THE STATE OF OHIO, APPELLANT, v. ARNETT, APPELLEE.
No. 99-468
SUPREME COURT OF OHIO
Submitted December 14, 1999—Decided March 15, 2000.
88 Ohio St.3d 208 | 2000-Ohio-302
COOK, J. MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
APPEAL from the Court of Appeals for Hamilton County, Nos. C-980172 and C-980173.
When a sentencing judge acknowledges that he or she has consulted a religious text during his or her deliberations and quotes a portion of that text on the record in the sentencing proceeding, such conduct is not per se impermissible and does not violate the offender‘s right to due process, when the judge adheres to the sentencing procedures outlined in the Revised Code and when the judge‘s religious referencеs do not impair the fundamental fairness of the sentencing proceeding.
(No. 99-468—Submitted December 14, 1999—Decided March 15, 2000.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-980172 and C-980173.
{¶ 1} In November 1997, the Grand Jury of Hamilton County indicted appellee, James F. Arnett, on ten counts of rape in violation of
{¶ 2} One day before the scheduled sentencing proceeding, the grand jury indicted Arnett for a single additional count of pandering obscenity involving a minor in violation of
{¶ 3} The following day, the parties appeared before the court as scheduled for sentencing on the ten rape counts. At that time, the court accepted Arnett‘s plea of guilty to the new pandering charge, and proceeded to sentencing on all eleven counts. Due to the nature of this appeal, we now provide a detailed summary of the sentencing proceeding.
{¶ 4} Defense counsel began the sentencing hearing by introducing the testimony of a psychologist, who discussed Arnett‘s experience as a victim of sexual abuse in his youth, Arnett‘s difficulties with substance abuse, and other emotional problems. On direct examination, the psychologist opined that there was a need to “safeguard the community” and to provide from five to eight years of “continuing * * * and intensive” treatment. The court permitted the state to cross-examine the psychologist. On cross-examination, thе psychologist agreed that Arnett had a “very strong appetite” for sexual contact and that these urges would remain for the rest of Arnett‘s life. The psychologist also agreed with the state that the victim had been “severely traumatized in her ability to form healthy relationships with other people.”
{¶ 5} Following the psychologist‘s testimony, defense counsel asked the court if it had reviewed the letters sent from Arnett‘s family. The judge indicated that she had reviewed at least five letters from various individuals, and then permitted defense counsel to make a statement. Arnett‘s attorney highlighted his
{¶ 6} The sentencing judge reviewed the facts of the case on the record, noting the age of the victim, the nature of the offense, and the “demonstrated use of abuse in regards to the child.” The court then determined that Arnett was a sexual predator under
{¶ 7} Just before pronouncing sentence, the sentencing judge began the monologue that is the basis of the instant appeal:
“So, Mr. Arnett, I was struck by the idea of who is James Arnett through this particular case. And I thought about it all last evening as I was trying to determine in my mind what type of sentence you deserved in this particular case.”
{¶ 8} At this point, the judge commented on the photographs and letters that several interested parties had submitted to the court on Arnett‘s behalf. The judge referred to submissions from the victim‘s father and mother, statements from the victim herself, and testimony provided by the defendant‘s psychologist at the sentencing hearing. As she discussed these submissions, the judge made several references to the victim‘s young age. She mentioned the concern that the victim‘s father had for his “little girl,” and noted that “[a] child should not know” the sexually graphic details that Arnett introduced her to. The judge told Arnett that he
“Recently, Mr. Arnett, I had a murder case of an individual who had no remorse and the sentence was 20 years, and I thought about that in regards to sentencing you. Because I was looking for a source, what do I turn to, to make, to make that determination, what sentence you should get. And I thought in regards to a 20-year sentence, that individual, that victim, who‘s the victim of that case, at least is gone to their reward, they‘re not hurting anymore. But for Rachel, the rest of her life, unless she takes care of herself, she‘s hurting.
” * * * And in looking at the final part of my struggle with you, I finally answered my question late at night when I turned to one additional source to help me. And basically, looking at Rachel on one hand, looking at the photographs of you happily as a child, and looking at the photographs of downloading that came from your computer, I agree they‘re very sad photographs, they‘re pure filth, it just tells me how ill you are.
