Guidelines as currently written could be read as merely




                                          4
                                 January Term, 2009




advisory provisions that recommended, rather than required, the selection of
particular sentences in response to differing sets of facts, their use would not
implicate the Sixth Amendment. We have never doubted the authority of a judge
to exercise broad discretion in imposing a sentence within a statutory range. * * *
For when a trial judge exercises his discretion to select a specific sentence within
a defined range, the defendant has no right to a jury determination of the facts that
the judge deems relevant.” Booker, 543 U.S. at 233, 125 S.Ct.738, 160 L.Ed.2d
621.
       {¶ 11} Resentencing under Foster did not violate Elmore’s Sixth
Amendment right to jury trial.
                             B. Ex Post Facto Clause
       {¶ 12} Elmore argues in proposition of law two that the application of the
Foster remedy to his noncapital sentencing violated the Ex Post Facto Clause of
the United States Constitution because the Foster remedy constituted judicial
legislation. We do not agree.
       {¶ 13} We held that Foster’s holding would be applied to all cases on
direct review, relying on Booker’s retroactive approach. State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 106. Because Elmore’s appeal was on
direct review when Foster was decided, his case was remanded to the trial court
for resentencing. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 130-140.
       {¶ 14} Section 10, Article I of the United States Constitution provides that
“[n]o State shall * * * pass any * * * ex post facto Law.” The Ohio Constitution
contains a similar provision, Section 28, Article II. Although the Ex Post Facto
Clause limits only legislative acts, similar limits have been placed on judicial
opinions. In Bouie v. Columbia (1964), 378 U.S. 347, 353–354, 84 S.Ct. 1697, 12
L.Ed.2d 894, the Supreme Court ruled that the judicial enlargement of a criminal
statute, applied retroactively, violated the Due Process Clause because it was




                                         5
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unforeseeable and acted precisely like an ex post facto law. See also State v.
Garner (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, quoting Bouie at 353, 84
S.Ct. 1697, 12 L.Ed.2d 894.
       {¶ 15} Judicial alteration of a common-law doctrine of criminal law will
violate the principle of fair warning and will not be given retroactive effect only
where the alteration “is ‘ “unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.” ’ ” Rogers v. Tennessee
(2001), 532 U.S. 451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697, quoting Bouie at
354, 84 S.Ct. 1697, 12 L.Ed.2d 894, quoting Hall, General Principles of Criminal
Law (2d Ed.1960) 58–59 (upholding the Tennessee Supreme Court’s abrogation
of the common-law “year and a day rule” in homicide prosecutions).
       {¶ 16} In essence, Elmore argues that this court’s Foster decision effected
a change in the substantive law applicable to his case. However, his arguments
that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403,
he was entitled to have a jury determine all facts relevant to an enhanced sentence
and that the Foster decision took away that substantive right are meritless.
       {¶ 17} The trial court on remand followed the instructions of Foster by
referring to all statutory provisions that it was required to consider: “The Court
has considered the record, oral statements, and the Presentence Investigation
prepared, as well as the principles and purposes of sentencing under Ohio Revised
Code Section 2929.11, and has balanced the seriousness and recidivism factors
under Ohio Revised Code Section 2929.12.” And although it was no longer
required to do so, the court made additional findings by stating: “The Court finds
that the minimum sentence in this case would not adequately punish the defendant
nor would it address the seriousness of the offense committed and would demean
the seriousness of the offenses.” Then the court imposed a sentence identical to
the one that Elmore had received originally for his noncapital offenses.




