2006 Ohio 4610 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} However, a recent Supreme Court case on the unconstitutionality of the statutorily required findings for sentencing felons to the maximum effectively destroys the validity of the required statutory findings for sentencing misdemeanants to the maximum. See State v. Foster,
{¶ 4} The victim stated that her car was stolen after she left it running in her driveway. She said she called the police, and they found appellant in her car half an hour later. (Tr. 7). The court asked appellant what he cared to say, and he apologized to the court and the victim. The court then asked, "Why in the world was it okay for you to have participated in this whole car thing? Why is that okay?" (Tr. 7). Appellant responded, "I wasn't even in the car." (Tr. 8).
{¶ 5} Defense counsel, who was called that morning to fill in for appellant's actual defense counsel, then explained, "Your Honor, if I may, he's entering a no contest plea and entering an Alford plea, to avoid the consequences of proceeding." The court stated, "He's standing there saying he didn't do anything wrong." Defense counsel responded, "I advised him of that, and he understood the nature of today, but he's still maintaining his innocence. He wants to avoid the consequence of the trial, if necessary." (Tr. 8).
{¶ 6} The court then asked the police officer to explain appellant's involvement. The officer stated that cars stolen in the morning often end up at Wilson High School; so he checked there first. (Tr. 8). The officer said he saw appellant getting out of the stolen vehicle and told him not to run because he works at the high school and recognizes him. (Tr. 8-9). However, the person claimed to be appellant ran off. The officer stated that he arrested appellant when he saw him walking back to school later that morning. The officer also revealed that in his investigation, he heard rumors that someone lent appellant the car after they stole it. (Tr. 9).
{¶ 7} The court then made the following declarations:
{¶ 8} "Shame on you, Mr. Brooks, stealing this woman's car. Whether you did it or not doesn't matter to me. You were seen driving it, and you have the absolute audacity to stand here and say that you didn't do anything wrong.
{¶ 9} "So, not only are you a thief, you're a liar. Had you not lied to me, I would have had some compassion for you, but now you're trying to play me, and I'll not allow that to occur.
{¶ 10} "You can lie to your mother, you can lie to your father, you can lie to your friends. Do not ever lie to a judge that's about to sentence you because you know what happens when you do that? You get maxed out.
{¶ 11} "I don't understand how you could think that it's okay to lie in a courtroom and get away with it. Sorry counsel. You have earned yourself six months in jail.
{¶ 12} "That's the most I can give him, ma'am. Thank you." (Tr. 9-10).
{¶ 13} The court filed its sentencing entry imposing a maximum sentence that same day, February 18, 2005. Appellant filed timely notice of appeal and received a stay of sentence from the trial court. We threatened to dismiss the appeal in mid-2005. Then, counsel withdrew, and new counsel was appointed. Finally, an appellate brief was filed on December 20, 2005.
{¶ 15} "THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE UPON THE APPELLANT BECAUSE THE COURT APPLIED FACTORS NOT CONTAINED IN R.C. 2929.22."
{¶ 16} Appellant argues that the trial court failed to consider the maximum sentence factors in R.C.
{¶ 17} The overriding purposes of misdemeanor sentencing are to punish the offender and to protect the public from future crime by the offender and others. R.C.
{¶ 18} A misdemeanor sentence shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing set forth above, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders. R.C.
{¶ 19} In determining the appropriate sentence for a misdemeanor, the court shall consider all of the following factors: (a) the nature and circumstances of the offense; (b) whether the circumstances surrounding the offender and the offense indicate that the offender has a history of persistent criminal activity and that the offender's character and condition reveal a substantial risk that the offender will commit another offense; (c) whether the circumstances regarding the offender and the offense indicate that the offender's history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender's conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences; (d) whether the victim's youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious; (e) whether the offender is likely to commit future crimes in general. R.C.
{¶ 20} Although the above advisory provisions give the sentencing court fairly broad discretion, the legislature recently added limitations on a court's ability to impose a maximum sentence for misdemeanants. R.C.
{¶ 21} "A court may impose the longest jail term authorized under section
{¶ 22} The longest jail term for a first degree misdemeanor authorized under R.C.
{¶ 23} Unlike the pre-Foster felony sentencing scheme, the misdemeanor sentencing scheme does not require the court to make specific findings on the record or provide reasons for those findings. Youngstown v. McElroy, 7th Dist. No. 05MA13,
{¶ 24} However, this is not an absolute presumption. Rather, the appellate court in its review for an abuse of discretion can find that a certain sentence is arbitrary, unconscionable or unreasonable considering the evidence presented relative to the various statutory considerations. Id. at ¶ 26 (noting the standard of review for misdemeanor sentences is abuse of discretion). And, most importantly for our purposes, thepresumption that a sentencing court considered the relevantfactors is only applied if there are not affirmative statementsto the contrary on the record. Id. at ¶ 28.
