STATE OF OHIO, Plaintiff-Appellee, vs. DANIEL HAMBERG, Defendant-Appellant.
APPEAL NO. C-140536
TRIAL NO. B-1201167
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 9, 2015
[Cite as State v. Hamberg, 2015-Ohio-5074.]
STAUTBERG, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Merlyn D. Shiverdecker, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
{1} Defendant-appellant Daniel Hamberg appeals from his convictions for aggravated murder, murder, felonious assault, and endangering children and from the Hamilton County Common Pleas Court‘s judgment overruling his “Motion for New Trial Limited to Sentencing.” We dismiss the appeal from the judgment of conviction, and we reverse the judgment overruling his postconviction motion and remand for a hearing.
{2} Hamberg was indicted in March 2012 for aggravated murder, murder, felonious assault, and endangering children, for the death of his girlfriend‘s 14-month-old son. In February 2014, he withdrew his not-guilty plea and entered a guilty plea to involuntary manslaughter in violation of
{3} On April 2, 2014, two days before the judgment of conviction was journalized, the trial judge had appeared on a local radio show and had talked extensively about Hamberg‘s case. Hamberg submitted a transcript of the judge‘s radio appearance in support of postconviction motions filed with the common pleas court on April 18, captioned, “Motion for New Trial Limited to Sentencing” and “Motion for Recusal.” In his motions, he sought a new sentencing hearing before a different judge on the grounds that the trial court had sentenced him for another offense with which he had been charged rather than the offense to which he had pleaded, and that the court, in sentencing him, had disregarded
{4} On September 15, Hamberg filed a notice of appeal from both the April 4 judgment of conviction and the August 20 entry overruling his “Motion for New Trial.”
The Appeal is Dismissed in Part
{5} We note at the outset that while Hamberg timely appealed the overruling of his “Motion for New Trial,” he failed to perfect a direct appeal from his judgment of conviction. A notice of appeal must be filed within 30 days of the entry of the judgment or order appealed.
{6} Although the time for filing a direct appeal from a judgment of conviction may be extended by the filing of a “timely and appropriate” motion for a new trial, Hamberg‘s “Motion for New Trial” did not toll the time for filing his direct appeal, because it was not “appropriate.”
{7} Hamberg had been convicted upon a guilty plea, and a
{8} The failure to timely file a notice of appeal deprives an appellate court of jurisdiction to entertain the appeal. State ex rel. Curran v. Brookes, 142 Ohio St. 107, 50 N.E.2d 995 (1943), paragraph seven of the syllabus. Hamberg did not directly appeal his judgment of conviction within the 30 days required by
The Motion was Reviewable under the Postconviction Statutes
{9} In his timely appeal from the overruling of his “Motion for New Trial,” Hamberg presents two assignments of error that restate the grounds for relief advanced in the motion and thus, read together, challenge the denial of the relief sought. The challenge is well taken.
{10} In his motion, Hamberg expressly sought not to withdraw his guilty plea, but to be resentenced. He captioned his motion, “Motion for New Trial,” and invoked
{11}
{12} Hamberg‘s motion was filed after his conviction, was supported by evidence outside the record of the proceedings leading to his conviction, and sought an order vacating his sentence based on an alleged violation of constitutional rights. Therefore, the common pleas court should have reviewed the motion under the standards provided by the postconviction statutes.
The Court Erred in Denying Postconviction Relief without a Hearing
{13} A postconviction petitioner bears the initial burden of demonstrating, through the petition, evidence outside the record, and the record of the case, “substantive grounds for relief.”
{14} Due process. The Due Process Clause of the
{15} The sentencing purposes and the seriousness-and-recidivism factors.
{16} To comply with the sentencing purposes, “it is presumed that a prison term is necessary” for a first-degree felony.
{17} The court is not required to make specific findings on the record to show that it considered the applicable factors. State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). In the absence of an affirmative demonstration to the contrary, we may presume from even a silent record that the court considered the factors. State v. Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24.
{18} Hamberg‘s sentencing. Hamberg pleaded guilty to the first-degree felony of involuntary manslaughter in violation of
{19} In his sentencing memorandum, Hamberg offered his version of the events preceding the victim‘s death, along with the reports of seven medical experts and an injury-causation expert who supported his version of the events, records concerning his military service, and letters attesting to his character.