                                         6
                               January Term, 2009




       {¶ 18} His ex post facto challenge fails because there has been no increase
in potential punishment. “Even though it may work to the disadvantage of a
defendant, a procedural change is not ex post facto.” Dobbert v. Florida (1977),
432 U.S. 282, 293–294, 97 S.Ct.2290, 53 L.Ed.2d 344; see also Beazell v. Ohio
(1925), 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216; Collins v. Youngblood (1990),
497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30.
       {¶ 19} Elmore cites Miller v. Florida (1987), 482 U.S. 423, 107 S.Ct.
2446, 96 L.Ed.2d 351, to argue that the Foster remedy changed the actual terms
of the sentencing statutes and must be viewed as an implied legislative change
that is barred by ex post facto limitations. In Miller, Florida’s presumptive prison
range for an offense was changed by the legislature from 3 1/2 to 4 1/2 years to 5
1/2 to 7 years. Miller, 482 U.S. at 424, 426-428, 107 S.Ct. 2446, 96 L.Ed.2d 351.
       {¶ 20} The United States Supreme Court held that the application of the
revised guidelines in effect at sentencing, rather than those in effect when Miller
committed his offenses, constituted an ex post facto violation. The Supreme
Court held that the defendant was “substantially disadvantaged” by imposition of
the sentence under the new guidelines because it foreclosed his ability to
challenge the imposition of a sentence longer than the presumptive sentence under
the old law. Id. at 433, 107 S.Ct. 2446, 96 L.Ed.2d 351.
       {¶ 21} Miller, however, is distinguishable from Elmore’s situation.
Before Foster, Elmore was always subject to a three-to-ten-year sentence for his
conviction of each of the first-degree felonies and a six-to-18-month sentence for
his conviction of the fourth-degree felony (grand theft, auto). After Foster, there
is no increased presumptive sentence, which was the ex post facto violation in
Miller. Moreover, Elmore maintained his right to appeal any sentence. See State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26.
       {¶ 22} Therefore, Elmore’s resentencing was not an ex post facto
violation.




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                              SUPREME COURT OF OHIO




                                   C. Due Process
       {¶ 23} In proposition of law three, Elmore argues that his resentencing on
the noncapital offenses violates due process. The United States Supreme Court
has emphasized that when addressing due process claims of an ex post facto
nature, concepts of “notice, foreseeability, and, in particular the right to fair
warning” are paramount. Rogers, 532 U.S. at 459, 121 S.Ct. 1693, 149 L.Ed.2d
697. These concepts are important because the public must be able to adequately
inform itself of a law or a judicial interpretation before acting. United States v.
Barton (C.A.6, 2006), 455 F.3d 649, 654-655.
       {¶ 24} The application of the Foster remedy to Elmore’s resentencing
does not violate his due process rights. First, Foster did not judicially increase the
range of his sentence, nor did it retroactively apply a new statutory maximum to
his earlier committed offenses, nor did it create the possibility of consecutive
sentences where none had previously existed. Thus, Elmore had notice of the
sentencing range, which was the same at the time he committed the offenses as
when he was resentenced. He never had an irrebuttable presumption of minimum
and concurrent sentences. See State v. Mallette, 8th Dist. No. 87984, 2007-Ohio-
715, 2007 WL 530187, ¶ 47; State v. Houston, 10th Dist. No. 06AP-662, 2007-
Ohio-423, 2007 WL 275596, ¶ 5.
       {¶ 25} Second, in discussing Booker retroactivity, the Sixth Circuit stated:
“For this court to find that notice is a significant concern in this situation, it would
have to find that a defendant would likely have changed his or her conduct
because of a possible increase in jail time.” Barton, 455 F.3d at 656. Elmore
does not claim that he might have altered his conduct because of the possibility
that the elimination of judicial factfinding and presumptive concurrent and
minimum sentences might result in an increased prison term.
       {¶ 26} Moreover, Ohio courts of appeals have consistently held that there
is no due process or ex post facto violation in applying Foster to cases that have




