[Cite as State v. Oller, 2017-Ohio-7575.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                       No. 16AP-429
v.                                                :                (C.P.C. No. 15CR-1953)

Timothy M. Oller,                                 :              (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                   Rendered on September 12, 2017


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik
                 P. Henry for appellant.

                              ON MOTION FOR RECONSIDERATION

BRUNNER, J.
        {¶ 1} On March 7, 2017, this court issued a decision in State v. Oller, 10th Dist. No.
16AP-429, 2017-Ohio-814, holding that the Franklin County Court of Common Pleas erred
in sentencing defendant-appellant, Timothy M. Oller, when the trial court substituted its
own findings on provocation for the findings of the jury. In addressing that issue, we noted
that:

                 R.C. 2929.14(B)(2)(e) [] require[s] that a trial court state the
                 findings justifying the sentence imposed on a person pursuant
                 to a repeat-violent-offender specification under R.C.
                 2929.14(B)(2)(a) and (b). In addition, R.C. 2953.08(G)(1)
                 requires the trial court to "state the findings of the trier of fact
                 required by division (B)(2)(e) of section 2929.14 of the Revised
                 Code, relative to the imposition or modification of the sentence,
                 and if the sentencing court failed to state the required findings
                 on the record, the court hearing an appeal * * * shall remand
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No. 16AP-429
               the case to the sentencing court and instruct the sentencing
               court to state, on the record, the required findings."

Oller at ¶ 42. To properly remedy error with Oller's sentence, we instructed the trial court
that "if it imposes an additional period of imprisonment based on the repeat-violent-
offender specification, it must 'state the findings of the trier of fact required by division
(B)(2)(e) of section 2929.14 of the Revised Code, relative to the imposition or modification
of the sentence.' R.C. 2953.08(G)(1); 2929.14(B)(2)(e)." Oller at ¶ 70; see also id. at ¶ 53.
       {¶ 2} Plaintiff-appellee, State of Ohio, now seeks reconsideration on the limited
issue that this requirement was struck down by the Supreme Court of Ohio in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, and was never revived by any subsequent act of
the legislature. (Mar. 10, 2017 State's Mot. to Recons.) This has been an area lacking clarity
as applied in past cases. Compare State v. Fillmore, 10th Dist. No. 15AP-509, 2015-Ohio-
5280, ¶ 7, and State v. Clinton, 10th Dist. No. 13AP-751, 2014-Ohio-5099, ¶ 37, 39 (no need
for fact-finding before a repeat-violent-offender specification may be imposed because
statutory language was stricken by Foster and never reenacted), with Oller at ¶ 42, 53, 70,
and State v. Goins, 10th Dist. No. 14AP-747, 2015-Ohio-3121, ¶ 41-50 (applying the statutes
as written to require the court to make findings in order to impose a repeat-violent-offender
specification). We take this opportunity to directly address the issue with assistance from
the parties briefing it.
       {¶ 3} Before Foster (decided February 27, 2006), the Ohio Revised Code instructed
sentencing courts for repeat violent offenders as follows:

               (2) * * *

                    (b) If the court imposing a prison term on a repeat violent
                        offender imposes the longest prison term from the
                        range of terms authorized for the offense under
                        division (A) of this section, the court may impose on
                        the offender an additional definite prison term of one,
                        two, three, four, five, six, seven, eight, nine, or ten
                        years if the court finds that both of the following apply
                        with respect to the prison terms imposed on the
                        offender pursuant to division (D)(2)(a) of this section
                        and, if applicable, divisions (D)(1) and (3) of this
                        section:
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No. 16AP-429
                           (i) The terms so imposed are inadequate to punish
                               the offender and protect the public from future
                               crime, because the applicable factors under
                               section 2929.12 of the Revised Code indicating a
                               greater likelihood of recidivism outweigh the
                               applicable factors under that section indicating a
                               lesser likelihood of recidivism.

