THE STATE OF OHIO, APPELLANT, v. AMOS, APPELLEE. THE STATE OF OHIO, APPELLEE, v. RICHMOND, APPELLANT.
Nos. 2012-2093 and 2012-2156
Supreme Court of Ohio
Submitted November 19, 2013—Decided July 24, 2014.
140 Ohio St.3d 238, 2014-Ohio-3160
{11} The Ohio felony-sentencing-reform legislation, principally 1995 Am.Sub. S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996 (“Senate Bill 2“), was designed to bring “truth in sentencing.” See, e.g., Woods v. Telb, 89 Ohio St.3d 504, 507-508, 733 N.E.2d 1103 (2000). By design, Senate Bill 2 limited the sentencing discretion of judges. Later developments have tightened some of those constraints, perhaps to the breaking point. The cases before us today1 present a question of how far those constraints reach.
{12} The issue in each case is whether a trial court‘s decision to sentence a felony offender to one or more community-control sanctions without first ordering and reviewing a presentence investigation report is precluded by
LaShawn Amos
{13} LaShawn Amos was arrested on November 1, 2011, and charged by information with one count of trafficking in cocaine and one count of possession of cocaine. Because the amount of cocaine in question was less than five grams, each offense was a fifth-degree felony. Amos remained in jail, and on December 6, 2011, pursuant to an agreement, he pleaded guilty to the trafficking charge and the court dismissed the possession charge. The court proceeded directly to sentencing, imposed 30 days in jail with full credit for time served, a fine of $150, and a driver‘s license suspension of six months, and ordered Amos released. The prosecutor made a general objection to the sentence, arguing that “[f]or felony 5‘s it‘s community control or prison.” The state appealed to the Eighth District Court of Appeals. The state asserted that prior to imposing any community-control sanction on a felony offender, a sentencing court must first obtain a presentence investigation report.
Christopher Richmond
{14} Christopher Richmond was arrested on September 18, 2011, and subsequently charged by information with one first-degree-misdemeanor count of inciting violence and one fifth-degree-felony count of harassment with a bodily substance. Richmond was held in jail while his case was pending, and on October 25, 2011, with the state‘s agreement, he entered a plea of guilty to the fifth-degree felony. The misdemeanor charge was dismissed. Without objection from the state, the court proceeded directly to sentence Richmond to 30 days in jail with full credit for time served, imposed a $200 fine, and ordered Richmond released.
{15} Despite its failure to object, the state appealed to the Eighth District Court of Appeals, arguing that the trial court‘s sentence was contrary to law. The state argued that the trial court was not authorized to impose a “time-served” sentence because such a sentence does not include a period “under the general control and supervision of a department of probation.”
The Court of Appeals’ Decisions in Amos and Richmond
{16} Although the Eighth District did not consolidate the cases on appeal, the decisions in Amos and Richmond were released on the same day. Unfortunately, the two cases were decided by different panels, which took diametrically opposed approaches to resolving the same issue. In Amos, the panel rejected the state‘s
{17} Because the decisions in Amos and Richmond are irreconcilable, the state requested the Eighth District to review both cases en banc. The defendant in Richmond agreed with the state that en banc review was necessary and also asked the court of appeals to order further briefing. A majority of the Eighth District denied en banc review. Thus, appeals of both cases to this court followed: the state appealed Amos, case No. 2012-2093, asserting that a trial court may not sentence a felony offender to one or more community-control sanctions without considering a presentence report; and the defendant appealed Richmond, case No. 2012-2156, arguing that it is not plain error to impose a community-control sentence on a felony offender without first ordering the preparation of a presentence investigation report. We accepted jurisdiction in both cases, 134 Ohio St.3d 1484, 2013-Ohio-902, 984 N.E.2d 28, and now conclude that the Eighth District erred by affirming the sentence in Amos and correctly vacated the sentence in Richmond.
