State v. AhlersState v. Ahlers
S. POWELL, J.
{¶ 1} Defendant-appellant, Stephen F. Ahlers, appeals from his conviction and the mandatory prison sentence he received in the Butler County Court of Common Pleas following his guilty plea to two counts of gross sexual imposition. For the reasons outlined below, we affirm.
{¶ 2} On May 15, 2013, Ahlers pled guilty to a bill of information that charged him with two counts of gross sexual imposition in violation of
{¶ 3} On June 4, 2013, Ahlers filed a motion with the trial court arguing
{¶ 4} On July 1, 2013, after hearing arguments regarding Ahlers’ motion, the trial court denied Ahlers’ motion finding
{¶ 5} Ahlers now appeals from his conviction and mandatory prison sentence, raising two assignments of error for review. For ease of discussion, Ahlers two assignments of error will be addressed together.
{¶ 7} THE PROVISIONS OF
{¶ 8} Assignment of Error No. 2:
{¶ 9}
{¶ 10} Under his two assignments of error, Ahlers argues the trial court erred by sentencing him to a mandatory aggregate five-year prison term under
{¶ 11} Generally, the crime of gross sexual imposition against a victim less than 13 years old in violation of
{¶ 12} Initially, Ahlers argues the phrase “admitted in the case” as found in
The trial court also held that the evidence was not admissible because it was not admitted in the case and that it was not evidence as anticipated in
R.C. 2907.05(C)(2)(a) . The trial court erred in both of these holdings. The case includes all parts thereof, one of which is sentencing. Rules of evidence are not applicable to miscellaneous criminal proceedings including sentencing. However, the sentence procedure is part of the case despite the fact that defendant had pled guilty to two charges. There is no conflict withEvid.R. 102 , which provides that the purpose of the rules is to provide procedures for the “adjudication of causes.” Criminal cases are not fully adjudicated without a sentence having been ordered. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.Evid.R. 401 . The disputed testimony meets that standard. It is evidence that is of great value in determining the crucial issue of whether the court “shall impose” a mandatory prison sentence. The fact that the rules of evidence do not apply in some situations in a trial such as in sentencing does not affect the character of the evidence but only the procedure for introducing it.
{¶ 13} We agree with the Tenth District‘s decision in Bevly as it relates to their interpretation of the phrase “admitted in the case” as found in
{¶ 14} Next, Ahlers argues
{¶ 15} As the Tenth District stated in providing a detailed and thorough analysis of these issues in North:
R.C. 2907.05(C)(2)(a) provides that a trial court shall impose a mandatory prison term on an offender convicted of gross sexual imposition against a victim less than 13 years old when “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” In this case, the trial court concluded that the statute was unconstitutional and declined to apply it, relying in part on a decision by another judge of the Franklin County Court of Common Pleas in State v. Bevly, Franklin County C.P. No. 11CR-4152. After the trial court‘s decision in the instant case, we reversed the common pleas court decision upon which the trial court relied. State v. Bevly, 10th Dist. No. 12AP-471, 2013-Ohio-1352. Bevly addressed a similar scenario and guides our consideration of this appeal, but, due to additional developments in the law since that decision and additional arguments raised by appellee, we cannot rely solely on the precedent set in Bevly.In Bevly, the defendant pled guilty to two counts of gross sexual imposition against a victim less than 13 years old. Bevly at ¶ 3. At the plea hearing, the prosecution introduced the testimony of a police detective, who testified that the defendant confessed to the offenses. The state also introduced a compact disc recording of the defendant‘s confession. Id. The trial court declined to impose a mandatory prison sentence under
