IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

WILLIE J. HARRIS,

Defendant-Appellant.

Case No.

On Appeal from the HamiltonCounty Court of Appeals,Case No. C-060989

MEMORANDUM IN SUPPORT OF JURISDICTION

David H. Bodiker (0016590)State Public Defender

Stephen P. Hardwick (0062932)Assistant Public DefenderCounsel of Record

Office of the Ohio Public Defender8 East Long Street - 11th floorColumbus, Ohio 43215(614) 466-5394(614) 752-5167 (fax)hardwics@opd.state.oh.us

COUNSEL FOR APPELLANTWILLIE J. HARRIS

Joseph T. Deters (0012084)Hamilton County Prosecutor

Philip R. Cummings (0041497)Assistant County ProsecutorCounsel of Record

Suite 4000230 E. 9`h StreetCincinnati, Ohio 45202(513) 946-3012(513) 946-3021 (fax)

COUNSEL FOR APPELLEESTATE OF OHIO

I ID-

^( c) xao -tCI.FRK OF COURT

SUPREME COURI OF OHIO

TABLE OF CONTENTSPage No.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ...............1

STATEMENT OF THE CASE ........................................................................................................4

STATEMENT OF THE FACTS ................ .....................................................................................5

ARGUMENT IN SUPPORT OF THE PROPOSITION OF LAW .................................................7

Proposition of Law No. I: Courts of appeals should reverse a sentence in whichthe trial court abused its discretion . .....................................................................................7

Proposition of Law No. II: A sentence that is effectively life without parole forarmed robberies in which no one was hurt violates the Eighth Amendment tothe United States Constitution and Section 9, Article I of the Ohio Constitution............7

Proposition of Law No. III: A defendant may not be resentenced pursuant to asentencing scheme in which the presumptive minimum sentence has beeneliminated subsequent to the commission of the underlying crime . ..................................8

Proposition of Law No. IV: Appellate and trial counsel are ineffective forfailing to raise meritorious challenges to a criminal appellant's sentence . ...................15

CONCLUS ION ..............................................................................................................................15

CERTIFICATE OF SERVICE ... ...................................................................................................16

APPENDIX:

Judgment Entry and Opinion, Court of Appeals, Hamilton County, (Oct. 24, 2007)......... A-1

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

The courts of appeals need guidance on how to exercise their post-Foster sentencing

discretion. In State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, this Court gave trial courts

guided discretion to impose sentences according to the factors set forth in R.C. 2929.11 and 12.

But the courts of appeal in Ohio have converted the guided discretion of Foster into unfettered

discretion. Here, the court of appeals' entire analysis of a sentence that amounts to life without

parole was, "the record does not demonstrate that the court's imposition of maximum,

consecutive terms within the statutory range was an abuse of discretion." Opinion at 2, Apx. at

2. By contrast, other appellate districts provide more substantive analysis. See, e.g., State v.

Howald, Case No. 14-07-25, 2007-Ohio-6152, ¶12, State v. Reid, 6th Dist. No. L-07-1067, 2007-

Ohio-6528, ¶6-8 State v. Baccus, 6th Dist. No. L-06-1310, 2007-Ohio-5991, ¶15; State v.

Moore, 11th Dist. No. 2007-L-055, 2007-Ohio-6409, ¶10-16.

Now that trial courts have discretion to apply the factors in R.C. 2929.11 and R.C.

2929.12, courts of appeals are left without guidance as to how to review the sentences. Mr.

Harris was given a maximum consecutive sentence that effectively is life without parole-52

years in prison-for four armed robberies in which no one was hurt. Further, at resentencing and

on appeal, the State did not contest Mr. Harris' good prison record nor his remorse.

Mr. Harris is facing the same penalty as someone who had brutally assaulted and injured

victims. Of course, all armed robberies are bad. That's why the code makes the offenses first

degree felonies with a three to ten year sentence plus a three-year firearm specification. But

some armed robberies are worse than others.