{¶ 25} Here, the trial court specifically made statements on the record showing that its maximum sentence may not have been based upon the two available statutory considerations for sentencing misdemeanants to the maximum available jail term. The court expressly admitted that appellant would be "maxed out" due only to the court's belief that he was lying and that the court would not have sentenced him so harshly in the absence of this perceived lie. (Tr. 9).
{¶ 26} There are affirmative statements evidencing reliance on factors that do not statutorily justify a maximum sentence. Thus, we could not presume that the court made the statutorily required findings for imposing a maximum jail term. See id. at ¶ 28. The affirmative statements destroy the presumption that the court's maximum sentence decision was based upon a worst form of the offense finding or a finding that appellant's conduct and response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing a future crime. Hence, the maximum sentence imposed on appellant under these circumstances was both illegal and an abuse of discretion upon application of R.C.
{¶ 27} Accordingly, prior to February 27, 2006, this case would have been reversed and remanded. On resentencing, the trial court could not then sentence appellant to the maximum unless it found that he committed the worst form of the offense (since the prosecutor conceded that appellant had no prior record and thus the alternative finding could not be made).
{¶ 28} However, on February 27, 2006, a much anticipated decision was released by the Ohio Supreme Court, which in part erased the statutory required findings for sentencing felons to the maximum. State v. Foster,
{¶ 30} As a remedy (rather than requiring juries to apply the sentencing factors or finding that all sentences more than minimum concurrent sentences are improper), the Supreme Court severed the offending provisions. Thus, the offending sections were excised and given no meaning. Id. at ¶ 97, citing UnitedStates v. Booker (2005),
{¶ 31} So, courts no longer need to make the statutory findings for deviation from the minimum under R.C.
{¶ 32} "Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at syllabus ¶ 7.
{¶ 33} Because the statutes upon which many sentences are based were declared unconstitutional, the Court stated that all such sentences pending on direct review must be vacated and remanded for new sentencing hearings. Id. at ¶ 103-104, 106. At such hearings, the courts must only consider those portions of the sentencing code that remain unaffected by Foster and can impose any sentence within the relevant range. Id. at ¶ 105. (Technically, by declaring the provisions unconstitutional and severing them, the Court merely made it easier to sentence defendants to non-minimum, maximum and/or consecutive sentences.)
{¶ 34} Although in Foster, the Court was only faced with the issue of felony sentencing, the section of the misdemeanor statute at issue is modeled after the section of the felony statute declared unconstitutional. For instance, before Foster,
R.C.
{¶ 35} "the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section."
{¶ 36} As reviewed above, Foster found this provision to be invalid due to the judicial fact-finding required above and beyond a jury verdict or admission through a guilty plea. And as quoted above, R.C.
{¶ 37} "A court may impose the longest jail term authorized under section
{¶ 38} The two statutes cannot be distinguished in terms of the requirements that the sentencing judge must make factual findings that were not made by a jury or admitted by a defendant above and beyond the typical guilty plea.1 Thus, we must delve into the issue of whether the Foster holding and rationale inevitably leads to the invalidation of the maximum sentence findings for misdemeanors because they require judicial fact-finding.
{¶ 39} The Foster opinion states the question presented as "whether Ohio's felony sentencing scheme violates the
{¶ 40} The
{¶ 41} Here, the maximum penalty for this first degree misdemeanor is one hundred eighty days. R.C.
{¶ 42} However, now that the Ohio Supreme Court has ruled that the general jury trial right is violated when judicial fact-finding occurs in making maximum sentence findings, such holding is relevant to any case for which there exists an Ohio constitutional jury trial right. In fact, after stating that the question presented dealt with the
{¶ 43} "Likewise, Section
{¶ 44} Thus, the Foster decision was also based upon Ohio constitutional law dealing with the jury trial right. This leaves us with the question of whether the Ohio Constitution provides a jury trial right for petty offenses or whether that right only exists in this state due to statutes and rules. For instance, Ohio statutory law provides:
{¶ 45} "(A) At any trial, in any court, for the violation of any statute of this state, or of any ordinance of any municipal corporation, except as provided in divisions (B) and (C) of this section, the accused has the right to be tried by a jury.
{¶ 46} "(B) The right to be tried by a jury that is granted under division (A) of this section does not apply to a violation of a statute or ordinance that is any of the following:
{¶ 47} "(1) A violation that is a minor misdemeanor;
{¶ 48} "(2) A violation for which the potential penalty does not include the possibility of a prison term or jail term and for which the possible fine does not exceed one thousand dollars. * * *." R.C.
