2007 Ohio 1941 | Ohio Ct. App. | 2007
{¶ 2} On November 2, 2004, the Franklin County Grand Jury indicted appellant on one count of: (1) aggravated burglary, in violation of R.C.
{¶ 3} On May 10, 2005, the trial court held a sentencing hearing. At the sentencing hearing, the trial court examined the seriousness and recidivism factors in R.C.
{¶ 4} Subsequently, on March 30, 2006, we reversed appellant's sentences, pursuant to State v. Foster,
{¶ 5} On June 5, 2006, the trial court held a resentencing hearing. At the resentencing hearing, the trial court stated:
* * * When I sentenced you the first time, I spent probably a couple of hours. As a matter of fact, exactly what I am going to do with you, in looking at this again, I have not changed my mind.
(June 5, 2006 Tr. at 6.)
{¶ 6} Thus, the trial court again sentenced appellant to separate sentences of six years imprisonment on both the felonious assault and aggravated burglary convictions. As noted, under R.C.
{¶ 7} Appellant appeals, raising one assignment of error:
The trial court erred in giving John Burton consecutive sentences totaling twelve (12) years for aggravated burglary and felonious assault.
{¶ 8} In his single assignment of error, appellant contends that the trial court imposed his sentences in contravention of statutes that the Ohio Supreme Court did not deem unconstitutional in Foster.
{¶ 9} To resolve this question, we turn first to our standard of review. Appellant asserts that we apply an abuse of discretion standard to his sentencing appeal. However, plaintiff-appellee, the State of Ohio, asserts that we review whether clear and convincing evidence demonstrates that appellant's sentences are contrary to law.
{¶ 10} When the Ohio legislature revised Ohio's felony sentencing laws, effective July 1, 1996, the legislature adopted a clear and convincing standard of review for sentencing appeals. State v.Shryock (Aug. 1, 1997), Hamilton App. No. C-961111. Previously, appellate courts reviewed sentencing appeals under an abuse of discretion standard. Id. *5
{¶ 11} Under the revised felony sentencing laws, R.C.
(G)(1) If the sentencing court was required to make the findings required by division (B) or (D) of section
2929.13 , division (D)(2)(e) or (E)(4) of section2929.14 , or division (H) of section2929.20 of the Revised Code relative to the imposition or modification of the sentence, and if the sentencing court failed to state the required findings on the record, the court hearing an appeal under division (A), (B), or (C) of this section shall remand the case to the sentencing court and instruct the sentencing court to state, on the record, the required findings.(2) The court hearing an appeal * * * shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under [applicable sections of the Ohio Revised Code];
(b) That the sentence is otherwise contrary to law.
{¶ 12} In Foster, the Ohio Supreme Court excised as unconstitutional R.C.
{¶ 13} Thus, in State v. Knopf, Franklin App. No. 05AP-1201,
{¶ 14} Likewise, in State v. Fout, Franklin App. No. 06AP-664,
*7* * * [A]ppellant argues that the trial court's sentence was an abuse of discretion. The state argues that, even post-Foster, we should not review appellant's sentence for an abuse of discretion, but, rather, pursuant to R.C.
2953.08 (G)(2), we may modify the sentence or remand for resentencing if we clearly and convincingly find that the sentence is contrary to law. We observe that this court has, to date, only once addressed this issue since Foster. We applied an abuse of discretion standard in a case involving imposition of a non-minimum, maximum prison sentence for a fourth-degree felony. See State v. Knopf, 10th Dist. No. 05AP-1201,2006-Ohio-3806 .In Foster, the Supreme Court of Ohio held that R.C.
2953.08 (G) no longer applies insofar as it refers to review of findings made pursuant to the severed statutory sections, including, as relevant here, R.C.2929.14 (B), which required judicial fact-finding to overcome presumptive minimum terms in certain circumstances. See Foster at ¶ 97, 99. Now, "* * * 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 ¶ 100. Thus, after Foster, when a defendant challenges the imposition of non-minimum sentences, the proper standard of review to be applied is that of abuse of discretion.
