[Cite as State v. Hohvart, 2011-Ohio-3372.]



                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 10 MA 31
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
JOHN HOHVART                                  )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 04 CR 1381

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Timothy Young
                                                   Ohio Public Defender
                                                   Atty. Stephen P. Hardwick
                                                   Assistant State Public Defender
                                                   Office of the Ohio Public Defender
                                                   250 East Broad Street, Suite 1400
                                                   Columbus, Ohio 43215


JUDGES:
Hon. Cheryl L. Waite
                                                                                 -2-

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                              Dated: June 30, 2011


WAITE, P.J.

       {1}     Appellant John Hohvart appeals the maximum consecutive felony

sentences imposed on him by the Mahoning County Court of Common Pleas. He

claims that the trial court was required to make certain findings set forth in R.C.

2929.14 before it could properly impose maximum consecutive sentences. Appellant

acknowledges that the Supreme Court of Ohio found certain sentencing provisions

unconstitutional and severed them from the Ohio Revised Code in State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellant contends that the

portion of the Foster opinion dealing with consecutive sentences has been overruled

by the decision of the United States Supreme Court in Oregon v. Ice (2009), 555 U.S.

160, 129 S.Ct. 711, 172 L.Ed.2d 517, and that R.C. 2929.14(E) has been revived as

a result. However, the Supreme Court of Ohio expressly rejected this argument in its

recent decision, State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d

768. Appellant also contends that Foster violates the Ex Post Facto clause of the

United States and Ohio constitutions.     The argument raised by Appellant was

considered and rejected in State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478,

912 N.E.2d 582. Thus, Appellant’s arguments have no merit and the judgment of the

trial court is affirmed.

                                 Case Background
                                                                                   -3-

       {2}     On October 3, 2004, Appellant was in a relationship with Jennifer

Whaley while he was separated from his wife. On that day, Whaley and Appellant

drove to a fast food restaurant to purchase food. There was a problem with the food

order and the two of them started arguing. According to Whaley, Hohvart locked her

in the car, began hitting her head against the inside of the vehicle, and hit her nose

with his elbow.

       {3}     Eventually, Appellant’s car ran out of fuel and Whaley escaped from the

vehicle. A passing motorist saw her and drove her to a nearby gas station. There,

she contacted authorities and was taken for medical treatment. Whaley's nose was

broken and required reconstructive surgery, two of her teeth were knocked loose,

and a cheekbone was fractured. Police seized Hohvart's car and, after obtaining a

warrant, tested blood in the car which was found to be consistent with Whaley's DNA.

       {4}     Hohvart was indicted on November 18, 2004, on felonious assault, a

second degree felony under R.C. 2903.11, and abduction, a third degree felony

under R.C. 2905.02. The case went to jury trial. Hohvart was convicted on both

counts and the trial court sentenced him to maximum sentences of eight and five

years, respectively, and ordered that these sentences be served consecutively,

totaling thirteen years of imprisonment. Appellant filed an appeal, and the sentence

was overturned in light of State v. Foster, supra.      While the direct appeal was

pending, Appellant filed a motion for postconviction relief, which was denied by the

trial court.   That ruling was affirmed on appeal.      The case was then set for

resentencing, and on January 22, 2010, the trial court again sentenced Appellant to
                                                                                       -4-

maximum consecutive sentences for a total of thirteen years in prison. The trial court

noted that it considered the purposes and principles of felony sentencing contained in

R.C. 2929.11, and that it balanced the seriousness and recidivism factors found in

R.C. 2929.12. The court did not make any specific findings relating to the imposition

of maximum consecutive sentences. Appellant filed this further appeal on February

11, 2010.

                           ASSIGNMENT OF ERROR NO. 1

       {5}    “The trial court erred by imposing consecutive sentences without

making findings as required by R.C. 2929.14(E). T.p. 24-5, Sentencing Entry, Jan.

22, 2010.”

       {6}    The argument being made by Appellant was addressed in the recent

Ohio Supreme Court case, State v. Hodge, which reaffirmed and clarified holdings in

State v. Foster. Appellant contends that, prior to the Ohio Supreme Court’s decision

in State v. Foster, a trial court could not impose consecutive sentences without first

making a number of factual findings, such as whether the sentence was necessary to

protect the public from future crime, to punish the offender, or that consecutive

sentences were not disproportionate to the seriousness of the offender's conduct.

