by Judge Diane V. Grendell
The most significant development of the last decade in Ohio’s
felony sentencing laws was the Supreme Court of Ohio’s decision in State v.
Foster, which struck down the laws governing the imposition of more than
minimum sentences, maximum sentences, consecutive sentences and sentencing
enhancements for repeat-violent and major drug-offenders as
unconstitutional.1 For the next five years, sentencing judges had
“full discretion to impose a prison sentence within the statutory
In May 2011, the Ohio General Assembly passed Amended House Bill
86 affecting the first significant modifications to felony sentencing since
Foster. The first noteworthy change to the felony sentencing laws
concerns the purposes of felony sentencing, as stated in R.C. 2929.11(A). The
two goals of felony sentencing remain “to protect the public from future crime
by the offender and others and to punish the offender … .” However, these goals
are to be effected “using the minimum sanctions that the court determines
accomplishes those purposes without imposing an unnecessary burden on state or
local government resources.” This change reflects one of the legislature’s
concerns in passing H.B. 86, i.e., the more efficient use of state resources in
the deterrence and punishment of crime.3 The concern is also
reflected in a 2008 report from the Council of State Governments Justice Center,
commissioned “to help develop a statewide policy framework to reduce spending on
corrections and reinvest in strategies to increase public safety.”4
The former version of R.C. Chapter 2929 was deemed
constitutionally infirm because it required “judicial fact-finding” before the
imposition of particular sentences. Former R.C. 2929.14(B) required the
sentencing court to impose “the shortest prison term authorized for the
offense,” unless the offender was serving or had served a prison term at the
time of the offense, or the court found that “the shortest prison term will
demean the seriousness of the offender’s conduct or will not adequately protect
the public from future crime by the offender or others.”
House Bill 86 deletes this language. In the new version of R.C.
2929.14, a sentencing court is not required to give any particular consideration
before imposing or exceeding the shortest authorized prison term.5
Former R.C. 2929.14(C) required judicial fact-finding before the
imposition of “the longest prison term authorized for the offense.”
Specifically, maximum sentences could only be imposed “upon offenders who
committed the worst forms of the offense, upon offenders who pose the greatest
likelihood of committing future crimes, upon certain major drug offenders … ,
and upon certain repeat violent offenders … .”
Likewise, H.B. 86 deletes this language without requiring a
sentencing court to give any particular consideration before the imposition of a
With respect to the shortest and longest sentences, H.B. 86
conforms R.C. 2929.14 to the holding of Foster in that sentencing courts
will enjoy “full discretion” to sentence within the statutory range. Sentencing
decisions, nevertheless, “shall be guided by the overriding purposes of felony
sentencing,” i.e., “to protect the public from future crime by the offender and
others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.”7 As noted by the Supreme Court
of Ohio in Foster, “There is no mandate for judicial fact-finding in the
general guidance statutes.”8
As with the provisions governing the imposition of the shortest
and longest sentences, Foster struck down R.C. 2929.14(E)(4), governing
the imposition of consecutive sentences, as unconstitutional, for requiring
judicial fact-finding. The basis for this part of Foster’s holding,
however, was undercut by the U.S. Supreme Court’s decision in Oregon v.
Ice.9 As was acknowledged by the Supreme Court of Ohio, “[A]fter
Ice, it is now settled law 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.”10
Accordingly, H.B. 86 re-enacts the provisions of former R.C.
2929.14(E)(4) as they existed prior to Foster:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public, and
if the court also finds any of the following: (a) The offender committed one or
more of the multiple offenses while the offender was awaiting trial or
sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17,
or 2929.18 of the Revised Code, or was under post-release control for a prior
offense. (b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison term for any
of the offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct. (c) The offender’s history
of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.11
Although the requirements for imposing consecutive sentences have
been re-enacted, they will not, in practice, operate exactly in the same way as
they did prior to Foster. The decision also struck down R.C.
2929.19(B)(2), which required the sentencing court to make a finding that gives
“its reasons for imposing the consecutive sentences,” as well as “its reasons
for imposing the maximum prison term.”12 This statute was not
re-enacted in H.B. 86. Thus, a sentencing court is not statutorily required to
“make a finding that gives its reasons for selecting the sentence imposed.”
The issue arises, then, as to a sentencing court’s obligation to
communicate its findings and/or reasons justifying the imposition of consecutive
sentences. In State v. Comer, the Supreme Court of Ohio held that “when
imposing consecutive sentences, a trial court is required to make its
statutorily enumerated findings and give reasons supporting those findings at
the sentencing hearing.”13 This holding, however, rested on R.C.
2929.14(E)(4) and 2929.19(B)(2)(c), both of which were found unconstitutional in
Foster. As noted above, R.C. 2929.14(E)(4) has been reenacted while R.C.
2929.19(B)(2)(c) has not. While this issue may be revisited by the legislature
or addressed by the Supreme Court of Ohio, trial courts would be welladvised to
make the statutory findings required by re-enacted R.C. 2929.14(E)(4) and give
reasons supporting these findings in the record at the sentencing hearing.
While a sentencing court will not be expressly statutorily
required to state its findings at the sentencing hearing, such action is implied
by the new R.C. 2929.14(E)(4) and there exists practical reasons for doing so.
As noted in Comer, “an in-court explanation gives counsel the opportunity
to correct obvious errors” and “encourages judges to decide how the statutory
factors apply to the facts of the case”, whereas, “[i]f these important findings
and reasons were not given until the journal entry there is the danger that they
might be viewed as after-the-fact justifications.”14
A sentencing court’s duty to communicate its findings justifying
the imposition of consecutive sentences in the record, i.e., the written
judgment entry of sentence, is codified elsewhere in the sentencing statutes.