On appeal, Mr. Harris argued that the trial court did not consider the purposes and

principles of sentencing under R.C. 2929.11 and 2929.12. The State responded that sentences

are unreviewable as long as they are within the statutory range. Without even a cursory

examination of the facts of the case, the court of appeals held that "the record does not

demonstrate that the court's imposition of maximum, consecutive terms within the statutory

range was an abuse of discretion." Opinion at 2.

The seriousness factors of R.C. 2929.12, which form the basis of the trial court's guided

discretion, militate to Mr. Harris' advantage:

R.C. 2929.12(B) A ravatin Factors Applicability to this Case(1) The physical or mental injury No evidence in the record supports thissuffered by the victim of the offense factor.due to the conduct of the offender wasexacerbated because of the physical ormental condition or age of the victim.(2) The victim of the offense suffered The victims were not physicallyserious physical, psychological, or harmed. The worst psychological harmeconomic harm as a result of the was that a couple of the victims soughtoffense. short-term counselin .(3) The offender held a public office or Mr. Harris did not hold a position ofposition of trust in the community, and public trust.the offense related to that office orposition.(4) The offender's occupation, elected Mr. Harris' occupation did not requireoffice, or profession obliged the him to prevent the offense.offender to prevent the offense or bringothers committing it to justice.(5) The offender's professional Mr. Harris did not use his professionalreputation or occupation, elected office, reputation to facilitate this offense.or profession was used to facilitate theoffense or is likely to influence thefuture conduct of others.(6) The offender's relationship with the Mr. Harris did not use his relationshipvictim facilitated the offense. with the victim to facilitate the offense.(7) The offender committed the offense Mr. Harris engaged in a string of fourfor hire or as a part of an organized robberies, but it was not "organizedcriminal activity. criminal activity."(8) In committing the offense, the There was no evidence of a racialoffender was motivated by prejudice motive.based on race, ethnic background,gender, sexual orientation, or religion.

2

By contrast, at least one of the four mitigating factors at least partially applies to Mr.

Harris's offense:

R.C. 2929.12(C) Miti atin Factors Applicability to this Case(3) In committing the offense, the While Mr. Harris obviously harmedoffender did not cause or expect to property, he did not harm any persons.cause physical harm to any person or In fact, in one of the attemptedproperty. robberies, the victims decline his

demand, and he just left. Harm toproperty is inherent to the offense.

Foster did not give trial courts unfettered discretion. The opinion required trial courts to

use the principals and factors in R.C. 2929.11 and 2929.12 when imposing sentences. Foster at

¶36-42. But here, the judge simply imposed maximuin consecutive sentences even though all of

the seriousness factors were either inapplicable or militated in favor of Mr. Harris.

Mr. Harris' case presents a useful set of facts to test appellate review. Some evidence

supports the trial court's finding that Mr. Harris' past record supports a stiffer sentence based on

likelihood of recidivism-Mr. Harris had been previously been convicted of nonviolent offenses

as a juvenile and adult (receiving stolen property and theft), he had previous assault or domestic

violence charges dismissed, and he has had problems with drug abuse. But no evidence supports

the trial court's finding that the facts of these cases merit a tougher sentence. Armed robbery

will always be dangerous. That's why the range for each offense is six to thirteen years

(including firearm specification). But nothing in R.C. 2929.11 or 2929.12 permits a court to use

the facts of the offense to bootstrap an elevated sentence into an already elevated range. As

explained before, nothing about the facts of this case make these armed robberies more serious

than other anned robberies, especially since no one was hurt. Further, Mr. Harris's 52-year

sentence is harsher than if he had simply committed murder, or even aggravated murder.

3

At some point, a sentence becomes unreasonably high. Maximum-consecutive sentences

are an abuse of discretion for an offender with no prior convictions for violence and for actions

that are clearly not the most serious form of the offense.

If this Court does not accept Mr. Harris' case to review statutory analysis under R.C.

2929.11 and 2929.12, this Court should take this case and liold it for the decision in State v.

Hairston, Case Number 2007-394. Hariston will decide whether Eighth Amendment bans on

excessive punishment bar sentences that are essentially life without parole. Further, unlike Mr.