Appellant is correct. Foster invalidated those prior statutory provisions and held that

the judicial fact-finding requirements violated the constitutional Sixth Amendment

right to trial by jury because a jury, rather than a trial judge, was required to make all

findings essential to punishment. Foster declared a number of statutory provisions

requiring judicial fact-finding to be unconstitutional and severed them from the felony
                                                                                    -5-

sentencing code. One of the severed statutes was R.C. 2929.14(E)(4) dealing with

consecutive sentences. The Foster opinion announced that sentencing courts would

now have full discretion to fashion sentences and run them consecutively and would

not be required to make judicial findings of fact. Foster itself was based on a number

of United States Supreme Court opinions that came to the same conclusion with

respect to a variety of federal and state sentencing requirements.          Blakely v.

Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; Apprendi v.

New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; Ring v. Arizona

(2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556; United States v. Booker

(2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621.

      {7}    After Foster, the Ohio Supreme Court clarified that trial courts, while no

longer having the statutory authority to impose consecutive sentences, still retained

the common law authority to make the determination as to whether sentences should

be carried out concurrently or consecutively. State v. Bates, 118 Ohio St.3d 174,

2008-Ohio-1983, ¶18.     “Foster [does] not prevent the trial court from imposing

consecutive sentences; it merely took away a judge's duty to make findings before

doing so.” State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶35.

      {8}    Appellant asserts, though, that the holding in Foster with respect to

consecutive sentences is no longer valid law due to a subsequent ruling of the United

States Supreme Court in Oregon v. Ice. In Ice, the United States Supreme Court

examined whether the Sixth Amendment right to trial by jury was infringed by

mandatory judicial fact-finding specifically relating to consecutive sentences.    Ice
                                                                                        -6-

upheld the constitutional validity of an Oregon statute similar to Ohio's pre-Foster

sentencing statutes that required Oregon's trial judges to make factual findings prior

to imposing consecutive sentences. Appellant contends that the Foster opinion was

based on United States Supreme Court precedent regarding the Sixth Amendment

right to trial by jury, and that the Ice opinion invalidates part of the holding in Foster.

Appellant argues that there was no need to sever the Ohio statutes requiring judicial

fact-finding with respect to consecutive sentences.        Since those statutes are no

longer unconstitutional, Appellant contends that they have been revived because of

the Ice decision and, thus, are still binding on trial courts. The trial court in this case

did not make any specific findings prior to imposing consecutive sentences.

According to Appellant’s logic, his sentence is invalid and should be vacated.

       {9}    Subsequent to the filing of this appeal, the Ohio Supreme Court ruled

on the specific issue being raised here. State v. Hodge held as follows: “The United

States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.

711, 172 L.Ed.2d 517, does not revive Ohio's former consecutive-sentencing

statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470.” Hodge at paragraph two of the syllabus. The Ohio Supreme Court further held

that “[t]rial court judges are not obligated to engage in judicial fact-finding prior to

imposing consecutive sentences unless the General Assembly enacts new legislation

requiring that findings be made.” Id., paragraph three of the syllabus. Therefore,

despite the decision in Ice, defendants who were given consecutive sentences
                                                                                      -7-

unaccompanied by specific judicial fact-finding are not entitled to resentencing. Id. at

¶5.

       {10}   Hodge did acknowledge that the Ice holding undermined the reasoning

in Foster: “After Ice, it is now settled law that Apprendi and Blakely do not control the

resolution of this issue and that the jury-trial guarantee of the Sixth Amendment to the

United States Constitution does not preclude states from requiring trial court judges

to engage in judicial fact-finding prior to imposing consecutive sentences.” Id. at ¶19.

“Had we the benefit of the United States Supreme Court's decision in Ice regarding

Oregon's consecutive-sentencing statutes prior to our decision in Foster, we likely

would have ruled differently * * *.” Id. at ¶20. Nevertheless, Ice did not require

judicial fact-finding in order for consecutive sentences to be imposed.         The Ice

decision merely allows state court judges to engage in judicial fact-finding without

violating the constitution with respect to consecutive sentences. We must also note

that Foster completely excised the judicial fact-finding statutes from the Ohio Revised

Code. Even if those statutes were never formally repealed by the legislature, they

remain excised until positive action is taken by the General Assembly indicating its

intent and desire to reestablish the statute. Id. at ¶27. Pursuant to Hodge, there is

no automatic revival of statutes that have been declared unconstitutional. Id. at ¶30.

