State v. Barnette, 06 Ma 135 (12-21-2007)State v. Barnette, 06 Ma 135 (12-21-2007)
{¶ 1} Defendant-appellant Chad Barnette appeals from his maximum, consecutive sentences totaling eighty-four years entered by the Mahoning County Common Pleas Court upon resentencing after the Supreme Court remanded pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The first issue on appeal is whether the trial court properly complied with R.C.
STATEMENT OF THE FACTS
{¶ 2} On January 29, 2001, appellant and his co-defendant, James Goins, were sixteen-year-old juveniles who decided to wreak mayhem on their Youngstown neighborhood. First, they attacked William Sovak, age 84, who had alighted from his home to retrieve his newspaper. Appellant and Goins repeatedly pushed and hit Mr. Sovak; each time they pushed him or he fell to the ground, they kicked him. They also hit Mr. Sovak on the head with his telephone as they stole a set of keys from the kitchen.
{¶ 3} After this initial beating, they threw Mr. Sovak down the basement stairs, causing him to lose consciousness. Appellant and Goins then beat Mr. Sovak with a mallet and dragged him to a fruit cellar storage room. They used a screwdriver as a lock to bar his escape and left him there to die. Luckily, a neighbor telephoned a relative to report that there was blood all over Mr. Sovak‘s house and a trail leading to the basement. Mr. Sovak was then discovered in the fruit cellar. Mr. Sovak sustained a concussion, a spinal cord contusion, fractured vertebrae, a punctured lung, broken ribs and multiple external wounds.
{¶ 4} That same night, appellant and Goins donned scarves over their faces and kicked their way into the home of Louis and Elizabeth Luchisan. Mr. Luchisan was sixty-four years old and was nearly confined to a chair on wheels due to medical infirmities. One of the two intruders entered with a sawed-off shotgun. They both demanded money and dragged Mrs. Luchisan around her house looking for cash. Mrs. Luchisan surrendered approximately $167, and Mr. Luchisan handed over $20. The
{¶ 5} As they fled the house, the assailants stopped to take a 27-inch television set and the keys to the Luchisan‘s vehicle in which they absconded. The police spotted the stolen car as they were later inspecting the two crime scenes. A police officer stood in the road with his weapon drawn while officers in cruisers caused other obstacles. The car veered from the armed officer and crashed into a tree. There were four people in the car. Goins, who was in the front passenger seat, fled from the crash but was soon captured.
{¶ 6} Appellant was in the back seat. Citing his position in the vehicle, appellant later claimed that he was not involved in the intrusions and beatings. However, Mr. Sovak positively identified appellant as one of his attackers. Moreover, the tread of appellant‘s shoes matched shoe tread marks that were left at the crime scene. Officers discovered a sawed-off shotgun in the vehicle and found Mr. Sovak‘s keys in Goins’ residence.
{¶ 7} The juvenile court bound appellant over to the Mahoning County Grand Jury, and he was thereafter indicted for: (1) attempted aggravated murder of Mr. Sovak; (2) aggravated burglary of Mr. Sovak; (3) aggravated robbery of Mr. Sovak; (4) kidnapping of Mr. Sovak; (5) aggravated burglary of the Luchisans; (6) aggravated robbery of Mr. Luchisan; (7) aggravated robbery of Mrs. Luchisan; (8) kidnapping of Mr. Luchisan; (9) kidnapping of Mrs. Luchisan; (10) felonious assault of Mr. Luchisan; (11) felonious assault of Mrs. Luchisan; (12) and receiving stolen property (the Luchisans’ automobile). Four gun specifications were charged related to the robberies and kidnappings of the Luchisans.
{¶ 8} On March 12, 2002, the jury found appellant guilty of all charges except the count of felonious assault against Mrs. Luchisan. The jury also found appellant guilty of the gun specifications. A sentencing hearing was held on March 20, 2002. In a March 21, 2002 entry, the court sentenced appellant to maximum prison terms on each count (eighteen months for receiving stolen property, eight years for felonious
{¶ 9} On appeal, we held that appellant could not be sentenced for receiving stolen property because the aggravated robbery charges were based upon the same property. State v. Barnette, 7th Dist. No. 02CA65, 2004-Ohio-7211, ¶ 52. We also reversed one ten-year maximum sentence and imposed a minimum three-year sentence due to the trial court‘s failure to include Mr. Sovak‘s aggravated robbery when it listed the offenses considered to represent the worst forms of the offenses. Id. at ¶ 89-90. See, also, State v. Barnette (Feb. 2, 2005), 7th Dist. No. 02CA65 (reconsideration decision). We affirmed the trial court‘s decision on all other grounds raised. See id.
