[Cite as State v. Ford,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 11-CA-26 Plaintiff-Appellee : : Trial Court Case No. 10-CR-863 v. : : MICHAEL FORD : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 7th day of October, 2011.

.........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

CHRIS TILL, Atty. Reg. #0086486, Post Office Box 723, Yellow Springs, Ohio 45387 Attorney for Defendant-Appellant

.........

HALL, J.

{¶ 1} Michael Ford appeals from his conviction and sentence following guilty pleas

to one count of rape and two counts of gross sexual imposition. Following the guilty pleas, the

trial court imposed maximum and consecutive prison terms totaling twenty years.

{¶ 2} In his sole assignment of error, Ford contends the trial court committed plain 2

error by imposing three consecutive prison terms without making factual findings to justify

consecutive sentences.

{¶ 3} Ford relies on R.C. 2929.14(E)(4), which, prior to State v. Foster,

,

, required judicial fact-finding before a trial court could impose

consecutive sentences. In Foster, the Ohio Supreme Court declared R.C. 2929.14(E)(4)

unconstitutional and severed it from the Revised Code. Ford contends, however, that the

Supreme Court subsequently found fact-finding, as required by R.C. 2929.14(E)(4), to be

constitutional in State v. Hodge,

,

. As a result of Hodge,

Ford contends the fact-finding requirements of R.C. 2929.14(E)(4) once again were applicable

to the trial court. Here, the trial court did not engage in fact-finding under R.C.

2929.14(E)(4), but his attorney did not object. Thus, Ford contends, as he must, that the

absence of judicial fact-finding constituted plain error.

{¶ 4} Upon review, we find no error, much less plain error, in the trial court’s failure

to make factual findings to support consecutive sentences. Contrary to Ford’s argument,

Hodge did not resurrect the fact-finding requirement of R.C. 2929.14(E)(4). The primary issue

before the Ohio Supreme Court in Hodge was whether the United States Supreme Court’s

ruling in Oregon v. Ice (2009),

,

,

, automatically

revived R.C. 2929.14(E)(4) even though Foster had declared the provision unconstitutional.

The Ohio Supreme Court answered this question in the negative. In so doing, it made clear

that R.C. 2929.14(E)(4) remained unconstitutional and imposed no fact-finding obligation on

Ohio’s trial courts.

{¶ 5} Hodge’s syllabus is dispositive of the issue before us. It states: 3

{¶ 6} “1. 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. (Oregon v. Ice (2009),

,

,

, construed.)

{¶ 7} “2. The United States Supreme Court’s decision in Oregon v. Ice (2009),

,

,

, 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,

,

,

.

{¶ 8} “3. Trial 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.”

{¶ 9} Paragraph three of the syllabus refutes Ford’s argument that Hodge obligated

the trial court to make factual findings under R.C. 2929.14(E)(4). When the trial court

sentenced Ford in April 2011, the General Assembly had not yet enacted new legislation

requiring fact-finding before consecutive sentences could be imposed.1 As a result, the trial

court had no obligation to make such findings.

{¶ 10} Ford’s assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

..............

FAIN and DONOVAN, JJ., concur.

1 We note that the General Assembly recently enacted new legislation requiring fact-finding for consecutive sentences. See Am.Sub.H.B. No. 86. This legislation, which has an effective date of September 30, 2011, was not applicable to Ford. 4

Copies mailed to:

Andrew R. Picek Chris Till Michael Ford Hon. Douglas M. Rastatter