                                           8
                               January Term, 2009




not completed their direct appeal. A significant part of the rationale for all these
cases has been that the defendants were on notice of the potential maximum
sentences for their crimes before Foster, and there was no change in the
maximum sentences after Foster was decided. See State v. Bruce, 170 Ohio
App.3d 92, 2007-Ohio-175, 866 N.E.2d 44, ¶ 11; State v. Smith, 2d Dist. No.
21004, 2006-Ohio-4405, 2006 WL 2459101, ¶ 34; State v. McGhee, 3d Dist. No.
17-06-05, 2006-Ohio-5162; 2006 WL 2796275, ¶ 20; State v. Grimes, 4th Dist.
No. 06CA17, 2006-Ohio-6360, 2006 WL 3480378, ¶ 9-11; State v. Paynter, 5th
Dist. No. CT2006-0034, 2006-Ohio-5542, 2006 WL 3020319, ¶ 40-42; State v.
Coleman, 6th Dist. No. S-06-023, 2007-Ohio-448, 2007 WL 293171, ¶ 19-20;
State v. Mallette, 8th Dist. No. 87984, 2007-Ohio-715, 2007 WL 530187, ¶ 47;
State v. Gibson, 10th Dist. No. 06AP-509, 2006-Ohio-6899, 2006 WL 3775878, ¶
18; State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011, 2006 WL
3833868, ¶ 21-25; State v. Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-
5373, 2006 WL 2934289, ¶ 49-50.
       {¶ 27} Additionally, federal circuit courts have addressed the due process
and ex post facto arguments in relation to the application of the Booker decision.
Several circuit courts have rejected these arguments primarily on the basis that
defendants were on notice as to the statutory maximums regardless of whether the
federal sentencing guidelines were mandatory. United States v. Alston-Graves
(C.A.D.C. 2006), 435 F.3d 331, 343; United States v. Lata (C.A.1, 2005), 415
F.3d 107, 112; United States v. Vaughn (C.A.2, 2005), 430 F.3d 518, 524-525;
United States v. Pennavaria (C.A.3, 2006), 445 F.3d 720, 723-724; United States
v. Davenport (C.A.4, 2006), 445 F.3d 366, 369-370; United States v. Jamison
(C.A.7, 2005), 416 F.3d 538, 539; United States v. Dupas (C.A.9, 2005), 419 F.3d
916, 921; United States v. Duncan (C.A.11, 2005), 400 F.3d 1297, 1307-1308.
       {¶ 28} Finally, in his reply brief, Elmore cites Danforth v. Minnesota
(2008), __ U.S. __, 128 S.Ct. 1029, 169 L.Ed.2d 859, in arguing that application




                                         9
                             SUPREME COURT OF OHIO




of the Foster remedy is not constitutionally required in his case. Danforth, in a
petition for postconviction relief, had sought retroactive application of Crawford
v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, which
generally bars out-of-court testimonial witness statements.        The Minnesota
Supreme Court held that under Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334, it could apply a new rule of federal constitutional
criminal procedure retroactively on collateral review only if the rule was
substantive or a “ ‘watershed rule’ of criminal procedure” implicating the
fundamental fairness and accuracy of the proceedings.            Danforth v. State
(Minn.2006), 718 N.W.2d 451, 457, 460. The United States Supreme Court
reversed, holding that Teague does not bar states from giving broader retroactive
effect to new rules of federal constitutional criminal procedure in their own state
collateral proceedings. Danforth, ___ U.S. at ___, 128 S.Ct. at 1042, 1047, 169
L.Ed.2d 859.
        {¶ 29} Elmore’s case involves a direct appeal, rather than a collateral
attack. Furthermore, because Danforth holds that states may be more generous in
giving retroactive effect to new federal rules in state postconviction proceedings,
Elmore’s argument that Danforth somehow limits this court’s ability to
retroactively apply the Foster remedy to his case lacks merit.
        {¶ 30} Elmore’s resentencing did not violate his due process rights.
                            D. Consecutive Sentences
        {¶ 31} In proposition of law four, Elmore argues that the trial court lacked
the authority to impose consecutive sentences because Foster, as part of its
remedy, excised in their entirety R.C. 2929.14(E)(4) and 2929.41(A), the statutory
provisions that authorized consecutive sentences. Thus, he contends that the trial
court lacked any statutory or constitutional basis to impose consecutive sentences
in his case.