“And that passage where I had the opportunity to look is Matthew 18:5, 6. ‘And whoso shall receive one such little child in my name, [sic] receiveth me. But, [sic] whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that [sic] he were drowned in the depth of the sea.’1
“Pandering obscenity count, one year. Ten counts of rape, five years on each, running consecutive. Sentence, 51 years.
“Mr. Arnеtt, I hope God has mercy on you and the hell that you have created. Thank you.”
{¶ 9} The proceedings concluded immediately following these comments.
{¶ 11} The court of appeals treated Arnett‘s first two assignments of error together and held that a trial judge‘s religious beliefs are not a factor that may be considered under the sentencing provisions of the Revised Code. Although the court of appeals determined that religious comments during sentencing are not per se impermissible, the court concluded that the sentencing judge‘s references to the Book of Matthew indicated that her religion had a “heavy influence,” or was a “determining factor,” in the sentence that she imposed. For this reason, the court of appeals held that the sentencing judge acted outside the sentencing guidelines and violated Arnett‘s due process rights.
{¶ 12} The court of appeals thus affirmed the trial court‘s adjudication of guilt based on the trial court‘s acceptance of Arnett‘s pleas, but vacated the sentence and remanded for resentencing. A dissenting judge on the panel determined that the trial judge‘s personal religious views were not the basis of her sentencing decision, that the quoted biblical passage merely reflected society‘s interest in protecting children, and that the judge imposed Arnett‘s sentence in full compliance with the Revised Code.
{¶ 14} The cause is now before this court upon the allowance of a discretionary appeal.
Michael K. Allen, Hamilton County Prosecuting Attorney, James Michael Keeling, Ronald Springman and Philip R. Cummings, Assistant Prosecuting Attorneys, for appellant.
Charles H. Bartlett, Jr., for appellee.
Mark B. Greenlee, pro se, urging reversal as amicus curiae.
Abby R. Levine, ACLU Cooperating Attorney, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.
COOK, J.
{¶ 15} This case asks whether the sentencing judge violated the statutory requirements of the Revised Code or the constitutional dictates of due process when she acknowledged referring to the Bible during her deliberations, and then quoted a biblical passage on the record at the sentencing proceeding. Because we determine that the trial court complied with the applicable provisions of
{¶ 16} In Part I, below, we demonstrаte that this trial judge‘s particular reference to the Bible did not offend the sentencing provisions of the Revised Code. Turning to the Bible during her deliberations merely assisted the judge in weighing a seriousness factor required for the court‘s consideration under
I. R.C. Chapter 2929
{¶ 17} Arnett entered guilty pleas to ten counts of rape, a first-degree felony, and one count of pandering obscenity involving a minor, a fourth-degree felony.
A. R.C. 2929.11
{¶ 18} In general, the sentencing judge must adhere to the overriding purposes of felony sentencing described in
B. The R.C. 2929.12 Seriousness and Recidivism Factors
{¶ 19}
{¶ 20} The parties here agree that the sentencing judge properly considered the
{¶ 21} With this background, we summarize the arguments of the parties before the court as follows: Arnett contends that the Code prohibits the trial judge‘s acknowledged consideration of the Bible, because “religious consideration” does not appear as one of the seriоusness or recidivism factors in
{¶ 22} We agree with the state that the sentencing court‘s reference to the Book of Matthew acknowledged her consideration, during her deliberations, of the societal interest in protecting children. The General Assembly specifically recognized this societal interest in the form of a seriousness factor for the sentencing сourt to consider under
“(B) The sentencing court shall consider all of the following that apply regarding * * * the victim * * * as indicating that the offender‘s conduct is more serious than conduct normally constituting the offense:
“(1) The physical or mental injury suffered by the victim of the offense * * * was exacerbated because of the * * * age of the victim.”
R.C. 2929.12(B)(1) .
{¶ 23} The General Assembly thus explicitly instructs sentencing courts to consider how the age of a victim relates to the relative seriousness of an offense when imposing a sentence in order to conform to the overriding purposes of felony sentencing set forth in
{¶ 24} Here, the sеntencing judge followed the General Assembly‘s mandate as expressed in
{¶ 25} The Code does not specify that the sentencing judge must use specific language or make specific findings on the record in order to evince the requisite consideration of the applicable seriousness and recidivism factors.
