State v. Marcum (Slip Opinion)
146 Ohio St. 3d 516
Ohio2016Background
- Deputies, acting on a tip, searched Mary Marcum’s property with permission and found materials and active devices used to produce methamphetamine on her porch; her minor children were asleep inside nearby.
- Marcum was indicted and convicted by a jury of manufacturing methamphetamine in the vicinity of a juvenile (first-degree felony) and sentenced to 10 years imprisonment (statutory maximum 11 years).
- On appeal the Fourth District affirmed the sentence and declined to apply an abuse-of-discretion standard to review of felony sentences.
- The Fourth District certified conflict with other appellate decisions that applied the Kalish two-step (which includes abuse-of-discretion) approach.
- The Ohio Supreme Court accepted discretionary review to decide whether Kalish’s test still applies after the 2011 amendment to R.C. 2953.08(G).
- The Court held that R.C. 2953.08(G)(2) controls: an appellate court may vacate or modify a felony sentence only if it clearly and convincingly finds the record does not support required findings or that the sentence is otherwise contrary to law; Marcum’s 10-year term was supported by the record and was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Kalish two-step (including abuse-of-discretion review) applies to felony-sentencing appeals after R.C. 2953.08(G)(2) was amended | Marcum argued appellate courts should apply abuse-of-discretion review (as under Kalish) to challenge near-maximum sentences | State argued R.C. 2953.08(G)(2) unambiguously bars abuse-of-discretion review and limits appellate action to clear-and-convincing showings that findings lack support or sentence is contrary to law | The Court held Kalish’s abuse-of-discretion second step does not apply; R.C. 2953.08(G)(2) governs and requires clear-and-convincing evidence to modify/vacate a sentence |
Key Cases Cited
- State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124 (plurality opinion establishing two-step appellate review for sentences)
- State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (severed parts of sentencing statutes and recognized broad judicial discretion within statutory ranges)
- Oregon v. Ice, 555 U.S. 160 (U.S. Supreme Court decision affecting consecutive-sentencing analysis)
- Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (definition of the clear-and-convincing-evidence standard)