STATE OF OHIO, Appellee, - vs - AUNRICO WILLIAM BAKER BEATTY, Appellant.
CASE NO. CA2021-10-057
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
7/5/2022
2022-Ohio-2329
M. POWELL, P.J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2020 CR 1062
Mark L. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender, for appellant.
M. POWELL, P.J.
{¶ 1} On December 22, 2020, appellant, Aunrico William Baker Beatty, was charged by indictment with 11 criminal counts arising from a shooting he was alleged to have perpetrated. Following a jury trial, Baker Beatty was found guilty of Counts 5 through 8, felonious assault in violation of
{¶ 2} On September 24, 2021, Baker Beatty was sentenced to indefinite prison terms of four to six years for each of the four felonious assault offenses, a definite prison term of 18 months for the discharge of firearm on or near prohibited premises offense, and a definite prison term of 12 months for the improperly handling firearms in a motor vehicle offense. These prison terms were ordered to be served concurrently with each other. The court further sentenced Baker Beatty to three-year prison terms for each firearm specification attached to Counts 5 through 8, to be served consecutively to each other and consecutively and prior to the four underlying felonious assault offenses. The aggregate prison term ordered was 16 to 18 years.
{¶ 3} Baker Beatty timely appealed his sentence, raising the following assignment of error:
{¶ 4} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE DISCRETIONARY PRISON TERMS IMPOSED ON TWO FIREARMS SPECIFICATIONS.
{¶ 5} Baker Beatty argues that the trial court erred in ordering that the prison terms imposed for the third and fourth firearm specification convictions be served consecutively to all other prison terms. Prison terms imposed for firearm specifications will hereinafter be referred to as “firearm prison terms,” and the firearm prison terms imposed for the third and fourth firearm specifications herein will be referred to as the “additional firearm prison terms.”
{¶ 6} An appellate court generally reviews felony sentences under
{¶ 7} In the present case, each count of which Baker Beatty was convicted carried a firearm specification pursuant to
{¶ 8} Under
{¶ 9}
[I]f a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender‘s person or under the offender‘s control while committing a felony, * * * the offender shall serve any mandatory prison term imposed under [division (B)(1)(a) of this section] consecutively to any other mandatory prison term imposed under [division (B)(1)(a)] of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
{¶ 10} The trial court was required to order three-year prison terms for the two most serious firearm specifications attached to Baker Beatty‘s felonious assault convictions and was permitted to impose prison terms for each of the remaining specifications. The court fulfilled its duty to order the firearm prison terms for the two most serious specifications, chose to order the additional firearm prison terms for the specifications attached to the other two felonious assault counts, made consecutive sentence findings pursuant to
{¶ 12} The state asserts that
{¶ 13} As to the state‘s first argument, there is nothing in the text of
{¶ 14} We recognize that the foregoing conflicts with our opinion in State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876. Isreal involved the imposition of prison terms for the two most serious firearm specifications as required by
{¶ 15} In Isreal we relied upon State v. Glenn, 8th Dist. Cuyahoga No. 97314, 2012-Ohio-3075 and State v. Fischer, 9th Dist. Summit No. 26110, 2012-Ohio-3665. However, neither Glenn nor Fischer considered whether a firearm prison term imposed at the sentencing court‘s discretion pursuant to
{¶ 16} As discussed above, there is no language in
{¶ 17} As to the state‘s second argument, the provisions of
{¶ 18} The fallacy in characterizing the additional firearm prison terms as “mandatory prison terms” for purposes of
{¶ 19} As suggested by Baker Beatty, the General Assembly chose to require consecutive service of only “mandatory” firearm prison terms in
{¶ 20} Nonetheless, the foregoing does not mean that the trial court erred in ordering the additional firearm prison terms to be served consecutively to the other prison terms imposed. In choosing to impose the additional firearm prison terms, the trial court made the necessary consecutive sentence findings pursuant to
{¶ 21} We note that other districts have held that compliance with
consecutively. See Isreal, 2012-Ohio-4876, at ¶ 72; State v. Brown, 8th Dist. Cuyahoga No. 102549, 2015-Ohio-4764, ¶ 19; State v. Howard, 2nd Dist. Montgomery No. 29181, 2021-Ohio-4501, ¶ 17. The Eighth Appellate District has also held that
{¶
{¶ 23} We also reject the reasoning of Eighth Appellate District in State v. James finding that
that
{¶ 24}
{¶ 25} In State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, the supreme court considered whether the offense of discharging a firearm into a habitation and the attached firearm specification merged for purposes of sentencing as allied offenses of similar import. The supreme court held that they do not. In explaining its reasoning, the court held that a firearm specification is not an offense under
{¶ 26} Pursuant to
{¶ 27} There remains one issue we wish to address before concluding. The state argues that the overall statutory scheme suggests that all firearm prison terms be served consecutively to all other prison terms because “[t]here is no purpose in imposing a sentence for a specification, just to run it concurrent to a prison sentence for another specification. The purpose of a specification is to enhance a sentence and running a prison term for a specification concurrent does not enhance the sentence.” The state proceeds to argue that the General Assembly would not have provided for discretionary firearm prison terms if it intended that they be served concurrently. However,
{¶ 28} A trial court has clear authority to order consecutive prison terms for discretionary firearm specifications of which an offender has been convicted, provided the appropriate findings are made. We find that the trial court complied with the dictates of
{¶ 29} Judgment affirmed.
