STATE OF OHIO v. ADRIAN JOHNSON, JR.
No. 107528
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 14, 2019
[Cite as State v. Johnson, 2019-Ohio-4668.]
PATRICIA ANN BLACKMON, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-625186-A
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: November 14, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione and Daniel Van, Assistant Prosecuting Attorneys, for appellee.
Edward F. Borkowski, Jr., for appellant.
PATRICIA ANN BLACKMON, J.:
{¶ 1} Adrian Johnson, Jr., (“Johnson“) appeals from the trial court‘s imposition of a 15-year prison sentence, after Johnson pled guilty to aggravated robbery and weapons charges, and assigns the following errors for our review:
- The trial court erred by imposing consecutive sentences without making the necessary statutory findings.
- Appellant‘s sentence is contrary to law because the trial court failed to properly consider and weigh the relevant statutory principles and factors.
- The trial court‘s bias against appellant deprived him of a fair sentencing hearing in violation of his due process rights.
{¶ 2} Having reviewed the record and pertinent law, all three panel judges agree that Johnson‘s first assigned error arguing that the trial court failed to make the consecutive sentence findings should be sustained. Thus, all three judges agree to vacate the trial court‘s sentencing order only as it relates to consecutive sentences and remand this matter to the trial court for the limited purpose of considering whether consecutive sentences are appropriate under
{¶ 3} All three panel judges also agree that Johnson‘s third assigned error regarding judicial bias is without merit. Thus, Johnson‘s third assigned error is overruled.
{¶ 4} With respect to Johnson‘s second assigned error, the three panel judges disagree. This lead opinion would sustain Johnson‘s second assigned error and find that the record does not support the maximum 15-year sentence that the court imposed. However, both the first separate opinion and the second separate opinion would overrule Johnson‘s second assigned error, but disagree on the law and reasoning as to why it should be overruled. Thus, a majority of the judges, as
I. Facts and Procedural History
{¶ 5} On June 20, 2018, Johnson pled guilty to aggravated robbery in violation of
II. Felony Sentencing
A. Standard of Review
{¶ 6}
{¶ 7} A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under
{¶ 8} Pursuant to
{¶ 9} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{¶ 10} Additionally, “to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under post-release control for a prior offense.
- At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
III. The Sentencing Hearing
{¶ 11} At Johnson‘s sentencing hearing, the state indicated on the record the facts surrounding Johnson‘s convictions: Johnson and three other males robbed Johnson‘s relatives at gunpoint in their home. Johnson allegedly believed there was a gun at the house that he was “entitled to.” According to the state, Johnson was on
{¶ 12} One of the victims gave a statement at the hearing, parts of which follow:
Adrian is family. Given the situation, he‘s been in and out of trouble.
* * *
When I found out there was a gun in my house, I had a whole talk with him. A gun is not allowed in my house like that. I told his mom come get him, he‘s being disrespectful to my home. He was not welcome back.
So he went to the back, he got into a fight with my younger son. His friend, he came to the door, they pulled guns on me and my son. At that moment, that‘s like the worst thing I ever had. I had to step in front of my son because I didn‘t want him to be shot or take my kid out. That was the tough decision to make.
But I grabbed my son, held him and I prayed that if anything happened, happen to me because I couldn‘t see burying one of my kids. Too many bad decisions have happened to children, I can‘t imagine it happening to me.
Give him a couple years to get him to understand what could have happened to our family, how devastating this situation could have turned out. It‘s not like I haven‘t tried to help him. We all have. But at this time, I think he needs some time to think because it‘s not changed anything, the way he thinks.
{¶ 13} In mitigation, Johnson‘s attorney stated on the record that the victims in this case were Johnson‘s relatives and friends, Johnson was “very apologetic” about what happened, and he “was going to get what he believed to be his property, [but] that‘s not the way it should have been handled.” Counsel stated that Johnson turned himself in to the police and apologized to the victims via text messages.
{¶ 14} Johnson‘s mother, Taiwarna Powell, also made a statement at the sentencing hearing and the following colloquy took place:
MS. POWELL: My son has made choices that hasn‘t been great for him, but he has got to a point where he turned around and was making better choices for himself. He does listen. You might not think that he hears you. He listens. Even in this situation, he feels like he needs to have some type of protection on him to walk around in Ohio and the thing is, my son wasn‘t the only person, it was more than just him that was involved.