                           (ii) The terms so imposed are demeaning to the
                                seriousness of the offense, because one or more of
                                the factors under section 2929.12 of the Revised
                                Code indicating that the offender's conduct is
                                more serious than conduct normally constituting
                                the offense are present, and they outweigh the
                                applicable factors under that section indicating
                                that the offender's conduct is less serious than
                                conduct normally constituting the offense.

See R.C. 2929.14(D)(2)(b) (2005); 2005 Am.Sub.H.B. No. 473.1
        {¶ 4} In Foster, the Supreme Court held that "[b]ecause the specifications
contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial fact-finding before
repeat-violent-offender and major-drug-offender penalty enhancements are imposed, they
are unconstitutional." Foster at paragraph five of the syllabus; see also id. at ¶ 71-78. The
Foster court severed these apparently unconstitutional divisions. Id. at ¶ 99.
        {¶ 5} Several months after Foster was issued, effective in August 2006, the Ohio
General Assembly repealed the version of R.C. 2929.14 at issue in Foster:

                SECTION 2. That existing sections 2152.17, 2901.08, 2903.11,
                2907.01, 2907.03, 2907.05, 2919.26, 2929.01, 2929.13,
                2929.14, 2941.149, 2953.08, and 3113.31 of the Revised Code
                are hereby repealed.

(Emphasis added.) 2006 Am.Sub.H.B. No. 95, SECTION 2.2
        {¶ 6} In its place, the General Assembly enacted a new version of R.C. 2929.14. But
before that law (H.B. No. 95) had taken effect, the General Assembly again repealed R.C.
2929.14 and modified the version of R.C. 2929.14 that was to have become law under H.B.
No. 95. 2006 Am.Sub.H.B. No. 137, SECTION 2-3.3 Both H.B. No. 95 and the subsequent



1 Reported electronically at 2003 Ohio H.B. No. 473.
2 Reported electronically at 2005 Ohio H.B. No. 95.
3 Reported electronically at 2005 Ohio H.B. No. 137.
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No. 16AP-429
H.B. No. 137 (effective August 3, 2006), included the following new instructions for
sentencing repeat violent offenders:

             (2)

                   (a) If division (D)(2)(b) of this section does not apply, the
                       court may impose on an offender, in addition to the
                       longest prison term authorized or required for the
                       offense, an additional definite prison term of one, two,
                       three, four, five, six, seven, eight, nine, or ten years if
                       all of the following criteria are met:

                       (i) The offender is convicted of or pleads guilty to a
                           specification of the type described in section
                           2941.149 of the Revised Code that the offender is
                           a repeat violent offender.

                       (ii) The offense of which the offender currently is
                            convicted or to which the offender currently
                            pleads guilty is aggravated murder and the court
                            does not impose a sentence of death or life
                            imprisonment without parole, murder, terrorism
                            and the court does not impose a sentence of life
                            imprisonment without parole, any felony of the
                            first degree that is an offense of violence and the
                            court does not impose a sentence of life
                            imprisonment without parole, or any felony of the
                            second degree that is an offense of violence and
                            the trier of fact finds that the offense involved an
                            attempt to cause or a threat to cause serious
                            physical harm to a person or resulted in serious
                            physical harm to a person.

                       (iii) The court imposes the longest prison term for the
                             offense that is not life imprisonment without
                             parole.

                       (iv) The court finds that the prison terms imposed
                            pursuant to division (D)(2)(a)(iii) of this section
                            and, if applicable, division (D)(1) or (3) of this
                            section are inadequate to punish the offender and
                            protect the public from future crime, because the
                            applicable factors under section 2929.12 of the
                            Revised Code indicating a greater likelihood of
                            recidivism outweigh the applicable factors under
                            that section indicating a lesser likelihood of
                            recidivism.
                                                                                5
No. 16AP-429
                   (v) The court finds that the prison terms imposed
                       pursuant to division (D)(2)(a)(iii) of this section
                       and, if applicable, division (D)(1) or (3) of this
                       section are demeaning to the seriousness of the
                       offense, because one or more of the factors under
                       section 2929.12 of the Revised Code indicating
                       that the offender's conduct is more serious than
                       conduct normally constituting the offense are
                       present, and they outweigh the applicable factors
                       under that section indicating that the offender's
                       conduct is less serious than conduct normally
                       constituting the offense.