R.C. 2907.05(C)(2)(a) , holding that the mandatory sentence provision did not apply. Id. at ¶ 5. The trial court held that there was a question as to whether the evidence was “admitted” in the case because it was introduced at the sentencing hearing. The trial court also held that the statute was unconstitutional, in part because it violated the defendant‘s right to have a fact determining his sentence decided by a jury. Id. On appeal, this court reversed the trial court‘s decision. We concluded that the trial court erred in holding thatR.C. 2907.05(C)(2)(a) was unconstitutional because the statutory provision was a “sentencing factor” that did not increase the maximum prisonsentence and, therefore, was not required to be submitted to the jury. Id. at ¶ 15. This court further concluded that the trial court erred by holding that the evidence was not admitted in the case and was not evidence as anticipated under R.C. 2907.05(C)(2)(a) . Id. at ¶ 16. Accordingly, we remanded the case to the lower court.On June 17, 2013, less than three months after this court‘s decision in Bevly, the United States Supreme Court issued its decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013). Prior to Alleyne, the Supreme Court distinguished between facts resulting in an increased mandatory minimum sentence and facts resulting in a sentence greater than the statutory maximum authorized by a jury verdict. With respect to facts resulting in a sentence greater than the statutory maximum based on a jury verdict, the Supreme Court held that, other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, in Apprendi, the Supreme Court found unconstitutional a New Jersey statute that allowed a judge to impose additional punishment based on the judge‘s finding, by a preponderance of the evidence, that a defendant‘s purpose for unlawfully possessing a weapon was to intimidate a victim based on a particular characteristic. Id. at 491-97. However, prior to Alleyne, the Supreme Court “declined to apply [the reasoning of] Apprendi to facts that increased [a] mandatory minimum sentence but not [a] maximum sentence.” Alleyne at 2157, citing Harris v. United States, 536 U.S. 545, 557 (2002). The Supreme Court concluded that factual findings leading to a mandatory minimum sentence merely restrained a judge‘s sentencing power and, therefore, were not required to be submitted to the jury. Harris at 567. Accordingly, in Bevly, we referred to
R.C. 2907.05(C)(2)(a) as a “sentencing factor” and concluded that it did not violate Apprendi because it did not increase the maximum prison sentence that could have been imposed. Bevly at ¶ 15.In Alleyne, the United States Supreme Court overruled Harris and held that facts increasing a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Alleyne at 2162-63. Appellee asserts that the question of whether there was corroborating evidence other than the testimony of the victim in this case is a “fact” that increases the mandatory minimum sentence for a conviction for gross sexual imposition against a victim less than 13 years old. Appellee argues that, in accordance with Alleyne, the jury must determine beyond a reasonable doubt that there was corroborating
evidence before the trial court may impose a mandatory prison term under R.C. 2907.05(C)(2)(a) .We acknowledge that, under Alleyne, a fact that increases a mandatory minimum sentence must be submitted to the jury. Alleyne explained that this was necessary because “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime.” Id. at 2161. In Alleyne, the relevant fact was whether the defendant brandished a firearm, which increased the minimum penalty for using or carrying a firearm in relation to a crime of violence. Id. at 2155. Recent cases applying Alleyne have involved similar factual determinations. See United States v. Donovan, __ Fed. Appx. __, 2013 WL 4792866, *7 (6th Cir. Sept.9, 2013) (“[B]ecause the district court, rather than a jury, found discharging of the firearm, Moore‘s sentence for violation of
[18 U.S.C] § 924(c)(1)(A) must be vacated and remanded for resentencing consistent with the jury‘s verdict.“); United States v. Claybrooks, __ F.3d __, 729 F.3d 699, 2013 WL 4757201, *8 (7th Cir. Sept.5, 2013) (“After Alleyne, Claybrooks‘s mandatory minimum sentence must be determined by the drug quantity described in the jury‘s special verdict form. * * * The district judge cannot raise the mandatory sentencing floor based on its own determination that Claybrooks‘s offense involved additional amounts of narcotics beyond those determined by the jury.“). However, the majority in Alleyne was careful to declare that the decision “[did] not mean that any fact that influences judicial discretion must be found by a jury.” Alleyne at 2163. See also United States v. Gabrion, 719 F.3d 511, 532 (6th Cir.2013) (”Apprendi does not apply to every ‘determination’ that increases a defendant‘s maximum sentence. Instead it applies only to findings of ‘fact’ that have that effect.“).We conclude that the determination called for under