{¶ 26} The judge further supplemented the record with the religious remarks at issue in this case. She acknowledged that she had “turned to one additional source” to help her during her deliberations, and she quoted the biblical verse to which she referred. The verse describes the seriousness of offending a “little child” or “one of these little ones.” Matthew 18:5, 6. The court explained how this biblical verse aided its “struggle” regarding the proper sentence to impose. Due to the text of this verse, and the judge‘s stated reason for considering it, we conclude that her reference to the Bible assisted her in determining the weight that she would give to a statutory factor—the age of the victim.
{¶ 28} This court has also recognized that there are limits to a court‘s discretion when the court refers to external sources while weighing a statutory factor. See State v. Bays (1999), 87 Ohio St.3d 15, 31, 716 N.E.2d 1126, 1143. In Bays, a court of appeals engaging in a review of a death sentence quoted at length from a two-year study of two hundred sixty-seven cocaine users. Based on the authors’ hypothesis concerning addiction and recidivism, the court of appeals decided that the appellant‘s addiction was not a significant mitigating factor. Id. We determined that the court of appeals improperly relied on this hypothesis because the court based its factual conclusions “upon what amounted to an expert opinion, which should have been subject to adversarial testing.” Id., citing Gardner v. Florida (1977), 430 U.S. 349, 360-362, 97 S.Ct. 1197, 1205-1207, 51 L.Ed.2d 393, 403-404.
{¶ 29} We distinguish the judge‘s reference to the Bible in this case from the error committed by the court of appeals in Bays. In Bays, the court used a highly specific scientific study as a “basis for drawing case-specific factual inferences about the relation between Bays‘s addiction and his behavior.” State v. Bays, 87 Ohio St.3d at 31, 716 N.E.2d at 1143, fn. 5. Here, in contrast, the sentencing judge
{¶ 30} The judge‘s acknowledged reference to the Bible here constituted a permissible exercise of her discretion. The judge did not add an impermissible factor to her analysis; rather, she acknowledged an influence upon her consideration of an explicitly permitted factor. Much like the judge‘s background, education, and moral values, the judge‘s insight from the Bible guided the judge in weighing the statutorily permissible age factor during her deliberations and aided her in justifying, in her mind, the lawful sentence she imposed. See State v. Fox; State v. Cook, supra.
{¶ 31} Because
{¶ 32} Because we find that the judge‘s acknowledged consideration of the particular biblical verse in this case constituted a permissible exercise of her discretion to weigh the
II. Due Process and the Sentencing Proceeding
{¶ 33} The court of appeals determined that “[b]y factoring in religion” during the sentencing proceeding, the sentencing court violated Arnett‘s due process rights. We agree with the court of appeals that consideration of religious beliefs or religious texts by a sentencing judge may violate an offender‘s due process rights when such considerations constitute the basis for the sentencing decision and thereby undermine the fundamental fairness of the proceeding. Nevertheless, as we explain more fully below, the biblical reference here did not result in a violation of Arnett‘s right to a fundamentally fair sentencing hearing.
A. Due Process, Sentencing Proceedings, and Fundamental Fairness
{¶ 34} The United Stаtes Supreme Court has recognized that even a sentence within the limits of a state‘s sentencing laws may violate due process if the sentencing proceedings are fundamentally unfair. Townsend v. Burke (1948), 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693; see, also, Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393, 402 (“[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process“), citing Witherspoon v. Illinois (1968), 391 U.S. 510, 521-523, 88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776, 784-786.
{¶ 36} The Townsend court carefully narrowed the scope of the fairness standard that it applied, saying, “[I]t is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct * * *, that renders the proceedings lacking in due process.” Id.