Hairston, Mr. Harris has not been convicted of hurting anyone. So Mr. Harris's Eighth

Amendment argument case is even stronger than Mr. Hairston's.

STATEMENT OF THE CASE

Defendant-Appellant Willie J. Harris was charged with four counts of aggravated robbery

and five counts of robbery stemming from four separate anned robberies. All the aggravated-

robbery counts included both one-year and three-year gun specifications.

Mr. Harris faced an aggravated-robbery and robbery charge relating to a theft at a

Marathon gas station, an aggravated-robbery and two robbery charges relating to a theft at a

United Dairy Farmers in Norwood, an aggravated-robbery and two robbery charges relating to a

theft at a UDF in St. Bernard, and an aggravated-robbery charge and robbery charge relating to a

theft at a Walgreens. A one-year and a three-year gun specification accompanied each

aggravated robbery charge. Harris pleaded not guilty.

The trial court denied Harris's motions to suppress the pretrial witness identifications and

for a separate trial on each of the aggravated robbery charges.

A jury convicted Mr. Harris of all counts and specifications. The trial court merged the

aggravated-robbery and robbery charges for each incident, sentenced Harris to maximum,

4

consecutive ten-year prison terms for the aggravated-robbery charges. The trial court merged the

one- and three-year gun specifications for each of the aggravated robberies, and sentenced Harris

to three consecutive years on each gun specification, for a total prison term of 52 years.

The court of appeals held that Blakely does not apply to Mr. Harris, but reversed because

the trial court's findings and reasons did not support the sentence and because the trial court

failed to iinpose postrelease control. State v. Harris, l" Dist. No. C-040483, 2005-Ohio-6995,

("Harris I") at ¶63. This Court reversed in light of State v. Foster. In re Criminal Sentencing

Case, 109 Ohio St.3d 509, 2006-Ohio-2721. On remand the trial court re-imposed the same

maximum, consecutive sentence over objection that Foster should not apply retroactively. On

appeal, Mr. Harris argued that the sentence violated R.C. 2929.11 and 2929.12. The court of

appeals summarily rejected the claim. Harris II, Apx. at A-1. This timely appeal follows.

STATEMENT OF THE FACTS

Given that Mr. Harris asks this Court to review the post-Foster standards for imposing

maximum-consecutive sentences that are tantamount to life without parole, a more detailed-than-

usual recitation of the facts is necessary. Mr. Harris was convicted of four separate robberies-

at a Marathon station, a UDF in Norwood, a UDF in St. Bemard, and a Walgreens.

Marathon Station: Around 10:30 p.m. on October 15, 2003, Della Cliff testified that

while she was working at a Marathon Station, a young African-American man wearing a black

ski mask, a camel brown jacket, and gloves entered the store and pulled out a silver gun. The

man told Cliff that he was robbing the store. Cliff heard a gun click followed by the man's

statement that she was going to die. The man then told Cliff to step behind the counter and open

the cash-register drawer. When Cliff opened the register, the man grabbed the money and left

the store. The man took about $235.

5

Norwood UDF: On October 21, 2003, Kevin Lake and Emily Sikkema were working

the evening shift at a UDF in the city of Norwood when a tall, young, African-American man

wearing a black sweat suit and khaki boots came into the store. The man walked to the counter

and asked Sikkema for cigarettes. When Sikkema asked the man for his identification, the man

pulled a gun from his waist. The man pointed it towards Sikkeman and another and told them to

empty their registers, which they did. The man took approximately $170 and a pack of Newport

cigarettes.

St. Bernard UDF: On October 22, 2003, Angela McGuirei and Nick Rosen were

working the evening shift at the UDF in St. Bemard when a young African-American man

wearing dark-colored pants, boots, a blue jacket, and a toboggan-style hat entered the store

around 11:20 p.m. The man pulled a gun out of his pocket, pointed it at Rosen, and told Rosen

to give him the money. The gunman told McGuire to move towards the registers, putting the gun

in her back. The gunman told both clerks to open their registers, to put the money in a plastic

bag, and then to lie on the floor behind the registers. Five days later, the police showed McGuire

and Rosen a photographic array containing Harris's photo. Both clerks said Harris was the

robber.