R.C. 2907.05(C)(2)(a) does not involve the same type of “fact” that must be determined by the jury under Apprendi and Alleyne. As noted above, the key fact in Alleyne was whether the defendant brandished a firearm while committing his crime. Similarly, in Apprendi, the relevant fact was whether the defendant committed his crime with the purpose of intimidating an individual or group because of race, color, gender, handicap, religion, sexual orientation or ethnicity. Apprendi at 468-69. By contrast, in this case, the “fact” to be determined is whether corroborating evidence was introduced in the case. The volume of evidence introduced in a case is not the type of “fact” that, when combined with the “core crime” of gross sexual imposition against a victim less than 13 years old, constitutes “a new, aggravated crime.” Alleyne at 2161. The elements of the crime of gross sexual imposition remain constant, irrespective of whether corroborating evidence was introduced. To the extent that the quantity ofevidence presented in a case can be characterized as a “fact,” we hold that that (sic) it constitutes a fact influencing judicial discretion that may be determined by a judge and need not be submitted to the jury. See Alleyne at 2163 (“We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.“).
Id. at ¶ 5-10; see also F.R., 2014-Ohio-799 at ¶ 8-15; and D.M.J., 2014-Ohio-1377 at ¶ 9-14.
{¶ 16} After a thorough review of the record, as well as the pertinent case law addressed herein, we agree with the well-reasoned and thorough decisions issued by the Tenth District as it relates to the constitutionality of
{¶ 17} Pursuant to its police powers, “the General Assembly has the authority to enact laws defining criminal conduct and to prescribe its punishment.” State v. Thompkins, 75 Ohio St.3d 558, 560 (1996). Based on the plain language of
{¶ 18} Accordingly, having found no merit to any of the arguments advanced by Ahlers within his two assignments of error, Ahlers’ first and second assignments of error are overruled.
{¶ 19} Judgment affirmed.
RINGLAND, P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 20}
{¶ 21} The Sixth Amendment of the United States Constitution provides that defendants “accused” of a “crime” have the right to a trial “by an impartial jury.” “This right, in
{¶ 22} In discussing what differentiates elements of a crime from sentencing factors, the Alleyne Court reviewed prior case law that first set forth the proposition that “any fact that increased the prescribed statutory maximum sentence must be an ‘element’ of the offense to be found by the jury.” Id. at 2157, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Alleyne Court also applied Apprendi when finding that “a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed.” 133 S.Ct. at 2158. The Court noted that ”Apprendi‘s definition of ‘elements’ necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Id.
{¶ 23} Given this law, I would find that requiring the trial court to order a mandatory sentence without first submitting the issue to a trier of fact runs afoul of the Sixth Amendment. The issue of whether there is corroborating evidence to support the defendant‘s conviction is an issue that must be submitted to the trier of fact before such a determination can be made because whether there is corroborating evidence is a fact that alters the range of the sentence to which a defendant is to be exposed. The determination of corroborating evidence aggravates the possible punishment. In the absence of corroborating evidence, the defendant has the ability to rebut the presumption of a prison sentence and possibly avoid a prison term altogether. If there is corroborating evidence, however, the ability to rebut the presumption of a prison sentence is nonexistent because the prison
{¶ 24} As stated by the Alleyne Court, Apprendi‘s definition of element, as that term is considered within the concept of elements of a crime that must be proven by the state, necessarily includes not only facts that increase the ceiling, but also those that increase the floor of possible punishments that the defendant may face. Here, the imposition of a mandatory prison sentence increases the floor of possible punishments that the defendant may face because in one instance, the possible punishment is zero years in prison, where in the other instance, there is a mandatory prison sentence of at least one year.
