2008 Ohio 6591 | Ohio Ct. App. | 2008
¶{3} In case number 07CR625, on June 7, 2007, Gray was indicted on two counts: count one was for retaliation, a violation of R.C.
¶{4} These cases were set together for pretrial and on July 13, 2007, Gray entered into a plea agreement with the state for both cases. In case number 06CR154, Gray pled guilty to counts one and four of the indictment — felonious assault and menacing by stalking; the state dismissed counts two and three — domestic violence and assault. The state agreed to recommend a six year sentence for felonious assault and an eighteen month sentence for menacing by stalking. It would recommend that those sentences run concurrent with each other and concurrent with the sentence in 07CR625. *3 ¶{5} In case number 07CR625, Gray pled guilty to count one of the indictment — retaliation; the state dismissed the second count — harassment by an inmate. It agreed that it would recommend five years for retaliation and that time would be recommended to be served concurrent with the sentence in 06CR154. Therefore, for case numbers 06CR154 and 07CR625, the state was recommending an aggregate sentence of six years.
¶{6} After a Crim. R. 11 colloquy, the trial court accepted the pleas. 07/13/07 Judgment Entries for Case Nos. 06CR154 and 07CR625.
¶{7} Sentencing for both cases occurred in one hearing on August 10, 2007. At the sentencing hearing, the state went through the terms of the plea agreement. However, after stating the terms, the state indicated that it was rescinding its recommendation for an aggregate sentence of six years and would instead recommend the maximum. (Sentencing Tr. 2). Its reason for rescission was that following the plea, the state learned that Gray had picked up two new charges, two counts of assault on a deputy. (Sentencing Tr. 2).
¶{8} Deputy Blount, the victim of the harassment by inmate charge, which was dismissed, and the victim of the new assault charges, made a statement prior to sentencing. Also, a written victim statement by Michelle Smith, the victim of the felonious assault charge, was read into the record.
¶{9} Both of Gray's attorneys then made statements requesting that the court follow the recommendation made in the plea agreement. (Sentencing Tr. 12-13). Thereafter, the trial court asked Gray if he would like to say anything. (Sentencing Tr. 14). Gray responded in the negative. (Sentencing Tr. 14).
¶{10} The trial court then reviewed Gray's criminal history and proceeded to sentencing. (Sentencing Tr. 15). In case number 06CR154, he received six years for felonious assault and eighteen months for menacing by stalking. Those sentences were ordered to run concurrent with each other. In case number 07CR625, Gray received five years for retaliation. The trial court ordered that sentence to be served consecutive to the sentence issued in 06CR154. Thus, Gray received an aggregate sentence of eleven years. 08/14/07 Judgment Entries for Case Nos. 06CR154 and 07CR625; (Sentencing Tr. 15-16). Gray timely appeals raising two assignments of error.
¶{12} Following Foster, there has been confusion among the appellate courts as to what the standard of review is for felony sentences. There have been three approaches taken by the appellate courts. Some appellate districts, including ours, have held that R.C.
¶{13} Given these different approaches, the Ohio Supreme Court attempted to resolve the conflict in State v. Kalish, Slip Opinion No.
¶{14} The plurality concluded that in reviewing felony sentences the appellate courts must apply a two-step approach. Id. at ¶ 26 (O'Connor, J., plurality opinion). The first step requires appellate courts to "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law." Id. (O'Connor, J., plurality opinion). In examining "all applicable rules and statutes," the sentencing court must consider R.C.
¶{15} The concurring in judgment only opinion did not entirely agree with the plurality's "overly broad" two step approach to reviewing felony sentences. Id. at ¶ 42 (Willamowski, J., concurring in judgment only). It agreed with the plurality that the sentence should be reviewed under the clearly and convincingly contrary to law standard to determine if the sentencing court complied with all applicable rules and statutes, which would include R.C.
¶{16} The dissent concluded that post-Foster the standard of felony sentencing review remains unchanged and that only a clearly and convincingly contrary to law standard of review is employed. Id. at ¶ 43 (Lanzinger, J., dissenting).
¶{17} Considering the above holdings and reasons in Kalish, the confusion surrounding the standard of review for felony sentences has not been clearly resolved. What we can glean from Kalish is that appellate courts should review felony sentences under both the clearly and convincingly contrary to law standard and the abuse of discretion standard of review until the Supreme Court clearly and expressly determines the standard of review.
¶{18} With that standard in mind, we now turn to reviewing the sentence. We start with the determination of whether the trial court considered the applicable statutes in sentencing. Post-Foster, when sentencing, a court must consider the purposes of felony sentencing enumerated in R.C.
¶{19} Here, the trial court, in its sentencing entry, stated:
¶{20} "The court considered the record, oral statements, as well as the principles and purposes of sentencing under ORC §
¶{21} Furthermore, the six year sentence for felonious assault, a second degree felony, fell within the applicable two to eight year range; the eighteen month sentence for menacing by stalking, a fourth degree felony, fell within the applicable six to eighteen month range, and the five year sentence for retaliation, a third degree felony, fell within the applicable one to five year range. R.C.
¶{22} Thus, as is shown, the trial court clearly considered the applicable statutes when sentencing Gray.
¶{23} Next, we must determine whether the trial court abused its discretion in sentencing Gray. At the sentencing hearing, the trial court considered the likelihood of recidivism, which is enumerated in R.C.