{¶ 37} Since Townsend, several federal circuit courts have recognized that reviewing courts may vacate sentences as violative of due process when the sentencing judge‘s comments reveal that the court imposed or enhanced the offender‘s sentence because of improper considerations such as the offender‘s race or national origin, United States v. Borrero-Isaza (C.A.9, 1989), 887 F.2d 1349,
B. Fundamental Fairness and Religious Comments: United States v. Bakker
{¶ 38} In the principal case discussed by the parties here, the Fourth Circuit Court of Appeals applied the rules described above in the specific context of religious comments by a sentencing judge. United States v. Bakker (C.A.4, 1991), 925 F.2d 728, 740, citing Gardner, Borrero-Isaza, and Safirstein, supra. The Bakker court recognized that even though a sentencing judge represents “the embodiment of public condemnation and social outrage” and a judge “can lecture a defendant as a lesson to that defendant and as a deterrent to others,” fundamental notions of due process act as a constraint on the trial court‘s discretion in the sentencing proceeding. Bakker, 925 F.2d at 740.
{¶ 39} In Bakker, which concerned the sentencing of a well-known televangelist after convictions for mail and wire fraud, the district judge made the following statement on the record about the offender: “He had no thought whatever about his victims and those of us that do have a religion are ridiculed as being saps from money-grubbing preachers or priests.” Id. The Fourth Circuit vacated the sentence, holding that courts “cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it. * * * Regrettably, we are left with the apprehension that the imposition of a lengthy prison term here may have reflected the fact thаt the court‘s own sense of religious propriety had somehow been betrayed.” (Emphasis added.) Id., 925 F.2d at 740-741.
{¶ 40} The Bakker court emphasized that it vacated the sentence only because the district judge‘s “personal religious principles” were “the basis” of the sentencing decision. (Emphasis added.) Id., 925 F.2d at 741. By contrast, here the judge‘s disclosed religious principle mirrored a sentencing factor in the Ohio
1. The Limits of Bakker
{¶ 41} The Bakker court underscored its “genuine reluctance” to vacate the sentence and repeatedly stressed the limits of its decision. Id., 925 F.2d at 741. The court noted, “Our Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office.” Id. at 740. The court also recognized that judges occasionally misspeak, and that “every ill-advised word will not be the basis for reversible error.” Id. at 741. The Bakker court vacated the sentence only because the judge‘s “intemperate” comments revealed that an “explicit intrusion of personal religious principles” was “the basis” of the sentencing decision. (Emphasis added.) Id.
{¶ 42} Recognizing the limits stressed by the Bakker court, federal courts interpreting Bakker have refused to vacate sentences unless the trial judge‘s religious remarks create an appearance of sentencing based on improperly considered, highly personal beliefs. In a recent example, the Fourth Circuit affirmed a sentence even though the sentencing court commented on the fact that the defendant considered using his church to pass classified documents to a South Korean military attaché, and declared this behavior to be “horrible hypocrisy.” United States v. Kim (Jan. 14, 1999), C.A.4 No. 97-4606, unreported, 1999 WL 12924, disposition reported at 172 F.3d 45. Though Kim argued that Bakker prohibited the judge‘s remarks, the Fourth Circuit found no constitutional violation in the judge‘s comment, which the judge made after deciding not to depart from the federal guidelines. Id. at *1.
{¶ 43} Likewise, the Seventh Circuit affirmed a sentence that an offender challenged on due process grounds when the sentencing judge spoke of “personal
{¶ 44} In a case where the judge‘s specific comments were more similar to those presently before us, a Rhode Island district court denied a habeas corpus petition when the sentencing judge referred to a biblical verse by stating that “no man should take more than he is willing to give.” Gordon v. Vose (D.R.I. 1995), 879 F.Supp. 179. The Gordon court determined that the sentencing judge expressed no personal religious bias of the type Bakker prohibited, but that the judge simply stated a generally accepted proposition that if one commits a serious crime, he or she must expect to receive a severe punishment. Id. at 185.
{¶ 45} Several state supreme courts, though they cite Bakker with approval, have declined to vacate sentences where the judge‘s religious comments merely acknowledge generally accepted principles, as opposed to highly personal religious beliefs that become the basis for the sentence imposed. See, e.g., Poe v. State (1996), 341 Md. 523, 533, 671 A.2d 501, 505 (upholding sentence when sentencing judge said, “I still believe in good old-fashioned law and order, the Bible, and a lot of things that people say I shouldn‘t believe anymore” prior to sentencing); Gordon v. State (R.I. 1994), 639 A.2d 56, 56-57 (upholding sentence when sentencing judge referred to Bible by saying that “no man takes more than he‘s willing to give“); People v. Halm (1993), 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281 (upholding sentence for sodomy when sentencing judge referred to “Biblical times” and expressed his opinion about the seriousness of the crime).
