2005 Ohio 4164 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} The court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public and, as applicable in this case, the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C.
{¶ 3} The court stated:
{¶ 4} "The kidnapping and rape sentences will run concurrent with each other. The felonious assault conviction will run consecutive. To do otherwise would demean the seriousness of these offenses and not adequately protect the public, particularly in view of the prior conduct in this defendant's life."
{¶ 5} The court made a finding that consecutive sentences were necessary to protect the public from future crime and it clearly went through Moore's lengthy criminal history. So two of the three necessary elements were established on the record.
{¶ 6} The court did not, however, make an express finding that consecutive sentences were not disproportionate to the seriousness of Moore's conduct. Nevertheless, we believe that finding was implicit as the court noted it was "well aware of the testimony in this case, including the period of prolonged and relentless beating of the victim with a broom handle and later an ice bucket, an evening of repeated violent sexual conduct with the victim." The court went on to note that Moore caused "serious physical, emotional, and psychological harm to the victim."
{¶ 7} We do not require the court to use "magic words" for imposing consecutive sentences, but it must be clear from the context that the court's statements were intended to encompass the relevant provisions of the sentencing statutes. State v.White (1999),
{¶ 8} In reaching this conclusion, we believe it important that the sentencing judge presided over a trial on the matter and was fully versed on the facts of the offense. Unlike a plea proceeding where the defendant simply admits to the bare facts contained in an indictment, a trial exposes the facts in greater detail, and the court's ability to see the witnesses, particularly the victim, gives it a more fully formed basis for making sentencing decisions. Thus, we have no difficulty finding that the court's reference to the specific facts of the case could be applied as a finding relating to proportionality.
{¶ 9} This is not to say that the rule on the use of "magic" words does not extend to plea proceedings. Under appropriate circumstances, the court may base its sentencing decisions on facts divulged in presentence investigation reports that have been specifically made a part of the record. In such a case, a similar reference to facts contained in a presentence report (or facts properly brought out in any other light) could be sufficient to establish a required factor for sentencing. The exact parameters will, of course, depend on the unique circumstances of the case.
{¶ 10} We therefore conclude that the court's findings satisfied the requirements of R.C.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McMonagle, J., concurs. Diane Karpinski, P.J., concurs with separate opinion.
Concurrence Opinion
{¶ 11} I concur with the majority opinion. I write separately, however, to address an issue arising from Blakely v.Washington (2004), ___ U.S. ___,
{¶ 12} Under Blakely, defendant could argue that in running his sentences consecutive to one another, the trial court violated his Sixth Amendment rights.
{¶ 13} In Blakely, the U.S. Supreme Court held that:
Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in thejury verdict or admitted by the defendant. See Ring, [v.Arizona,
(Emphasis in original.) Blakely, supra, at 2537.
{¶ 14} Consecutive sentences are governed by R.C.
The court must find that consecutive sentences are: (1) necessary to protect the public from future crime or to punish the offender; (2) not disproportionate to the seriousness of the defendant's conduct; and (3) not disproportionate to the danger the defendant poses to the public. In addition to these three findings, the trial court must also find one of the following: (1) the defendant committed the offenses while awaiting trial or sentencing on another charge; (2) the harm caused was so great that no single sentence would suffice to reflect the seriousness of defendant's conduct; or (3) the defendant's criminal history is so egregious that consecutive sentences are needed to protect the public. R.C.
{¶ 15} Under Blakely, such judicial findings, arguably, violate defendant's Sixth Amendment right to trial by jury.
{¶ 16} This court, however, recently addressed this argument in its en banc decision of State v. Lett (May 31, 2005), Cuyahoga App. Nos. 84707 and 84729, and held that imposing consecutive sentences under R.C.
{¶ 17} In conformity with this court's en banc decision inLett, I would acknowledge that its application in the case at bar would result in finding that defendant's consecutive prison terms do not violate Blakely. I therefore would proceed to the analysis the majority has provided, but I do so reluctantly because I believe the en banc procedure this court used in Lett is unconstitutional and dissented for that reason, as well as on the merits. With that reservation, I thus concur with the majority opinion in its decision to affirm the trial court.