S. POWELL, J. concurs in judgment only, and BYRNE, J. concurs separately.
BYRNE, J., concurring separately.
{¶ 30} I agree with and fully join the court‘s opinion. I write separately to make two additional points related to (1) the sentencing policy at issue in this case, and (2) stare decisis.
Sentencing Policy
{¶ 31} In its brief, the state made the following policy argument in support of its interpretation of
There is no purpose in imposing a sentence for a specification, just to run it concurrent to a prison sentence for another specification. The purpose of a specification is to enhance a sentence and running a prison term for a specification concurrent does not enhance the sentence.
{¶ 32} I would not go so far as to say there is ”no purpose in imposing a sentence for a specification, just to run it concurrent to a prison sentence for another specification[,]” as it is quite common for offenders to be sentenced to multiple concurrent prison terms. (Emphasis added.) And as the court‘s opinion states, ”
{¶ 33} But policy arguments, even if judges agree with those arguments, do not determine how we must interpret statutes. Erickson v. Morrison, 165 Ohio St.3d 76, 2021-Ohio-746, ¶ 34, quoting Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, ¶ 29 (Kennedy, J., concurring.) (“Second-guessing the wisdom of the legislature‘s policy choices * * * does not fall within the scope of our review. * * * Rather, ‘[o]ur role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly“). “To resolve [issues of textual interpretation], we must examine the words of the statute.” Lovejoy v. Diehl, 12th Dist. Butler No. CA2020-06-067, 2021-Ohio-1124, ¶ 31. “A court‘s ‘duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted.‘”
{¶ 34} So while it may make more sense from a policy perspective if – as we held before in Isreal, and now overrule – all firearm specifications automatically ran consecutively, that is not what the statute says. If the General Assembly would prefer that policy, it can easily amend the statute.
Stare Decisis
{¶ 35} The court today overrules State v. Isreal “[t]o the extent that Isreal holds that
{¶ 36} But stare decisis is not absolute. This court, applying the standard used by the Supreme Court of Ohio in Galatis, has explained that it “will adhere to precedent unless ‘(1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.‘” (Emphasis added.) Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 186 Ohio App.3d 56, 2010-Ohio-592, ¶ 39 (12th Dist.), rev‘d on other grounds, Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, quoting Galatis at ¶ 48. All three factors are met in this case.
{¶ 37} First, Isreal was wrongly decided when it was issued to the extent that it held that ”
{¶ 38} Second, Isreal defies practical workability to the extent that it held that
{¶ 39} Third, abandoning Isreal‘s erroneous interpretation of
{¶ 40} So again, the three factors that must be met for us to reverse existing precedent under the standard applied in Welsh and similar cases are met in this case.
{¶ 41} But while those factors are met, I note that, in my view, Ohio courts should consider whether the standard for overruling
Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.
Id. Justice Thomas’ framework merits a closer look in a proper case.
{¶ 42} I concur.
S. POWELL, J., concurring in judgment only.
{¶ 43} Just as my respected colleagues, I also find no merit to Baker Beatty‘s single assignment of error challenging the trial court‘s decision ordering the prison terms imposed for the third and fourth firearm specification convictions be served consecutively to all other prison terms. However, I take exception to the manner in which they ultimately come to their decision. I must therefore concur in judgment only.
{¶ 44} I do this because I believe it improper to overrule this court‘s decision in State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, a case which, it should be noted, the Ohio Supreme Court declined to review. See State v. Isreal, 137 Ohio St.3d 1420, 2013-Ohio-5285 (denying appellant‘s motion for delayed appeal). This is because I can find no authority that permits a trial court to do anything other than sentence a defendant on a firearm specification to a consecutive sentence. This includes the language found in
{¶ 45} Contrary to my respected colleagues, I can also find no authority that would require a trial court to apply
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
(Emphasis added.)
{¶ 46} This is the same reasoning found the by the Eighth District Court of Appeals in State v. James, 8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, a decision the Ohio Supreme Court also declined to review. See State v. James, 146 Ohio St.3d 1514, 2016-Ohio-7199. The Eighth District‘s decision in James, and the reasoning set forth therein, should not be so easily cast aside under these circumstances. Therefore, when considering the Eighth District‘s decision in James, and when applying the plain language found in
{¶ 47} For these reasons, I must concur in judgment only for I too find no merit to Baker Beatty‘s single assignment of error challenging the trial court‘s decision ordering the prison terms imposed for the third and fourth firearm specification convictions be served consecutively to all other prison terms.