State v. Marcum (Slip Opinion)State v. Marcum (Slip Opinion)
{¶ 1} In this appeal that focuses on a certified-conflict issue, we address the standard of review that appellate courts must apply when reviewing felony sentences. Applying the plain language of
{¶ 2} We turn, first, to the facts that present this issue.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Acting on a tip, two deputies from the Gallia County Sheriff‘s Department visited the home of defendant-appellant, Mary C. Marcum. Marcum gave the deputies permission to search the premises. In trash bags on Marcum‘s porch, thеy found numerous items commonly used in methamphetamine production (referred to as “precursor ingredients” by one of the deputies), including four homemade hydrogen-chloride-gas generators that were still emitting gas. Marcum‘s minor children werе asleep in a bedroom 15 to 20 feet from the methamphetamine-production-related materials on the porch.
{¶ 4} The Gallia County Grand Jury indicted Marcum on one count of manufacturing methamphetamine in the vicinity of a juvenilе in violation of
{¶ 5} Marcum appealed her conviction and sentence to the Fourth District Court of Appeals. Relevant to our review, she contended that the trial court abused its discretion by imposing a near-maximum prison term. The Fourth District affirmed Marcum‘s sentence and refused to apply an abuse-of-discretion standard to felony-sentencing appeals. Marcum filеd a discretionary appeal. And at Marcum‘s request, the Fourth District later certified that its judgment conflicted with State v. Hill, 7th Dist. Carroll No. 13 CA 892, 2014-Ohio-1965, 2014 WL 1878769, and State v. Simmons, 9th Dist. Summit No. 27197, 2014-Ohio-4191, 2014 WL 4724681.
{¶ 6} We accepted Marcum‘s discretionary appeal. 141 Ohio St.3d 1454, 2015-Ohio-239, 23 N.E.3d 1196. We also determined that a conflict exists and ordered the parties to brief one issue:
[D]oes the test outlined by the [c]ourt in State v. Kalish apply in reviewing felony sentences after the passage of
R.C. 2953.08(G) ?
141 Ohio St.3d 1453, 2015-Ohio-239, 23 N.E.3d 1195.
II. ANALYSIS
{¶ 7} We answer thе certified question in the negative and hold that appellate courts must adhere to the plain language of
{¶ 8} Our primary concern when construing statutes is legislative intent. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). In determining that intent, we first look to the plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11. When the language is unambiguous and definite, we apply it as written. Id.
{¶ 9}
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, rеduce, 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:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{¶ 10} The vast majority of our district courts of appeals have determined that the plain language of
{¶ 11} To be sure, until the enactment of 2011 Am.Sub.H.B. No. 86 (“H.B. 86“), neither the General Assembly nor this court had been as explicit as we are today. That laсk of clarity stemmed from statutory changes, some by the General Assembly and some by our application of federal constitutional precedent. The relevant history begins with the statutory language that was enacted in 2000.
A. Statutory history
{¶ 12} In 2000, the General Assembly amended
{¶ 13} Our decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, excised portions of the sentencing statutes. Foster resulted from our application of United States Supreme Court decisions that interpret limitations the Sixth Amendment places on judicial fact-finding. Id. at ¶ 3, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and at ¶ 12, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Relevant to this case, we severed as unconstitutional divisions (B) and (C) of
{¶ 14} We revisited the topic of appellate discretion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, a plurality of this court recognized that appellate courts could not apply an abuse-of-discretion standard when initially reviewing a sentence. Id. at ¶ 14. Insteаd, the lead opinion crafted a two-pronged approach. Initially, the appellate court had to determine as a purely legal question whether a sentence was clearly and convincingly contrary to law. Id. If thе sentence was not contrary to law (for instance, if it fell within the statutory range), the broad discretion recognized in Foster came into play. Kalish at ¶ 15, 17. In light of that broad discretion, the lead opinion prescribed and applied the abuse-of-discretion standard as the second step of the approach. Id. at ¶ 17.
{¶ 15} Two years later, we recognized that the United States Supreme Court‘s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), undermined the consecutive-sentences aspect of our holding in Foster, and we invited the General Assembly to еnact a responsive consecutive-sentencing provision. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 6. The General Assembly did so when it enacted the wide-ranging provisions of H.B. 86. See H.B. 86, Section 11 (stating the General Assembly‘s intent that several of the
{¶ 16} We come, then, to current law. Beginning September 30, 2011, the effective date of H.B. 86, the statutory language of
B. Marcum‘s arguments
{¶ 17} Despite the express language of
{¶ 18} Marcum begins with the first sentence of
{¶ 19}
{¶ 20} Marcum also relies on Ohio Constitution, Article IV, Section 3(B)(2), which provides: “Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *.” In essence, this section provides the constitutional underpinning of
{¶ 21} Taken together, these provisions build on each other, but not in the wаy Marcum envisions. Article IV, Section 3(B)(2) of the Ohio Constitution provides courts of appeals with jurisdiction to review inferior courts’ decisions.
C. R.C. 2953.08(G)(2) construed
{¶ 22} In the final analysis, we hold that
Clear and convincing evidence is that measure or degree of proof which is more than a mere “prepondеrance 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 tо be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 23} We note that some sentences do not require the findings that
D. Applying the standard to Marcum
{¶ 24} The Fourth District correctly held that it could not modify or vacate Marcum‘s sentence unless it cleаrly and convincingly found that the record did
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.