State v. KalishState v. Kalish
Lead Opinion
{¶ 1} The issue before us today is yet another remnant from our decision in State v. Foster,
{¶ 2} In so doing, we recognized that Foster would affect subsequent appellate review of sentencings, noting that “[t]he appellate statute
{¶ 3} Since Foster, the courts of appeals have adopted varied standards for reviewing trial court sentencing decisions, ranging from abuse of discretion, as in the instant case, to a standard that considers whether the sentence is clearly contrary to law. State v. Burton, 10th Dist. No. 06AP-690,
{¶ 4} In applying Foster to the existing statutes, appellate courts must apply a two-step approach. First, they must 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. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.
I. Relevant Background
{¶ 5} On November 14, 2005, the Lake County Grand Jury returned a six-count indictment against appellant, Laura Ann Kalish, for OVI and other driving offenses. Kalish eventually pleaded guilty to aggravated vehicular homicide, a felony of the second degree, in violation of
{¶ 6} Kalish appealed the sentence to the Eleventh District Court of Appeals. Specifically, Kalish challenged her sentence on the basis that it was inconsistent with and disproportionate to other sentences for the same offense. In reviewing the sentence, the appellate court noted that because Foster left trial courts with the discretion to impose a sentence within the statutory range, the abuse-of-discretion standard was the appropriate standard of review and affirmed the sentence by a two-to-one vote. State v. Kalish, 11th Dist. No. 2006-L-093,
{¶ 7} The dissenting judge countered that the proper standard to review a sentence challenged under
{¶ 8} We accepted jurisdiction over Kalish’s appeal. State v. Kalish,
II. Analysis
A
{¶ 9} Prior to Foster, there was no doubt regarding the appropriate standard for reviewing felony sentences. Under the applicable statute, appellate courts were to “review the record, including the findings underlying the sentence or modification given by the sentencing court. * * * The appellate court’s standard for review [was] not whether the sentencing court abused its discretion.”
{¶ 10} The statute further authorized a court of appeals to “take any action * * * if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (E)(4) of
{¶ 11} The obvious problem with the statute as written and its relation to Foster is the references to “the findings underlying the sentence” and to the determination “[t]hat the record does not support the sentencing court’s findings.” Foster’s result was to sever the portions of the statute that required judicial fact-finding to warrant a sentence beyond the minimum term in order to make Ohio’s sentencing scheme compatible with the United States Supreme Court’s decisions in Blakely v. Washington (2004),
{¶ 12} As the passage cited above clearly indicates, Foster does not require a trial court to provide any reasons in imposing its sentence. For example, when imposing consecutive sentences prior to Foster, the trial court had to find that the sentence was necessary to protect the public and was not disproportionate to the seriousness of the offense and the danger the defendant posed to the public.
{¶ 13} Although Foster ehminated mandatory judicial fact-finding for upward departures from the minimum, it left intact
{¶ 14} Thus, despite the fact that
{¶ 16} Because Foster now gives judges full discretion to impose a sentence within the statutory range without having to “navigate a series of criteria that dictate the sentence,” State v. Payne,
{¶ 17}
{¶ 18} Applying the foregoing analysis to this case, we initially note that the appellate court did not review the sentence to ensure that the trial court clearly and convincingly complied with the pertinent laws. Nevertheless, we can still affirm the court of appeals, albeit on different grounds. Here, the trial court’s decision was not contrary to law. The trial court expressly stated that it considered the purposes and principles of
{¶ 19} Next, we must determine whether the trial court actually abused its discretion. An abuse of discretion is “ ‘more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore (1983),
{¶ 20} In reviewing the record, we find that the trial court gave careful and substantial deliberation to the relevant statutory considerations. The court considered that at the time of the offense in this case, Kalish was out on bond for another DUI charge. In addition, Kalish already had limited driving privileges when she committed the crime in this case. Although this was Kalish’s first offense, there is nothing in the record to suggest that the court’s decision was unreasonable, arbitrary, or unconscionable. Accordingly, we affirm the Eleventh District’s judgment.
B
{¶ 21} Turning to the second proposition of law, Kalish urges us to find that under stare decisis, a district court of appeals does not have authority to overrule a decision of the same district that is reached by a different panel.
{¶ 22} Without question, “[sjtare decisis is the bedrock of the American judicial system.” Westfield Ins. Co. v. Galatis,
{¶ 23} Kalish maintains that the court of appeals violated the doctrine of stare decisis in rendering its opinion in this case. In support of her argument, Kalish latches on to the majority’s declaration that “[t]o the extent that [its] holding concerning the standard of review is inconsistent with any previous decision of this court, such decision is modified to be consistent with our holding today.” 2007-0hio-3850,
{¶ 25} Thus, we find that the proposition does not present an actual, justiciable controversy. In the absence of any concrete examples of a violation of stare decisis, the issue simply poses a hypothetical question that is inappropriate for review. We decline to answer the proposition because doing so would result in an improper advisory opinion. Cascioli v. Cent Mut Ins. Co. (1983),
III. Conclusion
{¶26} For the foregoing reasons, appellate courts must apply a two-step approach when reviewing felony sentences. First, they must 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. If this first prong is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.
Judgment affirmed.
Notes
. The minimum prison term for this count would have been two years.
