[Cite as State v. Blackburn, 2009-Ohio-5902.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                   CASE NO. 5-09-18

    v.

FANTAZIA BLACKBURN,                                         OPINION

    DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2008-CR-287

                                      Judgment Affirmed

                           Date of Decision: November 9, 2009




APPEARANCES:

         Neil S. McElroy for Appellant

         Drew A. Wortman for Appellee
Case No. 5-09-18




WILLAMOWSKI, J.,

       {¶1} Defendant-Appellant, Fantazia K. Blackburn, (“Blackburn”) appeals

the judgment of the Hancock County Court of Common Pleas imposing

consecutive sentences for her felony drug trafficking convictions.        Blackburn

contends that, based upon a recent ruling by the United States Supreme Court, the

trial court should have made findings justifying the imposition of consecutive

sentences. For the reasons set forth below, the judgment of the trial court is

affirmed.

       {¶2} On March 19, 2009, Blackburn appeared in court and entered guilty

pleas to five counts of drug trafficking: Count 1 – trafficking in marijuana (5th

degree felony); Counts 2 and 4 – aggravated trafficking in drugs (2nd degree

felonies); Counts 3 and 5 – aggravated trafficking in drugs (1st degree felonies).

       {¶3} On May 7, 2009, Blackburn was sentenced to eleven months in

prison for count one, six years in prison for each of counts two through four, and

eight years in prison for count five. The court ordered the first four counts to be

served concurrently with one another and consecutively to the sentence in count

five, for an aggregate sentence of fourteen years. The trial court did not state any

specific findings for the imposition of consecutive sentences.

       {¶4} It is from this sentence that Blackburn appeals, raising the following

assignment of error.


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Case No. 5-09-18


       The trial court erred when it ordered sentences to be served
       consecutively without making the findings required by State v.
       Comer which are required again in light of the recent United
       States Supreme Court ruling in Oregon v. Ice.

       {¶5} Blackburn argues that in light of the United States Supreme Court’s

decision in Oregon v. Ice (2009), --- U.S. ---, 129 S.Ct. 711, 172 L.Ed.2d 517,

Ohio trial courts must return to the felony sentencing statutory requirements that

was in effect prior to the Ohio Supreme Court’s decision in State v. Foster, 109

Ohio St.3d 1, 855 N.E.2d 470, 2006-Ohio-856. Specifically, Blackburn maintains

that the decision in Ice means that judges must again make certain findings on the

record before imposing consecutive sentences. Blackburn asks that her case be

remanded to the trial court for re-sentencing so that appropriate findings can be

made a part of the record.

       {¶6} Prior to the Ohio Supreme Court’s decision in State v. Foster, Ohio

courts were required to make statutorily enumerated findings supporting

consecutive sentences and give reasons supporting those findings at the sentencing

hearing. State v. Comer, 99 Ohio St.3d 463, 793 N.E.2d 473, 2003-Ohio-4165,

paragraph one of the syllabus; R.C. 2929.14(E)(4) and 2929.19(B)(2)(c).         In

Foster, the Ohio Supreme Court held that the statutes which required judicial fact-

finding before the imposition of consecutive sentences were unconstitutional

violations of the Sixth Amendment under Blakely v. Washington (2004), 542 U.S.

296, 124 S.Ct. 2531, and Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct.



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Case No. 5-09-18


2348.       Foster, supra.       As a result, the Ohio Supreme Court severed those

provisions from Ohio’s sentencing framework and held that 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 imposing maximum,

consecutive, or more than the minimum sentences.” Foster, at ¶100.

        {¶7} Earlier this year, the United States Supreme Court examined an

Oregon statute,1 similar to Ohio’s R.C. 2929.14, which required judges to find

certain facts before imposing consecutive rather than concurrent sentences.

Oregon v. Ice, supra; State v. Eatmon, 8th Dist. No. 92048, 2009-Ohio-4564, ¶23.

In Ice, the Supreme Court upheld the constitutionality of Oregon’s statute and did

not find that it violated the Sixth Amendment concerns set forth in Apprendi and

Blakely. 129 S.Ct. at 719. The United States Supreme Court held that, in light of

historical practices and the right of states to administer their criminal justice

systems, the Sixth Amendment did not prevent states from allowing judges, rather

than juries, to make any finding of facts necessary to the imposition of

consecutive, rather than concurrent, sentences. Id, at.716-720.

        {¶8} In light of the decision in Oregon v. Ice, Blackburn argues that the

severed portion of the Ohio statute (that required judicial fact-finding for the

imposition of consecutive sentences) is not unconstitutional.                        Therefore, she

maintains that the severance performed by Foster was inappropriate judicial
1
  Specifically, the Oregon statute “provided that sentences shall run concurrently unless the judge finds
statutorily described facts.” Ice at 715, citing Ore.Rev.Stat. §137.123(1) (2007).


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Case No. 5-09-18


rewriting of the statute and that the prior statutory requirement of judicial fact-

finding must be “resurrected.”

       {¶9} Several Ohio appellate courts have already addressed this issue and

noted that the United States Supreme Court did not expressly overrule Foster in

the Ice decision.    See, e.g., State v. Lewis, 12th Dist. No. CA2009-02-012,

CA2009-02-016, 2009-Ohio-4684, ¶10.           While a re-examination of Ohio’s

sentencing statutes might be appropriate considering the decision in Ice, such a

review can only be performed by the Ohio Supreme court. See State v. Crosky,

10th Dist. No. 90AP-57, 2009-Ohio-4216, ¶7; State v. Miller, Lucas App. No. L-

08-1314, 2009-Ohio-3908, ¶18. We are bound to follow the law and decisions of

the Supreme Court, unless or until they are reversed or overruled.         State v.

Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554. The Ohio Supreme Court

has not reconsidered Foster in light of Ice, and therefore, Foster remains binding

on this Court. State v. Franklin, 10th Dist. No. 08AP-900, 2009-Ohio-2664, ¶18.

       {¶10} Recently, in State v. Elmore, 122 Ohio St.3d 472, 912 N.E.2d 582,

2009-Ohio-3478, the Ohio Supreme Court briefly discussed Ice, although it did

not fully address all the ramifications of Ice because neither party had briefed the

issue before oral argument. In its affirmance of the trial court’s authority to

impose consecutive sentences on the defendant, the Ohio Supreme Court stated

that “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.” Id. at ¶36.


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Although the Court has not yet fully analyzed the implications of Ice relative to

Foster, it appears to continue to follow the principles set forth in Foster. See

Crosky, 2009-Ohio-4216, at ¶8.

       {¶11} Until the Ohio Supreme Court states otherwise, Foster remains

binding. The trial court had full discretion to impose a prison sentence within the

statutory range and it did not err when it ordered consecutive sentences without

articulating any judicial fact-finding.       Blackburn’s assignment of error is

overruled.

                                                               Judgment affirmed

PRESTON, P.J., and ROGERS, J., concurs.

/jnc




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