STATE OF OHIO v. JAMES CARGILL
No. 98705
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 27, 2013
[Cite as State v. Cargill, 2013-Ohio-2689.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561451
JUDGMENT: VACATED AND REMANDED
BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 27, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
State Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary Weston
Daniel T. Van
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶2} Appellant was charged with failure to comply in violation of
{¶3} Pursuant to a plea agreement with the state, the furthermore clause was deleted and Cargill pled guilty to a violation of
{¶4} At sentencing the trial court, relying upon information in the presentence investigation report, found appellant‘s offense constituted an offense of violence, sentenced him to a 12-month prison term and suspended his drivers license permanently. This appeal followed.
{¶5} Cargill‘s sole assignment of error states:
The trial court erred when it sentenced Mr. Cargill contrary to law, imposing a one-year term of imprisonment rather than community control sanctions as required by
R.C. 2929.13 .
{¶6}
{¶7}
- A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21,
2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code; - A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;
- An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons.
{¶8} As appellant‘s conviction is not an offense that the legislature has categorically deemed an offense of violence in all instances by way of
{¶9} The question before this court is how to properly apply
{¶10} Our prior cases in which
{¶11} In State v. McCain, 48 Ohio Misc. 13, 357 N.E.2d 420 (2d Dist.1976), the Montgomery County Court of Common Pleas held that the offense of carrying a concealed weapon was an offense of violence irrespective of whether the underlying conduct at issue actually involved physical harm. The court noted that, at the time, the list of crimes contained within R.C. 2901.01, which the legislature had automatically deemed offenses of violence, included the offense of carrying a concealed weapon. Nonetheless, in dicta, the court asserted that “it could convincingly be argued that [the offense of carrying a concealed weapon] does involve a ‘risk of serious physical harm.’ * * * “. Id. at 16. The court
{¶12} In State v. Riggins, 35 Ohio App.3d 1, 519 N.E.2d 397 (8th Dist.1986), this court, without extensive analysis, cited the reasoning in McCain for the proposition that carrying a concealed weapon constituted a felony of violence. Id. at 18. Again, at the time, the list of legislatively designated offenses of violence in R.C. 2901.01 specifically included carrying a concealed weapon, rendering the dicta rationale in McCain superfluous. Subsequently, in 1996 the legislature removed the offense of carrying a concealed weapon from the list of offenses of violence contained within R.C. 2901.01. See Ohio S.B. 2 (eff. 7-1-96).
{¶13} In contrast to the Riggins decision‘s reference to McCain‘s categorical style approach to the statute, this court, in State v. Gauntt, 8th Dist. No. 63792, 1998 Ohio App. LEXIS 1062 (Mar. 12, 1998), while examining an ineffective assistance of counsel argument pertaining to an offense of violence, did not employ a categorical approach to the
{¶14} The federal courts have applied a categorical approach to evaluating whether a particular offense is to be considered a violent felony for the purposes of sentencing.
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, * * * that
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;
{¶15} Unlike the Ohio “offense of violence” definition, the federal “violent felony” definition does not contain an extensive list of crimes that must always be treated as violent felonies. In response to this void, the federal courts have adopted the categorical approach in order to classify which crimes will always be treated as violent under the broad language of
In determining whether an offense is a “violent felony,” the court must use the “categorical approach” and “consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offense. * * * [W]e are concerned with how the offense is generally or ordinarily committed, not how it might be committed in an unusual case.
(Internal citations omitted.) Id. at *18, quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed 2d 532 (2007).
{¶16} Applying the categorical approach, the Sixth Circuit Court of Appeals in Yates concluded that a violation of
{¶17} Unlike the federal “violent felony” definition, the Ohio legislature has already provided within
{¶18} We find that the McCain dicta, which applied a categorical-type approach, mistakenly interpreted the statutory definition of “offense of violence” found in
{¶19} Appellant argues in favor of what he labels an elements-based approach to
{¶20} Quite nonsensically, under either a pure categorical approach or an elements-only approach, a defendant could not be convicted of an “offense of violence” where the proven or admitted facts of the underlying crime actually involved “physical harm to persons or a risk of serious physical harm to persons” if the crime was not listed in
{¶21} Although we reject the categorical labeling of a violation of
{¶22} In the present case, appellant was initially charged with a violation of
{¶23} Pursuant to Blakely and Apprendi, the trial court was barred from engaging in judicial fact finding to determine that appellant‘s conduct in this instance qualified as an offense of violence because such a factual finding increased the penalty for the crime to which appellant pled guilty beyond the prescribed statutory maximum. Without this factual finding, the maximum sentence the trial court could have imposed solely on the basis of the facts admitted by appellant was a community control sanction pursuant to
{¶24} As Blakely explained, “[w]hen a defendant pleads guilty, the state is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to the judicial fact finding.” Id. at 310. As neither occurred in this case, the trial court was without authority to engage in judicial fact finding and treat his conviction as an offense of violence.