               (b) The court shall impose on an offender the longest
                   prison term authorized or required for the offense and
                   shall impose on the offender an additional definite
                   prison term of one, two, three, four, five, six, seven,
                   eight, nine, or ten years if all of the following criteria
                   are met:

                   (i) The offender is convicted of or pleads guilty to a
                       specification of the type described in section
                       2941.149 of the Revised Code that the offender is
                       a repeat violent offender.

                   (ii) The offender within the preceding twenty years
                        has been convicted of or pleaded guilty to three or
                        more offenses described in division (DD)(1) of
                        section 2929.01 of the Revised Code, including all
                        offenses described in that division of which the
                        offender is convicted or to which the offender
                        pleads guilty in the current prosecution and all
                        offenses described in that division of which the
                        offender previously has been convicted or to
                        which the offender previously pleaded guilty,
                        whether prosecuted together or separately.

                   (iii) The offense or offenses of which the offender
                         currently is convicted or to which the offender
                         currently pleads guilty is aggravated murder and
                         the court does not impose a sentence of death or
                         life imprisonment without parole, murder,
                         terrorism and the court does not impose a
                         sentence of life imprisonment without parole, any
                         felony of the first degree that is an offense of
                         violence and the court does not impose a sentence
                         of life imprisonment without parole, or any felony
                         of the second degree that is an offense of violence
                                                                                            6
No. 16AP-429
                                  and the trier of fact finds that the offense involved
                                  an attempt to cause or a threat to cause serious
                                  physical harm to a person or resulted in serious
                                  physical harm to a person.

                        (c) For purposes of division (D)(2)(b) of this section, two
                            or more offenses committed at the same time or as
                            part of the same act or event shall be considered one
                            offense, and that one offense shall be the offense with
                            the greatest penalty.

                        (d) A sentence imposed under division (D)(2)(a) or (b) of
                            this section shall not be reduced pursuant to section
                            2929.20 or section 2967.193, or any other provision of
                            Chapter 2967. or Chapter 5120. of the Revised Code.
                            The offender shall serve an additional prison term
                            imposed under this section consecutively to and prior
                            to the prison term imposed for the underlying offense.

                        (e) When imposing a sentence pursuant to division
                            (D)(2)(a) or (b) of this section, the court shall state its
                            findings explaining the imposed sentence.

2006 Am.Sub.H.B. No. 95, SECTION 1; 2006 Am.Sub.H.B. No. 137, SECTION 2-3.
          {¶ 7} Later, in 2011, the General Assembly again repealed R.C. 2929.14 and
reenacted the same language quoted above with three relatively inconsequential
differences: the language was moved from division (D) to division (B) of R.C. 2929.14;
references to divisions were changed to take account of organizational changes; and a
reference in division (B)(2)(d) to R.C. 2967.19 was included to account for the petition for
early release process. 2011 Am.Sub.H.B. No. 86, SECTION 1-2.4 This portion of the statute
has not changed since. Compare 2006 Am.Sub.H.B. No. 95, SECTION 1 and 2006
Am.Sub.H.B. No. 137, SECTION 2-3 with R.C. 2929.14(B)(2)(a) through (e).
          {¶ 8} The State argues, and we agree, that preexisting language declared
unconstitutional by the Supreme Court, yet survives its codified section's subsequent
legislative amendment, is not tantamount to an intent by the legislature to reenact the
language notwithstanding its declared unconstitutionality. State v. Hodge, 128 Ohio St.3d
1, 2010-Ohio-6320, ¶ 27, fn. 7; see also R.C. 1.54 ("A statute which is reenacted or amended
is intended to be a continuation of the prior statute and not a new enactment, so far as it is