Walgreens: On October 25, 2003, Mylan Stevens and Tia Batchelor were working at a

Walgreens store. About 9:15 p.m., a young African-American man entered the store. The man

had two T-shirts covering his head and part of his face, and he was carrying a gun. The man told

Batchelor to give him all the money. Batchelor told the man that she could not open the register,

and that she needed another employee to help her. Batchelor then went to the stockroom, where

she hid and called her grandmother. Stevens was watching the events through a tinted window

in the store office. He called the police, but the gunman left the store before they arrived.

6

ARGUMENT

Proposition of Law No. I:

Courts of appeals should reverse a sentence in which the trial court abused its

discretion.

Someone who hurts others in an armed robbery deserves more punishment than someone

who does not. Someone who hurts many people deserves significantly more punishment. But

the sentence in Mr. Harris's case leaves no room for increased punishment for those who actually

hurt people-he committed four anned robberies in which no one was hurt. Yet the trial court

still used these cases as a reason to increase his sentence.

While Foster granted trial courts discretion to impose sentences within the statutory

range, a trial court abuses its discretion when its ruling is "unreasonable, arbitrary or

unconscionable, which is more than an error of judgment." State v. Johnston, Colunibiana App.

No. 06 CO 64, 2007-Ohio-4620 at ¶9 (citations and internal quotation marks omitted). The

General Assembly created a range of three to ten years, and trial court must exercise discretion in

choosing sentences from that range.

Here, the trial court's maximum, consecutive sentence was effectively life-without-parole

for armed robberies in which no one was hurt and in a case in which the defendant had never

been convicted of a violent crime. This Court should accept this case to give the appellate courts

guidance as to how to review post-Foster trial court sentencing discretion.

Proposition of Law No. II

A sentence that is effectively life without parole for armed robberies in which no onewas hurt violates the Eighth Amendment to the United States Constitution andSection 9, Article I of the Ohio Constitution.

Mr. Harris received an effective sentence of life without parole for four armed robberies

in which no one was hurt. Such a sentence violates the ban on cruel and unusual punishments in

7

the constitutions of Ohio and the United States. This Court has held that "cases in which cruel

and unusual punishments have been found are limited to those involving sanctions which under

the circumstances would be considered shocking to any reasonable person." State v. Weitbrecht

(1999), 86 Ohio St.3d 368, 371, quoting McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 70.

Proposition of Law No. III:

A defendant may not be resentenced pursuant to a sentencing scheme inwhich the presumptive minimum sentence has been eliminated subsequent tothe commission of the underlying crime.

On February 27, 2006, this Court found portions of R.C. 2929.14, 2929.19 and 2929.41

to be unconstitutional. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraphs one, three

and five of the syllabus. To remedy the constitutional violations, the court severed those

portions of the statutes declared to be unconstitutional. Id., at paragraphs two, four, and six of

the syllabus.

As this Court found in Foster, non-minimum or consecutive sentences based on the

factors in R.C. 2929.14(B) and (E) must be reversed and remanded to the trial court for

resentencing. The Foster remedy violates the Ex Post Facto and Due Process Clauses because it

effectively changes the presumptive sentence to the detriment of the defendant. Miller v. Florida

(1987), 482 U.S. 423, 432, 107 S. Ct. 2446, 96 L. Ed. 2d 351. Since this Court did not analyze

the application of the ex post facto and due process implications of the Foster remedy, lower

courts have no binding state court case law to guide the decision in this case.

Appellant's sentence is illegal because the jury did not determine the facts needed to

support the sentence. No court can impose more than minimum concurrent sentences because

only a jury can make the findings necessary for such sentences. Blakely v. Washin on (2004),

542 U.S. 296, 159 L.Ed.2d 403, 124 S.Ct. 2531; Fifth, Sixth and Fourteenth Amendments to the

8

United States Constitution. Appellant received consecutive, non-minimum prison terms. Tlus

Court should follow the direction of the United States Supreme Court as to the remedy and either

remand for the imposition of minimum concurrent sentences or direct the court of appeals to

modify the sentence accordingly.

