State v. Beverly
2016 Ohio 8078
| Ohio Ct. App. | 2016Background
- Jordan Beverly was convicted by jury (2011) of: RICO-style engaging in a pattern of corrupt activity (F1), multiple burglaries (numerous F3s), attempted burglaries, receiving stolen property (F4/F5), having weapons while under disability (F3), and fleeing/eluding; originally sentenced to 66.5 years.
- Co-defendant Brandon Imber pleaded guilty to several F4s and received 13.5 years.
- This court previously reversed Beverly’s corrupt-activity conviction (for lack of proof of an enterprise), and found sentencing error (allied-offense merger issues and an abuse of discretion for the aggregate 66.5 years); the Ohio Supreme Court reinstated the corrupt-activity conviction and remanded for resentencing.
- At resentencing (2015) the parties acknowledged statutory changes lowering some F3 maximums and that the court must make R.C. 2929.14(C)(4) consecutive-sentence findings; a PSI and prison-conduct report were considered.
- The trial court merged the allied counts, made consecutive-sentence findings, and imposed consecutive terms that totaled 50 years; Beverly appealed arguing (1) the aggregate 50-year term was an abuse of discretion/unsupported and (2) the large disparity with Imber’s 13.5-year sentence reflects an improper "trial/appeal tax."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for resentencing | Appellee (State) argued trial court followed statutory requirements; review governed by R.C. 2953.08(G)(2) as clarified in Marcum | Beverly argued prior abuse-of-discretion standard applied and resentencing was punitive | Court: Marcum governs; appellate relief only if sentence is contrary to law or record does not support findings by clear and convincing evidence |
| Legality/support for 50-year aggregate term | State: each sentence within statutory ranges; court considered R.C. 2929.11/2929.12 and made required consecutive-sentence findings | Beverly: 50 years is excessive; prior opinion found abuse of discretion; resentencing effectively punished him for a successful appeal and failed to account for changed statutory maxima | Held: Sentences are not contrary to law; record (PSI, prison infractions, criminal history) supports maximum terms and consecutive findings; no clear-and-convincing showing to vacate/modify |
| Alleged "trial/appeal tax" given disparity with co-defendant | State: Imber pleaded guilty to fewer/smaller offenses and had plea-cooperation benefits; sentencing differences explain disparity | Beverly: Disparity (50 v. 13.5 years) suggests punishment for exercising trial/appeal rights; original opinion warned of trial tax | Held: No impermissible tax; defendants not similarly situated (different convictions/grades, plea/cooperation, unknown criminal histories); record dispels inference of vindictiveness |
| Consecutive-sentence findings under R.C. 2929.14(C)(4) | State: multiple counts reflect a course of conduct and defendant’s criminal history and prison misconduct justify consecutive terms to protect public | Beverly: Consecutive terms disproportionate; prior appellate guidance said crimes not worst form and defendant not most depraved | Held: Trial court made explicit consecutive-sentence findings (necessity, proportionality, statutory subsections (b) and (c)); record supports those findings under the deferential clear-and-convincing standard |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (clarifying that R.C. 2953.08(G)(2) governs appellate review of felony sentences; relief only if sentence contrary to law or record fails to support findings)
- State v. Beverly, 143 Ohio St.3d 258 (Ohio 2015) (Ohio Supreme Court reinstating Beverly’s corrupt-activity conviction and remanding for resentencing)
- State v. Mathis, 109 Ohio St.3d 54 (explaining that sentencing courts must consider R.C. 2929.11 and 2929.12 factors when imposing sentences)
- Nolan v. Nolan, 11 Ohio St.3d 1 (law-of-the-case doctrine; appellate decisions bind later proceedings on same legal questions)