{¶ 10} The Supreme Court accepted for review only appellant‘s sentencing claim under Blakely v. Washington (2004), 542 U.S. 296. Upon the release of Foster, the Supreme Court reversed appellant‘s sentence and remanded for resentencing. In re Ohio Crim. Sent. Statutes, 109 Ohio St.3d 313, 2006-Ohio-2109, ¶ 12.
{¶ 11} On July 25, 2006, resentencing proceeded before the trial court. In a July 31, 2006 entry, the court reimposed its original sentence of maximum, consecutive sentences on all non-merged offenses and firearm specifications, with the exception of the receiving stolen property charge which the trial court omitted from sentencing due to our prior appellate decision on that matter. Thus, appellant received ten years for the attempted aggravated murder of Mr. Sovak, ten years for the aggravated burglary of Mr. Sovak, ten years for the aggravated robbery of Mr. Sovak, ten years for the kidnapping of Mr. Sovak, ten years for the aggravated burglary of the Luchisans, ten years for the aggravated robbery of Mr. Luchisan (merged with his kidnapping), ten years for the aggravated robbery of Mrs. Luchisan (merged with her kidnapping), eight years for the felonious assault of Mr. Luchisan, and three years for each of two gun specifications with regards to the Luchisans (with the other two gun
ASSIGNMENT OF ERROR NUMBER ONE
{¶ 12} Appellant sets forth two assignments of error, the first of which alleges:
{¶ 13} “THE COURT ERRED AND ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO EIGHTY-FOUR (84) YEARS.”
{¶ 14} Appellant notes that the court failed to mention R.C.
{¶ 15} The “general judicial guide” for felony sentencing is contained in R.C.
{¶ 16} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶ 17} “(B) 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
{¶ 18} “(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.”
{¶ 19} Thereafter, R.C.
{¶ 20} “(A) Unless otherwise required by section
{¶ 21} Thus, the court can consider any factor it finds relevant to achieve the purposes and principles of R.C.
{¶ 22} “Although after Foster the trial court is no longer compelled to make findings and give reasons at the sentencing hearing because R.C.
{¶ 23} This statement establishes that R.C.
{¶ 24} The precedent in Ohio once stated that a silent record gives rise to a presumption that the trial court considered the R.C.
{¶ 25} The Supreme Court continued to hold that R.C.
{¶ 26} Here, we do not have a silent record. Rather, we have a record and a sentencing entry that specifically announce that the court considered the purposes and principles of sentencing contained in R.C.
{¶ 27} In any event, as will be reviewed infra, the court placed on the record a range of pronouncements and findings that coincide with various statutory factors. In fact, these statements were made prior to the announcement of the court‘s sentence.
{¶ 28} First, it must remembered that this was a Foster resentencing, and we had already approved the trial court‘s decision that these offenses were the worst form of the offenses (with the exception of one offense the trial court mistakenly omitted from its list at the time) and that they could be served consecutively. At resentencing, the trial court affirmed its belief that these crimes constituted the worst forms of the offenses. (Tr. 4, 19, 29). Although this is no longer a required factor for sentencing to the maximum, it is a proper consideration as any other factor under R.C.
{¶ 29} Second, the court reviewed the highlights of the trial and noted that the occurrences of the trial and prior sentencing hearing are “forever etched into my mind. They are unpleasant memories of an unpleasant reminder of man‘s inhumanity to man.” (Tr. 6). The judge later reiterated that he could not imagine somebody doing to another human being what appellant did to the victims. (Tr. 18). This establishes the court‘s consideration of the seriousness of appellant‘s conduct in committing these offenses. Contrary to appellant‘s suggestion, the nature of the offenses is a permissible consideration, and the sentencing court may assign great weight to such factor. See R.C.
{¶ 30} Third, the court explained the serious injuries to Mr. Sovak including a concussion, a punctured lung, a spinal cord contusion, fractured vertebrae, renal contusions and herniations. (Tr. 16). The court noted that Mr. Luchisan was confined to a wheeled chair when he was beaten. (Tr. 16-17). The court also pointed out that
{¶ 31} As for recidivism, the court read a multitude of offenses listed on appellant‘s criminal record from Florida. (Tr. 16). See R.C.
