470 N.E.2d 904 | Ohio Ct. App. | 1984
Defendant-appellant Raynaldo Ahedo ("defendant") appeals his conviction and sentence for aggravated robbery (R.C.
For the reasons adduced below, the judgment of conviction is affirmed and the case is remanded for re-sentencing.
On July 26, 1978, the defendant entered a guilty plea to counts three and eight of the indictments. The remaining counts were nolled. Before accepting the plea the trial court granted a motion by the state to amend the date of the offense alleged in count eight. The Ascherman Act (R.C.
On November 1, 1978, the trial court found the defendant to be a psychopathic offender under R.C.
"(1) Place the defendant on probation under sections
"(2) Impose the appropriate sentence for the offense of which the person was convicted. At the same time the court shall enter an order of indefinite commitment of such person to the department of mental health and mental retardation, during the continuance of which the execution of sentence shall be suspended. Thereupon such person shall be sent to an appropriate institution designated by the department. If the department, because of lack of facilities, fails to designate an appropriate institution such person shall be sent to the institution to which he would have been sent had he not been adjudged mentally ill, a mentally retarded offender, or a psychopathic offender. * * *"
The defendant was granted leave to file a delayed appeal.
Crim. R. 7(D) provides in part:
"The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. * * *"
This means a trial court may not amend an indictment to supply an essential element of the crime. State v. Headley (1983),
Clearly, the date of the alleged offense is not an essential element of the crime. Nor does it involve the name or identity of the crime charged. Cf. State v. Herrin (1982),
Assignment of Error No. I lacks merit.
The record flatly contradicts that assertion. For it discloses scrupulous adherence to Crim. R. 11(C) and the spirit of State v.Stone (1975),
Assignment of Error No. II is wholly without merit.
For the reasons advanced in the disposition of Assignment of Error No. I, the argument fails. Even if trial counsel had preserved his objection to the amendment or moved for continuance and been overruled, allowance of the amendment was permissible.
Assignment of Error No. III lacks merit.
The policy underpinning the ex post facto prohibition is that:
"[T]he criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused." Beazell, supra, at 170.
"The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington
(1937),
To determine whether a new statutory sentencing procedure is more onerous than a prior one, the two procedures *257
are to be compared "in toto." Dobbert v. Florida (1977),
However, it is unnecessary to detail every feature of the Ascherman Act to demonstrate the differences wrought on the defendant's sentence by Am. Sub. H.B. 565. Under the procedure permissible after Am. Sub. H.B. 565, the defendant received nine to fifty years incarceration in prison. Under the Ascherman Act, either he could have been placed on probation, or his sentence could have been suspended coupled with an indefinite commitment to the Ohio Department of Mental Health and Mental Retardation. That agency would have sent the defendant to an appropriate institution if available.4 R.C.
Furthermore, the Ascherman provenance provided other advantages including annual reviews of the defendant's mental condition, remedial alternatives if the reviews were not forthcoming and ultimately the possibility of further court intervention by way of a hearing in the court that tried him. R.C.
"* * * [T]hat the character of the defendant and his recovery and the circumstances of the case are such that he is not likely again to engage in an offensive course of conduct and that the public good does not demand or require that the original sentence be carried out, [and] * * * suspend the further execution of the sentence and place the defendant on probation in accordance with the provisions of sections
These recitals do not describe all the alternatives under R.C.
The objective of the Ascherman Act is, at least in theory, to provide for individualized therapeutic treatment of criminal offenders in need of care, rather than simply penal restraint. Cf. State v. Abner (1974),
"[A]ll members of the patient population of LSH [Lima State Hospital] have a constitutional right to treatment, which encompasses a right to be placed in the least restrictive confinement, * * *."
Of course, not all legislative changes in criminal procedure violate the Ex Post Facto Clause. Dobbert, supra, at 293, citingBeazell, supra, at 171; State v. Whitmore (1933),
"Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, * * * and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Beazell,supra, at 171.
In a recent decision the United States Supreme Court recognized that in circumstances comparable to those in *258 the instant case, an ex post facto transgression would occur. It said:
"[E]ven if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham (1981),
Weaver further recognized that the ex post facto prohibition encompasses "punitive conditions outside the sentence." Id. at 32.
When the repeal of R.C.
Assignment of Error No. IV is well-taken.
Sentences vacated, judgment affirmed in all other particulars and the cause remanded for re-sentencing.
Judgment affirmed, sentence vacated and remanded forre-sentencing.
PARRINO and VICTOR, JJ., concur.
VICTOR, J., retired, of the Ninth Appellate District, sitting by assignment in the Eighth Appellate District.
"[T]he Trial Court has delayed sentencing in this case in the belief that it would be more appropriate to sentence under the new provisions than under the old. * * *"
The defendant also relies on R.C.