{20} According to Hamberg, he and the victim‘s mother had lived together for several months. On February 1, 2012, Hamberg brought the victim home from daycare and took him upstairs to change his diaper. Preceding the victim back down the stairs, Hamberg turned to see the victim fall, strike his head on a step, and tumble a few more steps before Hamberg caught him. Hamberg called 911 and reported that the victim had fallen down the stairs, appeared to be having a seizure, and was nonresponsive and gasping for air. The victim‘s mother confirmed to the police that the victim had regularly jumped from the stairs to her or Hamberg. Hamberg told the police that the victim had surprised him by jumping from the top step.
{21} The expert reports submitted by Hamberg were based upon the relevant police reports, photographs, and medical records. The experts found no evidence of nonaccidental trauma and concluded that the victim‘s brain injury had resulted from a single incident of trauma, and that the injury was consistent with the victim hitting his head in an accidental fall on the carpeted stairs. Hamberg‘s experts also concluded that death had not likely been caused by the brain injury, but instead by the unusual complication of significant cerebral swelling influenced greatly by a lack of oxygen due to seizures.
{22} The sentencing memorandum also included a detailed account of Hamberg‘s four years in the Marines, the disabling injuries he suffered while serving in
{23} The court ordered a presentence investigation. In that report, Hamberg stated that he had not used alcohol or drugs in over two years. The report showed misdemeanor assault and theft convictions from ten years earlier and a number of traffic violations as recently as two years earlier. In her victim-impact statement, the victim‘s mother asserted that Hamberg had “abused alcohol and smoked marijuana on a daily basis,” that his version of events was “not true,” that he had “violently abused [the victim] out of frustration” while attempting to change his diaper, and for that reason, he should spend the rest of his life in prison.
{24} At the sentencing hearing, the assistant prosecuting attorney argued that “the severity of the injury in this case, the harm caused to the family and to the child, demands nothing less than the maximum sentence.”
{25} The trial court then proceeded to sentence Hamberg to the maximum sentence and fine permitted for the crime to which Hamberg pleaded. The court, however, made statements in the course of sentencing that raises the issue of due process and compliance with
I don‘t want anyone to lose sight of the fact that a baby is no longer with us as a result of your actions—or inaction. The point is, a child was in your care and that child is gone * * *. To me there is nothing worse * * *. I can handle just about everything. But when it comes to the death of children at the hands of caretakers, I have a really, really, really difficult time with it. * * * [W]hen a baby‘s life is lost, I have absolutely zero sympathy for the perpetrator. * * * [M]y regret about this, is that[] the most that I can give you * * * is 11 years.
{26} The trial judge‘s radio appearance. The day following the sentencing hearing, but prior to the court‘s journalization of the sentence, the trial judge appeared on a local radio show to talk about, in the words of the host, “this American War Hero, Daniel Hamberg, that you sentenced yesterday to 11 years in jail.” The remarks made by the trial judge indicated that facts not in the record influenced Hamberg‘s sentence. When asked “why [the case came] down the way it did,” the judge offered the following remarks:
[T]he child had died of severe traumatic head injury. * * * [I]t came from a number of different things, but they can‘t pinpoint exactly what it was. * * * [A] lot of people know that as Shaken Baby Syndrome. * * * I don‘t know that that was the case here. I think the kid was just beat.
{27} Asked what consideration she gave in sentencing to Hamberg‘s status as a permanently disabled “American War Hero,” the judge stated,
I looked at everything * * * [the] sentencing memo * * * the Presentence Investigation Report * * * the Victim Impact Statement, but the bottom line is * * * a baby is dead at his hands.
He admitted to it. He pled to it, and as result of that, I don‘t really care what you‘ve done, you‘ve killed a child. * * * [I]n this particular case, I don‘t care if
he had been President of the United States, he‘s perfectly capable of behaving in an appropriate manner, and beating a child and admitting to beating that child, and pleading to that is not okay. So I did the most I could do and that was 11 years.
