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State v. Stone

November 26, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOHN L. STONE, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 05 CR 627.

The opinion of the court was delivered by: DeGenaro, P.J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Joseph J. Vukovich.

{¶1} This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Defendant-Appellant, John L. Stone, appeals the decision of the Mahoning County Court of Common Pleas that sentenced Stone to the maximum sentence for voluntary manslaughter with a firearm specification. On appeal, Stone argues that the remedy in the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-0856, 845 N.E.2d 470, violates both due process and the prohibition against ex post facto laws, that his attorney was ineffective for not raising this issue, and that the trial court erred by ignoring the Due Process and Ex Post Facto Clauses when sentencing Stone to the maximum possible prison term.

{¶2} This court has previously rejected Stone's arguments regarding the Due Process and Ex Post Facto Clauses in State v. Palmer, 7th Dist. No. 06-JE-20, 2007-Ohio-1572. Thus, as Fosters' remedy violates neither clause, Stone's counsel was not ineffective for failing to raise those arguments below and the trial court had the authority to impose the maximum term of imprisonment on Stone. Accordingly, the trial court's decision is affirmed.

Facts

{¶3} On July 21, 2005, Stone was indicted by the Mahoning County Grand Jury on one count of murder with a firearm specification. On January 9, 2006, Stone agreed to plead guilty to one count of voluntary manslaughter with a firearm specification. In exchange, the State agreed to amend the indictment from murder to voluntary manslaughter. The parties did not agree on a sentencing recommendation.

{¶4} At sentencing, the State requested that the trial court sentence Stone to the maximum possible prison sentence, while Stone requested a mid-range sentence. The trial court imposed the maximum sentence.

Ex Post Facto and Due Process Clauses

{¶5} Stone's first assignment argues:

{¶6} "The trial court erred by imposing a maximum sentence in violation of the Due Process and Ex Post Facto Clauses of the United States Constitution."

{¶7} Specifically, Stone contends that since his crimes were committed before the Ohio Supreme Court's decision in Foster, application of the Foster decision to his sentencing violates the Ex Post Facto Clause of the United States Constitution and violates his right to due process of law.

{¶8} This court has conclusively determined in State v. Palmer, 7th Dist. No. 06-JE-20, 2007-Ohio-1572, that application of Foster does not violate the Ex Post Facto Clause or a defendant's due process rights. Palmer relied on our own precedent as well as on decisions from other Ohio appellate districts, including the Second, Third, Ninth, and Twelfth, all of which had reached similar conclusions. The reasoning is primarily twofold. First, Ohio appellate courts are inferior in judicial authority to the Ohio Supreme Court. Therefore, they are bound by their decisions and are not in a position to declare one of their mandates as unconstitutional. Palmer at ¶62, 68-69, 74. Second, a criminal defendant is presumed to know that their actions are criminal if so defined by statute ...


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