State v. Hohvart

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State v. Hohvart

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-3372

Case Date: 06/30/2011

Plaintiff: State

Defendant: Hohvart

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

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

STATE OF OHIO PLAINTIFF-APPELLEE VS. JOHN HOHVART DEFENDANT-APPELLANT CHARACTER OF PROCEEDINGS:

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CASE NO. 10 MA 31

OPINION

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 04 CR 1381 Affirmed.

JUDGMENT: 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 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

For Defendant-Appellant:

JUDGES: Hon. Cheryl L. Waite

-2Hon. 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

-4maximum 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

-5sentencing 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,

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