590 N.E.2d 360 | Ohio Ct. App. | 1990
Appellant, Scott Marut, along with his father, Robert Marut, was indicted on one count of felonious assault on February 19, 1989. The facts which gave rise to this indictment were that appellant, while at the Honky Tonk Saloon, in Grand River, Ohio, became involved in an altercation with another patron, George Head. Although witnesses related differing versions of the facts, the end result of the fight (which appellant apparently started) was that Head had his eye gouged out.
A trial was had on the indictment on September 11, 1989. On September 13, 1989, a Lake County jury found Robert Marut not guilty of either felonious assault, under R.C.
Following the jury's decision, the trial court dismissed the jury with the following words:
"Ladies and gentlemen, I have been on the bench eleven years and I have never said anything to the jury about their verdict, because my opinion is that the jury system is our system and, good or bad, it is, in fact our system, and this is how we live by it * * *.
"So therefore, when you give a problem to twelve people you should not chastise those twelve people for whatever the decision is that they make. But in my opinion this verdict ignores the evidence and is unreasonable."
The trial court then proceeded directly to sentencing, despite appellant's counsel's desire to delay sentencing for a pre-sentence investigation and to counsel patience against the trial court's apparent ire over the jury verdict. The court ignored counsel's request and sentenced appellant. In sentencing appellant, the court made the following comments:
"Mr. Marut, in my eleven years on the bench, as I have said to the jury, I think their actions are reprehensible, but your actions are most reprehensible.
"I thought as a judge and as a lawyer that I had heard and seen everything, but I guess I haven't.
"* * *
"When you decided you were going to fight with this man you intended, as the prosecutor said, to hurt him and hurt him bad. There is no other explanation in this case. * * * *5
"What happened you intended to happen, and it's for that reason that I gave you the maximum sentence, and I'm sorry that I couldn't have made it more. * * *"
The trial court sentenced appellant to the maximum sentence for a first degree misdemeanor: six months in jail and a $1,000 fine. The court further ordered appellant to pay full restitution for Head's medical costs, a portion of sentencing that was later dropped. Appellant received a stay from this court and now timely appeals:
"The trial court abused its discretion in imposing the maximum sentence immediately after the verdict without consideration of the statutory criteria."
Appellant's sole assignment of error argues that it was an abuse of discretion for the trial court to order the maximum sentence immediately after the verdict without consideration of the statutory criteria set forth in R.C.
"The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Steiner v. Custer
(1940),
In view of the severity of the injury precipitated by the appellant's role in this case, we would normally conclude that the court's attitude, in sentencing appellant, was not arbitrary, unreasonable, or unconscionable. However, R.C.
"In determining whether to impose imprisonment or a fine, or both, for misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine, the court shall consider the risk that the offender will commit another offense and the need for protecting the public therefrom, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him."
Further, R.C.
"The court shall not impose a fine in addition to imprisonment, for misdemeanor, unless a fine is specially adapted to deterrence of the offense or the correction of the offender, or the offense has proximately resulted in physical harm to the person or the property of another * * *." *6
As Cincinnati v. Clardy (1978),
Examination of the applicable Ohio jurisprudence on this subject indicates that the trial court judge, in the case subjudice, participated, as a jurist, in one of the seminal cases which discussed examination of statutory factors prior to sentencing. In State v. Turner (1987),
"* * * [W]e have determined that, while a court's sentencing discretion is broad, the record must indicate that the court considered the statutory criteria. A failure to weigh these factors constitutes an abuse of discretion. * * * We have repeatedly held that a presentence report or some other evidence that the trial judge considered the statutory factors satisfies the law. * * *" (Citations omitted.) Id. at 40,
In the case sub judice, however, the trial court failed even to make a pretense of considering the statutory criteria set forth in R.C.
Appellant's assignment of error is with merit.
Consequently, for the reasons set forth in this opinion, the judgment of the trial court, insofar as it relates to the sentencing of the appellant, is reversed. This cause will therefore be remanded to the Lake County Court of Common Pleas for resentencing. *7
In its order of remand, this court imposes no restrictions on whether the original trial court judge in this case may be assigned to resentence appellant. Appellant, should he feel that a conflict exists between him and the trial court judge, will have to petition the Ohio Supreme Court to remove the trial court judge from the case. Further, in remanding this cause for resentencing, this court makes no comment, pro or con, about the suitability of the sentence originally imposed on appellant, should it have been imposed after due record consideration of all appropriate statutory factors contained in R.C.
Judgment affirmed.
CHRISTLEY, P.J., and JOSEPH E. MAHONEY, J., concur.
AUGUST PRYATEL, J., retired, of the Eighth Appellate District, sitting by assignment.