{¶ 15} However, in State v. Vickroy, Hocking App. No. 06CA4,
While the Foster Court declared that a sentencing court possesses full discretion in sentencing an offender, the Court abrogated R.C.
2953.08 (G), which defines the appellate court's role in sentencing, only "insofar as it applies to the severed sections" of Ohio's statutory sentencing scheme. Foster at ¶ 97-99. Thus, even after Foster, "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds * * * [t]hat the sentence is otherwise contrary to law." R.C.2953.08 (G) * * *.
Id. at ¶ 15.
{¶ 16} Similarly, in State v. Ramos, Defiance App. No. 4-06-24,
{¶ 17} Recognizing Vickroy and Ramos, we re-examine our decision inKnopf and Fout that an abuse of discretion standard applies to post-Foster sentencing appeals. As Vickroy noted, Foster did not totally abrogate from Ohio's felony sentencing laws R.C.
{¶ 18} Rather, Foster abrogated R.C.
{¶ 19} Based on the above, and contrary to Knopf and Fout, we conclude that R.C.
{¶ 20} Adhering to a clear and convincing as contrary to law standard is not inconsistent with Foster's holding that trial courts have "full discretion" to impose "a *9 prison sentence within the statutory range[.]" Foster at ¶ 100. As the Ohio Supreme Court noted in Mathis, a companion case to Foster:
* * * [I]n exercising its discretion, the court must carefully consider the statutes that apply to every felony case. Those include R.C.
2929.11 , which specifies the purposes of sentencing, and R.C.2929.12 , which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by statutes that are specific to the case itself.
Mathis at ¶ 38. For these reasons, in hindsight, we see the problems inherent in Fout and Knopf.
{¶ 21} In re-examining our prior opinions, we must be mindful of the doctrine of stare decisis. Stare decisis is shorthand for the maxim"stare decisis et non quieta mo vere-'stand by the past decisions and do not disturb settled things.'" Rocky River v. State Emp. RelationsBd. (1989),
{¶ 22} Nevertheless, an appellate court "not only has the right, but is entrusted with the duty to examine its former decisions and, when reconciliation is impossible, to discard its former errors." SeeGalatis at ¶ 43. Pursuant to Galatis, we may overrule prior precedent and depart from stare decisis if:
* * * (1) [T]he 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. * * *
(Footnote omitted.) Id. at ¶ 48. *10
{¶ 23} As to the first Galatis prong, we note that, contrary toKnopf and Fout, R.C.
{¶ 24} Admittedly, Fout and Knopf have not been subject to the "massive" or "widespread" criticism at issue in Galatis. It is clear, however, that Fout and Knopf have created uncertainty and complexity on the question of what standard of review applies in the significant number of appeals from post-Foster sentencings within this district. As exemplified by Ramos and Vickroy, other appellate districts have criticized the application of the abuse of discretion standard in such appeals and have issued opinions in conflict with Fout andKnopf. And, despite our decisions in Fout and Knopf, as demonstrated here, the prosecution continues to challenge our use of the abuse of discretion standard in this context.
