State v. Foster
Is it still good law? What later courts have actually done to this case.
Status
3,571 later cases cite State v. Foster; 385 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on State v. Foster?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Abrogated
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The Supreme Court displaced Foster’s Sixth Amendment prohibition on judicial findings required for consecutive sentences, holding that states may require judges to make those findings.
Oregon v. Ice · Supreme Court of the United States · filed
Other States, including Oregon, constrain judges’ discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences. ... We hold, in light of historical practice and the authority of States over administration of their criminal justice systems, that the Sixth Amendment does not exclude Oregon’s choice. ... Compare, e. g., People v. Wagener, 196 Ill. 2d 269,283-286, 752 N. E. 2d 430, 440-442 (2001) (holding that Apprendi does not apply); Keene, 927 A. 2d, at 405-408 (same), with State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N. E. 2d 470 (holding Apprendi applicable).
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Superseded by statute
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H.B. 86 restored the statutory requirement of findings before imposing consecutive sentences, replacing that part of Foster’s severance remedy; supporting reasons remained unnecessary.
State v. Bonnell · Supreme Court of Ohio · filed
Subsequent to Hodge, the General Assembly enacted Am.Sub.H.B. No. 86, effective September 30, 2011, reviving some of the statutory language we severed in Foster. That legislation created a statutory presumption in favor of concurrent sentences and further directed courts to make statutorily enumerated findings prior to imposing consecutive sentences, but it did not require courts to give reasons in support of its findings. ... Because the General Assembly has expressed its intent to revive some of the language severed by this court in Foster, our decision in Hodge is no longer controlling and judges are required to adhere to R.C. 2929.14(C)(4) and 2929.41(A) in imposing consecutive sentences and to make the required findings.
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Limited
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Penn · Ohio Court of Appeals, Tenth District · filed
As we noted in Wilson, although the Supreme Court of Ohio held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 , that certain Ohio felony sentencing statutes violate the Sixth Amendment to the United States Constitution, its ruling applies only to those cases pending upon direct review or not yet final as of the date Foster was decided, not to a post-conviction relief motion untimely filed. … Therefore, because appellant neither filed his petition within the 180-day time period of R.C. 2953.21 (A)(2), nor satisfied the exception in R.C. 2953.23 , we must find the trial court did not err in denying his petition for post-conviction relief.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Watson · Ohio Court of Appeals, Second District · filed
Watson did not meet his burden under R.C. 2953.23 to file an untimely petition for post-conviction relief. … Foster, like the authorities cited by Watson, only applies to matters on direct review. … Accordingly, Watson's argument is overruled, and the judgment of the trial court is affirmed.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Muncey · Ohio Court of Appeals, Twelfth District · filed
We accordingly conclude that appellant's criminal case is not pending on direct review and that he is not entitled to have Foster retroactively applied.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Jones · Ohio Court of Appeals, Tenth District · filed
This court has similarly held that the Ohio Supreme Court, in Foster , supra, "applied its holding only to cases pending on direct review." … Accordingly, the trial court did not err in finding appellant's petitions to be untimely, and that none of the statutory exceptions were applicable.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Sewell · Ohio Court of Appeals, Second District · filed
Furthermore, because Sewell filed no direct appeal that was pending when Foster was decided, he is not entitled to resentencing per Foster , which is the assumed basis for the alleged ex post facto violation he argues.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Dunn · Ohio Court of Appeals, Fourth District · filed
Because we find that Dunn's case was not on direct review when the Court decided Foster , we find that Foster has no application here. Additionally, because we find that Dunn failed to timely file his petition for postconviction relief or satisfy the statutory requirements for filing a delayed petition, we cannot find that the trial court abused its discretion by denying Dunn's petition. Accordingly, we overrule his assignments of error and affirm the trial court's judgment.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Chaney · Ohio Court of Appeals, Eighth District · filed
Certainly, the factual basis for sentencing is not central to a determination of guilt or innocence. Therefore, Blakely and Foster do not apply retrospectively to cases on collateral review.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Smith · Ohio Court of Appeals, Ninth District · filed
This Court has previously found Foster does not apply retroactively. State v. Starcher , 9th Dist. No. 06CA0021-M, 2006-Ohio-5955 , at ¶ 11-12 ; State v. Luther , 9th Dist. No. 05CA008770, 2006-Ohio-2280 , at ¶ 12-13 . Accordingly, Defendant has not met the requirements for filing an untimely petition for post-conviction relief.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Bowman · Ohio Court of Appeals, Second District · filed
Since Bowman's case was not pending on direct review at the time Foster was decided, Foster does not apply to Bowman's sentence.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Tapp · Ohio Court of Appeals, Fifth District · filed
In addition, appellant is attacking his sentence collaterally via a denial of a motion for resentencing. This court has consistently held Foster does not apply to collateral attacks such as petitions for postconviction relief. … Upon review, we find the trial court did not err in denying appellant's motion for resentencing based on the retroactive application of Foster and Blakely.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Smith · Ohio Court of Appeals, Fourth District · filed
Here, we agree with the trial court that it lacked jurisdiction to consider Smith's petition. Smith did not directly appeal his underlying possession of drugs sentence. Thus, any right created in Apprendi, Blakely , or Foster is not retroactive to his situation because his case is on collateral review, not direct review.
