State v. Carter, 2006-P-0056 (9-21-2007)State v. Carter, 2006-P-0056 (9-21-2007)
Lead Opinion
OPINION
{¶ 1} James W. Carter appeals from the judgment of the Portage County Court of Common Pleas, sentencing him to two years imprisonment for possession of cocaine. We affirm.
{¶ 2} October 6, 2005, the Portage County Grand Jury indicted Mr. Carter for possession of cocaine, in violation of
{¶ 3} February 27, 2006, sentencing hearing was held. Mr. Carter requested a minimum sentence of one year, nоting in support his contrition, his large and supportive family, and his prior criminal record, which included only two traffic offenses, and minor misdemeanor possession of marijuana. The trial court remarked on the fact Mr. Carter had been arrested and charged with driving without a license and possession of marijuana in January 2006, which Mr. Carter admitted. Nеither Mr. Carter nor his attorney noted that these charges had been dismissed February 10, 2006 — which fact the trial court would not have known, as the presentence report before it indicated the matter was “open.” By a judgment entry filed March 2, 2006, the trial court found that Mr. Carter was not amenable to community control, and that imprisonment was appropriate. The trial court imposed a prison term of two years, along with a $5,000 fine, and six month driver‘s license suspension.
{¶ 4} May 19, 2006, Mr. Carter moved to withdraw his “Guilty” plea, pursuant to Crim.R. 32.1. The trial court denied this motion May 31, 2006. June 7, 2006, Mr. Carter moved this court for leave to file a delayed appeal, pursuant to App.R. 5. By a judgment entry filed June 28, 2006, we granted lеave. Mr. Carter assigns two errors:
{¶ 5} “[1.] The trial court erred to the prejudice of the appellant when it sentenced him to more than the minimum prison term which sentence is contrary to law[.]
{¶ 6} “[2.] The trial court violated appellant‘s due process rights when the sentence imposed was significantly greater than similarly situated criminal defendants[.]”
{¶ 7} Under his first assignment of error, Mr. Carter argues that his more-than-minimum, two-year sentence for a third degree felony is unreasonable. In support, he cites to
{¶ 8} Under his second assignment of error, Mr. Carter challenges his more-than-minimum sentence pursuant to
{¶ 9} Prior to the landmark decision of the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, Ohio‘s appellate courts, applying
{¶ 10} Foster has changed the sentencing landscape. One of the sections set forth at
{¶ 11} However, we cannot agree with those courts holding that the appellate sentencing statute,
{¶ 12} Rather, our review seems now, like Gaul, to be divided into three parts. Questions of law we review, as always, de novo. The de novo and clear and convincing standards continue to apply to those parts of the statutory sentencing structure unaffected by the Foster excisions; for instance, downward departures pursuant to
{¶ 13} Under his first assignment of error, Mr. Carter contends the trial court misapplied the seriousness and recidivism factors set forth under
{¶ 14}
{¶ 15} We agree with Mr. Carter that none of the exacerbating factors relative to seriousness set forth at
{¶ 16} However, three of the five factors indicating a propensity to recidivism are present.
{¶ 17}
{¶ 18}
{¶ 19} It might be argued the dismissal of the marijuana possession charge filed against Mr. Carter between the times of his plea and his sentencing militates against its use by the trial court in determining recidivism. However, nothing in the record indicates the dismissal was brought to the trial court‘s attention. Certainly, neither Mr. Carter nor his counsel mentioned this at the sentencing hearing, and the presentence report indicates the case was “open.” Mr. Carter has moved us to supplement the record of this appeal with the docket for the dismissed case. However, a court of appeals is generally forbidden from considering matters not in the record before the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730.
{¶ 20}
{¶ 21} Finally,
{¶ 22} Similarly, at least three of the
{¶ 23} A trial court has great latitude in applying the seriousness and recidivism factors, when sentencing. Cf.
{¶ 24} The first assignment of error lacks merit.
{¶ 25} Under his second assignment of error, Mr. Carter argues that his sentence violates
{¶ 26}
{¶ 27} We have previously indicated that case-by-case comparisons, while possibly helpful to the courts in determining consistency for
{¶ 28} The second assignment of error is without merit.