“If the sentencing court was required to make the findings required by … (E)(4)
of section 2929.14, … , and if the sentencing court failed to state the required
findings on the record, the court hearing an appeal under division (A), (B), or
(C) of this section shall remand the case to the sentencing court and instruct
the sentencing court to state, on the record, the required
The changes enacted by H.B. 86 discussed thus far are those that
must be understood in relationship with the Supreme Court’s Foster
decision. House Bill 86 introduces other changes into Ohio’s felony
sentencing law, which serve the broader goals of the reform legislation.
Newly enacted R.C. 2929.13(B)(1)(a) establishes a preference for,
and in certain conditions, a presumption of, community control sanctions for
fourth- and fifth-degree felonies. Where an offender has been convicted of a
fourth- or fifth-degree felony that is not an offense of violence, “the court
shall sentence the offender to a community control sanction of at least one
year’s duration,” depending on the offender’s criminal record, the seriousness
of the current charges, and the availability of community control
Conversely, a sentencing court will have “discretion to impose a
prison term on an offender who is convicted of or pleads guilty to a felony of
the fourth or fifth degree that is not an offense of violence,” depending on the
circumstances of the current offense and the unavailability of community control
Newly enacted R.C. 2929.13(B)(1)(c) requires the department of
rehabilitation and correction to provide sentencing courts with information
regarding the availability of community control sanctions on request.
Otherwise, a court imposing a sentence for a fourth or fifth
degree felony is required to make a finding as to whether any of the
circumstances contained in R.C. 2929.13(B)(2) (formerly (B)(1)) apply and
whether prison or community control sanctions are more consistent with the
purposes and principles of sentencing set forth in R.C. 2929.11, in light of the
seriousness and recidivism factors contained in R.C. 2929.12.18
In sum, H.B. 86 follows the holding of Foster with respect
to the shortest and longest sentences authorized by statute, i.e., they may be
imposed at the court’s discretion. With respect to consecutive sentences, the
General Assembly has reenacted the major provision struck down by Foster,
but later sanctioned by the U.S. Supreme Court’s decision in Ice and
recognized for re-enactment by the Supreme Court of Ohio in Hodge.
Finally, with respect to many nonviolent fourth- and fifth-degree felonies, H.B.
86 enacts a sentencing procedure that explicitly favors the imposition of
community control sanctions, rather than prison, for nonviolent offenses.
This article first appeared in the August 2011 Lake Legal
Judge Diane V. Grendell has served
in the 11th District Court of Appeals for 11 years, writing and participating in
more than 3,850 opinions from Ashtabula, Geauga, Lake, Portage and Trumbull
counties. Judge Grendell has also been requested to hear cases on the Supreme
Court of Ohio on nine occasions, and to date has had more than 60 of her
1 State v. Foster, 109 Ohio St.3d 1,
2 Id. at paragraph seven of the syllabus.
3 While adding language to R.C. 2929.11(A), H.B. 86
removed the following similar language from R.C. 2929.13(A): “The sentence shall
not impose an unnecessary burden on state or local government resources.”
4 Council of State Governments Justice Center, Justice
Reinvestment in Ohio: Reducing Spending on Corrections and Reinvesting in
Strategies to Increase Public Safety (New York: Council of State Governments
Justice Center, 2009).
5 The versions of H.B. 86 passed by the House did
contain a provision comparable to former R.C. 2929.14(B): “the court imposing a
prison sentence upon an offender for a
felony elects or is
required to impose a prison term on the offender, the court who has
not served, or is not serving, a prison term shall impose the shortest
prison term authorized for the offense pursuant to division (A) of this
6 The versions of H.B. 86 passed by the House did
contain a provision comparable to former R.C. 2929.14(C): “the court imposing a
prison sentence upon an offender
for a felony may
shall impose the longest prison term authorized for the offense pursuant
to division (A) of this section only upon offenders who committed the
worst forms of the offense, upon offenders who pose the greatest likelihood of
committing future crimes if the longest prison term is consistent
with the purposes and principles of sentencing set forth in section 2929.11 of
the Revised Code or, upon certain major drug offenders ***, and upon certain
repeat violent offenders ***.”
7 R.C. 2929.11(A)
8 2006-Ohio-856, at ¶42.
9 Oregon v. Ice (2009), 555 U.S. 160.
10 State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, at ¶19.
11 R.C. 2929.14(C)(4). Again, the final version of H.B.
86 differed significantly from the version passed by the House with respect to
consecutive sentences. The earlier version provided for different findings
before consecutive sentences could be imposed: “If multiple prison terms are
imposed on an offender for convictions of multiple offenses, the court shall
first consider imposing the prison terms as concurrent sentences. The court
may require the offender to serve the prison terms consecutively only if
the court finds in language specific to the offender and the offenses
the consecutive service is terms
are necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate
because they are proportionate to the seriousness of the
offender’s conduct and to the danger of future crime of the offender
poses to the public” [sic].
12 Former R.C. 2929.19(B)(2)(c) and (e).
13 99 Ohio St.3d 463, 2003-Ohio-4165. Id. at paragraph
one of the syllabus.
14 Id. at ¶22.
15 R.C. 2953.08(G)(1). This provision was added to R.C.
2953.08, effective Oct. 10, 2000. A year earlier, the Supreme Court of Ohio
decided State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110, where it
distinguished between the obligation to state the findings necessary to impose a
particular sentence (as required R.C. 2929.14(B)), and the obligation to state
the reasons or basis for its findings (as required by R.C. 2929.19(B)(2)).
16 R.C. 2929.13(B)(1)(a).
17 R.C. 2929.13(B)(1)(b).
18 R.C. 2929.13(B)(3)(a) and (b).