I do apologize about the fact that he went to the house which he shouldn‘t have. I talked to him myself about going over there. He felt he needed to be around other boys that he felt were making better choices. Adrian‘s intentions, he asked to borrow a gun, he was going to a different area that he was not used to and he wanted to feel safe for himself. It was his intentions.
THE COURT: Do you understand he‘s on probation for felonious assault?
MS. POWELL: I understand that. I understand he shouldn‘t have had a weapon. I understand that situation is the reason why he was in jail for felonious assault.
I also - Adrian should have left it up to the police. They hadn‘t taken fingerprints or anything. They started on their way to school one day -
THE COURT: You want to retry that case, too?
MS. POWELL: They got into a fight.
THE COURT: Do you want to go over his juvenile record of assault, riot, criminal trespass? Ms. Powell, you have been given an opportunity to speak. You are not helping your son‘s case now. I see why he‘s been enabled to continue the criminal type behavior.
MS. POWELL: Could you tell me why?
THE COURT: Why what?
MS. POWELL: Why do you say that?
THE COURT: You are up here apologizing.
MS. POWELL: I apologize for the fact he shouldn‘t have went to that house. That‘s something he shouldn‘t have done. He shouldn‘t have had a gun, either, that wasn‘t a good choice.
THE COURT: Yes, it‘s a felonious assault case. There is a lot of shouldn‘t there.
MS. POWELL: I‘m a domestic violence survivor. For six-and-a-half years I was in a relationship with someone, his dad was abusive. I have post traumatic stress just as my son did.
THE COURT: We are not here to talk about you.
MS. POWELL: You could not insult me as a mother, because I have been there as a mother for my son. I made sure my son had gone to school. I have been a parent.
THE COURT: Ms. Powell, we are not here to talk about you.
MS. POWELL: Other kids’ mentor. Anything that I could have, for my son, because I care about my son.
THE COURT: Are you done?
MS. POWELL: No. I apologize to the mother and I apologize to the two victims.
THE COURT: We are not going to have courtroom conversation. You can sit down.
MS. POWELL: Thank you.
{¶ 16} The court asked Johnson if there was anything he would like to say. Johnson replied, “I don‘t got nothing to say.” The court then sentenced Johnson as follows:
THE COURT: Okay. Mr. Johnson, well, I do. It‘s my intention to remove you from society for as long as I can. You are a monster. You frankly scare me. Your behavior is inappropriate throughout this case. The way you stand and look speaks to your character.
You were on probation [for felonious assault] when you committed this crime of aggravated robbery * * *. You received a gift of probation on an offense that carries with it a presumption of prison in the case number 605931.
While on that case, you felt the need to go possess a firearm, use the firearm, use force to get that firearm, bring a couple other people in this situation. Then you identify a poor, innocent guy who gets locked up with you.3 Thankfully he had a job - if you interrupt me it‘s not going to go well for you.
JOHNSON: You do what you got to do.
THE COURT: I will do what I have to do. Sit down or you are going with him. Carmen, one more word, take her into custody.
Mr. Johnson, if I had any doubts as to whether you should ever walk free among organized society again, it was clearly a mistake. I‘m going to give consecutive maximum time on this case.
I have considered the seriousness and recidivism factors and the purposes and principles of our sentencing statutes. This serious felony of the first degree offense that was committed with a firearm was committed while you were on community control [sanctions] in case number 605931.
Let‘s review your Juvenile Court history. 2014, adjudicated delinquent on riot and disorderly conduct in case number 14-109739. April of 2014, adjudicated delinquent on attempted assault in case number 14-109751. June of 2014, adjudicated delinquent on a breaking and entering and criminal trespass, case 14-111090.
July of 2014, adjudicated delinquent, sale to underage persons. August of 2014, adjudicated delinquent on an assault and resisting charge in 14-111094. 2014, August 9, adjudicated delinquent on an aggravated menacing case, 14-112199.
September of 2014, adjudicated delinquent on case number 14-111339, criminal trespass. December of 2014, adjudicated delinquent on another criminal trespass.