4   Reported electronically at 2011 Ohio H.B. No. 86.
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No. 16AP-429
the same as the prior statute."); Stevens v. Ackman, 91 Ohio St.3d 182, 193-95 (2001)
(explaining that portions of statutory text which are not altered by a repeal and amended
reenactment are considered continuations of the predecessor statute). In that context, we
note that current R.C. 2929.14(B) carries forward, essentially unchanged, the two required
findings that Foster found to be unconstitutional (findings on recidivism and whether the
sentence demeans the offense). Compare R.C. 2929.14(D)(2)(b)(i) and (ii) (2005) with R.C.
2929.14(B)(2)(a)(iv) and (v). We also recognize that the legislature was more explicit in
reenacting without relevant textual changes in amending R.C. 2929.14(E)(4) as R.C.
2929.14(C)(4) than it was with similar actions concerning R.C. 2929.14(D). That is, in the
case of R.C. 2929.14(C)(4), the legislature included a specific comment noting that it was
deliberately reviving language previously found unconstitutional. 2011 Am.Sub.H.B. No.
86, SECTION 11. No such language was included in the reenactment of R.C. 2929.14(D).
Accordingly, we conclude that the current statutory language, to the limited extent that it
includes the findings set forth in R.C. 2929.14(B)(2)(a)(iv) and (v) which were previously
contained in former R.C. 2929.14(D)(2)(b)(i) and (ii), was found unconstitutional by Foster
and was never explicitly reenacted. As a consequence, a trial court must make all the
findings required by R.C. 2929.14(B)(2) except those contained in divisions (B)(2)(a)(iv)
and (v).
       {¶ 9} But the effect of the Supreme Court's holding in Foster was diluted
significantly by the United States Supreme Court's subsequent decision in Oregon v. Ice, in
which the high court held that it is in the historical and constitutionally permissible
province of the trial court to impose consecutive sentences and make limited fact-finding
about the defendant's circumstances relevant to that action. Oregon v. Ice, 555 U.S. 160,
168-72 (2009). Then, after Oregon v. Ice, the Supreme Court of Ohio in State v. Hunter
stated that "[w]hen designating an offender as a 'repeat violent offender' * * * , a trial court
does not violate the Sixth Amendment by considering relevant information about the
offender's prior conviction that is part of the judicial record." State v. Hunter, 123 Ohio
St.3d 164, 2009-Ohio-4147, paragraph two of the syllabus. Taken together, these decisions
suggest that it is constitutionally permissible for a trial judge, rather than a jury, to consider
an offender's offense, his or her prior record, and the factual circumstances necessary for
sentencing consecutively which may support inferences concerning the seriousness of the
offender's conduct and the danger the offender poses to the public. Compare R.C.
                                                                                                 8
No. 16AP-429
2929.14(C)(4) with R.C. 2929.14(B)(2)(a)(iv) and (v). To our view, it does not appear that
the requirements of current R.C. 2929.14(B)(2)(a)(iv) and (v) compel a sentencing court to
step beyond the permissible historical role of the sentencing court as recognized in Ice and
Hunter. Thus, if the Ohio General Assembly were to specify an intent to do so, such
divisions could be purposefully reenacted.
       {¶ 10} Accordingly, we grant the State's motion for reconsideration to the extent of
and for the reasons expressed in this decision. We therefore modify our instruction to the
trial court. See Oller at ¶ 42, 53, 70. The trial court is hereby instructed to "state the findings
of the trier of fact required by division (B)(2)(e) of section 2929.14 of the Revised Code,
relative to the imposition or modification of the sentence" except it is not required to set
forth those findings required by R.C. 2929.14(B)(2)(a)(iv) and (v). See R.C. 2953.08(G)(1);
2929.14(B)(2)(e).
                                                                               Motion granted
                                                                              with instructions.
                            TYACK, P.J., and KLATT, J., concur.