{¶ 49} Article
{¶ 50} This constitutional right to a jury trial language seems broad enough to encompass petty offenders. However, so does the language of the
{¶ 51} On the one hand, the Eighth District (which previously held that the felony maximum sentence statute is unconstitutional under Blakely) has held pre-Foster that the doctrine espoused in Blakely would not invalidate R.C.
{¶ 52} However, the fact that a jury must be demanded in a petty offense case does not answer the question of whether the right to a jury is constitutionally required in petty offense cases in Ohio (if demanded) or whether that right would be violated by judicial fact-finding for misdemeanor maximum sentencing as it is violated for identical fact-finding in felony maximum sentencing. The Foster Court found invalidity even in cases involving guilty pleas, where the right to a jury trial is waived.2 Thus, the fact that a jury must be demanded for a petty offense is not a sufficient rationale for finding that judicial fact-finding in sentencing does not violate a jury trial right for petty offenders.
{¶ 53} We acknowledge that a 1990 editor's comment to Baldwin's Annotated Article
{¶ 54} We also acknowledge the following statement by the Ohio Supreme Court, which at first, seems to weigh against a constitutional right to a jury trial in petty offense cases:
{¶ 55} "Equally without merit is appellant's contention that he was entitled to be tried before a jury; this contempt is a petty offense within constitutional contemplation (see Cheff v.Schnackenberg (1966),
{¶ 56} This statement and the cite to United States Supreme Court law implies that the Court believed there was no constitutional right to a jury in any petty offense case. We note, however, that this was a contempt case and that the Court did not mention whether there was a failure to make a jury demand. Regardless, the Ohio Supreme Court has since made statements recognizing that there is an Ohio constitutional right to a jury in even petty offense cases. For instance, in Tate, the very case cited by Eighth District in McQuerry, the Supreme Court held:
{¶ 57} "The accused's right to be tried by a jury is securedin this state by Article
{¶ 58} In that case, the petty offender demanded a jury trial but never received one. The state argued that he implicitly waived his right by standing silent during the bench trial. But, the Supreme Court disagreed. The Court explained that every reasonable presumption should be made against the waiver "especially when it relates to a right or privilege deemed so valuable as to be secured by the Constitution." Id. at 53. The Court then concluded that since the written waiver statute was not complied with, the misdemeanor defendant "was denied hisconstitutional right to trial by jury." Id. at 54 (emphasis added).
{¶ 59} Notably, the Court included in its quote of the relevant constitutional law the provision in Article 1, Section 10 that begins, "Except in cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary * * *." Id. at 51, 55, fn. 2. Although this sentence and the one providing the right to a jury are separated by a period, the Court still found its language relevant. See id. Additionally, it is noteworthy that the written waiver statute the Supreme Court instructed must be followed for even petty offenders once a jury has been demanded provided that the waiver shall contain the following pertinent language:
{¶ 60} "I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." R.C.
{¶ 61} The Court's holding explicitly acknowledged an Ohio constitutional right to a jury trial in a petty offense case. Thus, even though the right is not automatic in Ohio due to a procedural rule requiring a jury demand, the Ohio Supreme Court has recognized that the right to a jury in even a petty offense case is a constitutional right in this state. The effect of not properly procedurally filing a demand is to waive that constitutional right. This does not mean that there is no constitutional right. The constitutional right spoken of does not become a non-constitutional right just because a rule provides a procedural method by which the substantive right is to be exercised. See State ex rel. City of Columbus v. Boyland
(1979),
{¶ 62} In another case, determining whether a jury demand by a petty offender was timely, the Ohio Supreme Court declared:
{¶ 63} "The right of trial by jury is so fundamental under our criminal justice system that this fact, in and of itself, should compel the conclusion that the `date set for trial,' as used in Crim.R. 23(A), should mean ten days before the date set for the actual trial without regard to the number of continuances granted by the trial court." City of Tallmadge v. DeGraft-Biney
(1988),
{¶ 64} And, the Tallmadge Court concluded by pronouncing in favor of the petty offender:
{¶ 65} "We recognize that we are living during a time of increased litigation, both criminal and civil, with attendant demands upon the judicial process. However, this factor should not stand in the way of a reasonable application of the rules to accommodate a fundamental constitutional right — the right of trial by one's peers." Id. at 303.