{¶ 25} When asked to reconcile its holding in Bevly with the Alleyne decision, the Tenth District Court of Appeals found that “the determination called for under
{¶ 26} It is true that the elements of gross sexual imposition do not change regardless of whether there is corroborating evidence because the elements are listed in
{¶ 28} While it may be true that there is either corroborating evidence or there is not, the Sixth Amendment‘s requirement that criminal defendants have their guilt determined by a trier of fact applies to situations where the existence of those facts change the punishment to which the offender is to be subjected.4 As recognized by the North court, federal courts have applied Alleyne since its release. While the Tenth District found these federal cases distinguishable, I believe these cases to be instructive because they are similar to the case at bar. In Alleyne, the fact in question was specific to brandishing firearms. Either the defendant brandished a firearm or he did not. In United States v. Donovan, 539 Fed Appx 648 (6th Cir.2013), the fact in question was specific to discharging a firearm. Either the defendant discharged a firearm or he did not. In United States v. Claybrooks, 729 F.3d 699 (7th Cir.2013), the question involved the quantity of drugs possessed by the defendant. Either the defendant possessed a certain amount of drugs or he did not.
{¶ 30} I would also find that the statute is unconstitutional because there is no rational basis for statutorily requiring two defendants to be treated differently who have the same culpability and were convicted of the same offense of gross sexual imposition. Once the defendant is convicted, i.e., once the trier of fact has found beyond a reasonable doubt that the defendant unlawfully had sexual contact with a child under 13 years of age, the “volume of evidence” against that defendant is meaningless as it applies to sentencing. Although the North court reasoned corroborating evidence is merely akin to recognizing that a higher “volume of evidence” exists in a case, I would find that such reliance on volume of evidence has no place in criminal law jurisprudence.5
{¶ 31} Equal protection requires that individuals be treated in a manner similar to others in like circumstances. McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 6. Rational-basis scrutiny applies when the statute does not involve a suspect class or a fundamental right, and such statute will be held constitutional “if it bears a rational relationship to a legitimate governmental interest.” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, ¶ 7. In applying this standard, the Ohio Supreme Court has stated that classifications “are invalid only if they bear no relation to the state‘s goals and no ground can be conceived to justify them.” Id.
{¶ 32} As noted by the majority, the purpose of the statute is to require a prison sentence when the defendant has committed gross sexual imposition against a child younger than 13 when that conviction is because of “more than a single piece of evidence.” I have trouble seeing how the government has a legitimate interest in sentencing a convicted sex offender to a mandatory prison term only when there are two pieces of evidence, rather than just one. As stated by the Ohio Supreme Court, “the overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.” Peoples at ¶ 8, citing
{¶ 33}
{¶ 34} Criminal sentences should be proportionate to “personal culpability of the criminal offender.” Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676 (1987). For this reason, Ohio sentencing courts are required to consider the purposes and principles of sentencing, as well as recidivism factors, and to sentence the defendant accordingly.
{¶ 35}
{¶ 36}
{¶ 37}
{¶ 38} Despite codifying multiple factors that a trial court shall consider when determining a sentence, nowhere in
{¶ 39} “Residual doubt has been described as a lingering uncertainty about facts, a
{¶ 40} I believe the Legislature was attempting to give trial courts an ability to avoid imposition of a prison sentence in cases where the trial court had lingering doubts as to whether the defendant truly had unlawful sexual contact with a child because of doubts as to the credibility of the victim‘s testimony. Ohio courts no longer consider residual doubt as a mitigating factor in death penalty cases because “our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred.” McGuire, 80 Ohio St.3d at 403. I believe the same principle applies to the case at bar.
{¶ 41} There is no provision within Ohio‘s criminal statutes that provide for convictions only upon a certain volume of evidence, nor do I believe there should be any sentencing statutes that provide different sentences based upon the volume of evidence or the number of witnesses presented against the defendant. There is no such thing as being a “little guilty” or “sorta convicted.” Yet,
{¶ 42} Based on either the Sixth Amendment issue, or because of equal protection problems, I would find that