A. The Booker severance remedy maintained significant sentencing elements ofthe federal sentencing statutes that This Court's severance remedycompletely removed in the corresponding Ohio statutes.

In Foster, this Court suggests that it used United States v. Booker (2005), 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621, as the blueprint for the Foster remedy. Foster at ¶90. But the

Booker majority did sever a portion of the sentencing statute, the severance was limited, and

maintained the significant parts of the statute designed to effect Congressional intent. As Foster

notes, the United States Supreme Court severed the subsection that required a trial court to

impose a sentence within the applicable guidelines and the subsection setting forth the standards

of review on appeal. Id., n. 97. What is noticeably absent from the Foster opinion, however, is

what remains in the federal sentencing statutes to insure that the intent of the statute was

preserved.

Booker still demands that a trial court consider the guideline ranges established for a

particular offense category as applied to a particular category of defendant to accomplish the

congressional goal of uniformity. United States v. Booker, 543 U.S. at 259-260. Significantly,

the United States Supreme Court did not sever 18 U.S.C. §3553(c)(2), which mandates that a

trial court state its reasons for departing from the gaidelines. Consequently, although the four

separate standards of appellate review were severed, the statute as amended allows either party to

seek appellate review to determine the reasonableness of the trial court's sentence. United States

v. Booker, 543 U.S. at 260, 261.

9

By contrast, the severance employed in Foster cuts a wide swath through the sentencing

statutes, eliminating presumptions; save those favoring incarceration, eliminating a trial court's

duty to explain reasons for departing from the guidelines, thus effectively eliminating the ability

of an appellate court to effectively review a sentence, and essentially eliminating any real chance

of accomplishing the legislature's goal of establishing uniformity and proportionality in Ohio's

criminal sentencing. Because the Foster remedy will substantially disadvantage the hundreds of

defendants affected by the decision, the remedy violates the Ex Post Facto and Due Process

Clauses of the United States Constitution.

Recently, the United States Supreme Court held that a state court cannot apply the

Booker severance to state sentencing statutes in the manner as the Ohio Supreme Court applied

Booker to Ohio's statutes. In Cunningham v. California (2007), 594 U.S._, 127 S.Ct. 856, 166

L.Ed. 2d. 856, the Couit found that California's application of the Booker severance remedy to

the California sentencing findings was inapplicable. In Cunningham, the Supreme Court found

that California's sentencing scheme, "does not resemble the advisory system the Booker Court

had in view. * * * Factfinding to elevate a sentence from 12 to 16 years, our decisions make

plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not

the bailiwick of a judge determining where the preponderance of the evidence lies."

CunninQham, 127 S.Ct. at 870. Ohio's sentencing structure after the Foster severance has the

same deficiency. In Ohio, facts a judge found are used to elevate statutorily mandated minimum,

concurrent sentences, to a higher sentence within the range, or to consecutive sentences. Those

facts must be found by a jury or admitted by the defendant.

B. The Due Process Clause of the United States Constitution barsretroactive application of the severance remedy adopted in State v.Foster.

10

1. Severance operates as an ex post facto law.

It is well-established that due process prolvbits retroactive application of any judicial

construction of a criminal statute that is unexpected and indefensible by reference to the law

which was expressed before the conduct in issue. Bouie v. Columbia (1964), 378 U.S. 347, 354,

12 L. Ed. 2d 894, 84 S. Ct. 1697. As this Court has recognized, "an unforeseeable judicial

enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto

law. ..," and thus violates the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. State v. Gamer (1995), 74 Ohio St.3d 49, 57, 656 N.E.2d 623, quoting

Bouie v. Columbia, 378 U.S. at 353 (intemal citations omitted).