And then April of 2016, you picked up your felonious assault case. You were placed in the community based correctional facility program and while on that, you picked up a riot case, May of 20[1]7 in Bedford Municipal Court. You have a warrant out for your failure to appear. Now you are here on this case.
You will receive 11 years on the base count subsequent to the one-year firearm specification on Count 2. That will run consecutive to 36 months on Count 6. You will also serve that consecutive to the penalty Judge Fuerst will impose in case 605931.
You will be placed on a mandatory five-year period of post-release control following the completion of your prison term. You will be serving on this case 14 [sic] years consecutive to whatever you get on the 2 to 8 year sentence hanging over your head in Judge Fuerst‘s room.
I would suggest you comport yourself a little better in front of Judge Fuerst, and don‘t ask your mom to come to sentencing. You are ordered remanded. Good luck.
{¶ 19} The court stated at Johnson‘s sentencing hearing that it received and reviewed Johnson‘s presentence investigation report. This report details Johnson‘s offense as follows: On November 22, 2017, at 2:00 p.m., Johnson and two other males arrived at Johnson‘s relatives’ house to retrieve “a borrowed handgun.” After an argument, the victims would not let Johnson inside the house. He and the other males “rushed inside the residence and drew handguns.” While holding the victims at gunpoint, the males took “$400 cash and a hand gun” from the victims. Johnson allegedly struck one of the victims, and the three males fled the scene.
{¶ 20} The victims called 911, and one of the males was apprehended while fleeing. This suspect, along with the victims, identified Johnson as the one who planned the robbery. Ultimately, Johnson admitted to the police that he was present during the incident.
{¶ 21} The presentence investigation report lists Johnson‘s age at the time of the offense as 20 and states that he completed the 11th grade before being “expelled from school for fighting.” Johnson has difficulty reading and writing, he
IV. Analysis
A. Consecutive Sentences
{¶ 22} In Johnson‘s first assigned error, he argues that the court failed to make the necessary statutory findings before imposing consecutive sentences. Upon review, we find that the court failed to make the findings, both at the sentencing hearing and in the sentencing journal entry, required under
V. Court Bias and a Fair Sentencing Hearing
{¶ 24} In Johnson‘s third assigned error, he argues that the trial court was biased against him and deprived him of a fair sentencing hearing.
It is well settled that a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of the law. * * * We have described judicial bias as “a hostile feeling or spirit of ill will * * * toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.”
State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus.
{¶ 25} Generally, a challenge to a trial judge‘s objectivity must comport with the procedures outlined in
{¶ 26} However, Ohio courts have held that a judicial bias claim may be interpreted “as an argument that [the defendant‘s] sentence is contrary to law based on a due process violation.” See, e.g., State v. Frazier, 8th Dist. Cuyahoga No. 104264, 2017-Ohio-8307, ¶ 15. Furthermore, “[t]he law presumes that a judge is unbiased and unprejudiced in the matters over which he or she presides, and the appearance of bias or prejudice must be compelling in order to overcome the presumption.” State v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 14.
{¶ 27} “If the trial judge forms an opinion based on facts introduced or events occurring during the course of the current or prior proceedings, this does not rise to the level of judicial bias * * *.” State v. Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482, 2013-Ohio-1543, ¶ 11. However, an exception to this rule occurs if the judge‘s opinions “display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
{¶ 28} It appears from the sentencing hearing transcript in the case at hand that the court did not like the way Johnson presented himself throughout these proceedings, and it did not like Johnson‘s mother‘s remarks. The court referred to Johnson as a “monster.” The court found the manner in which Johnson was standing to be “inappropriate.” The court stated, “[I]f I had any doubts as to whether
{¶ 29} Additionally, the court was brusque with Johnson‘s mother, telling her that she was “not helping your son‘s case now. I see why he‘s been enabled to continue the criminal type behavior.” The court asked Johnson‘s mother if she wanted to retry his juvenile cases and told Johnson not to bring his mother to the upcoming sentencing hearing for the violation of his community control sanctions.
{¶ 30} While we cannot condone the court‘s extraneous comments, they do not rise to the level of a due process violation nor do they render Johnson‘s sentence contrary to law. Accordingly, Johnson‘s third assigned error is overruled.
