2005 Ohio 412 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On June 14, 2002, appellant was secretly indicted on two counts of rape, felonies of the first degree, in violation of R.C.
{¶ 3} The charges arose out of an occasion of sexual conduct that occurred between appellant and a family acquaintance and another incident of sexual conduct that occurred between appellant and a young girl who was babysitting for him.
{¶ 4} A sentencing hearing was held along with a hearing pursuant to R.C.
{¶ 5} In addition, the trial court stated that there "is no mental illness or mental disability, but there is a personality disorder quite obviously. [Dr. John Fabian ("Dr. Fabian")] has ruled out pedophilia in this case." The trial court found that as far as a demonstrated pattern of abuse, one of the victims, the eleven or thirteen year old, was approached by appellant on more than one occasion. Furthermore, the court indicated that there was a threat of shooting.1
{¶ 6} The court proceeded to the sentencing portion of the hearing and stated that it: "* * * considered the victim impact statement * * * as well as letters in support of [appellant] * * *. [It] also considered the report of Dr. Fabian, the Court Psychologist. * * *
{¶ 7} "In rendering sentence * * * [a]s far as felony factors to be weighed in every case, factors indicating the offense was More Serious, under [R.C.] 2929.12(B), I find the victim, victims, suffered [serious] psychological harm, I find the offender had a position of trust, I find the relationship with the victims did facilitate the offense.
{¶ 8} "* * *
{¶ 9} "Under factors indicating Recidivism is More Likely, under [R.C.] 2929.12(D), I find no genuine remorse.
{¶ 10} "Under Less Likely, [R.C.] 2929.12(E), I find no prior delinquency adjudications, no prior convictions and I also find [appellant] had led a law-abiding life for a significant number of years.
{¶ 11} "* * * I find there was a sex offense, sex offenses that occurred in this particular case. After weighing seriousness and recividism factors, prison is consistent with the purposes and principles of sentencing, the offender is not amenable to an available community sanction.
{¶ 12} "I also find that the minimum sentence in this case would demean the seriousness of the offense, not adequately protect the public from future crime by the offender. I also find that the offender committed the worst form of the offense, offender poses the greatest likelihood of committing future crimes.
{¶ 13} "I also find that in Count One, in which the maximum sentence will be imposed, five years to the Lorain Correctional Institution, that [appellant] took away the innocence of a nine year old girl. Through fear, through knowing ignorance of a nine year old girl.
{¶ 14} "I find that sexual conduct did occur with a nine year old girl and that she suffered tremendous psychological implication from that as well as her family has which are ongoing to this date. * * * It would appear she would never have a normal relationship with a man for the rest of her life. Apparently doesn't even have a normal relationship with her loving father. That is the maximum sentence in Count One.
{¶ 15} "* * * In Count Three, I will impose a sentence of one year to the Lorain Correctional Institution, that [is] to run concurrent with Count One * * *."
{¶ 16} In an entry dated February 14, 2003, the trial court found by clear and convincing evidence that appellant was a sexual predator. In that same entry, the court sentenced him to a term of five years in prison for count one, sexual battery, and one year in prison for count three, sexual battery, with the sentences to run concurrently. Appellant timely filed the instant appeal and assigns the following as error:
{¶ 17} "[1.] The trial court erred to the prejudice of [appellant] when it ordered a term of imprisonment by making findings under the applicable sentencing statute that were not supported by the record.
{¶ 18} "[2.] The trial court erred by sentencing [appellant] to the maximum term of imprisonment on all charges.
{¶ 19} "[3.] The trial court committed reversible error when it labeled [appellant] a sexual predator against the manifest weight of the evidence.
{¶ 20} "[4.] The trial court erred when it sentenced [appellant] to a maximum and more than the minimum sentence based upon a finding of factors not found by the jury or admitted by [appellant] in violation of [appellant's] state and federal constitutional rights to [a] trial by jury."
{¶ 21} Under the first assignment of error, appellant alleges that the trial court erred when it imposed a prison term where its findings pursuant to R.C.
{¶ 22} Our review of a felony sentence is de novo under R.C.
{¶ 23} R.C.
{¶ 24} Here, in considering R.C.
{¶ 25} Furthermore, we note that the trial court stated on the record and in its judgment entry that it considered the record, oral statements, any victim impact statement and presentence report and/or drug and alcohol evaluation, as well as the principles and purposes of sentencing under R.C.
