State v. MullinsState v. Mullins
COLLEEN MARY O‘TOOLE, J.
{¶1} William Mullins appeals his conviction and sentence entered by the Portage County Court of Common Pleas on one count of gross sexual imposition. For the reasons which follow, we affirm.
{¶2} On November 9, 2011, Mullins was indicted on one count of rape, a first-degree felony in violation of
{¶3} On July 25, 2012, Mullins entered a written and oral plea of guilty to gross sexual imposition,
{¶4} Sentencing was held on October 5, 2012. The court then proceeded with sentencing and sexual-offender classification hearing. The court imposed the maximum term of five years imprisonment on the gross sexual imposition count and declared that Mullins is a Tier II sex offender. The court also imposed five years of mandatory post-release control.
{¶5} This appeal timely followed. Mullins assigns a single error for review, which states:
{¶6} “The trial court erred in sentencing appellant to the maximum sentence.”
{¶7} In support of his assignment, Mullins asserts that the court abused its discretion when it failed to follow the felony sentencing statutes in fashioning the appropriate sentence. Mullins argues that the trial court did not focus on the fact that he sought psychological help before he was arrested; his lack of any significant criminal record; that the victim‘s mother (his sister) did not want him to go to prison; and the support of his family.
{¶9} Prior to 2006, Ohio sentencing law created presumptions that offenders be given minimum, concurrent terms of incarceration. See former
{¶10} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio‘s sentencing statutes that required a judge to make factual findings in order to increase a sentence beyond presumptive minimum or concurrent terms unconstitutionally infringed on the jury‘s function in violation of the Sixth Amendment. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those sections and held that courts have full discretion to sentence within the applicable statutory range and to order sentences to be served consecutively. Id. at ¶99-100.
{¶12} We note that Kalish, an appeal from this court, State v. Kalish, 11th Dist. Lake No. 2006-L-093, 2007-Ohio-3850 (O‘Toole, J., concurring in part, dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State v. Azbill, 11th Dist. Lake No. 2007-L-092, 2008-Ohio-6875, citing State v. Bassett, 8th Dist. Cuyahoga No. 90887, 2008-Ohio-5597, ¶24, fn.2. Although the plurality in Kalish indicated that this court did not review the sentence to ensure that the trial court clearly and convincingly complied with the pertinent laws, it nevertheless affirmed this court‘s judgment, albeit on different grounds.
{¶13} Thereafter, in 2009, the reasoning in Foster was partially called into question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme Court held that a state could require judicial findings of fact to impose consecutive rather than concurrent sentences without infringing on a defendant‘s Sixth Amendment rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained valid after Ice and the judiciary was not required to make findings of fact prior to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1,
{¶14} On September 30, 2011, Ohio‘s sentencing statutes were revised pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different, requirement of judicial fact-finding under H.B. 86, containing many amendments to criminal sentencing provisions. For example, H.B. 86 revived the language provided in former
{¶15} In reviewing a felony sentence,
{¶16} “(2) 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.
{¶18} “(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;
{¶19} “(b) That the sentence is otherwise contrary to law.”
{¶20} The Eighth District recently stated in Venes, supra, at ¶20-21:
{¶21} “It is important to understand that the ‘clear and convincing’ standard applied in
{¶22} “It is also important to understand that the clear and convincing standard used by
{¶24} H.B. 86 amended
{¶25} “(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 using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. 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.”
{¶26} “However, there is still no ‘mandate’ for the sentencing court to engage in any factual findings under
{¶28}
{¶29} Mullins argues that his receipt of the maximum sentence was an abuse of discretion because he had no prior record other than two misdemeanors from over a decade ago; that he sought help prior to being arrested and had the support of his family. A sentencing court has broad discretion to determine the relative weight to assign the factors in
{¶31} As the sentencing transcript reflects, Mullins’ counsel outlined to the court all of the factors in Mullins’ favor that could lead to mitigation. The trial court noted that Mullins self-reported and cooperated with the criminal investigation. However, the court could reasonably assign this evidence little or no mitigating weight as compared to the aggravating circumstances.
{¶32} Mullins’ argument that the trial court inappropriately focused its attention on the fact that the rape count was dismissed is likewise without merit. Evidence of other crimes that are dismissed as a result of a plea bargain may be considered at sentencing. See, e.g., State v. Cooey, 46 Ohio St.3d 20, 35 (1989).
{¶33} Appellant‘s sole assignment of error is without merit.
{¶34} The judgment of the Portage County Court of Common Pleas is affirmed.
{¶36} The court finds there were reasonable grounds for this appeal.
CYNTHIA WESCOTT RICE, J., concurs in judgment only with Concurring Opinion,
THOMAS R. WRIGHT, J., concurs in judgment only.
CYNTHIA WESCOTT RICE, J., concurs in judgment only with Concurring Opinion.
{¶37} The lead opinion provides a brief history of Ohio felony-sentencing law from S.B.2, through Foster and Hodge, up to the recent enactment of H.B. 86. The lead writer‘s account concludes by identifying certain changes in felony- sentencing law that resulted from H.B. 86‘s enactment; namely, reviving the requirement of judicial factfinding for a court imposing consecutive sentences and the reduction of maximum prison terms for certain felony-three crimes. The lead writer uses the cited changes, which have no bearing on the instant appeal, as premises for the conclusion that the standard announced in Kalish is no longer applicable. Although the lead writer‘s chronicle provides an accurate thumbnail sketch of the various changes to the statutory scheme occurring over the past seven years, I fail to see how H.B. 86‘s cited changes, which are inconsequential in this appeal, would function to annul Kalish. Thus, while I concur with the disposition of this case, I write separately because I do not agree with the lead writer‘s conclusion regarding our standard of review.
{¶38} Preliminarily, the lead writer‘s conclusion that Kalish is no longer applicable is not supported by the premises upon which it purports to rest. It does not
{¶39} The lead opinion seems to use the fact that the legislature made changes to portions of Ohio‘s substantive felony sentencing law as a sufficient condition for eliminating our well-settled standard of review, which includes an assessment of the trial court‘s exercise of its discretion. This is problematic because
{¶40} The lead writer cites cases from the Eighth, Third, and Tenth District in support of jettisoning the Kalish standard. None of those cases, however, suggest that
{¶41} As noted above, this is not an H.B. 86 consecutive sentencing case. And, perhaps more importantly, this court has adopted the Kalish standard as the exclusive means for evaluating felony sentences, irrespective of the plurality nature of the Kalish opinion.
{¶42} Thus, while I concur in the disposition of the case, I take issue with the lead opinion‘s assertion that H.B. 86 has rendered Kalish either inapplicable or unworkable.