VI. Felony Sentencing Under R.C. 2929.11 and 2929.12
{¶ 31} In his second assigned error, Johnson argues that his “sentence is contrary to law because the trial court failed to properly consider and weigh the relevant statutory principles and factors.”
{¶ 32} This lead opinion and the second separate opinion agree that a trial court may review the record to determine if it clearly and convincingly supports the given sentence under
{¶ 33} We are aware that the trial court does not have to make findings on the record regarding the
it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{¶ 34} Meaningful appellate review allows this court to consider the parties’ arguments “through the lens of the law.” Jones at ¶ 19. Felony sentencing law in Ohio grants trial courts substantial, but not unfettered, discretion to impose a sentence within the statutory range. In like manner, the law grants appellate courts
{¶ 35} The first separate opinion reaches a different conclusion regarding the law and would find that “this court has no basis to reverse a prison sentence imposed within the applicable statutory range for the felony offense unless there is objective information in the record that the trial court (1) failed to consider
{¶ 36} Respectfully, the first separate opinion‘s reasoning loses sight of the purposes and principles of Ohio‘s felony sentencing statutes. Under this view, a court could properly impose the maximum sentence for every felony on its docket if it states on the record that it considered the proper sentencing statutes. The unique facts of each case would be meaningless, the seriousness of each offense would be diluted, and the difference between depraved criminals and offenders who may be rehabilitated would be eradicated.
{¶ 37} Although this lead opinion and the second separate opinion agree on the law, the panel members disagree on the disposition of the second assigned error after applying the facts of this case to the law.
{¶ 38} It is my opinion that in the case at hand the record does not clearly and convincingly support the court‘s decision to sentence Johnson to maximum consecutive prison terms. Although the court stated that it “considered” the proper
{¶ 39} The record does not support that the maximum consecutive sentence was needed to protect the public from Johnson or to punish Johnson for the crimes committed. Furthermore, the record does not support the notion that courts should “promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish” the purposes and principles of felony sentencing. Particularly in light of the victim‘s statement to the court, this sentence is not commensurate to the seriousness of Johnson‘s conduct nor its impact on the victims.
{¶ 40} Additionally, the only evidence in the record concerning Johnson‘s recidivism risk is in his presentence investigation report, which lists his level as “moderate.” Furthermore, there is no evidence to support that Johnson‘s sentence was “consistent with sentences imposed for similar crimes committed by similar offenders,” pursuant to
{¶ 41} Accordingly, I would sustain Johnson‘s second assigned error. However, the first and second separate opinions agree to overrule Johnson‘s second assigned error, albeit for different reasons.
{¶ 42} In summary, Johnson‘s first assigned error is sustained, and his second and third assigned errors are overruled. We vacate the trial court‘s sentencing order only as it relates to consecutive sentences and remand this matter to the trial court for the limited purpose of considering whether consecutive
{¶ 43} Sentence vacated. Case remanded for limited resentencing.
It is ordered that appellant recover from 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 common pleas 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.
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
EILEEN T. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 44} I concur with the majority‘s resolution of the first assignment of error. After careful review of the sentencing transcript, I agree with Johnson that the trial court failed to make the necessary findings for imposing consecutive sentences under
{¶ 45} To begin, I note that Johnson‘s second assignment of error challenges the adequacy of the trial court‘s sentencing considerations under
{¶ 46} A sentence is contrary to law if it falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{47} As stated by the lead opinion, when a sentence is imposed solely after consideration of the factors in
Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{48} Significantly, an “appellate court‘s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means
{49} In this case, the record reflects that in formulating Johnson‘s sentence, the trial court stated that it “considered the seriousness and recidivism factors and the purposes and principles of our sentencing statutes.” Despite this unambiguous statement, however, the lead opinion concludes that “Johnson‘s sentence is objectively unreasonable and unsupported by the evidence in the record.” Without specifying how the record is objectively inadequate, the lead opinion finds that the record does not support the court‘s considerations under
{50} In my view, the lead opinion‘s conclusion impermissibly discounts the discretion afforded to sentencing courts and imposes a fact-finding obligation on the trial court when no such requirement is mandated by the
{51} Upon review, I believe the record demonstrates that the trial court imposed individual prison terms within the applicable statutory ranges, and carefully considered the relevant factors set forth under
{52} Accordingly, I would overrule the second assignment of error, but would vacate Johnson‘s consecutive sentences and remand the case for resentencing for the trial court to again consider whether consecutive sentences are appropriate under
{53} In many regards, this case perfectly illustrates the appellate dilemma created by the Ohio Supreme Court‘s apparent extension of the clear and convincing standard set forth under
{54} In this court‘s en banc decision in State v. Jones, 2018-Ohio-498, 105 N.E.3d 702 (8th Dist.),5 I agreed with the majority‘s determination that:
under State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, the Ohio Supreme Court read
R.C. 2929.11 and2929.12
into R.C. 2953.08(G)(2)(a) , allowing an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter to the sentencing court for re-sentencing if the record does not support the sentencing court‘s findings underR.C. 2929.13(B) or (D),R.C. 2929.14(B)(2)(e) or (C),R.C. 2929.20(I) , as well asR.C. 2929.11 and2929.12 .
