Edward L. Downey v. E. P. Perini, Superintendent, 518 F.2d 1288

Edward L. Downey v. E. P. Perini, Superintendent

518 F.2d 1288

6th Cir.

1975

Check Treatment

*1 ing right the broker’s mulate a commis- contract’ on different terms prior arrangement sion. from the that had Appellants’ good-faith because of failed inability 476 S.W.2d Foster, See also Bass v. financing. to secure An infer- (Ky.1972). Appellee’s agreement ence that pay September agreement on which Browning a commission on the actual Appellants explicitly base their claim purchase shows Appellee’s bad faith was payment Appellee’s on pur- conditions by rebuttеd evidence Browning had the property coal chase of “under the geolo- rendered substantial service as a option a certain to be terms of dated and that gist Appellee wanted to use Accordingly, September 1971.” the Browning’s regard “influence” in oth- only recovery basis for would have been Kentucky properties. er showing Appellee deferred the record, Based on the which we option until after purchase expired read, carefully say wе cannot purpose “with the intention and cumventing of cir- findings Court’s clearly District erro- right the broker’s find, rather, they neous. We This state commission.” of mind was compelled by the evidence. by the described faith,” District Court as “bad gave and it Appellants oppor- Judgment District Court is tunity prove Appellee affirmed. acted in in delaying purchase bad faith its until option expired. had

after on

Based the results of a hearing,

along depositions and exhibits sub evidence,

mitted as the District Court that Appellee

found not had acted in bad On contrary,

faith. the District found that Appellee “diligently at

tempted to financing secure pur for the properties coal DOWNEY, chase Edward L. under [Ap option.” Petitioner-Appellant, pellants’] When the option ex pired on October “no effort was by [Appellants] any made to secure fur PERINI, Superintendent, E. P. interest properties. ther [Appel Respondent-Appellee. lants], fact, nothing.” did Apрellee attempted nonetheless an obtain addi No. 74-1929. tional extension of option, but was Appeals, States Court of do unable to so. Sixth Circuit. purchase The eventual was attained Appellee, with the assistance when July Hey Brоwning, Mr. discovered that Pot- might be ter and Walters interested in

selling their property plus on a cash basis, rather ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stock arranged than cash basis part Appellants.

November sale contract thus embodied different both in

terms nature and in from September option

amount

agreement. period During the between 15 and

October November the District slightest even the found “not in- Rather, Appellee

ference of bad faith.” were to for- Potter Walters able Corp. Dynamics, Inc., F.Supp. Div., (E.D.Ky., 1974). TEC v. Nuclear Pikeville *2 Lewis, Cleveland, Ohio, for pe-

Ovid C. titioner-appellant. Brown, Atty. Ohio,

William J. Gen. Ohio, Columbus, Rooney, Thomas D. Leo Gen., Conway, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Attys. respon- J. Asst. dent-appellee. PHILLIPS, Judge, Chief

Before LIVELY, Judges. Circuit PECK LIVELY, Judge. Circuit This case сoncerns Amend- against cruel prohibition ment and un- punishment. Petitioner was usual found by jury Court of Common guilty County, Cuyahoga Ohio of vio- Pleas (ORC) Revised lating Ohio Code 3719.- marijuana 20(A), possession of 3719.20(B), marijuana. sale of ORC § petitioner’s drug-related first This was offensе, marijuana and the amounts of very small. Petitioner re- were involved indeterminate sentences which ceived statutory minimum and embodied provided for each violation: maximum posses- years 10 to 20 20 to 40 for sale and for sale. sion ordered that the sentences run It was consecutively, resulting in a total sen- 30 to 60 for the two tence of of- fenses.