ANALYSIS
{18} As a preliminary matter, it must be acknowledged that the court of appeals’ failure to address the conflict in its decisions en banc is not before us. But its duty to act was clear, see
{19} The Ohio felony-sentencing-reform statutes guide the discretion of sentencing courts choosing sanctions by providing that “[t]he overriding purposes of
{110} The law also favors the imposition of sentences composed of one or more community-control sanctions, particularly for low-level felonies. See
{111} A community-control sentence for a felony offender under
{12} Given the general principles set forth above, it seems apparent that the legislature intended that trial courts should have discretion to fashion community-control sentences that punish and protect but do not unnecessarily waste scarce resources. The devil, however, is in the details. Since the enactment of Senate Bill 2, we have consistently held that the felony-sentencing statutes must be read as a whole. See generally State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793
{13} Since this court decided Foster, the legislature has both continued to address practical problems and attempted to put the Foster genie back in the bottle when possible. See, e.g., State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. But the complexity of this task has proved vexing, and Ohio‘s felony-sentencing scheme has now become so complicated that discerning the legislature‘s purpose in enacting any individual statute now approaches futility—simple statutes often conflict with each other. For example,
{14} But we are not the legislature, and our pursuit of a logical understanding of the sentencing scheme cannot overlook the plain language of the statute and rule that govern these cases. The state has argued that based on
{15} As noted above, the law favors the imposition of sentences composed of community-control sanctions, and we are certainly hesitant to reach a conclusion that discourages a trial court‘s use of those crucial tools. But the plain text of
CONCLUSION
{16} Accordingly, we reverse the judgment of the court of appeals in State v. Amos, case No. 2012-2093. And we affirm the judgment of the court of appeals
Judgments accordingly.
O‘CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur in judgment only.
PFEIFER and LANZINGER, JJ., concur in part and dissent in part.
O‘DONNELL, J., dissents.
LANZINGER, J., concurring in part and dissenting in part.
{17} I dissent from the portion of the lead opinion that states that imposition of a community-control sanction without the trial court‘s review of a presentence investigation (“PSI“) report automatically requires the sentence to be reversed as “contrary to law,” apparently pursuant to
{18} I agree with the lead opinion insofar as it discusses how the conflicting statutes bedevil a sentencing judge. The overriding purposes of felony sentencing stated in
{19} Amos and Richmond were each convicted of fifth-degree felonies. In both cases, the trial court accepted a guilty plea and proceeded directly to sentencing without ordering a PSI. But in neither case did any party expressly
{20} The question is, what should be done as a result of the trial court‘s failure to obtain a PSI report as required by
{21} The harmless-error rule,
{22} We explained in State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, that there are three limits placed on reviewing courts for correcting plain error:
“First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of
Crim.R. 52(B) , an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial court‘s error must have affected the outcome of the trial.” State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. Courts are to notice plain error “only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.
Id. at ¶ 15-16.
{123} In other words, the third point explains that a plain error must be “outcome determinative.” For sentencing, this would mean that the error caused
{124} We have previously determined that not every procedural flaw at sentencing requires reversal. For example, reversal of the sentence is not automatically required when the defendant was not afforded an opportunity to allocute at sentencing pursuant to
{125} The PSI is a means to accomplishing an end goal of a fair sentence—and not an end unto itself. We must examine the sentences of Amos and Richmond to see if the sentences themselves are clearly and convincingly contrary to law. I do not believe that this standard is met.
{1126} There is nothing in either record to show “clearly and convincingly” that the court imposed a sentence contrary to law in failing to review a PSI report beforehand. There is no statement suggesting that further information was needed before the court made its decision for these particular community-control sanctions. Because I would find that neither sentence was clearly and convincingly contrary to law, I would affirm the judgment of the court of appeals in State v. Amos, case No. 2012-2093, and reverse the judgment of the court of appeals in State v. Richmond, case No. 2012-2156.
{127} The General Assembly should act to recognize situations such as these in which the delay in and the expense of creating a PSI report are unnecessary. For the types of low-level felonies at issue in these cases, whether to order
PFEIFER, J., concurs in the foregoing opinion.
O‘DONNELL, J., dissenting.
{1128} I respectfully dissent.
{1129} Today, the Ohio Supreme Court charts a new course for itself: resolution of conflicting judgments issued by different panels within a district court of appeals. Our role has been to consider accepting a certified question of law when an appellate court has determined that its judgment in a given case conflicts on a question of law with a judgment reached by another appellate district of the state. See
{30} With today‘s opinion, we start the court down a long road to resolving such conflicts and retreat from our holding in In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, paragraph two of the syllabus, and the plain language of
{131} This court has spent considerable effort to guide appellate judges in the en banc process, and it is puzzling why the Eighth District in these cases chose to leave lawyers and litigants in Cuyahoga County uncertain about the state of the law. And this is not the first time the Eighth District has resolved the same legal issue in different ways on the same day. See, e.g., In re J.J. at ¶ 17.
{133} In this instance, I would not resolve the merits of the legal issue presented but would remand both cases to the Eighth District Court of Appeals with instructions to resolve the legal question in a consolidated en banc proceeding.
{134} Accordingly, I dissent from the judgments in these cases.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski and T. Allan Regas, Assistant Prosecuting Attorneys, for appellant in case No. 2012-2093 and for appellee in case No. 2012-2156.
Brian R. McGraw, for appellee LaShawn Amos in case No. 2012-2093.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant Christopher Richmond in case No. 2012-2156.