{¶ 29} The judgment of the Portage County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
Concurrence Opinion
{¶ 30} Although I agree appellant‘s sentence should be affirmed, I disagree with the standard of review applied in the opinion. The opinion outlines a de novo standard
{¶ 31}
{¶ 32} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court held: “[T]rial 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 that the minimum sentences.” Id. at ¶ 100. Thus, after Foster, when a defendant chаllenges the imposition of non-minimum sentences, the proper standard of review to be applied is that of abuse of discretion. Id. at ¶ 100 and 102.
{¶ 33} After the Supreme Court‘s decision in Foster, appellate courts have repeatedly held that an abuse of discretion standard now applies in reviewing felony sentences.
{¶ 34} The Second Appellate District held that, pursuant to Foster, the “appellate court standard of review on sentencing issues is now abuse of discretion.” State v. Slone, 2d Dist. Nos. 2005 CA 79 and 2006 CA 75, 2007-Ohio-130, at ¶ 7.
{¶ 35} In State v. Schweitzer, 3d Dist. No. 2-06-25, 2006-Ohio-6087, the Third Appellate District held: “Foster altered the appellate court‘s standard of review for sentencing appeals from clear and convincing to abuse of discretion. Foster, supra, at ¶ 100 and 102. Accordingly, an appellate court reviews felony sentencing cases under the abuse of discretion standard of review. * * *” Id. at ¶ 19.
{¶ 36} The Fifth Appellate District also recognized that Foster changed the standard of review of felony sentences. In State v. Firouzmandi, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, the court held: [W]e conclude that post-Foster; this Court reviews the imposition of consecutive sentences under an abuse of discretion standard. Furthermore, when applying the abuse of discretion standard, an appellate court may not generally substitute its judgment for that of the trial court.” Id. at ¶ 40.
{¶ 37} The Sixth Appellate District has recently held that, pursuant to Foster, appellate courts apply an abuse of discretion standard in reviewing sentencing. State v. Kerr, 6th Dist. No. WD-05-080, 2006-Ohio-6058. The court held: “A sentence will not be disturbed absent a trial court‘s abuse of discretion.” Id. at ¶ 36.
{¶ 38} “The Ninth Appellate District also ruled on the post-Foster standard of review in State v. Dossie, 9th Dist. No. 23117, 2006-Ohio-5053. The court held: “Foster altered this Court‘s standard of review which was previously a clear and convincing error standard. * * * Accordingly, this Court reviews аppellant‘s sentence utilizing an abuse of discretion standard. * * *” Id. at ¶ 25. (Citations omitted.) See, also, State v. Jones, 9th Dist. No. 23316, 2007-Ohio-239.
{¶ 39} The Tenth Appellate District recently held that post-Foster, appellate courts review sentencing under an abuse of discretion standard. State v. Fout, 10th Dist. No. 06AP-664, 2007-Ohio-619. The court held: “In Foster, the Supreme Court of Ohio held that
{¶ 40} This Court has held that post-Foster, we apply an abuse of discretion standard when reviewing felony sentences that are within the statutory range. State v. Lloyd, 11th Dist. No. 2006-L-185, 2007-Ohio-3013, at ¶ 36. Our holding is consistent with the Second, Third, Fifth, Sixth, Ninth, and Tenth Appellate Districts. Therefore, I would hold that аn abuse of discretion standard of review is appropriate in this case.
Dissenting Opinion
{¶ 41} I respectfully dissent.
{¶ 42} While justice is not always precise, it should not rest upon the uncertainty of conjecture. The majority characterizes the issue in this case as “[t]he trial court‘s possible consideration of a drug arrest not resulting in conviction for sentencing purposes.” (Emphasis аdded) There is no issue of possibility in this case. Prior to sentencing, the trial court noted in court that appellant had been subsequently arrested and charged with Driving Without a License and Possession of Marijuana. The presentence report indicated that the matter was “open.” The charges actually had been dismissed two weeks before the sentencing hearing. We do not know whether the
{¶ 43} Our system is premised on the principle that individuals are innocent until proven guilty.
{¶ 44} It would be clear and convincing error to impose a more substаntial sentence on the basis of a dismissed criminal charge. However, in this matter, we do not know if that is the case, although it appears to be so.
{¶ 45} Instead of speculating one way or the other, justice dictates that we remand this case to the trial court and allow that court the opportunity to impose a sentencе based on the correct facts and a more accurate presentencing report.
{¶ 46} For these reasons, I would reverse the sentencing ruling of the Portage County Common Pleas Court and remand the case to that cou