On appeal direct to the Ohio Court of Appeals one of the issues raised Dow- that his ney was sentence constituted and unusual сruel in viola- tion of Constitutions of the United and Ohio. The of appeals States court his conviction sentence, affirmed re- on the decision of lying Supreme Chaffin, of Ohio State v. 282 N.E.2d 46 Pe- courts Some have held that St.2d length of sentence attempted appeal may not be the then sole titioner Ohio, finding assigning as er- of a of cruel and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍basis g., claims which he punishment. had made Smith same ror the States, (10th 467-68 appeals. The motion for Cir. the court 1959) Downey did not denied *3 was S.Ct. appeal 1619, Supreme 4 L.Ed.2d 1729 by (1960); the Court of the Anthony v. sеek review States, 687, appeal 331 (9th This F.2d 693-94 results from United United States. 1964); Beto, district of his Rener v. by 20, the court 447 Cir. F.2d 23 the dismissal 1971) corpus. (5th denied, writ of cert. a habeas Cir. petition for 405 U.S. 1051, 1521, 92 31 S.Ct. L.Ed.2d 787 the that words “cruel and It is clear However, (1972). in considering an do rigid not a punishment” have unusual Amendment Eighth challenge to a stat meaning. Though this and immutable provided which ute a maximum of five provision Rights of the Bill of particular imprisonment, years’ this court in by considered the courts as not been has States, 228, Hemans v. United others, survey a оf the some often as 237, (6th denied, 801, Cir.) cert. 332 U.S. opinions dealing with it Court 100, (1947), 92 L.Ed. 68 S.Ct. 380 stated: evolving concept. While the an reveals may pause of the Amendment well not long We need reject authors to argument primarily appellant cer conсerned with the invalid of have been that punishment forms of used federal statute which he tain barbaric the violated prior Europe punishment to our inde cruel and unusual England in inflicts 1 long it been Eighth has settled of the pendence, that in contraventiоn Amend- subject the to re to ment the Constitution of the punishments all United they proportionate be viewed, that to quirement Historically States. the they which are adminis Eighth for Amendment adopted the offense was to States, inhuman, barbarous, v. United 217 Weems prevent tered. See or tortu- 367-68, 544, 30 349, punishment, S.Ct. L.Ed. though long-term 54 rous U.S. compare opinion imprisonment could so (1910); dissenting 793 be dispropor- Field in to O’Neill v. Ver the offense as to of Mr. Justice tionate fall within 323, 339, 693, mont, U.S. 12 (Emphasis 144 S.Ct. 36 inhibition. added.) the (1892). The Court in Weems L.Ed. 450 agrеe Thus we with the appellant a concerned with primarily the kind of was is which disproportionate sentence inflicted; nevertheless, the punishment crime which it is may administered punishment that the not requirement be Eighth held to violate be Amend- applies length of disproportionate solely because of length ment of im- g., as well. at sentence 217 U.S. imposed. prisonment 368-71, 30 S.Ct. 544. A court is not free apply pure The Supreme has never held ly subjective a criteria to determine of sentence to constitute particular whether sentence or statuto unusual punishment cruel and solely be- range ry of sentences offends the Consti length. cause its However, of in How- Supreme Court, tution. Weems, in Fleming, 126, 191 49, ard v. 24 supra, suggested S.Ct. objective an standard (1903), 48 L.Ed. 121 the Court did hear comparing particular of punishment Eighth an Amendment challenge based review provided under with those length on the of sentence alone. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by other crimes jurisdiction, the same the ten-year Court found provided those for the same offense imposed in case was not invalid as jurisdictions. other 217 U.S. at 380- punishment cruel and unusual 81, after con- 30 S.Ct. 544. Though Furman v. sidering appeal on its Georgia, 238, merits. 408 U.S. 92 2726, S.Ct. Granucci, Cruel Original See “Nor Meaning,” Unusual Inflicted: The Punishments (1969). 860-865 Calif.L.Rev. In some (1972), utively. was cases concerned with L.Ed.2d sentences under length punishment, admittedly of opposed as constitutional statutes kind of the Court in that held to opinions case been constitute cruel and present applied particular as inquiry. instructive Coiner, majority g., E. Hart v. heavily relied facts. F.2d (4th Cir.), comparisons on sentences other 415 U.S. 1454, 1577, permitted those ju- other S.Ct. crimes L.Ed.2d risdictions, However, data, and other when a statistical in 881 sentence is determining statutory the death limits penalty as within it is ar gued provides constituted the stаtute for pun administered cruel and un- violates the punishment. evolving ishment that usual nature Amend ment, concept recognized was this is an attack on the refer- constitu tionality need to conform statute itself. ences *4 Dawson, 194, to the conscience of contemporary (2d ments v. States 200 society. g., opinion 1968), 1023, of Mr. 393 Justice Cir. U.S. 89 Marshall, 329, 632, 408 at (1969). U.S. 92 21 L.Ed.2d 567 S.Ct. 2726. S.Ct. In Brennan said, Justice found a Mr. common Weems “Let us previous Supreme in thread it to the minimum degree deci- confine of the holding particular punishmеnts law, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sions for it is with the law to that we are and in that 366, cruel each concerned.” 217 at be was most 30 “degrading dignity,” human a at 548. concept S.Ct. in an applied