       {11}   Appellant contends that amendments to Ohio’s felony sentencing

statutes that occurred after the Ice opinion was released contain the formerly excised

fact-finding provisions, and that these reenactments should be interpreted as

legislative intent to fully revive R.C. 2929.14(E)(4). Hodge did not deal with this issue
                                                                                      -8-

directly since the sentencing statute at issue in Hodge was enacted prior to Ice. The

Hodge opinion, though, does explain that the legislature must clearly and

unequivocally       reestablish   those   provisions   that   were   formerly    declared

unconstitutional.      The mere act of reprinting statutory sections, as part of

amendments to other aspects of the felony sentencing law, does not constitute clear

direction from the legislature: “We are unable to say that the General Assembly

would intend the consecutive-sentencing provisions to be resurrected when the other

judicial fact-finding provisions, which supported the overall sentencing framework,

remain constitutionally invalid and excised. It would be speculative to assume that

the General Assembly would wish to reinstate only the consecutive-sentencing

provisions when the other provisions struck down in Foster may not be reinstated

also.” Id. at ¶27. The Hodge Court also reasoned that: “the General Assembly has

never had a particular incentive to repeal statutes that we have held unconstitutional,

which further supports our reluctance to assume that the General Assembly would

intend the consecutive-sentencing statutes to be reinstated, in the absence of any

affirmative indications to that effect from that body.”        Id. at ¶28.      Thus, the

legislature’s ministerial act of copying previously enacted legislation as part of

amendments to valid statutes does not reflect a clear intent to revive a previously

invalidated statute. Appellant’s argument is unpersuasive and his first assignment of

error is overruled.

                             ASSIGNMENT OF ERROR NO. 2
                                                                                    -9-

      {12}   “The trial court erred by imposing non-minimum and maximum

sentences based on elements not found by the jury beyond a reasonable doubt, in

violation of his rights under the Due Process and Ex Post Facto Clauses of the

United States Constitution. U.S. Const. art. I, § 10, cl 1; U.S. Const. amend. V and

XIV; Miller v. Florida (1987), 482 U.S. 423; Bouie v. City of Columbia (1964), 378

U.S. 347, 354.”

      {13}   Appellant also argues that it is improper to retroactively apply the

holding of State v. Foster to pending criminal cases because this would violate the

Due Process and Ex Post Facto Clauses of the United States Constitution. As stated

above, Foster corrected a problem with Ohio’s felony sentencing statutes regarding

the right to trial by jury. Foster rendered certain aspects of the felony sentencing

statutes unconstitutional because they required the trial judge, rather than a jury, to

determine certain facts essential to imposing sentences that were more severe than

the minimum sentences prescribed for any given felony.            Foster declared as

unconstitutional R.C. 2929.14(C), which allowed judges to impose the longest prison

term for an offense only after making a variety of required findings. As a result of

Foster, sentencing judges are now allowed broad discretion in imposing any

sentence within the statutory range of sentences permitted for any given crime, which

includes the discretion to impose a maximum prison term. Foster was ordered to be

applied to all pending criminal cases, including cases pending on direct appeal.

Appellant contends that the remedy created in Foster cannot be applied retroactively

to pending cases such as this, because it would, in essence, create a judicial
                                                                                     -10-

enlargement of a criminal statute similar to an ex post facto law enacted by the

legislature.

       {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, at Section 28, Article II. Although the prohibition against ex post

facto laws only limits the legislative branch of government, a similar due process

limitation applies to judicial enlargement of legislative acts. State v. Garner (1995),

74 Ohio St.3d 49, 57, 656 N.E.2d 623; Bouie v. Columbia (1964), 378 U.S. 347, 353-

354, 84 S.Ct. 1697, 12 L.Ed.2d 894.

       {15}    The Ohio Supreme Court, in State v. Elmore, 122 Ohio St.3d 472,

2009-Ohio-3478, 912 N.E.2d 582, considered and resolved this issue; whether

Foster violated the Ex Post Facto clause or constituted a denial of due process. In

Elmore, the Ohio Supreme Court held that resentencing pursuant to Foster for crimes

that were committed before Foster was decided does not violate the Ex Post Facto

and Due Process clauses because a defendant resentenced under Foster is not

subject to any greater potential punishment than existed previously. Id. at ¶18. A

criminal defendant may not be able to raise certain procedural arguments because of

the holdings in Foster, but a procedural change is not an ex post facto violation. Id.

Appellant was subject to potential five-year and eight-year maximum prison terms for

his crimes both before and after Foster. He had notice of the sentencing range when

he committed the crimes and when he was sentenced. He was never subject to an

irrebuttable presumption of minimum or concurrent sentence either before or after
                                                                                  -11-

Foster.   Id. at 24.     Elmore is accordingly dispositive of the challenges raised in

Appellant’s second assignment of error. Appellant’s second assignment of error is

overruled.

                                     CONCLUSION

       {16}    Given the clear and comprehensive holdings of the Hodge case, it is

evident that R.C. 2929.14(E)(4) has not been revived and there was no requirement

for the trial court to make specific findings prior to imposing consecutive sentences.

Further, the retroactive application of State v. Foster to cases pending on direct

appeal does not violate the Ex Post Facto clauses of the United States or Ohio

constitutions, and this was confirmed by the Ohio Supreme Court in State v. Elmore.

Appellant’s two assignments of error are overruled and the judgment of the trial court

is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