                                         10
                                January Term, 2009




       {¶ 32} We addressed this issue in State v. Bates, 118 Ohio St.3d 174,
2008-Ohio-1983, 887 N.E.2d 328. In Bates, we considered whether a trial court
has the authority after Foster to order a prison sentence that it imposes to be
served consecutively to a prison sentence already imposed by another Ohio court.
Id. at ¶ 11. We stated that before Foster, R.C. 2929.14(E)(4) and 2929.41(A) did
not permit a trial court to order a prison sentence to be served consecutively to a
prison sentence previously imposed on the offender by a different court. Id. at ¶
14. However, Foster severed and excised R.C. 2929.14(E)(4) and 2929.41(A) in
their entirety.   Thereafter, no statute remained to establish presumptions for
concurrent and consecutive sentences. Id. at ¶ 18.
       {¶ 33} We held in Bates that in the absence of statutory authority, “the
common-law presumptions are reinstated.” Bates at ¶ 18, citing 73 American
Jurisprudence 2d (2007), Statutes, Section 271 (the repeal of a statute that
abrogates the common law operates to reinstate the common-law rule). We also
stated that “ ‘in the absence of [a] statute [stating otherwise], it is a matter solely
within the discretion of the sentencing court as to whether sentences shall run
consecutively or concurrently.’ ” Id. at ¶ 13, quoting Stewart v. Maxwell (1963),
174 Ohio St. 180, 181, 22 O.O.2d 116, 187 N.E.2d 888. See also State ex rel.
Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 23 O.O.2d 357, 191 N.E.2d 549.
(“It is clear that a court has the power to impose consecutive sentences”);
Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805 (“this court,
with the courts of most of the other states, as well as England, has sustained
cumulative sentences without the aid of a statute”). In Bates, we held that after
Foster, a “trial court now has the discretion and inherent authority to determine
whether a prison sentence within the statutory range shall run consecutively or
concurrently.” Bates at ¶ 19.
       {¶ 34} Since Foster was decided, the United States Supreme Court has
announced Oregon v. Ice (2009), ___ U.S. ___, 129 S.Ct. 711, 714, 172 L.Ed.2d




                                          11
                                SUPREME COURT OF OHIO




517, a case that held that a jury determination of facts to impose consecutive
rather than concurrent sentences was not necessary if the defendant was convicted
of multiple offenses, each involving discrete sentencing prescriptions. The jury
historically played no role in a decision to impose sentences consecutively or
concurrently. The choice rested exclusively with the judge, and thus the Oregon
statutes did not erode any traditional function of the jury. Further, the state had
sovereign authority over the administration of its criminal justice system, and
there was no compelling reason to diminish the state’s role by curbing the state’s
limitation on the discretion of judges in imposing consecutive or concurrent
sentences.
        {¶ 35} Foster did not prevent the trial court from imposing consecutive
sentences; it merely took away a judge’s duty to make findings before doing so.
The trial court thus had authority to impose consecutive sentences on Elmore. We
will not address fully all ramifications of Oregon v. Ice, since neither party sought
the opportunity to brief this issue before oral argument.2
                                  E. The Rule of Lenity
        {¶ 36} Elmore argues in his fifth proposition of law that the trial court’s
imposition of consecutive, nonminimum, and maximum sentences violated the
rule of lenity. He alleges that he should have received minimum and concurrent
sentences for his noncapital offenses.
        {¶ 37} The “rule of lenity” is codified in R.C. 2901.04(A), which provides
that sections of the Revised Code that define penalties “shall be strictly construed
against the state, and liberally construed in favor of the accused.”



2. Three weeks after oral argument, the state filed a “Motion for Post-Argument Supplemental
Briefing Regarding Impact of Oregon v. Ice.” That motion is denied. The common pleas court
had no opportunity to consider the impact of Ice on this case and our opinion in Foster.
Furthermore, after the United States Supreme Court opinion in Ice was announced in January,
both Elmore and the state had more than four months to file a motion seeking to supplement the
briefs prior to oral argument; however, the parties chose not to do so.




