2005 Ohio 522 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} By two separate indictments filed in the years 2002 and 2003, appellant was charged with six counts of kidnapping, seven counts of aggravated robbery, 20 counts of rape, four counts of gross sexual imposition, two counts of felonious assault, two counts of robbery, and one count of theft, all in connection with a month-long crime spree that occurred in Franklin County, Ohio in the Spring of 1999. All counts carried firearm specifications, and several counts alleged that appellant committed the crime with a sexual motivation and/or that he was a violent sexual predator.
{¶ 3} The Franklin County Court of Common Pleas granted the State's motion to join the two indictments for trial, which began on January 28, 2004. Before the case was submitted to the jury, the State dismissed one aggravated robbery count, one kidnapping count, and the two robbery counts. Following its deliberations, the jury found appellant guilty on 35 of the remaining counts, and on all firearm specifications associated therewith. Appellant waived his right to a jury trial with respect to the violent sexual predator specification, and the same was tried to the court 13 days after the conclusion of appellant's jury trial. By written decision and entry journalized February 24, 2004, the court found appellant not guilty of the sexually violent predator specification.
{¶ 4} On February 27, 2004, the trial court held a sentencing hearing.1 It was undisputed that appellant had never before served a prison term. Pursuant to R.C.
{¶ 5} Appellant appealed his sentence and asserts the following assignment of error for our review:
A trial court may not sentence a defendant to non-minimum and consecutive sentences based on facts not found by the jury or admitted by defendant in violation of his right to trial by jury contra the ohio and federal constitutions.
{¶ 6} In support of his assignment of error, appellant argues that, pursuant to the decision of the United States Supreme Court in Blakely v.Washington (2004),
{¶ 7} In Blakely, the Court held that the defendant's
{¶ 8} In Blakely, the state argued that the relevant "statutory maximum" for Apprendi purposes was the Washington statute that set the maximum sentence for a "Class B" felony (including the offense to which Blakely had pleaded guilty) at ten years, a threshold which Blakely's sentence did not exceed. But the Court rejected this argument because another Washington statute set the "standard range" for Blakely's offense — second degree kidnapping with a firearm — at 49 to 53 months. That same statute, part of Washington's Sentencing Reform Act, allowed a judge to impose a sentence above the "standard range" if he or she found "substantial and compelling reasons justifying an exceptional sentence." The Act provided a non-exhaustive list of factors that would justify such an upward departure. However, pursuant to the Act, "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." Blakely, supra, at 2537. (Citation omitted.)
{¶ 9} The Court determined that the upper limit of the "standard range" was the "statutory maximum" for Apprendi purposes, and that Blakely's sentence violated Apprendi because he received a sentence above the 53-month upper limit of the standard range solely by virtue of a judicial finding of "deliberate cruelty," a fact that was neither determined by a jury nor admitted by the defendant. Relying uponBlakely, and the holding in Apprendi upon which Blakely is based, appellant herein argues that his sentence deprived him of his constitutional right to a trial by jury because the court's nonminimum sentences were based upon findings of fact not actually made by the jury upon the record.
{¶ 10} Appellant's reliance upon Blakely is misplaced. The Washington sentencing scheme at issue in Blakely bears little resemblance to that of Ohio. Blakely involved a grid-like sentencing scheme in which individual offenses were classified within felony classes according to degrees of seriousness, and standard sentencing ranges were prescribed for each of these sub-classes. The United States Supreme Court thus held that, despite Washington's ten-year limit for Class B felonies, the maximum sentence to which Blakely could be exposed was the 53-month upper limit of the standard range applicable to the sub-class that included Blakely's particular offense. In other words, the sentence could only be based upon the facts supported by the guilty plea. Once the trial court considered additional facts for purposes of increasing Blakely's sentence beyond the maximum amount supported by the guilty plea, the court violated Blakely's
{¶ 11} Ohio does not employ such a grid system. In Ohio, judges have discretion to sentence anywhere within a range based upon the degree of the felony of conviction. Ohio utilizes only one set of minimum and maximum sentences for each class of felony, as opposed to prescribed ranges for particular offenses within each class of felony. See R.C.
[T]he
Blakely, supra, at 2540. (Emphasis sic.)
{¶ 12} Ohio's sentencing scheme does not encroach upon the traditional and constitutionally required role of the jury in finding those facts that fix the upper limit of a defendant's punishment for a particular offense. Rather, the upper limit, or in Blakely terms, the "statutory maximum" sentence to which one accused of a felony knows he will be exposed upon walking through the courtroom door, is established by statute. R.C.
{¶ 13} As the United States Supreme Court held in Harris v.United States (2002),
{¶ 14} Unlike the "standard range" statute in Blakely, R.C.
{¶ 15} R.C.
{¶ 16} This "suggestion of appropriateness," "starting point" or preference, seeks to ensure that sentencing courts remain "guided by the overriding purposes of felony sentencing." R.C.
A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
The General Assembly has further specified:
Unless otherwise required by section
R.C.