{28} Finally, the trial judge also discussed her disregard of the expert testimony presented by Hamberg when asked about the expert reports indicating injuries consistent with the victim falling down stairs: “But anything--I mean, yeah, I know. But you can get an expert to say anything.”
{29}
{30} “The term ‘abuse of discretion’ * * * implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). An “arbitrary” decision is one “founded on prejudice or preference rather than on reason or fact.” State v. Clark, 1st Dist. Hamilton No. C-130672, 2014-Ohio-3612, ¶ 8, quoting Black‘s Law Dictionary 112 (8th Ed.2004). Thus, a trial court abuses its discretion when it disregards the sentencing statutes and instead bases its decision on prejudice or preference. Clark at ¶ 8 (holding that the trial court abused its discretion when it denied the statutorily eligible defendant‘s petition for expungement based on its arbitrary policy to deny all applications to expunge domestic-violence convictions); State v. Godfrey, 183 Ohio App.3d 344, 2009-Ohio-3726, 916 N.E.2d 143, ¶ 4-6 (1st Dist.) (holding that the trial court‘s failure, in resentencing defendant, to consider the statutory factors or a lesser prison term was not excused because his “conscience” would not allow him to change a sentence imposed for a violent offense). An “unreasonable” decision is one that “lacks a ‘sound reasoning process.‘” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Thus, a court abuses its discretion when it effectively sentences the defendant for a crime that was not proven. Columbus v. Jones, 39 Ohio App.3d 87, 89-90, 529 N.E.2d 947 (10th Dist.1987) (holding that the court abused its discretion in imposing a more severe sentence upon defendant‘s conviction of a lesser offense upon its belief that the jury was mistaken in acquitting him of a more serious offense); State v. Longo, 4 Ohio App.3d 136, 141, 446 N.E.2d 1145 (8th Dist.1982) (holding that the court abused its discretion in basing the sentence upon its own investigation of a crime that was neither charged nor proven); State v. Jeffers, 57 Ohio App.2d 107, 109, 385 N.E.2d 641 (1st Dist.1978) (holding that the court abused its discretion in increasing the sentence upon its belief that defendant had lied on the stand, because he was effectively being punished for an offense for which he was neither charged nor tried).
{31} Hamberg, through his motion, its supporting evidentiary material, and the record of the proceedings leading to his conviction, demonstrated substantive grounds for relief. He was indicted for aggravated murder, murder, felonious assault, and endangering children. But he maintained, and supported his motion with evidence tending to prove, that the victim
{32} The trial court‘s remarks at the sentencing hearing and on the radio show made plain that the court imposed the maximum prison sentence based not on the sentencing purposes and factors, but on its disregard for the opinions of the defense‘s experts and the unfounded belief that the victim‘s death had resulted from an intentional “beat[ing].” Also evident was its predisposition against crediting any mitigating factor, including Hamberg‘s military service and related disabilities, when determining a sentence for a defendant who has “pled to,” and thus “admitted to,” “kill[ing] a child.”
{33} Thus, Hamberg, in his postconviction motion, demonstrated that the trial court, in determining his sentence, had been biased against him and had abused its discretion in failing to give due consideration to the sentencing purposes and factors. Because he sustained his burden of demonstrating substantive grounds for relief, Hamberg was entitled to a hearing on the motion.
We Reverse and Remand for a Hearing
{34} We, therefore, hold that the common pleas court erred when it denied Hamberg‘s postconviction motion without a hearing. Accordingly, we sustain the assignments of error, reverse the court‘s judgment, and remand this cause for further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
HENDON, P.J., concurs separately.
DEWINE, J., dissents.
HENDON, P.J., concurring separately.
{35} Because I agree that the appellant has sustained his burden of presenting the trial court with sufficient cause to require a hearing on his motion, I concur with the majority opinion above. It must be remembered that the appeal before this court is from the overruling of the “Motion for New Trial,” in addition to a direct appeal. In reading the dissent below, that procedural aspect appears to be discounted.
{36} State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, established the authority for a court to recast a motion for relief from judgment as a petition for postconviction relief as fully discussed herein. The meaning of this holding can hardly be misinterpreted or considered in any way other than the language of the decision itself.