{¶ 26} However, appellant maintains that the trial court abused its discretion in imposing a prison sentence because such a decision was not supported by the record. Our reading of the record before us supports the trial court's decision to impose a prison term as opposed to community control sanctions. The trial court concluded that appellant was in a position of trust and that relationship facilitated the offense. The trial court also found no genuine remorse on appellant's part and concluded that even though appellant had no prior delinquency adjudications and led a law-abiding life for a significant period of time, a minimum sentence would demean the seriousness of the offense and not adequately protect the public from future crime. As a result, we conclude that the trial court did not abuse its discretion in imposing a prison term rather than community control sanctions. Appellant's first assignment of error lacks merit.
{¶ 27} In the second assignment of error, appellant argues that the trial court erred when it sentenced him to the maximum term of imprisonment on all charges without following the mandates of R.C.
{¶ 28} In order to sentence a defendant to the maximum term of incarceration, a trial court must make certain findings pursuant to R.C.
{¶ 29} Additionally, when the sentencing court wishes to impose the maximum sentence on a defendant, it must give its reasons. State v.Jones, 11th Dist. No. 2001-L-176, 2003-Ohio-476, at ¶ 15. This court has held that "[a] sentence which merely recites the language of R.C.
{¶ 30} The Supreme Court of Ohio has stated that a trial court must make the pronouncement at the sentencing hearing as to the imposition of a nonminimum sentence on a first time offender. State v. Comer,
{¶ 31} To determine if an offender committed the worst form of an offense, the trial court should consider the totality of the circumstances. State v. Garrard (1997),
{¶ 32} "[appellant] took away the innocence of a nine year old girl. Through fear, through knowing ignorance of a nine year old girl.
{¶ 33} "I find that sexual conduct did occur with a nine year old girl and that she suffered tremendous psychological implication from that as well as her family has which are ongoing to this date. * * * It would appear she would never have a normal relationship with a man for the rest of her life. Apparently doesn't even have a normal relationship with her loving father. That is the maximum sentence in Count One."
{¶ 34} It is clear from the foregoing colloquy that the trial court explained its reasons at the hearing for imposing the maximum sentence. With respect to the court's finding that appellant poses the greatest likelihood of committing future crimes, the court found that appellant has not shown any genuine remorse for his acts, but rather, according to his psychological evaluation continues to make excuses for the sexually abusive acts. As this court has previously held, the trial court is in a better position to determine whether an appellant's remorse is genuine.State v. Eckliffe, 11th Dist. No. 2001-L-105, 2002-Ohio-7136, at ¶ 32
{¶ 35} We conclude that the record supports the imposition of the maximum sentence, and that appellant was sentenced in accordance with law. It is our position that the trial court made the statutorily mandated findings in accordance with R.C.
{¶ 36} For his third assignment of error, appellant asserts that the trial court erred when it labeled him a sexual predator because the decision was against the manifest weight of the evidence.
{¶ 37} We do not apply a de novo standard of review when reviewing a sexual predator determination; instead, we examine whether the trial court's determination was against the manifest weight of the evidence.State v. Davis (Apr. 19, 2002), 11th Dist. No. 2000-L-190, 2002 WL 603061, at 2. In determining whether an offender should be classified as a sexual predator, the trial court may use reliable hearsay such as a presentence investigation report or victim impact statement as the Ohio Rules of Evidence do not strictly apply to sexual predator adjudication hearings. State v. Cook (1998),
{¶ 38} R.C.
{¶ 39} In making a sexual predator determination, the trial court must identify the factors under R.C.
{¶ 40} Moreover, when reviewing a claim that a judgment is against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts, the trier of fact lost its way and created a miscarriage of justice. State v. Thompkins (1997),
{¶ 41} The trial court does not need to find that a majority of the R.C.
{¶ 42} In the case at bar, the record includes clear and convincing evidence that several of the factors set forth in R.C.
{¶ 43} After reviewing the record and weighing the evidence and all reasonable inferences therefrom, we cannot conclude that the trial court lost its way. While the psychological evaluation from Dr. Fabian revealed that appellant would be at a low risk to reoffend, it is our position that the totality of the circumstances support the trial court's conclusion that appellant was a sexual predator. Therefore, based upon a review of the record, we cannot conclude that the trial court erred by classifying appellant as a sexual predator. Appellant's third assignment of error has no merit.
{¶ 44} In appellant's fourth assignment of error, he claims his constitutional rights were violated because he was given the maximum sentence and more than the minimum based on findings of fact that appellant did not admit to and were not found by a jury.