{¶ 25} We note, too, that uncertainty exists on this issue because the clear and convincing standard differs from the abuse of discretion standard; specifically, the clear and convincing standard is not as deferential as the abuse of discretion standard. See, e.g.,Vickroy at ¶ 16 (noting that under the clear and convincing standard, "we neither substitute our judgment for that of the trial court nor simply defer to its discretion"); State *11 v. Hacker, Clark App. No. 2001-CA-85, 2002-Ohio-2920, at ¶ 21 (holding that the clear and convincing standard does not provide "the same extent of deference that prevailed under the abuse of discretion standard of review"). "`Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.'" State v.Eppinger (2001),
{¶ 26} Lastly, as to the third Galatis prong, we conclude that overruling Fout and Knopf would not create an "undue hardship." In considering this prong, we analyze whether the precedence "`has become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations.'" Galatis at ¶ 58, quoting Robinson v.Detroit (2000),
{¶ 27} In further finding no undue hardship to overrulingFout and Knopf, we recognize that such action ensures that this court no longer reviews post-Foster sentencing appeals under an incorrect standard. "`It does no violence to the legal *12
doctrine of stare decisis to right that which is clearly wrong. It serves no valid public purpose to allow incorrect opinions to remain in the body of our law.'" Galatis at ¶ 60, quoting State ex rel. Lake Cty.Bd. of Commrs. v. Zupancic (1991),
{¶ 28} Finally, we note that, when we first applied the abuse of discretion standard to post-Foster appeals in Knopf, neither party raised the standard of review issue. Thus, unlike here, inKnopf, we did not have the benefits of considering arguments outlining why we should continue to apply the clear and convincing standard of review to post-Foster sentencing appeals. And, while we did have such arguments before us in Fout, we rejected the arguments in recognition of our precedence in Knopf.
{¶ 29} For all of these reasons, we conclude that we should not continue to apply Fout and Knopf, which held that an abuse of discretion standard applies to post-Foster felony sentencing appeals. Instead, we hold that the clear and convincing standard enunciated in R.C.
{¶ 30} Having determined our standard of review, we next consider whether appellant's sentence is clearly and convincingly contrary to law. Specifically, appellant contends that this sentence contravenes R.C.
(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 *13 crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(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 section, 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 crimes committed by similar offenders.
{¶ 31} R.C.
{¶ 32} Here, in its June 7, 2006 judgment entry, the trial court noted that it "considered the purposes and principles of sentencing set forth in R.C.
{¶ 33} At the June 5, 2006 resentencing hearing, the trial court stated that it had not "changed [its] mind" from the original May 10, 2005 sentencing. (June 5, 2005 Tr. at 6.) At the May 10, 2005 sentencing hearing, the trial court noted the R.C.
{¶ 34} Specifically, the trial court noted that appellant inflicted serious physical harm on the victim. As an example, the trial court recognized that the victim suffered "pretty severe" injuries from appellant; she sustained "multiple" beatings to her face and underwent surgery for her injuries. (May 10, 2005 Tr. at 13.) Appellant's infliction of such serious physical injuries on the victim indicates that appellant's offenses are "more serious than conduct normally constituting the offense[s.]" R.C.
{¶ 35} The trial court also noted that appellant "prey[ed]" on the victim, who was much younger. (May 10, 2005 Tr. at 13.) The trial court then recognized that such a factor makes appellant's offenses here more serious than conduct normally constituting the offenses. See R.C.
{¶ 36} Next, at the May 10, 2005 sentencing hearing, the trial court recognized appellant's "extensive" criminal history. (May 10, 2005 Tr. at 14.) Such criminal history is a factor that demonstrates that appellant "is likely to commit future crimes[.]" See R.C.
{¶ 37} In light of the above, we conclude that neither appellant's marriage to the victim nor the victim's possible inability to visit or communicate with appellant while incarcerated negates the above-noted R.C.
{¶ 38} Lastly, appellant asserts that his prison sentences are unjustified, pursuant to R.C.
{¶ 39} Although resource burdens are relevant sentencing considerations under R.C.
"* * * The court must also consider the benefit to society in assuring that an offender will not be free to reoffend. Many people sleep better at night knowing that certain offenders are incarcerated. They would no doubt consider a lengthy incarceration worth the cost of housing those offenders."
Id. at ¶ 17, quoting State v. Vlahopoulos,
{¶ 40} Accordingly, based on the above, we uphold appellant's sentences, applying the clear and convincing as contrary to law standard. As such, we overrule appellant's single assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and McGRATH, JJ., concur.*1