{37} Yet the dissent chooses to disregard this precedent and strongly criticize the majority opinion for its application of Schlee to this matter. In addition, the series of hypothetical questions posed in paragraph 55 do nothing to further support the minority‘s view. They present only speculation.
{38} Criticism of the majority view is inherent in a well-written dissent, but the work of a reviewing court is best done with a vigorous and thorough discussion of the issues before it in a process that ideally includes a respect for the position taken by each member of the reviewing panel. Unfortunately, the dissent in this case, in its zeal to present its position, has ignored that ideal.
DEWINE, J., dissenting.
{39} The majority today goes where no Ohio court has gone before. Confronted with a direct appeal of a criminal conviction, it chooses to pretend that it is
{40} The majority tries to justify its result through a remarkable three-step process. In step one, it decides to split the appeal in half and separate Hamberg‘s “appeal” of his criminal conviction from his appeal of the denial of his motion for new trial. In step two, it dismisses the appeal of the conviction on the theory that the motion for new trial wasn‘t “appropriate” and, therefore, the appeal was not timely.
In step three, it finds that the court erred in not realizing that the motion for a new trial was really a motion for postconviction relief and treating it as such.
{41} A simple reading of Hamberg‘s brief demonstrates the inappropriateness of this procedure. In the brief, Mr. Hamberg asks for review of his criminal conviction under the applicable standards of appellate review. Mr. Hamberg raises two assignments of error: (1) that the sentence was clearly contrary to law because the trial judge failed to consider the appropriate sentencing factors, and (2) that he was denied due process because the sentencing judge was biased. The brief asks this court to vacate the sentence of the trial judge and to remand for resentencing. Nowhere in the brief does Mr. Hamberg assign as error that the denial of the motion for resentencing was error, or even argue that the denial of the motion was reversible error. Thus, if the majority is correct that the notice of appeal was not timely filed, the proper result is to dismiss the appeal in its entirety.
{42} The majority rationalizes its singular approach by noting that Hamberg raises matters outside of the record. Of course matters outside of the record may not be considered on appeal. See State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000). But the fact that an appellant has raised matters outside of the record never has been a reason for a court to treat a direct appeal as a postconviction motion. Rather, in such situations, courts routinely decide the appeal on the merits without consideration of the improper matters. See, e.g., State v. Lambert, 5th Dist. Richland No. 97-CA-34-2, 1999 Ohio App. LEXIS 1493 (Feb. 17, 1999); State v. Hoke, 4th Dist. Lawrence No. 10CA32, 2011-Ohio-1221; State v. Storck, 2d Dist. Clark No. 2014-CA-130, 2015-Ohio-2880. Sometimes, thoughtful courts have even accompanied such decisions with a suggestion that the party might want to consider filing a postconviction petition. See State v. Cooperrider, 4 Ohio St.3d 226, 228-229, 448 N.E.2d 452 (1983); United States v. Hui, 64 Fed. Appx.264 (2d Cir.2003).
{43} The only authority cited by the majority in support of its transfiguration method is the Ohio Supreme Court‘s decision in State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431. Schlee dealt not with a direct appeal but with a pro se motion filed postconviction that was styled “Motion for Relief from Judgment.” Id. at ¶ 6. The court found that such “irregular motions” may be cast “into whatever category necessary to identify and establish the criteria by which the motion should be judged.” Id. at ¶ 12. We have applied Schlee in sorting out the proper standard to review “an irregular ‘no-name motion,’ that is, a motion that does not designate the statute or rule under which relief may be granted[.]” State v. Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-3790, ¶ 4.
{45} Indeed, the majority‘s opinion is in direct conflict with the holding in Schlee. In Schlee, the court found that it was proper to recast a motion as a postconviction petition because it met four criteria: it was “(1) filed subsequent to [the defendant‘s] direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence.” (Emphasis added.) Schlee at ¶ 12, quoting State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1999). Plainly, the first of these requirements is not met.