Accordingly, although the constitutional prohibition against ex post facto laws is

applicable only to legislative enactments, judicial enlargement of a statute implicates the same

concems expressed by the Ex Post Facto Clause. State v. Garner, 74 Ohio St. 3d at 57. The

Clause provides simply that "no State shall ... pass any ... ex post facto Law." Art. I, § 10.

The scope of the Ex Post Facto Clause's protection includes "[e]very law that changes the

punishment, and inflicts a greater punishment, than the law annexed to the crime, when

committed." Calder v. Bull (1798), 3 U.S. 386, 3 Dallas 386, 390, 1 L. Ed. 648 (seriatim opinion

of Chase, J.).

Based upon these basic constitutional concems, the United States Supreme Court vacated

a state prisoner's sentence because a state's revised sentencing guidelines, as applied to a

defendant whose crimes occurred before the revisions took effect, violated the Ex Post Facto

Clause and thus violated the prisoner's right to due process. Miller v. Florida (1987), 482 U.S.

423, 432, 107 S. Ct. 2446, 96 L. Ed. 2d 351. In Miller, revisions to Florida's sentencing

guidelines, after the defendant's offense transpired, raised the "presumptive" sentence that the

11

defendant could receive when he was finally sentenced. Florida's revision of its sentencing

guidelines fell within the ex post facto prohibition because it met two critical elements: first, the

law was retrospective, applying to events occurring before its enactment; and second, it

disadvantaged the offender affected by it. Miller at 430. A law is retrospective if it "changes the

legal consequences of acts completed before its effective date." Miller at 431, citing Weaver v.

Graham (1981), 450 U.S. 24, 31, 101 S. Ct. 960, 67 L. Ed. 2d 17. As to the second element, the

U.S. Supreme Court observed that it is "axiomatic that for a law to be ex post facto it must be

more onerous than the prior law." Id. (internal citation omitted).

This Court's severance of the unconstitutional statutes will operate retrospectively and

disadvantage Appellant. His situation illustrates why the Foster remedy will subject him to an ex

post facto change in the law. Under the sentencing statutes in effect at the time of the alleged

offense, there was a presumption that he would be sentenced to a minimum, concurrent sentence.

By severing the statute, this Court eliminated the presumptive sentence. This "remedy"

allows the court to effect the very result that was deemed to be unconstitutional in Blakely v.

Washington (2004), 530 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

In addition, as in Miller, severance presents another disadvantage by virtue of its

application to Appellant. By eliminating the presumptive sentencing levels contained within the

severed statutes and the judicial fact-finding that attended sentences exceeding the presumptive

range, this Court has effectively foreclosed appellate review. In Miller, the U.S. Supreme Court

found that eliminating appellate review was a second reason to find that the defendant had been

"substantially disadvantaged" by the retrospective application of the revised guidelines to his

crime. Miller at 433.

12

The retroactive application of sentencing statutes, as amended by this Court, changes the

punishment that Appellant may suffer and compromises his ability to appeal his sentence.

Accordingly, the Court's remedy as applied to Appellant will violate the Ex Post Facto Clause

and thereby deny him due process.

2. This Court's remedy was unforeseeable and indefensible inlight of the law expressed before Foster.

In Bouie v. Columbia, the United States Supreme Court observed that due process

demands that a defendant have fair warning of what constitutes a crime. Bouie at 350. Fair

waming is denied, however, when there is an unforeseeable and retroactive judicial expansion of

statutory language that appears narrow and precise on its face. Id. at 352. Consequently, the

Court determined that if a judicial construction of a criminal statute is "`unexpected and

indefensible by reference to the law which had been expressed prior to the conduct in issue,' [the

construction] must not be given retroactive effect." Id. at 354 (citation omitted).

When the alleged crimes occurred, Appellant could not have foreseen that this Court

would replace those portions of Senate Bill 2 that gave a trial court "guided discretion" with

unfettered, unreviewable discretion. Foster at 1189. Even after Blakely, defendants could not

have foreseen severance, given this Court's instruction in State ex rel. Mason v. Griffin, 104

Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644 at ¶17, that if the statutes were found to be

unconstitutional (after Blakely), a trial court "should apply the pertinent sentencing statutes

without any enhancement provisions found to be unconstitutional[.]"

