529 N.E.2d 947 | Ohio Ct. App. | 1987
Defendant, Howard E. Jones, appeals from a judgment of the Franklin County Municipal Court which found him guilty of operating a motor vehicle without a valid license and sentenced him to six months' imprisonment and fined him $500 plus costs. Defendant raises a single assignment of error as follows:
"The trial court abused its discretion by imposing a sentence of six months in the case at bar.
"A. The sentence imposed by the trial court was imposed as punishment for the appellant's decision to exercise his right to a jury trial."
On February 9, 1986, defendant was charged with a violation of (1) Columbus City Code ("C.C.") Section
On July 28, 1986, the trial court sentenced defendant to one hundred eighty days' imprisonment, of which ten days were suspended for time "served" at Maryhaven, and fined defendant $500.
The defendant testified at trial that he was in possession of a temporary driver's license at the time of his arrest, that his daughter was sick and needed medicine, that it was early in the morning when he decided to get the medicine, and that his own medical condition precluded him from walking the distance to the nearby store. Defendant testified further that he had *88 not been drinking on the night in question because he was taking medication for his arthritic gout. Testimony was offered to prove that the route defendant was driving was a direct route between his home and the store. Defendant testified that he did not weave or drift into other lanes but did, at one point, attempt to get into the right-hand lane from the left, but changed his mind when he saw it was occupied.
The defendant refused to take the Breathalyzer test. However, the city presented evidence that defendant "almost caused" an accident, drove erratically, had trouble with the walking heel-to-toe and finger-to-nose intoxication tests and smelled "moderately to strongly" of alcohol. The jury apparently rejected this evidence since it found defendant not guilty of the OMVI charge.
The issue in this case is whether the sentence imposed was excessive. Sentencing is within the sound discretion of the trial court and is generally not disturbed upon review where the sentence is within the confines of the valid statute. Toledo v.Reasonover (1965),
"* * * [T]he risk that the offender will commit another offense and the need for protecting the public therefrom, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him."
In addition, R.C.
"(1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so;
"(2) The offense was the result of circumstances unlikely to recur;
"(3) The victim of the offense induced or facilitated it;
"(4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;
"(5) The offender acted under strong provocation;
"(6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense;
"(7) The offender is likely to respond quickly to correctional or rehabilitative treatment."
The Committee Comment to R.C.
"Generally, appellate courts, on the theory that the trial judge was in the best position to weigh the factors relevant to a determination of the appropriate sentence, have refused to review sentences, so long as they were within the statutory limits."
However, that court also stated that:
"* * * [N]ot all judges exercised their discretion on the basis of the facts and circumstances of the case and the character and background of the offender but acted out of bias, prejudice and preconceptions." Id. at 155, 11 Ohio Op. 3d at 138,
R.C.
"* * * The judge's exercise of discretion in sentencing an offender is not a matter of whim or fancy. It involves a conscientious effort to evaluate all aggravating and mitigating factors before selecting from legislatively authorized choices. By avoiding that process, the judge fails to exercise the allotted discretion. * * *"
See, also, Miamisburg v. Smith (1982),
Specific factors which Ohio courts have accepted for consideration in sentencing include a reasonably justified belief by the trial court that the defendant lied during sentencing proceedings, especially where there is no presentence report (State v. Gould, supra); evidence relevant to the question of mitigation but not pertinent to guilt (and thus could not be presented at trial) (State v. Downs [1977],
Factors which Ohio courts have specifically rejected for consideration in sentencing include a trial court's belief that a defendant lied during trial (State v. Jeffers [1978],
In Jeffers, supra, it is stated at 109, 11 Ohio Op. 3d at 102,
"* * * [T]he sentencing judge may not increase a defendant's penalty because the court believed he lied. To do so is in effect to punish him for an offense for which he has been neither charged nor tried and to discourage a defendant from exercising his right to trial and to testify on his own behalf."
Even more serious is the action of a sentencing judge increasing a defendant's penalty because the trial court feels the jury was mistaken in finding the defendant not guilty of another charged offense. Such action serves to destroy the effectiveness of the right to jury trial. The trial court is required to accept the jury's verdict and, in sentencing for an offense of which the defendant was convicted, to give no consideration to the evidence tending to indicate defendant to be guilty of the offense of which he was found not guilty by the jury. The court-imposed requirement that defendant attend Maryhaven under the circumstances indicates that the trial court was considering the OMVI charge despite the jury's not guilty verdict. Furthermore, the imposition of a jail sentence could be justified herein only if defendant had been found guilty of OMVI.
In the present case, defendant was found guilty only of a violation of C.C.
Multiple mitigating factors require less than the maximum jail sentence. See R.C.
For the foregoing reasons, the assignment of error is sustained, the judgment of the Franklin County Municipal Court is reversed, and this cause is remanded to that court for modification of the sentence in accordance with law consistent with this opinion.
Judgment reversed and cause remanded.
STRAUSBAUGH, P.J., and COOK, J., concur.
COOK, J., of the Eleventh Appellate District, sitting by assignment in the Tenth Appellate District. *91