{46} Schlee also is explicit that “some motions may not be recast by the trial court.” Schlee at ¶ 13. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522. Thus, because postsentence motions to withdraw guilty or no-contest pleas under
{47} The majority compounds the unorthodoxy of its procedure by not even bothering to ask the state for a response before ordering an evidentiary hearing. Had a petition for postconviction relief actually been filed, the state would have had the right to file a response within ten days and to move for summary judgment within 20 days.
{48} To make matters worse, the majority does not even allow the state an opportunity to address the novel approach it concocts. The Ohio Supreme Court has insisted that “appellate courts should not decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties notice of its intention and an opportunity to brief the issue.‘” State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, citing State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). Yet, in this case, the majority creates from thin air a completely new approach for post-trial motions and appeals that raise matters outside the records. It then foists this unprecedented
{49} Although the majority‘s decision seems to be primarily motivated by a raw desire to assist this defendant, it is not clear that the court‘s decision is particularly good for defendants in general. Ordinarily, a criminal defendant may pursue both a direct appeal and a petition for postconviction relief. The two avenues for relief offer different standards of review and allow different evidentiary opportunities. When the court recasts a motion filed by competent trial counsel, it denies the litigant his right to frame his case in the manner that he chooses. Thus, he loses the right to litigate to conclusion the legal argument that he sought to make in the trial court under the procedural posture and standard of review that he has chosen.
{50} This idea that parties, not courts, frame the issues is central to our jurisprudence. “In our adversary system, in both civil and criminal cases, in first instance and on appeal, we follow the principle of party presentation.” Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Under this principle, “we rely on the parties to frame the issues for decision and assign to the courts the role of neutral arbiters of matters the parties present.” Id. Our role is not to “sally forth each day looking for wrongs to right. We wait for cases to come to us and when they do we normally only decide the questions presented by the parties.” Id. at 244, quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir.1987) (Arnold, J., concurring in denial of reh‘g en banc).
{51} “Counsel,” we are reminded, “almost always know a great deal more about their cases than we do.” Samuels at 1301. Courts “have enough work to do without assuming an activist role and becoming advocates.” Id. at 1299 (Lay, J., concurring). Thus, “[p]articularly when a party is represented by legal counsel below and on appeal, we give the appellant the opportunity to direct the way they wish to address their appeal.” Summit Constr. Co. v. L.L.F.J.A.O., 9th Dist. Summit No. 25621, 2012-Ohio-568, ¶ 11.
{52} Departures from this organizing principle of party presentation have typically only been justified “to protect a pro se litigant‘s rights.” Greenlaw at 244. See Casto v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (Scalia, J., concurring) (critiquing the practice as “a paternalistic judicial exception to the principle of party self-determination, born of the belief that the ‘parties know best’ assumption does not hold true for pro se prisoner litigants.“). Mr. Hamberg, of course, is not a pro se litigant, but represented by highly competent counsel. But even in the case of pro se litigants, where the federal courts have allowed certain postconviction motions to be recast, great care has been taken to make sure that the court does not deprive the pro se defendant of his right to party presentation without some say in the matter.
{53} Thus, the United States Supreme Court has mandated that before a pro se motion of a prisoner may be recast as a request for habeas relief, the court must first notify the prisoner of the intent to recharacterize, warn him that recharacterization may cut off the opportunity to file a second petition, and provide the prisoner an opportunity to withdraw or amend the motion. Castro at 377.
{54} This court‘s dramatic expansion of the ability to recast post-trial motions raises the same sorts of problems that worried the Supreme Court in Castro. Under
{55} One can only imagine the problems and questions that will arise from the majority‘s opinion. For example,
{56} This is not to mention the havoc that will be wreaked in our trial courts. Contemplate for a moment the head scratching and confusion to come. A defendant timely files a post-trial motion. The court finds that it lacks merit-but wait, before it denies the motion, it needs to look at the postconviction statute. Could this be reframed as a postconviction petition? If it could, then the trial court had better reframe it as one or risk being reversed by this court. Never mind how the defendant wants to proceed. Never mind the adversary system.
{57} In the end, the majority‘s legal gymnastics have obtained for Hamberg a hearing in the trial court. But the price is a high one for this court. We are left with a procedural mess, and a doctrinal albatross. I dissent.
Please note:
The court has recorded its own entry this date.