{¶ 66} Even the Tallmadge dissent appreciated that the right to a jury in this petty offense case was both a constitutional and a statutory right. Id. at 306 (Holmes, J., dissenting to call for stricter application of the rules requiring timely demands). See, also, Garfield Hts. v. Perkins
(1994),
{¶ 67} Notwithstanding federal case law interpreting the
{¶ 68} We also note more historical Ohio Supreme Court law recognizing the right to jury if imprisonment is an available sanction:
{¶ 69} "It has been frequently announced in the decisions of this court, some of which are quite recent, that the right of trial by jury obtains only where, under the provisions of the statute claimed to have been violated, a sentence of imprisonment may be imposed as a part of the punishment for such violation.Work v. State,
{¶ 70} We note here that the Work case was cited by theFoster Court when speaking of Ohio's jury trial right and when stating that the Ohio Constitution preserves for the defendant all the essential features of the jury known in Ohio common Law.Foster,
{¶ 71} For all of the above reasons, we conclude that the Ohio Supreme Court precedent provides that the Ohio Constitution generally provides a jury trial right even for petty offenders such as this defendant where incarceration was a potential penalty. It follows that the jury trial right of a petty offender is violated when the sentencing judge is required by statute to make factual findings in order to impose a maximum sentence where those certain maximum sentence facts were not determined by a jury or admitted by the pleading defendant. In accordance, the Supreme Court's Foster holding must be applied to invalidate R.C.
{¶ 72} Although there is evidence on the record at the sentencing hearing that the trial court failed to correctly utilize the existing statutory maximum sentencing findings, resentencing is necessary for two reasons. One, that the severance and resentencing were the remedies declared necessary by the Supreme Court in Foster. One may think that severance of the maximum sentence provision here would still allow affirmance of the sentence because, after severance, the court is permitted to choose any sentence within the range without regard to the maximum sentence provisions. However, the Foster Court concluded by stating that all cases on direct review where sentencing involved statutes with unconstitutionally required factual findings must be reversed for new sentencing hearings where the court shall apply only the remaining constitutional provisions in the sentencing scheme and shall choose a sentence within the range of available sentences without regard to the sections declared unconstitutional. Foster at ¶ 103-104, 106.
{¶ 73} Two, the trial court's entry stated that it considered all statutory sentencing criteria, which would include the invalid judicial fact-finding contained in R.C.
{¶ 74} For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded for resentencing where judicial fact-finding shall not be utilized under the now severed R.C.
Donofrio, P.J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
Dissenting Opinion
{¶ 75} I agree with most of the majority's analysis. For the reasons it gives, Ohio's misdemeanants have the right to a jury trial which can be violated under Ohio's current sentencing scheme when a trial court imposes a maximum sentence under R.C.
{¶ 76} The Ohio Constitution grants the right to a jury trial to any criminal defendant who can potentially be imprisoned as a penalty for the accused crime. State v. Tate (1979),
{¶ 77} Although it is tempting to equate the waiver of the right to a trial by jury with the failure to demand the protections of that right, these are distinctly different acts. A petty offender cannot claim any protection of the constitutional right to a trial by jury if he has not properly demanded that right. Stauffer at 55-56. In essence, it is as if such an offender does not have the right at all. In contrast, a criminal defendant who waives his right to a jury trial when pleading guilty or agreeing to a bench trial is still protected by that right. When a defendant pleads guilty, he waives his right to a jury trial, but only in regard to the elements of the offense to which he is pleading guilty. See Blakely v. Washington (2004),
{¶ 78} Since a waiver of the right to a jury trial only applies to the guilt stage of the trial, unless it specifically states otherwise, such a waiver is distinctly different than a misdemeanant's failure to demand the protections of that right. In the first situation, the person waiving the right is still protected by that right when being sentenced. In the second situation, the person is never protected by that right.
{¶ 79} These principles can be boiled down to a simple statement: courts make it easy to exercise the right to a trial by jury, but difficult to waive the complete protection of that right once it is invoked. See Brewer v. Williams (1977),
{¶ 80} These principles are not based on the Ohio Supreme Court's application of Blakely to Ohio's felony sentencing scheme in State v. Foster,
{¶ 81} In this case, the Appellant was charged with a petty offense and never demanded a jury trial in accordance with Crim.R. 23(A). This is materially different than the facts inApprendi, Blakely, Foster, or the litany of cases the majority cites at footnote 2 because the defendants in each of those cases could legitimately claim the protection of the constitutional right to a trial by jury during the sentencing phase of the proceedings. The Appellant in this case cannot. Since he did not avail himself of the protection of his right to a jury trial at all in the trial court, he is not entitled to the protection of that right on appeal. The Appellant cannot now claim that the trial court violated his right to a jury trial when sentencing him to a maximum sentence because he did not first demand that right in the trial court. Accordingly, I must respectfully dissent from the majority's ultimate conclusion. The trial court's sentence should be affirmed.