Id. at 5, 21. However, while I joined the majority based upon the clear language used in Marcum at 23, I found portions of the dissent to be persuasive. In relevant part, I agree that the more pressing issue is:
whether Marcum altered the appellate standard of review under
R.C. 2953.08(G) to permit a more expansive appellate review process that permits an appellate court to independently consider the sentencing factors and independently determine the most effective way to comply withR.C. 2929.11 .
Jones at 44 (S. Gallagher, J., dissenting). At this time, it is my belief that Marcum did not intend to disrupt the well-settled position of Ohio appellate courts that reviewing courts are not entitled to substitute their judgment for that of the trial court, nor are they entitled to independently weigh the sentencing factors set forth under
{55} Nevertheless, without further guidance on this issue from the Ohio Supreme Court, it is not surprising that appellate courts, including the lead opinion and second separate opinion in this case, have adopted a more comprehensive interpretation of Marcum in an effort to reverse felony sentences deemed by the reviewing court to be excessive.
{56} Following the release of Marcum, criminal appellants have routinely argued on appeal that the prison term imposed by the trial court is not supported by the record or is otherwise contrary to law. In resolving this issue, many appellate courts have begun to independently scour the record in search of information that clearly and convincingly does or does not support the trial court‘s presumed
{57} Inevitably, the contradictions involved in Marcum‘s expansion of
{58} My comments are not intended to suggest that I always agree with the sentencing discretion exercised by trial courts in this county, or that I necessarily
{59} It is my hope, however, that moving forward the trial court will carefully consider and give equal weight to the new sentencing purpose of promoting “effective rehabilitation.” It is evident that S.B. 66 was formulated in an effort to reduce mass incarceration by rehabilitating individuals, expanding prison alternative programs, and reducing aggregate prison terms. The amendment to
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:
{60} Respectfully, I am compelled to write separately from both the lead and concurring in part and dissenting in part opinions (“separate opinion“). I agree with the lead and separate opinions on Johnson‘s first and third assignments of error. That is, I agree that the trial court failed to make the consecutive sentence findings on the record at the sentencing hearing and failed to place those findings in the judgment entry. I also agree that there is no evidence of judicial bias in this case. But with respect to Johnson‘s second assignment of error involving the principles and purposes of felony sentencing in
I. R.C. 2929.11 and 2929.12 .
{61} In his second assignment of error, Johnson argues that the trial court failed to properly consider
{62} I agree with the lead opinion that an appellate court may review the record to determine if it supports the trial court‘s sentence under
A. En Banc Proceedings
{63} In Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2018-Ohio-498, 105 N.E.3d 702, a majority of this court held en banc that we may review a sentence that is within the statutory range for the offenses where the trial court stated it considered
[W]e are required to “review the record, including the findings underlying the sentence or modification given by the sentencing court.” And for the reasons discussed, our review includes the considerations under
R.C 2929.11 and the findings under2929.12 . Then, if after reviewing those findings, we find that the sentence is contrary to law or not supported by the record, we may take action.