¶{24} "THE COURT: Assault, gross sexual imposition, attempted and felonious assault, resisting arrest, criminal trespass, flight to avoid prosecution, assault, carrying concealed weapon, probation violation, three counts of assault, gross sexual imposition. Okay. This court doesn't believe in demeaning Mr. Gray in any fashion more so than what his record displays to the court, but taking everything into *7 account, it is going to be the order of the court in Case 06 CR 154 in Count One the defendant will be sentenced to six years in the Lorain Correctional Facility. There will be no fine imposed due to his indigency. Costs will be imposed.
¶{25} "In Count Four of Case Number 06 CR 154, the defendant will be sentenced to 18 months, Lorain Correctional Facility. There will be no fine. Court costs will be imposed. The 18 months in Count Four to be served concurrently with the six years.
¶{26} "In 07 CR 625, the count of retaliation, it will be the order of the court the defendant will be sentenced to five years Lorain Correctional Facility; that five years to be served consecutively to the six-year term in Case Number 06 CR 154. There will be no fine imposed. Court costs will be imposed." (Sentencing Tr. 15-16).
¶{27} Additionally, prior to sentencing, the trial court heard and considered a statement from Deputy Blount, who was the victim on the new charges against Gray and was also the victim of the harassment by an inmate charge (which was dismissed) in case number 07CR625. This statement concerned Gray being a continual problem in the county jail and, as such, is a consideration under the recidivism factors in R.C.
¶{28} "It is well-established that a sentencing court may weigh such factors as arrests for other crimes. As noted by the Second Circuit United States Court of Appeals, the function of the sentencing court is to acquire a thorough grasp of the character and history of the defendant before it. The courts' consideration ought to encompass negative as well as favorable data. Few things can be so relevant as other criminal activity of the defendant: To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions.' United States v. Doyle (C.A.2, 1965),
¶{30} Taking into account all the recidivism and seriousness indicators in R.C.
¶{31} In conclusion, the trial court did consider R.C.
¶{33} Gray's argument under this assignment of error is that the trial court failed to comply with Crim. R. 32(A) in that he was not given the right to allocution in each case number. Crim. R. 32(A)(1) confers a right of allocution. It requires the trial court, before imposing sentence, to "address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment." Crim. R. 32(A)(1). The purpose of Crim. R. 32(A)(1) is to inform a defendant that he or she has a right to make a statement or offer information in mitigation of sentence.State v. Hunter, 2d Dist. No. 2006 CA 30,
¶{35} During sentencing, the trial court did personally address Gray and gave him the opportunity to speak on his own behalf — the right of allocution. (Sentencing Tr. 14).
¶{36} "THE COURT: Okay. Mr. Gray, is there anything you would like to say prior to the court imposing sentence?
¶{37} "THE DEFENDANT: No, sir, Your Honor.
¶{38} "THE COURT: Nothing?
¶{39} "THE DEFENDANT: No, sir." (Sentencing Tr. 14).
¶{40} The trial court then proceeded to sentence Gray on both case numbers. (Sentencing Tr. 15-16).
¶{41} Gray contends that this colloquy was not sufficient to guarantee his right to allocution. He contends that the trial court should have specified that it was asking about both case numbers. In support of his argument he cites to Green,
¶{42} A three judge panel found Green guilty of aggravated murder, a capital offense, and other noncapital offenses. Following the penalty phase, the court asked whether the defense had any objection to sentencing on the noncaptial offenses as well as the capital offense. The defense responded that it did not. The trial court then asked:
¶{43} "Is there anything with regard to those offenses, Counsel or Mr. Green, prior to the Court passing sentence on both those counts as well as on Counts 7, 8, and 10?"
¶{44} Green said nothing in response to the inquiry. The Supreme Court held that the above request from the trial court was not explicit enough. The Court stated *10 that the trial court "erred in not explicitly asking Green, in an inquiry directed only to him, whether he had anything to say before he was sentenced." Id. at 359. The Court then stated:
¶{45} "The trial court's reference to `both those counts' is ambiguous. The context suggests that the court may have solicited comment only on the noncapital offenses. Instead, the trial court should have specifically asked Green if he had anything to say about the capital counts as well as the other offenses. The record demonstrates a violation of Crim. R. 32 that was neither invited nor harmless." Id. at 359.
¶{46} Thus, for those reasons, the Supreme Court found that Green's right to allocution was violated and remanded the case for resentencing.
¶{47} The Green case does not support Gray's argument to the extent he suggests. The above quote indicates that the context in which the trial court solicited comments from Green may have only been a request for comments on the noncapital offenses and not a request for comments on the capital offense. That is not the case here. These cases were set together for pretrial and the trial court accepted the pleas for 06CR154 and 07CR625 at the same time. It is clear how these cases were being processed that the trial court's question about having anything to say before sentencing was a question concerning both case numbers and all counts under those case numbers.
¶{48} Similarly, our sister district has stated that while "theGreen court discussed these ambiguities, a fair reading of the case does not lead us to believe that the issue of ambiguity among counts was dispositive in the court's thinking. The stated rule is broader than that. Rather, the court seems to have adopted a federal holding on the issue when it quotes Green v. United States (1961),
¶{49} Additionally, Green is distinguishable because it is a capital case. The Supreme Court was clearly focusing on the fact that Green was not afforded his right *11 to allocution because the request was not clear that Green could make statements about both the capital offense and noncapital offenses. The Court honed in on whether Green understood he could speak about the capital offense and make his own individual plea for mitigation. The right to allocution in a capital case is the last plea for not imposing the death sentence and is a very important right. As such, as the state indicates, capital cases are different from noncapital cases. For all the above reasons, we find that Green was adequately afforded his right to allocution and that this assignment of error is meritless.
¶{50} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
*1Waite, J., concurs.