The severance remedy is also indefensible by reference to prior law governing the

sentencing scheme. The enabling statute, R.C. 181.24, intended for the enacted statutes to

provide uniformity and proportionality "with increased penalties for offenses based upon the

seriousness of the offense and the criminal history of the offender," and with judicial discretion

13

to be limited by those goals. R.C. 181.24(B)(1)-(3). Those goals were embodied in the statutes

that were ultimately enacted and subsequently reviewed by this Court. The Court expressly

stated that the intent of Senate Bi112 was to reserve non-minimum sentences for the worst

offenses and offenders. State v. Comer, 99 Ohio St. 3d 463, 2003-Ohio-4165, 793 N.E.2d 473,

at ¶21, citing State v. Boland, 147 Ohio App. 3d 151, 162, 2002-Ohio-1163, 768 N.E.2d 1250.

"Consistency and proportionality are halhnarks of the new sentencing law." Id., citing Griffin &

Katz, Sentencing Consistency: Basic Principles Instead ofNumerical Grids; The Ohio Plan

(2002), 53 Case W.Res.L.Rev. 1, 12. And while non-minimum sentences were permitted,

imposition required that "findings and reasons must be articulated by the trial court so an

appellate court can conduct a ineaningful review of the sentencing decision." Comer at ¶21,

internal citations omitted.

These laudable goals are now history, replaced by a judicially enacted scheme that

requires findings only when a trial court seeks to give a "downward departure," under R.C.

2929.20(H). State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at paragraph one

of the syllabus. Given the Court's prior pronouncements on those laudable goals inherent in

Senate Bill 2, the severance remedy is indefensible by reference to prior law.

C. Remedy: Sentence Modification

This Court should order the court of appeals to exercise its discretion to modify

Appellant's sentence to a minimum, concurrent prison term. R.C. 2953.08. Under Foster and

Blakely, Appellant's sentence is illegal, and no judge may make the findings needed to support a

non-minimum prison term. Under Miller v. Florida, this Court cannot remand for resentencing

without a presumption for a minimum sentence. The only lawful remedy is to modify his

sentence to the statutory minimum.

14

Proposition of Law No. IV:

Appellate and trial counsel are ineffective for failing to raise meritoriouschallenges to a criminal appellant's sentence.

If Mr. Harris has waived any of the issues raised in the memorandum at either the trial or

appellate level, such a failure was the result of the ineffective assistance of trial and appellate

counsel. Mr. Harris has been denied his right to the effective assistance of counsel because the

deficient failure of counsel to raise the issue properly prejudiced Mr. Harris by denying him a

new sentencing hearing at which his sentence could not get worse. Roe v. Flores-Ortega (2000),

528 U.S. 470, Strickland v. Washington (1984), 466 U.S. 668, Sixth and Fourteenth

Amendments to the United States Constitution.

Conclusion

This Court should accept this case, reverse the decision of the court of appeals, and

remand for the imposition of a sentence less than effective life without parole. In the alternative,

this Court should take this case and hold it for the decision in State v. Hariston, Case Number

2007-394.

Respectfully submitted,

David H. Bodiker (001q5,90)

Stephen P. Hardwick (0Assistant Public DefenderCounsel of Record

Ohio Public Defender's Office8 East Long Street - 11th floorColumbus, Ohio 43215(614) 466-5394; (614) 752-5167 (Fax)

COUNSEL FOR APPELLANTWILLIE J. HARRIS

15

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing MEMORANDUM IN SUPPORT OF

JURISDICTION has been sent by regular U.S. mail, postage prepaid to Philip R. Cummings,

Hamilton County Assistant Prosecutor, Suite 4000, 230 E. 9th Street, Cincinnati, Ohio 45202 on

this 10"' day of December, 2007.

#268625

'n P. Hardwick(0062932),fAssistant Public Defender

Counsel of Record

COUNSEL FOR APPELLANTWILLIE J. HARRIS

16

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

WILLIE J. HARRIS,

Defendant-Appellant.