                                             12
                               January Term, 2009




       {¶ 38} The rule of lenity is a principle of statutory construction that
provides that a court will not interpret a criminal statute so as to increase the
penalty it imposes on a defendant if the intended scope of the statute is
ambiguous. See Moskal v. United States (1990), 498 U.S. 103, 107-108, 111
S.Ct. 461, 112 L.Ed.2d 449, quoting Bifulco v. United States (1980), 447 U.S.
381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205, quoting Lewis v. United States (1980),
445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (“ ‘the “touchstone” of the rule of
lenity “is statutory ambiguity” ’ ”); State v. Arnold (1991), 61 Ohio St.3d 175,
178, 573 N.E.2d 1079.       Under the rule, ambiguity in a criminal statute is
construed strictly so as to apply the statute only to conduct that is clearly
proscribed. United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219,
137 L.Ed.2d 432.
       {¶ 39} In arguing that the rule of lenity was violated, Elmore asserts that
the General Assembly enacted a statutory scheme intended to reserve consecutive
and maximum sentences for the worst offenders and offenses. He contends that
Foster’s elimination of statutory presumptions for minimum and concurrent
sentences and the elimination of limitations on judicial discretion in imposing
greater prison terms constituted the least lenient construction of the statutes
applied in resentencing him. Accordingly, Elmore argues that he should have
been sentenced to minimum and concurrent sentences for his noncapital offenses.
       {¶ 40} Elmore’s argument misconstrues the rule of lenity. He seeks to
apply the rule by arguing that the Foster remedy ignored the General Assembly’s
intent in enacting the sentencing laws. However, the rule of lenity applies to the
construction of ambiguous statutes and not to determinations of a remedy for a
statute’s unconstitutionality or to the law regarding the retroactive application of
this court’s decisions. United States v. Johnson (2000), 529 U.S. 53, 59, 120
S.Ct. 1114, 146 L.Ed.2d 39 (“Absent ambiguity, the rule of lenity is not
applicable to guide statutory interpretation”); Gozlon-Peretz v. United States




                                        13
                            SUPREME COURT OF OHIO




(1991), 498 U.S. 395, 410, 111 S.Ct. 840, 112 L.Ed.2d 919, quoting Callanan v.
United States (1961), 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (“ ‘The rule
comes into operation at the end of the process of construing what Congress has
expressed, not at the beginning as an overriding consideration of being lenient to
wrongdoers’ ”). See also State v. Green, 11th Dist. Nos. 2005-A-0069 and 2005-
A-0070, 2006-Ohio-6695, 2006 WL 3703204, ¶ 24.
        {¶ 41} Elmore argues that there is an ambiguity in the sentencing statutes
because they have been severed. Nevertheless, nothing in the language of the
version of R.C. 2929.14 effective at the time of Elmore’s resentencing is
ambiguous. As we explained, “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
give their reasons for maximum, consecutive, or more than the minimum
sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶
100. Accordingly, the rule of lenity does not apply. See State v. Ross, 9th Dist.
No. 23375, 2007-Ohio-1265, 2007 WL 841022, ¶ 15; State v. Houston, 10th Dist.
No. 06AP-662, 2007-Ohio-423, 2007 WL 275596, ¶ 7; State v. Moore, 3d Dist.
No. 1-06-51, 2006-Ohio-6860, 2006 WL 3771098, ¶ 12.
                                 III. Conclusion
        {¶ 42} We hold that resentencing pursuant to State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, for offenses that occurred prior to
February 27, 2006, does not violate the Sixth Amendment right to a jury trial, or
the Ex Post Facto or Due Process Clauses of the United States Constitution. A
trial court, upon resentencing pursuant to Foster, has discretion to impose
consecutive sentences and, despite the Foster severance of statutory
presumptions, is not required by the rule of lenity to impose a minimum prison
term.
        {¶ 43} The resentencing of Elmore on his noncapital offenses was
conducted in accordance with this court’s direction on remand. State v. Elmore,.




                                        14
                               January Term, 2009




111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 169. We accordingly
affirm the judgment of the Licking County Court of Common Pleas.
                                                               Judgment affirmed.
       MOYER,    C.J.,   and    PFEIFER,    LUNDBERG     STRATTON,   O’CONNOR,
O’DONNELL, and CANNON, JJ., concur.
       TIMOTHY P. CANNON, J., of the Eleventh Appellate District, sitting for
CUPP, J.
                               __________________
       Kenneth W. Oswalt, Licking County Prosecuting Attorney, for appellee.
       Keith A. Yeazel and W. Joseph Edwards, for appellant.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert
and Steven L. Taylor, Assistant Prosecuting Attorneys, urging affirmance for
amicus curiae, Ohio Prosecuting Attorneys Association.
                          ______________________




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