{¶ 32} Accordingly, from the court‘s comments prior to announcing the sentence, we can determine that the court considered the relevant factors in sentencing appellant. As aforementioned, besides reciting the facts and outlining the relevant data, the court also explicitly advised that it considered the purposes and principles of sentencing under R.C.
{¶ 33} As for whether appellant‘s sentence is proportional to other such offenses by similar offenders, we note that this is not the typical aggravated burglary, aggravated robbery, kidnapping scenario, and one could find that appellant is not the typical offender. See R.C.
{¶ 34} We must also point out that in his prior appeal, appellant cited us to other cases for comparison when raising this issue. We distinguished and compared those
ASSIGNMENT OF ERROR NUMBER TWO
{¶ 35} Appellant‘s second assignment of error contends:
{¶ 36} “DEFENDANT‘S SENTENCE OF EIGHTY-FOUR (84) YEARS IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT TO THE U.S. AND OHIO CONSTITUTION.”
{¶ 37} Here, appellant claims that the sanctions imposed constitute cruel and unusual punishment because the court violated the principle in R.C.
{¶ 38} The Ohio Supreme Court has outlined the relevant law on cruel and unusual punishment as follows:
{¶ 39} “The Eighth Amendment to the Constitution of the United States provides: `Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Section
{¶ 40} Generally, a sentence that falls within the terms of a valid statute is not a cruel and unusual punishment. McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69. Rather than attacking the court‘s choice of sentence itself under the cruel and unusual punishment clause, the defendant typically attacks the statute that allows the punishment; for instance, a death penalty statute that allows execution of mentally retarded individuals, or as in Weitbrecht, a statute that permits a sentence of five year in prison for an involuntary manslaughter that resulted from a mere minor misdemeanor traffic violation. Here, however, appellant is challenging the length of his sentence as chosen by the trial court within the allowable statutory range.
{¶ 41} As the state points out, appellant failed to raise this argument in his prior appeal, and the sentence in that case was eighteen months longer. Thus, we need not (but may) consider his constitutional argument. See In re M.D. (1988), 38 Ohio St.3d 149, syllabus (discretion to consider waived constitutional arguments).
{¶ 42} Regardless of his waiver and any problems in the method of raising the argument, the trial court opined that the crime was shocking and that appellant should never be permitted to menace society in such manner again. Although appellant urges that his total sentence of eighty-four years is constitutionally too high, this is a conclusory allegation with no factual argument or support. Considering the facts of the offenses, the sentences are not so greatly disproportionate to the offenses so as to shock the sense of justice in the community. See Weitbrecht, 86 Ohio St.3d at 371.
{¶ 43} It was found by a jury that appellant purposely tried to kill an elderly victim of a burglary and that appellant locked him up hoping to ensure his death. This was not an isolated event as he continued his rampage at a nearby house where he terrorized a disabled man and his wife. Appellant was a juvenile, but he already had a sizeable and related criminal record. As such, it was not unreasonable for the trial court to determine that the savage occurrences in the case at hand establish that
{¶ 44} In any event, appellant‘s cruel and unusual punishment argument is seemingly based wholly on his belief that the court failed to properly apply Ohio law. That is, he specifically relies upon the trial court‘s alleged violation of R.C.
{¶ 45} “Except as provided in division (B) of this section, division (E) of section
{¶ 46} In urging the trial court‘s violation of this provision, appellant expressly claims that nothing in Foster states that R.C.
{¶ 47} The Court expressly declared that after severance, “there is nothing to suggest a `presumptive term‘.” Id. at ¶ 96. The Court then stated that R.C.
{¶ 48} “The following sections, because they either create presumptive minimum or concurrent terms or require judicial fact-finding to overcome the presumption, have no meaning now that judicial findings are unconstitutional: R.C. * * *
{¶ 49} Thereafter, the Court concluded that trial courts have full discretion to impose a sentence within the statutory range and can impose maximum and consecutive sentences without making any particular findings or giving reasons. Id. at ¶ 100. See, also, id. at ¶ 4 of syllabus. Thus, contrary to appellant‘s argument, the Supreme Court has explicitly removed any presumption of concurrent sentences and has specifically stated that courts have full discretion to impose sentences consecutively. See id. at ¶ 92, 96, 99, 97, 100, 102. Since R.C.
{¶ 50} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs. Waite, J., concurs.