{¶25} For these reasons we vacate appellant‘s sentence and remand for resentencing.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
LARRY A. JONES, SR., P.J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., P.J., DISSENTING:
{¶26} I dissent. I would adopt a categorical approach to classify crimes under
{¶27} As noted by the majority,
{¶28} I would find that whether failure to comply can be considered a violent offense does not turn on the facts of a particular case. Instead, violations of statutes are interpreted by the elements of the crime and any related statutes or definitions. “In determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Thus, we must consider whether the offense itself is a crime of violence, without weighing the particulars of this case. Consequently, the specific finding the trial court made, that Cargill‘s offense was violent because he almost killed a pedestrian, does not affect our analysis. Nor do we consider the fact the state amended the indictment so that it no longer stated that Cargill caused a “substantial risk of serious physical harm to persons or property.”
{¶29} Unlike the majority, I would find the Yates decision instructive. Yates, 6th Cir. No. 11-3833, 2012 U.S. App. LEXIS 20857 (Oct. 5, 2012). In Yates, the court had to determine whether the defendant would be sentenced as an armed career criminal under the federal Armed Career Criminal Act (“ACCA“); to qualify as an armed career criminal, a defendant has to have at least three prior “violent felony” convictions.
{¶30} The Yates court noted that “[i]n determining whether an offense is a ‘violent felony,’ the court must use the ‘categorical approach’ and ‘consider whether the elements of the offense are of the type that would justify its inclusion * * *, without inquiring into the specific conduct of this particular offender.” (Citations omitted.) Id. at *18. Importantly, the court found that the same analysis applies to determining whether an offense is a “crime of violence.” Id. at fn. 6.
{¶31} At issue in Yates was whether failure to comply pursuant to
{¶32} The Yates court relied on the United States Supreme Court‘s decision in Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), which held that, under Indiana law, felony vehicle flight qualifies as a violent felony. The Sykes Court reasoned:
When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator‘s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous
to others. This similarity is a beginning point in establishing that vehicle flight presents a serious potential risk of physical injury to another. * * *
Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.
Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.
Sykes at 2273-2274; Yates at *22-*25.
{¶33} In Sykes, the offense in question was felony vehicle flight or “us[ing] a vehicle” to “knowingly or intentionally” fle[e] from a law enforcement officer” after being ordered to stop. Id. at 2268, citing
{¶34} The Yates court concluded that the district court correctly found that R.C.
simple vehicular flight poses risks comparable to or more certain than the enumerated offenses of arson and burglary applies even more so to the offense at hand because fourth degree felony failure to comply requires not only that an offender willfully elude or flee from an officer‘s signal to stop, but also that the offender be fleeing immediately after the commission of another felony.
{¶35} Using the same categorical analysis in our case, and in accordance with Yates, I would likewise conclude that failure to comply in violation of
{¶36} Therefore, I would find the trial court had the discretion to sentence Cargill to prison for a violation of
{¶37} I would note that it is not necessary to reach the issue of whether every violation of Ohio‘s failure to comply statute is an offense of violence for purposes of sentencing; my analysis is limited to the specific offense for which Cargill was convicted.
{¶38} I would further note that federal courts have interpreted state laws differently. Under Indiana law, as analyzed in Sykes, there are not varying penalties under the vehicle-flight offenses. In Ohio, the legislature has assigned differing penalties for violations of the failure to comply statute, ranging from a first-degree misdemeanor to a third-degree felony. Interestingly enough, the Sixth Circuit has interpreted
{¶39} Finally, Cargill argued that he was deprived of the “benefit of his plea bargain” because he pleaded guilty to a crime that had “mandatory probation.” But Cargill did not lose the benefit of his plea bargain; if he had been convicted of his original indictment, he would have faced a possible prison sentence ranging from 9 to 36 months in prison.
{¶40} Thus, I would overrule the assignment of error and affirm the trial court‘s judgment.