2019 Ohio 4240
Ohio Ct. App.2019Background
- Colburn was indicted on felonious assault, rape, kidnapping, and attempted murder; he pled guilty to second-degree felonious assault in exchange for dismissal of other counts.
- The victim described a five-hour assault involving repeated strangulation to unconsciousness, facial fractures (two broken eye sockets, broken nose), concussion, permanent vision impairment, ongoing medical treatment, and severe emotional trauma.
- Photographs and family statements documented the victim’s injuries; her children and mother feared she would die and asked for maximum incarceration.
- The State presented Colburn’s prior convictions for rape and kidnapping, his lengthy prior prison term, and that he was on post-release control when the assault occurred.
- At sentencing the court found the conduct more serious than typical felonious assault, questioned the genuineness of Colburn’s remorse, and imposed the maximum eight-year prison term.
Issues
| Issue | State's Argument | Colburn's Argument | Held |
|---|---|---|---|
| Whether the record clearly and convincingly supports imposition of the maximum 8-year sentence under R.C. 2929.11/2929.12 and review standard R.C. 2953.08(G)(2) | The record supports the maximum term because the assault was prolonged, repeated, nearly fatal, produced serious permanent physical and emotional harm, and Colburn has prior violent convictions and was on post-release control | The court erred: sentencing factors (provocation, mitigating grounds, certain R.C. 2929.12(B) factors) weigh toward a lesser sentence and the record does not clearly and convincingly support the maximum term | Affirmed. The court may weigh factors unequally; the severity and lasting harm, prolonged strangulation, questionable remorse, and recidivism supported the maximum sentence under deferential review |
Key Cases Cited
- State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (sets deferential review standard under R.C. 2953.08(G)(2) and applies it to R.C. 2929.11/2929.12 sentencing)
- State v. Arnett, 724 N.E.2d 793 (Ohio 2000) (trial court has discretion to assign weight to R.C. 2929.12 factors)
- State ex rel. Husted v. Brunner, 915 N.E.2d 1215 (Ohio 2009) (defines clear-and-convincing evidence standard)
- Cross v. Ledford, 120 N.E.2d 118 (Ohio 1954) (classic definition of clear-and-convincing evidence)