. Our decision in Foster supports this conclusion because if these statutes were the equivalent of judicial-fact-finding statutes, then Foster would have declared them unconstitutional as well. Foster,
. Although these statutes do not require judicial fact-finding in the Blakely sense, their application can be reviewed for an abuse of discretion because they delineate, to a certain extent, the trial court’s exercise of discretion, given to them by Foster’s remedy, in determining the appropriate sentence.
. Of course, where the trial court does not put on the record its consideration of
. It is curious that the dissenting opinion in the court of appeals also neglected to cite any specific cases that were overruled when it “question[ed] the power of [the majority] to issue opinions overruling established precedent * * * in complete contravention of the principle of stare decisis.” Kalish at ¶ 33.
Concurrence Opinion
concurring in judgment only.
{¶ 27} While I agree with the result reached by the plurality, I believe the issue before the court to be of limited scope: whether the standard of review set forth in
{¶ 28} As noted by both the plurality and the dissent, this court severed portions of Ohio’s sentencing statute, including those sections that allowed for the
{¶ 29}
{¶ 30} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶ 31} “(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶ 32} “(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.” (Emphasis added.)
{¶ 33}
{¶ 34} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in
{¶ 35} The remaining divisions and subdivisions of
{¶ 36} Since the trial court’s considerations under
{¶ 37} In State v. Adams (1988),
{¶ 38} Furthermore, under
{¶ 39} Prior to their severance,
{¶ 40} A common rule of statutory interpretation requires that a specific statute prevail over a general statute. See generally State v. Taylor,
{¶ 41} Additionally, this court has held that a trial court’s findings under
{¶ 42} In my opinion,
Dissenting Opinion
dissenting.
{¶ 43} I respectfully dissent. The standard of appellate review of felony sentences remains unchanged by State v. Foster,
{¶ 44} Before considering the plurality’s new interpretation of Foster’s effect on sentencing appeals, it is important to look at the governing statute. To justify its holding, the plurality interprets a statute to mean the opposite of what it plainly says.
The Statute:
{¶ 45} The appropriate standard of appellate review for felony sentences is found in
{¶ 46} “The court hearing an appeal * * * shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶ 47} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 48} “(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (D)(2)(e) or (E)(4) of
{¶ 49} “(b) That the sentence is otherwise contrary to law.” (Emphasis added.)
Interpretation of State v. Foster by Appellate Courts
{¶ 50} The plurality opinion begins with a summarizing statement from Foster that “trial 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 than the minimum sentences.” Id. at ¶ 100. This language has been interpreted by some appellate courts as changing the standard of review to that of abuse of discretion. State v. Babb, 9th Dist. No. 23631, 2007-0hio-5102,
{¶ 51} We accepted this case to resolve questions over the standard of appellate review and how it should be applied after State v. Foster. The concurring opinion confusingly suggests separate standards of review depending on which statute is involved —
{¶ 52} “In addition to any other right to appeal * * *, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds:
{¶ 53} “ * * *
{¶ 54} “(4) The sentence is contrary to law.”
{¶ 55} The same right to appeal a sentence contrary to law is granted to the state.
The Effect of Foster on Appellate Review
{¶ 56} In Foster, we excised as unconstitutional
{¶ 57} We explained Foster*s consequences further in a companion case: “Now, after severance, judicial fact-finding is not required before a prison term can be imposed within the basic ranges of
{¶ 58} The mere fact that the court has “full discretion” to impose a prison sentence within the statutory range, or that it no longer is required to make certain judicial findings when sentencing, does not mean it is forbidden to give reasons or make findings. We stated explicitly in Mathis: “[I]n exercising its discretion, the court must carefully consider the statutes that apply to every felony case. Those include
{¶ 59} Because the sentencing duties of a trial judge involve much more than merely selecting a prison term within a statutory range, a sentence may be challenged as “contrary to law” even if it is within a statutory range. While Foster did liberate judges from the requirement to make certain findings, it did not free judges from all other statutory requirements.
{¶ 61} In summary, Foster's severance of certain statutes has neither changed the standard of review for felony sentence to abuse of discretion nor created a void in the standard of appellate review.
The Plurality’s “Two Step” Approach
{¶ 62} There is no need to announce an approach that employs two standards of review. By limiting the existing statutory standard to an initial review, the plurality’s approach rewrites the statute. It holds that “[appellate courts] must 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. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.” (Emphasis added.) Plurality opinion at ¶ 4. This language flatly contradicts
{¶ 63}
{¶ 64} The courts in at least half of the appellate districts seem to have had no difficulty in applying the unchanged standard of review since Foster and have examined the record to determine whether the sentence is clearly and convincingly contrary to law. See State v. Sheppard, 1st Dist. Nos. C-060042 and C-060066,
{¶ 65} As the Tenth District explained in overruling two cases,
{¶ 66} Appellate review of felony sentencing has changed to the extent that there may be fewer findings for a court to review on appeal — a mere lack of findings is no longer contrary to law as it was before Foster, and the trial court may impose prison within a statutory range. But the remainder of Ohio’s felony structure stays in place unless or until the General Assembly decides to modify the statutes. The court of appeals still “may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing” if a sentence is clearly and convincingly “contrary to law.”
Conclusion
{¶ 67} The Eleventh District Court of Appeals erroneously reviewed this case under an abuse-of-discretion standard and held that there is nothing in the record to suggest that the court’s decision was unreasonable, arbitrary, or unconscionable. State v. Kalish, 11th Dist. No. 2006-L-093,
{¶ 68} Because State v. Foster,
. State v. Knopf, Franklin App. No. 05AP-1201,