{¶ 17} "[A]s [the Court in] Apprendi noted, `[there is] nothing * * * [that] suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range.'" Harrisv. United States (2002),
{¶ 18} As the Harris court further explained:
Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. When a judge * * * chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries — and without contradictingApprendi.
Id. at 565.
{¶ 19} "[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." Williams
v. New York (1949),
{¶ 20} This brings us to the "constitutionally novel and elusive distinction between `elements' and `sentencing factors'" discussed by the United States Supreme Court in Apprendi. The majority held that the proper inquiry "is not one of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Apprendi, at 494. A sentencing factor "describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense." Ibid., n. 19.
{¶ 21} These notions underscore the respective roles of judge and jury. "[T]he function of the indictment and jury ha[s] been to authorize the State to impose punishment." Harris, supra, at 564. That is, the jury plays the crucial role of guiltdeterminer. When the jury finds all the facts necessary to conclude that a particular offense has been committed, it has authorized any punishment within the range set by statute for that offense. The judge's role in sentencing, then, "is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition `elements' of a separate legal offense." Apprendi, supra, at 483, n. 10.
{¶ 22} Applying the foregoing standards to the sentencing factors used in the court's imposition of non-minimum sentences upon appellant, we note that the jury's verdict authorized a potential prison term of up to ten years for each of the 28 first-degree felony counts, up to eight years for each of the two second-degree felony counts, and up to 18 months for each of the five fourth-degree felony counts. Thus, the maximum prison sentence authorized by the jury's verdict (exclusive of additional terms of actual incarceration for the firearm specifications, notwithstanding the application of merger and other applicable doctrines, and assuming all unmerged counts were ordered to be served consecutively) was 303.5 years.
{¶ 23} Appellant received sentences of five years in some cases, and nine years in other cases, on the first-degree felony counts. He received three years for each of the second-degree felony counts. Finally, he received 17 months for each of the fourthdegree felony counts. Appellant's aggregate sentence, exclusive of additional actual terms of incarceration for the firearm specifications (which were alleged in the indictment and found by the jury) was 160 years, five months. Clearly, appellant was not subjected to a greater punishment than was authorized by the jury's verdict, either as to any individual count or in the aggregate.
{¶ 24} This situation is unlike that in Apprendi, where a defendant was indicted and convicted of a particular offense and was then exposed to an additional penalty not encompassed by the indictment. Nor are the facts of this case akin to those of Blakely, where the defendant pled guilty to a particular offense as part of a plea agreement, and then was sentenced as if he had pled to a more serious crime carrying a greater penalty because the sentencing judge found a fact that, in substance, constituted the one missing element of the more serious crime, in effect convicting the defendant of that crime without a supporting plea or a jury verdict. Rather, that the trial court was required to make seriousness- and recidivism-related findings when imposing non-minimum sentences upon appellant, underscores the fact that R.C.
{¶ 25} We find further assistance in determining whether a fact must be proved beyond a reasonable doubt, or whether it may be used as a sentencing factor, from the case of Patterson v. New York (1977),
{¶ 26} Applying this test to the present case, it is clear that the fact that "the shortest prison term will demean the seriousness of the offender's conduct" or "will not adequately protect the public from future crime by the offender or others"2 are not elements of any of the crimes for which appellant was convicted, i.e., rape, kidnapping, aggravated robbery, gross sexual imposition, felonious assault or theft. As with other aggravating sentencing factors, the foregoing findings "up the ante" for the defendant, or they would not be challenged here. However, they do so "only * * * by raising the minimum sentence that may be imposed by the trial court,"3 not by impermissibly raising the "relevant statutory maximum" sentence as the trial court had done inBlakely.
{¶ 27} By enacting R.C.
{¶ 28} Seriousness and recidivism factors "have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt." United States v. Harris (2002),
Since sentencing ranges came into use, defendants have not been able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the "heaviest punishment" they face if convicted. Judges, in turn, have always considered uncharged "aggravating circumstances" that, while increasing the defendant's punishment, have not "swelled the penalty above what the law has provided for the acts charged." * * * [T]he legislature's choice to entrust [these considerations] to the judge does not implicate the "competition . . . between judge and jury over . . . their respective roles," that is the central concern of the
Id. at 562. (Citations omitted.)
{¶ 29} At issue in Apprendi and Blakely were, by contrast, sentencing factors that did "swell the penalty above what the law provided," to wit: racial bias motivation and deliberate cruelty, respectively. These "factors" thus functioned like elements and their use violated the defendants'
{¶ 30} The consecutive sentences imposed in this case likewise do not run afoul of Apprendi, Blakely, or the
{¶ 31} For all of the foregoing reasons, we find appellant's sentence was lawfully imposed. Appellant's sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Klatt and Deshler, JJ., concur.
Deshler, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section
Concurrence Opinion
{¶ 32} I agree with the holding and reasoning of the majority, and only wish to emphasize that it has always been the province of the judge, not the jury, to determine the impact of a sentence on public protection and proportionality. State v. Berry, Butler App. No. CA2003-02-053,