{¶ 45} According to Apprendi v. New Jersey (2000),
{¶ 46} The United States Supreme Court followed this rule in Blakelyv. Washington (2004),
{¶ 47} The United States Supreme Court reversed the sentence holding that the "statutory maximum" for Apprendi purposes is not the longest term a defendant can receive under the circumstances. Id. at 2537. The Court emphasized that the "statutory maximum" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the juryverdict or admitted by the defendant." Id. (Emphasis sic.)
{¶ 48} Here, appellant was convicted on two counts of sexual battery, felonies of the third degree. Appellant's plea reveals that he agreed to a sentence anywhere from one to five years of imprisonment for each count. The trial court imposed a term of five years for one count and one year for the other count to run concurrently.
{¶ 49} R.C.
{¶ 50} "* * * if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶ 51} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 52} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 53} R.C.
{¶ 54} In the case sub judice, appellant was neither serving a prison term at the time of the offense nor had he served a previous prison term. Thus, to support an upward departure from the statutorily minimum one year sentence, the trial court stated: "* * * the minimum sentence in this case would demean the seriousness of the offense [and] not adequately protect the public from future crime by the offender." The trial court also stated on the record that it found that appellant committed the worst form of the offense and that he posed the greatest likelihood of recidivism.
{¶ 55} Appellant contends the statute prescribes a one-year term of imprisonment as long as he was not serving a prison term at the time of the offense or had not previously served a prison term. To overcome this presumption, the court must engage in a fact-finding process. The facts permitting the upward departure, however, were neither admitted by appellant nor charged in the indictment; by implication, the R.C.
{¶ 56} Appellant's argument suggests that Blakely acts to completely eliminate sentencing discretion. Yet, Blakely, supra, at 2540, indicates that a sentencing judge may exercise his or her discretion to the extent that doing so does not impinge upon the "jury's traditional function of finding the facts essential to lawful imposition of the penalty." Due Process "requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York (1977),
{¶ 57} We note that "[l]egislative bodies do not have the unfettered discretion to lessen the government's burden of proof of a criminal charge simply by characterizing a factor as a penalty consideration rather than an element of the offense." United States v. Rigsby (1991),
{¶ 58} "`* * * Where the law permits the heaviest punishment, on a scale laid down, to be inflicted, and has merely committed to the judge the authority to interpose its mercy and inflict a punishment of a lighter grade, no rights of the accused are violated though in the indictment there is no mention of mitigating circumstances. The aggravating circumstances spoken of cannot swell the penalty above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him.'" Harris, supra, at 561-562, citing Bishop, Criminal Procedure, section 85, at 54.
{¶ 59} Because the factors in question fit within this description, the General Assembly's choice to entrust them to the judge does not improperly trespass on a defendant's Sixth Amendment right to a jury trial. Id.
{¶ 60} The General Assembly has made it clear that the R.C.
{¶ 61} It is further our position that the trial court followed Ohio's sentencing scheme and sentenced appellant to a maximum term of five years of imprisonment for one count of sexual battery and one year for the other count of sexual battery, with the sentences to run concurrently. Ohio's sentencing scheme only authorized the trial court to sentence appellant to the maximum term because it also found that appellant committed the worst form of the offense and that the minimum sentence would demean the seriousness of the crime. Appellant's sentence therefore could be calculated without resolution of factual issues beyond the admitted facts. As applied to the matter at hand, Ohio's sentencing scheme is not unconstitutional in light of Apprendi and Blakely. Appellant's fourth assignment of error is meritless.
{¶ 62} For the foregoing reasons, appellant's assignments of error are not welltaken. The judgment of the Lake County Court of Common Pleas is affirmed.
Rice, J., concurs,
O'Neill, J., dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 63} I must respectfully dissent. I disagree with the majority's analysis holding that Blakely v. Washington does not apply to this matter.
{¶ 64} In enacting Senate Bill 2, with an effective date of July 1, 1996, the Ohio General Assembly radically altered its approach to criminal sentencing. The new law essentially designated three classes of citizens who would have statutorily defined roles in determining the amount of time an individual would be incarcerated for a particular crime. The three classes defined were: (1) the Ohio General Assembly; (2) judges; and (3) jurors.
{¶ 65} Senate Bill 2 also provided three distinct areas of judicial limitations when it set about its task of providing "truth in sentencing." Those would be: (1) sentences imposed beyond the minimum; (2) sentences imposing the maximum; and (3) consecutive sentences. The objective was apparently to provide a degree of consistency and predictability in sentencing.
