State v. HydeState v. Hyde
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Pаul A. Dobson, Wood County Prosecuting Attorney, Heather M. Baker and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellee.
Lawrence A. Gold, for appellant.
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YARBROUGH, J.
{¶ 1} Appellant James Hyde, Jr. appeals a judgment of the Wood County Court of Common Pleas, convicting him of a single count of rape in violation of
{¶ 2} On September 2, 2010, the Wood County Grand Jury indicted appellant on two first-degree felony counts of rape, one in violation of
{¶ 3} At the sentencing hearing, appellant, his counsel, the victim, each of the victim‘s parents, and counsel for the state made statements pursuant to
{¶ 4} Appellant has timely appealed, raising four assignments of error:
I. The triаl court abused its discretion and erred to the prejudice of Appellant at sentencing by imposing a prison term in excess of the minimum in violation of Appellant‘s right to Due Process under the Sixth and Fourteenth Amendments of the United States Constitution.
II. The trial court abused its discretiоn and erred to the prejudice of Appellant by improperly considering statements offered at sentencing hearing.
III. The trial court erred to the prejudice of Appellant by imposing court costs in its written judgment entry after failing to order financial sanctions at Appellant‘s sentencing hearing. IV. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and
Article I, § 10 of the Constitution of the State of Ohio .
II. Analysis
{¶ 5} For ease of discussion, Assignments of Error Nos. I and II will be addressed together. Further, Assignments of Error Nos. III аnd IV will be discussed in reverse order.
A. Appellant‘s Sentence Satisfies the Test Set Forth in State v. Kalish
{¶ 6} In his first and second assignments of error, appellant challenges his prison sentence. In reviewing a felony sentence, we apply the two-step analysis set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4: “First, [we] must examine the sentencing court‘s compliance with all apрlicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse of discretion standard.” Abuse of discretion “implies that the court‘s
1. Appellant‘s Sentence Was Not Clearly and Convincingly Contrary to Law
{¶ 7} Under the first prong, appellant argues in his first assignment of error that the trial court violated his due process rights by imposing a non-minimum sentence. Appellant‘s argument, however, is flawed from its inceptiоn. In his brief, appellant states, “prior to the Ohio Supreme Court‘s ruling in State v. Foster 109 Ohio St.3d 1, the Sixth and Fourteenth Amendments of the United States Constitution prohibited the imposition of a sentence in excess of the statutory minimum absent additional findings of fact proven at jury trial or admitted to by Defendant/Apрellant.” (Emphasis added.) This is incorrect. In support of this proposition, appellant cites to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, the rule announced in Apprendi, and followed in Blakely and Booker, is “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and provеd beyond a reasonable doubt.” (Emphasis added.) Apprendi at 490. The relevant statutory maximum for Apprendi purposes “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis omitted.) Blakely at 303.
{¶ 9} Appellant now argues that State v. Foster‘s severance of
{¶ 10} Appellant does correctly identify, though, that in State v. Hodge the Ohio Supreme Court stated that had it had the benefit of Oregon v. Ice at the time, it may have decided State v. Foster differently. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 758, ¶ 20. As a brief explanation, Oregon v. Ice held that statutes that require judicial fact finding before imposing consecutive sentences do not violate the Sixth Amendment or Apprendi and Blakely principles. See Ice at 163-164. The rationale behind this holding is that the choice whether to impose sentences consecutively or concurrently rested exclusively with the judge; the jury historically played no role in the decision. Id. at 168-169.1 Thus, in its discussion of the impact of Ice on Foster, the Ohio Supreme Court in Hodge conceded that it may have needlessly excised the statutes dealing with consecutive sentences. Importantly, however, it does not question Foster‘s constitutionality. Instead, the court noted that Foster was not overruled by Ice, and further held that the statutes excised by Foster were not automatically revived by Ice. Hodge at ¶ 18, 39. Therefore, the court concluded, “trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences.” Id. at 39.
{¶ 11} In his brief, appellant next attempts to infer from his erroneous argument—that Foster unconstitutionally excised the statutes relating to consecutive sentences—the
{¶ 12} Having determined that the trial court‘s imposition of a nine-year sеntence without additional findings of fact is not contrary to law, we hold that the first prong of Kalish is satisfied.
2. The Trial Court‘s Imposition of a Nine-Year Mandatory Prison Term Was Not an Abuse of Discretion
{¶ 13} We next consider appellant‘s second assignment of error, in which he argues that the trial court abused its discretion by giving insufficient weight to the fact that appellant had no prior record, and by improperly considering the victim‘s father‘s
{¶ 14} Starting with his last argument, i.e., that his sentence is disproportionate to other sentences for rape convictions, we note that “[c]onsistent sentencing occurs when a trial court properly considers the statutory sentencing faсtors and guidelines found in
{¶ 15} In his first two arguments, appellant does not contend that the trial court failed to consider the sentencing factors and guidelines in
{¶ 17} We note that appellant does not provide any support for his declaration that the father‘s statement must be limited to the harm suffered by the victim. On the contrary,
{¶ 18} Turning now to whether the trial court abused its discretion in assigning weight to the factors, we note that the transcript indicates that the trial court considered the principles and purposes of sentencing in
{¶ 19} Accordingly, appellant‘s first and second assignments of error are not well taken.
B. Appellant Did Not Receive Ineffective Assistance of Counsel
{¶ 20} In his fourth assignment of error, appellant argues he received ineffective assistance of counsel when his trial counsel failed to object to the victim‘s father‘s statements at the sentencing hearing.
{¶ 21} To demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel‘s performance fell below an objective standard of reasonableness, and a reasonable probability exists that
{¶ 22} Here, appellant fails to satisfy the first prong. As we have already discussed, the trial court must consider any statement relevant to the imposition of sentence pursuant to
{¶ 23} Accordingly, appellant‘s fourth assignment of error is not well-taken.
C. The Trial Court Erred in Its Imposition of the Costs of Prosecution
{¶ 24} Finally, in his third assignment of error, appellant argues that the trial court erred by including an order for the costs of prosecution in the judgment entry without notifying appellant of those costs at the sentencing hearing. The state, for its part, concedes error on this issue.
{¶ 25} Although
{¶ 26} Accordingly, appellant‘s third assignment of error is well-taken.
{¶ 27} For the foregoing reasons, the judgment of the Wood County Court of Common Pleas is affirmed, in part, and reversed, in part. This cause is remanded for the limited purpose of orally nоtifying appellant of his obligation to pay the costs of prosecution, thereby affording him an opportunity to move for a waiver of those costs. Pursuant to App.R. 24, costs of this appeal are to be split evenly between the parties.
Judgment affirmed, in part, and reversed, in part.
A certified cоpy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, J. CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.