2. Applying Bakker to the Present Case
{¶ 47} We agree with the state that Bakker is distinguishable from the present case. The sentencing judge‘s comments in Bakker revealed that he had been personally offended, as a religious person, by the offender‘s frauds. When he said “those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests,” the sentencing judge in effect inserted himself as a party to the case—aligning himself with the plaintiffs whom the televangelist defrauded. As the court in Gordon v. Vose noted, the sentencing judge in Bakker was “expressing a personal religious preference and then sentencing petitioner for violating it.” (Emphasis added.) 879 F.Supp. at 185.
{¶ 48} Here, on the other hand, Arnett‘s sentencing judge cited a religious text merely to acknowledge one of several reasons—“one additional source“—for assigning significant weight to a legitimate statutory sentencing factor. The particular passage she cited mirrored the Revised Code‘s seriousness factor regarding the victim‘s young age.
{¶ 49} Arnett contends that the sentencing judge in this case “considered the heinousness of the crime as expressed in her own religious teachings as the most essential factor in determining the length of the sentence to be served.” (Emphasis
{¶ 50} The court of appeals determined that a constitutional violation occurred here under Bakker because, in its view, the Book of Matthew functioned as a “tiebreaker” for a sentencing judge torn between a more lenient or a more harsh sentence. State v. Arnett (Feb. 5, 1999), Hamilton App. Nos. C-980172 and C-980173, unreported, at 5, 1999 WL 65632. Though a fair reading of the record supports the court of appeals’ conclusion that the judge‘s reference to the Book of Matthew assisted her in finally resolving her deliberative struggle, Bakker merely prohibits a judge‘s personal religious principles from being ”the basis of a sentencing decision.” (Emphasis added.) Bakker, 925 F.2d at 741. Here, the record discloses many factors that cumulatively formed the basis of the court‘s sentence, including the testimony and letters provided to the court on behalf of Arnett and the victim, the psychologist‘s testimony regarding the harm suffered by the victim, and the nature of the multiple offenses. The Bible was but one factor, among many, that supported this judge‘s legally unremarkable decision to assign significant weight to the seriousness of Arnett‘s offenses against young victims.
III. Conclusion
{¶ 51} For the foregoing reasons, we hold that when a sentencing judge acknowledges that he or she has consulted a religious text during his or her deliberations and quotes a portion of that text on the record in the sentencing proceeding, such conduct is not per se impermissible and does not violate the offender‘s right to due process, when the judge adheres to the sentencing procedures outlined in the Revised Code and when the judge‘s religious referenсes do not impair the fundamental fairness of the sentencing proceeding.
{¶ 53} We note that comments by a sentencing judge may implicate this state‘s ethical rules concerning impartiality and bias. One such rule provides that “[a] judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon * * * religion * * * .” (Emphasis added.) Canon 3(B)(5) of the Code of Judicial Conduct. We highlight this rule as a cautionary reminder; we do not imply that an ethical violation occurred in this case.
{¶ 54} The Eighth District Court of Appeals referred to these ethical considerations when it determined that another sentencing judge‘s comments, though they did not affect the outcome of the case, went “well beyond the permissible limits of rhetorical hyperbole.” State v. Conner (June 27, 1996), Cuyahoga App. No. 65385, unreported, at 11, 1996 WL 355287. In its analysis of these comments, the Conner court included a quotation from Benjamin N. Cardozo, which—though not a part of our holding—bears repeating here, lest our decision today be misread as a license for sentencing judges to preach from the bench:
” ‘The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or goodness. * * * He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is
the field of discretion that remains.’ ” (Footnote omitted.) Id., quoting Benjamin N. Cardozo, The Nature of the Judicial Process (1991), at 141.
{¶ 55} For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.