first Amendment appears appellant’s It from addenda to Dulles, setting Trop in 356 U.S. 20-year that pen- brief Ohio’s minimum 2 78 L.Ed.2d S.Ct. 630 upon conviction for sale alty marijua- of opinion Finally, the of Mr. Justice Bren- punishment is the severe na most for this test: nan set forth by any offense state. One this imposed test, then, ordinarily The will be a a provides minimum, 10-year other stаte one: If a cumulative is years a minimum of 5 and 28 five severe, unusually if there is a strong have minimum fines with no mini- states that it is probability inflicted arbitrari- imprisonment. Of the states which mum if it is ly, substantially rejected by separate penalties for sale provide and contemporary society, and if there is ten-year for possession Ohio’s mini- to believe no reason that it any serves possession for for sale mum far exceeds purpose penal more effectively than any other that of state a minimum punishment, less severe some then the requirement. Most states continued infliction of have no minimum sentence of incarcera- ment violates command of the possession tion for for sale. may Clause State not inflict and punishments inhuman uncivilized marijuana of Ohio Comparison convicted of upon those crimes. provided those for various penalties with at 408 U.S. S.Ct. at 2748. under Ohio law is also re other crimes We look to the legislature vealing. minimum sen The Ohio has drasti provided by each penalties tences of the cally nearly reduced the for all statutes— years under ORC 3719.20(A) in recent years.2 § violations criminal for sale possession years and 20 provides Criminal Code of Ohio under Revised 3719.20(B) for ORC sentence § sale—not the the minimum for crimes total which degree resulted from as first felonies shall be discre classified tionary act of the trial judge years.3 Thus for the crime of ordering 4 to 7 the two sentences be kidnapping,4 formerly carrying served a sen- consec- Ohio, Revising 2905.01(C). § 2. The Act Criminal Code of ORC (Eff. 1-1-74). Statute H.B. 511 Amended 2929.11(B)(1). § ORC life, tence of minimum is 40, possession and sale of which pro- is years. Many crimes, other violent hibited § 3719.44. The penalties for robbery5 armed burglary,6 such as and possession sale and for sale have not voluntary rape7 manslaughter8 and however, changed, because narcotic punishable by same sen minimum drugs hallucinogens penalized tence, 4 years. to 7 crime of assault under the same sentencing statute, ORC deadly weapon, with a even when serious 3719.99(D) (F). results, harm is physical as classified Upon degree felony9 consideration second and thus of the carries a rele we vant factors conclude only sentence of minimum 2 to years. the sen imposed on fact, Downey, tence murder aggravated response In requirements of the rape forcible statute, murder10 and of a person in length was excessive age11 of under dispropor are the only tionate nature which the of the offenses for Criminаl Code offenses for which he was penalty a minimum convicted. prescribes legitimate more legislative purposes which years. than 4 to 7 have led the of Ohio to treat possession State for sale brief tabulation makes it This cleаr marijuana and sale as criminal acts penalties required minimum that the may be achieved without imposition violating 3719.20(A) conviction ORC § penalties which are neither propor far exceed (B) provided those tionate offenses nor in keeping offenses, including other crimes involv- *5 contemporary standards. Furman We ing can no violence. discern rational Georgia, supra; Weems v. United imposing a basis for prison minimum States, supra. of 10 for possession The judgment of for salе district marijuana, or court is reversed, and the cause is requiring much lower while minimum remanded with instructions that very writ of serious sentences habeas cor- offenses Moreover, pus issue. although listed herein. it has penalty simple possession reduсed marijuana, unlike the other states PECK, W. JOHN Judge Circuit (dis- penalties not revised its has for the senting). marijuana-related offenses involved keeping with evolving con- this case I do not conceive that the framers of justice and penology. cеpts of As a re- the Constitution contemplated, nor that an amendment

sult of Ohio Re- that document enunciated, Code, September 16, effective vised ment could be determined to be “cruel longer no marijuana is classified as a and unusual” on the basis of its duration It drug. alone, now falls narcotic within the and on that ground respectfully hallucinogens, ORC definition 3719.- § dissent. 2911.01(B). 9. § 5. ORC 2903.11(B). § ORC 2911.11(B). § 6. ORC 10. §§ ORC 2903.02 and 2903.01. 2907.02(B). § ORC 2907.02(B). § ORC 2903.03(B). 8. ORC