672 N.E.2d 722 | Ohio Ct. App. | 1996
Defendant-appellant Walter C. Danison, Jr. appeals from the court's sentence of the minimum actual incarceration of fifteen days after having pled no contest to, and been convicted of, operating a motor vehicle while under the influence of alcohol and/or drugs in violation of R.C.
A review of the record on appeal indicates that the defendant on December 26, 1994, ran a red light, was involved in an auto accident and attempted to flee the scene of that accident before being arrested at the scene. The defendant refused to submit to both blood and breath testing. See R.C.
On February 6, 1995, the defendant changed his plea of not guilty to no contest. Following the preparation of a presentence investigation report, the court conducted the sentencing hearing on April 19, 1995. At the close of the hearing, the court sentenced the defendant to the following: (1) a fine of $2,500 plus court costs, (2) one hundred eighty days in jail, of which ninety days are suspended, (3) one hundred fifty days of electronically monitored house arrest with work2 and therapy privileges during the days Monday through Saturday, (4) driver's license suspended for five years, (5) active probation for five years, (6) fifteen days of actual jail confinement, and (7) eighty hours of community service work after jail and house arrest are completed.3 See the version of the penalties statute, R.C.
The lone assignment of error provides the following:
"The
Appellant argues that the fifteen-day period of incarceration constitutes cruel and unusual punishment as applied to him by virtue of his particular medical history. Appellant believes that he is being incarcerated because he has a mental illness.
At the sentencing hearing, the court questioned the offender's witness, Pat Malloy, a psychotherapist/social worker/chemical dependency counselor who first counseled the defendant in 1993. Malloy stated that defendant was an alcoholic who began drinking alcohol when he was approximately thirty-five to forty years old. This alcoholism stems from his recent diagnosis of post-traumatic stress disorder ("PTSD"), which causes defendant to involuntarily lapse into states of disassociation, which have been described as flashbacks to unpleasant childhood events and mental blackouts for extended periods of time. The PTSD was alleged to have been triggered when the defendant recently became aware of, allegedly, having been sexually abused as an adolescent. Malloy claimed that PTSD caused defendant to drink alcoholic beverages in excessive amounts and drive a vehicle while under the influence of alcohol, so as to ameliorate the unwanted stress and anxieties associated with the PTSD. Malloy also stated that the defendant's disassociative states, which are brought about by extreme stress, have not always involved the use of alcohol. It was Malloy's belief that any period of incarceration would constitute cruel and unusual punishment as it would increase the likelihood of disassociation and further retraumatize the defendant because the confinement would heighten defendant's sense of being trapped, a sense allegedly common to persons who have been sexually abused.4
In addressing the appellant's
"[T]he Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes,e.g., Estelle v. Gamble, supra; Trop v. Dulles, supra; second, it proscribes punishment grossly disproportionate to the severity of the crime, e.g., Weems v. United States, supra; and third, it imposes substantive limits on what can be made criminal and punished as such, e.g., *532 Robinson v. California, supra."5 Ingraham v. Wright, supra,
Appellant uses a shotgun approach to his legal argument, incorporating each of the three standards enunciated inIngraham. In reviewing appellant's argument, we note that appellant, in reliance on Estelle v. Gamble, supra, frames his argument in terms of whether the fifteen-day sentence is proportionate to the crime of which he has been convicted. At the same time appellant, relying on Solem v. Helm (1983),
This belief of appellant, that he was punished for having a mental illness, is a ruse which confuses the matter. Appellant was not punished for the offense of having a mental illness. Instead, appellant was punished, for the sixth time since 1984, for the offense of having driven an automobile while under the influence of alcohol. In placing the true offense in proper context, the cases relied upon by appellant are easily distinguished from the present case, as those cases (1) rely upon excessive punishment in relation to the minimal nature of the offense to prove disproportionality or (2) provide punishment for offenses which make *533
criminal a physical malady or disease. In light of the human carnage and severe financial costs imposed on society by drunk drivers, the punishment of fifteen days' imprisonment cannot seriously be interpreted as disproportionate to the severity of the offense, particularly when the trial court could have imposed an actual term of imprisonment of thirty days to one year had the court not, in its leniency and discretion, imposed the fifteen days and electronically monitored house arrest on the repeat offender before us. See the version of R.C.
The assignment of error is overruled.
Judgment affirmed.
PORTER and DYKE, JJ., concur.