{64} I recognize that the Ohio Supreme Court has accepted Jones for discretionary appeal and held it for its decision in Gwynne, 5th Dist. Delaware No. 16CAA120056, 2017-Ohio-7570, on the question of whether an appellate court may review a trial court‘s findings under
{65} The Ohio Supreme Court further explained in McFadden at 16:
“The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court.” United States v. American-Foreign Steamship Corp. (1960), 363 U.S. 685, 689-690, 80 S.Ct. 1336, 4 L.Ed.2d 1491, quoting Maris, Hearing and Rehearing Cases en banc (1954), 14 F.R.D. 91, 96. This form of review promotes finality and predictability of the law within appellate districts, which is especially important considering that the court of appeals is the final stop in the legal process for many cases. See Textile Mills [Sec. v. Commr. of Internal Revenue], 314 U.S. [326], 335, 62 S.Ct. 272, 86 L.Ed. 249 [1941].
B. Sentencing Review Under R.C. 2953.08(G)(2)
{67} Regarding our review of felony sentences, the separate opinion states:
Significantly, an “appellate court‘s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, 20 (8th Dist.). “This is an extremely deferential standard of review.” Id. at 21.
{68} This writer has previously pointed out the deeply troubling contradictions in this paragraph and in Venes. See State v. Roberts, 8th Dist. Cuyahoga No. 104474, 2017-Ohio-9014, 34-41 (Boyle, J., dissenting). Indeed, one would be hard pressed to find a more established legal principle in the state of Ohio (or country for that matter) than that of the abuse-of-discretion review - that it is an extremely deferential standard of review. When appellate courts are reviewing for abuse of discretion, we are prohibited from substituting our judgment
{69}
{70} Before the legislature made wide-sweeping changes to Ohio‘s felony sentencing laws in S.B. 2, “sentencing decisions were generally subjected to an abuse-of-discretion standard, and appellate courts rarely disturbed a sentence imposed within statutory limits.” State v. Shryock, 1st Dist. Hamilton No. C-961111, 1997 Ohio App. LEXIS 3494, 5-6 (Aug. 1, 1997). A hallmark of S.B. 2, however, was “meaningful appellate review” of felony sentencing as enacted in
{71} Thus, I cannot agree with the separate opinion, referring to
{72} Further, I disagree with the separate opinion that Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, altered or expanded the appellate standard of review under
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{74} The separate opinion also states that “Marcum‘s expansion of
{75} S.B. 2 was enacted, in part, because “there was a notion that offenders received disparate sentences for the same crime in different sections of the state.” Painter at 537. We know that is certainly true in Cuyahoga County. Under S.B. 2,
I believe that there is a troubling trend occurring throughout appellate courts in this state that will, if not [reined] in by the Ohio Supreme Court, essentially eliminate meaningful review of felony sentences. As one appellate judge stated, “appellate review of sentencing is under assault.” State v. Beverly, 2d Dist. Clark No. 2015-CA-71, 2016-Ohio-8078, 42, 75 N.E.3d 847 (Donovan, J., dissenting), quoting More Than a Formality: The Case for Meaningful Substantive Reasonable Review, 127 Harv.L.Rev. 951, 951 (2014). I could not agree more with the dissenting judge in Beverly that “[t]his assault is unjustified and contrary to legislative intent when we look at the legislative history of S.B. 2 and H.B. 86.” Id.
Roberts, 8th Dist. Cuyahoga No. 104474, 2017-Ohio-9014, at 22.7
{76} If all an appellate court is required to do is make sure that a sentence is within the statutory limits set by the legislature and make sure that the trial court states that it considered
{78} In mitigation, Johnson‘s attorney explained that Johnson was only 20 years old and that he turned himself in to police. Johnson also sent text messages to the victims after he robbed them to apologize, telling them “it wasn‘t supposed to happen like that.” Johnson‘s defense counsel also explained that Johnson witnessed his father abuse his mother for many years. Johnson told the court that he did not have anything to say.
{79} The trial court explained that Johnson had “violent criminal history,” including riot, disorderly conduct, assault, attempted assault, breaking and entering, resisting, aggravated menacing, and several counts of criminal trespass. According to the presentence investigation report, Johnson was a “moderate” risk to reoffend. The trial court informed Johnson that it intended to “remove [him] from society for as long as [it] could.” The
{80} Therefore, it is my view that this record support the trial court‘s sentence under