THE STATE OF OHIO, APPELLEE, v. MARCUM, APPELLANT.
Nos. 2014-1825 and 2014-2122
Supreme Court of Ohio
Submitted October 27, 2015—Decided March 15, 2016.
2016-Ohio-1002 | 146 Ohio St.3d 516
FRENCH, J.
{1 1} In this аppeal 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
{1 2} We turn, first, to the facts that present this issue.
I. FACTS AND PROCEDURAL HISTORY
{1 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, they found numerous items commonly used in methamphetamine production (referred to as “precursor ingredients” by оne of the deputies), including four homemade hydrogen-chloride-gas generators that were still emitting gas. Marcum‘s minor children were asleep in a bedroom 15 to 20 feet from the methamphetamine-production-related materials оn the porch.
{1 4} The Gallia County Grand Jury indicted Marcum on one count of manufacturing methamphetamine in the vicinity of a juvenile in violation of
{1 5} Marсum 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 Marсum‘s sentence and refused to apply an abuse-of-discretion standard to felony-sentencing appeals. Marcum filed 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.
{1 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
{1 7} We answer the certified question in the negative and hold that appellate courts must adhere to the plain languagе of
{1 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.
{1 9}
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, inсluding the findings underlying the sentence or modification given by the sentencing court.
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 аction 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.)
{1 10} The vast majority of our district courts of appeals have determined that the plain language of
{1 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 lack 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
{1 12} In 2000, the General Assembly amended
{1 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 ¶ 13, 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
{1 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. Instead, 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 the sentence was not contrаry 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 аpproach. Id. at ¶ 17.
{1 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 enact 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
{1 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
{1 17} Despite the express language of
{1 18} Marcum begins with the first sentence of
{1 19}
{20} Marcum also relies on
{1 21} Taken together, these provisions build on each other, but not in the way Marcum envisions.
C. R.C. 2953.08(G)(2) construed
{1 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 “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.
{1 23} We note that some sentences do nоt require the findings that
D. Applying the standard to Marcum
{1 24} The Fourth District correctly held that it could not modify or vacate Marcum‘s sentence unless it clearly and convincingly found that the record did
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Tiffany Carwile, Assistant Attorney General; and C. Jeffrey Adkins, Gallia County Prosecuting Attorney, and Britt T. Wiseman, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.