{¶ 66} It is clear that the legislature did not interfere with the role of juries to determine guilt. Thus, the first task in sentencing went to juries. In the second phase, the legislature reserved unto itself the role of establishing minimum sentences that would be imposed once the finding of guilt, either by trial or admission, was accomplished. And finally, the new law set forth the "findings" that were required before a judge would be permitted to depart from the minimum or impose consecutive sentences. Thus, everyone had a clearly defined role to play.
{¶ 67} The first major pronouncement by the Ohio Supreme Court concerned the "findings" necessary to support the imposition of a maximum sentence. In Edmondson, the Supreme Court of Ohio held that a trial court must "make a finding that gives its reasons" on the record for the imposition of a maximum sentence.3
{¶ 68} Following that pronouncement, the Supreme Court of Ohio, inState v. Comer, required the sentencing courts to make their "findings" and give reasons supporting those findings on the record "at the sentencing hearing."4 Thus, it is clear that the courts, in applying Senate Bill 2, imposed duties upon judges to make specific findings to support their sentences whenever they went beyond the minimum; or imposed maximum sentences or consecutive sentences.
{¶ 69} In 2004, however, the United States Supreme Court issued its judgment in Blakely v. Washington and made it clear that judges making "findings" outside a jury's determinations in sentencing violated constitutional guarantees.5 Specifically, the court held:
{¶ 70} "Our precedents make clear, however, that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may imposesolely on the basis of the facts reflected in the jury verdict oradmitted by the defendant. * * * In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment,' * * * and the judge exceeds his proper authority."6
{¶ 71} Thus, it is clear that the statutory judicial "findings," which provide the framework for all sentencing in Ohio, are prohibited by the United States Supreme Court.
{¶ 72} Following the United States Supreme Court's release ofBlakely, this court determined that a trial court's reliance on a previous conviction as evidenced in the record would still be permissible for the purpose of imposing a sentence greater than the minimum.7 As stated by this court in State v. Taylor:
{¶ 73} "Under R.C.
{¶ 74} It is clear that, for Blakely purposes, a trial court is permitted to take judicial notice that a defendant has served a prior prison term, for that is not a "finding." It is a judicial acknowledgement of an indisputable fact. The trial court merely acknowledges the prior prison term and does not have to weigh conflicting evidence to make a factual finding. As such, a defendant's Sixth Amendment rights are not compromised by the exercise.
{¶ 75} Other courts have taken a more literal approach to this question, particularly in the area of maximum and consecutive sentences. I believe the Eighth District Court of Appeals properly applied theBlakely standard when it held:
{¶ 76} "This standard, however, must now be assessed in light of the United States Supreme Court ruling in Blakely v. Washington, * * * which states that the `statutory maximum' is not the longest term the defendant can receive under any circumstances, but is `the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.'10 The jury did not make a finding that Quinones had committed a worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either. * * * Therefore, the sentences * * * must be vacated and remanded for resentencing in light of Blakely."11
{¶ 77} I believe that a distinction must be made between "findings," which courts make to justify maximum or consecutive sentences and "acknowledging" the existence of a prior sentence in a criminal matter, which would permit the court to exercise its discretion in departing from a minimum sentence. Clearly, Blakely no longer permits courts in Ohio to "find" that a defendant has committed the "worst form of the offense" or that his actions predict the "greatest likelihood of recidivism" without either an admission by the defendant or a finding by the trier of fact.
{¶ 78} As so eloquently stated by the United States Supreme Court inBlakely:
{¶ 79} "This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment."12
{¶ 80} The court went on to state that the Sixth Amendment was not a "limitation of judicial power, but a reservation of jury power."13 In what I believe to be the true thrust of this landmark case, the United States Supreme Court finally held that "[t]he framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the `unanimous suffrage of twelve of his equals and neighbours,' * * * rather than a lone employee of the state."14
{¶ 81} In conclusion, I believe the trial court erred in sentencing the defendant to more than the minimum in this matter; and, as a matter of law, I would hold that trial courts are only permitted to depart from the minimum sentence based upon facts admitted or found by the trier of fact. The only exception I believe permissible, consistent with Blakely, is the indisputable fact of a prior conviction, which would then permit judges to do their statutory job. And that job is, and always has been, to sentence criminals within the determinate bracket established by the Ohio General Assembly.