Case No.

On Appeal from the HamiltonCounty Court of Appeals,Case No. C-060989

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTION

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHI

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

WILLIE J. HARRIS,

Defendant-Appellant.

ID75595631

E NTE REDOCT 2 4 200^

APPEAL NO. C-o6o989TRIAL NO. B-o312021

JUDGMENT EIVTRY.

We consider this appeal on the accelerated calendar, and this judgment entiy is

not an opinion of the court.,

Defendant-appellant Willie J. Harris was convicted on four counts of aggravated

robbery, each with a three-year firearm specification, for crimes that occurred in 2003.

The trial court sentenced him to ten years in prison on each count, plus three years for

each firearm specification. Additionally, the court ordered that Harris serve these terms

consecutively, for an aggregate prison term of 52 years.

Harris challenged his ma)dmum and consecutive sentences on appeal. This court

vacated Harris's sentence because the trial court had not complied with the statutory

requirements atthe time it had imposed consecutive sentences, and the court had failed to

inform Harris that he would be subject to post-release control. Harris then appealed to

the Ohio Supreme Court. The supreme court reversed our decision in part and remanded

I See S.Ct.R.Rep.Op. 3(A), App.R. u.i(E), and Loc.R. 12.

t OHIO FTRST DISTRICT COURT OF APPEALS

the case for resentencing pursuant to State u. Foster.' In Foster, the supreme court held

certain portions of Ohio's felony sentencing statutes unconstitutional, including the

requirement that the trial court make express findings before imposing consecutive or

maximum terms.3 The supreme court severed these pordons from the sentencing

statutes 4

After the supreme court's remand of Harris's case, the trial court held a post-

Foster resentencing hearing. Harris requested a shorter prison term, claiming that he had

performed well in prison. The court cited Harris's criminal record and imposed the

original 52-year prison term. Further, the court informed Harris of mandatory post-

release control. Harris now appeals this sentence.

In his first assignment of error, Harris argues that the trial court imposed a

sentence contrary to law. According to Harris, the trial oourt failed to consider the

purposes and principles of sentencing in calculating the term. He requests the imposition

of minimum, concurrent terms.

Under Ohio's current sentencing laws, a trial court has discretion to impose any

sentence within the statutory range for the crime committed and to impose maximum,

consecutive, or more than minimum sentences, without maldng any findings or giving its

reasons.5 In this case, the record does not demonstrate that the court's imposition of

maximum, consecutive terms within the statutory range was an abuse of this discretion.6

Thus, the assignment of error is meritless, and we overrule it.

2io9 Ohio St.3d 1, 2oo6-Ohio-856, 485 N.E.2d 470.3 Id.4 Id.5 State u. Mathis, ro9 Ohio St.3d 54, 2oo6-Ohio-855, 846 N.E.2d r, paragraph three of thesyllabus; State v. Foster, supra, at paragraph seven of the syllabus.6 See Mathis, 2oo6-Ohio-855, at ¶37-38; State v. Ashipa;:ist Dist. No. C-o6o4u, 2007-Ohio-2245. at ¶r4.

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OHIO FIRST DISTRICT COURT OF APPEALS

In his second assignment of error, Harris challenges the retroactive application of

Foster's severance remedy to his case under the Ex Post Facto and Due Process Clauses of

the United States Constitution. We overrule this assignment of error on the authority of

State v. Brucz.7

Accordingly, we affirm the trial court's judgment.

Further, a certified copy of this Judgment Entry shall be sent to the trial court

under App.R. 27. Costs shall be taxed under App.R.24.

HILDEBRANDT, P.J., CUNNINGHAM and DINKF.I.ACKER, JJ.

To the Clerk:

Enter upon the Journal of the Court on October 24, 2007

per order of the CourtPresiding Judge

7 170 Ohio App.3d 92, 2007-Ohio-175, 866 N.E.2d 44. See, also, State v. Lochett, ist Dist. No. C-o60404, 2007-Ohio-308.

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