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Held that Foster does not apply retroactively on collateral review to a sentence already final when Foster was decided.
State v. Wilson · Ohio Court of Appeals, Second District · filed
We have consistently held that Foster does not apply retroactively to those cases that were neither on direct appeal nor still pending in the trial court when Foster was decided. Because Wilson's case was neither on direct appeal nor pending in the trial court when Foster was decided, Foster s holding is inapplicable to his case. Consequently, Wilson is not entitled to resentencing under Foster.
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Foster did not entitle every defendant to automatic resentencing: within-range sentences imposed through judicial factfinding were voidable, and an unpreserved post-Blakely claim was subject to forfeiture and plain-error review.
State v. Payne · Supreme Court of Ohio · filed
Thus, pre-Foster sentences imposed after judicial fact-finding and falling within the statutory range are voidable.3 {¶ 30} Therefore, defendants with a voidable sentence are entitled to resentencing only upon a successful challenge on direct appeal. Because Payne forfeited the Blakely error, his appeal fails to establish that he should be resentenced pursuant to Foster.
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Foster does not apply retroactively to convictions final before its issuance.
State v. Kemp · Ohio Court of Appeals, Second District · filed
In addition, we have consistently held that Foster does not apply retroactively to those cases that were neither on direct appeal nor still pending in the trial court when Foster was decided. E.g., State v. Wilson , Montgomery App. No. 21741, 2007-Ohio-4610 . Because Kemp's case was neither on direct appeal nor pending in the trial court when Foster was decided, Foster's holding is inapplicable to his case. Consequently, Kemp is not entitled to resentencing under Foster.
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Foster does not provide a retroactive right allowing an otherwise untimely postconviction petition.
State v. Garrett · Ohio Court of Appeals, Seventh District · filed
We also note that Foster is only retroactive for those cases pending on direct review. Foster , 109 Ohio St.3d 1 at ¶ 104, 106. … As such, appellant cannot establish either of the two alternative grounds within the first prong of the test for entertaining an untimely petition. … For the foregoing reasons, appellant's petition was untimely, and appellant has failed to demonstrate the exceptions for entertaining an untimely petition. Accordingly, the trial court lacked jurisdiction to hear the petition.
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Foster does not create a retroactive right permitting successive postconviction relief.
State v. Thompkins · Ohio Court of Appeals, Tenth District · filed
Appellant has not met these conditions. He argues that re-sentencing is appropriate under State v. Foster , 109 Ohio St.3d 1 , 2006-Ohio-856 . This court has held, however, that Foster did not create a "new federal or state right that applies retroactively" for purposes of R.C. 2953.23 (A)(1)(a), nor is it a decision of the United States Supreme Court. State v. Wolfel , Franklin App. No. 08AP-388, 2008-Ohio-4596 , ¶ 14 . And, in any event, this court has previously determined that res judicata bars appellant's claims arising from Foster. Thompkins , 2007-Ohio-4315 , fn. 2. Therefore, R.C. 2953.23 (A) bars his successive petition.
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Does this case still carry your argument?
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