Appeal No. C-980658. Trial No. B-9802825. | Ohio Ct. App. | Jun 18, 1999
Lead Opinion
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The growing cloud of chemical irritant caused panic throughout the auditorium. All 400 attendees rushed to the exit doors, pushing their way outside. Two women, Anna Weber and Amanda Hartman, fell victim to the irritant. As her three children watched, Mrs. Weber had a seizure and went into convulsions. Ms. Hartman, a 16-year-old, got the chemical irritant in her eyes and had great difficulty breathing.
As the defendant tried to flee, James Williamson, the school principal, approached and tried to detain the defendant. The defendant, in his attempt to escape, pushed Mr. Williamson, who reinjured one of his knees. The defendant then fled across the school grounds.
Several people saw the defendant attempting to flee and gave chase. Donald Weil, along with several others, tackled the defendant. The defendant bit Mr. Weil, leaving a noticeable bite mark on Mr. Weil's hand. The defendant was then handed over to the police and taken to the hospital.
While at the hospital, the defendant continued to act threateningly towards the hospital personnel. The defendant also spit in the face of the doctor trying to treat the cuts and bruises the defendant sustained while engaged in the scuffles with Mr. Williamson and Mr. Weil.
On April 29, 1998, the Hamilton County Grand Jury returned a five-count indictment against the defendant. The defendant was charged with three counts of inducing panic in violation of R.C.
On June 24, 1998, the defendant withdrew his plea of not guilty and entered a plea of guilty to the offenses charged in the indictment. At the plea hearing, the defendant was informed of his rights pursuant to Crim.R. 11. The trial judge specifically informed the defendant that the maximum penalty he faced was thirteen and a half years. After ensuring that the defendant fully understood his rights, the trial judge found the defendant guilty on all counts. The trial judge then continued the matter until July 13, 1998, to allow for a presentence investigation and victim-impact statement.
On July 13, 1998, the defendant was sentenced by the trial judge. He received a sentence of eight years on the felonious-assault conviction, one year on the assault conviction, and one and a half years on two inducing-panic convictions. The remaining inducing-panic count was merged with the felonious-assault conviction. The trial judge ordered that the two inducing-panic sentences be served concurrently, but they were otherwise made consecutive to the felonious-assault and assault sentences. Thus, the defendant received a total sentence of ten and a half years' incarceration, three years less than the maximum term he could have received.
The defendant filed motions for appellate bond, which were denied both in the trial court and by this court. Additionally, the defendant's post-sentence motion to withdraw his guilty plea was denied after a full hearing on the matter.
In this appeal, which we have sua sponte removed from the accelerated calendar, the defendant raises three assignments of error. In the first assignment of error, the defendant claims that the trial judge erred in denying his post-sentence motion to withdraw his guilty plea. In the defendant's second assignment of error, he claims that his appointed counsel was ineffective in failing to inform him of the trial judge's antipathy towards him prior to the entry of the guilty plea. Finally, the defendant, in his third assignment of error, claims that the sentences imposed upon him were excessive and failed to comply with the purposes and procedures of R.C.
To prevail on a claim of ineffective assistance of counsel in this case, the defendant must demonstrate that counsel's performance was deficient and that, but for counsel's deficient performance, he would not have entered a guilty plea. Hill v.Lockhart(1985),
The transcripts of the plea hearing and the motion to withdraw the guilty plea reveal that the defendant was properly informed of the rights he was waiving by entering his plea. Additionally, the trial judge engaged in a direct dialogue with the defendant in order to ascertain whether the defendant knew the maximum and minimum penalties he was facing, and whether any promises had been made to the defendant regarding the sentence he might receive. The trial judge also ensured that the defendant understood the implications of the guilty plea and that the plea was being entered into voluntarily and intelligently. Thus, neither the plea hearing nor the hearing on the defendant's motion to withdraw his plea reveals either that counsel for the defendant conveyed incorrect information to the defendant or that the defendant received any promises for a lenient sentence in exchange for his plea.
In addition to the transcripts, the record contains an affidavit of the defendant's counsel. While the affidavit does state that counsel "never anticipated in his wildest imagination that his client would receive the maximum sentence," that alone is not enough to demonstrate that counsel's performance was deficient. A review of that affidavit, which was filed with the motion to withdraw the guilty plea, does not support the defendant's contention that counsel provided incorrect information to the defendant. On the contrary, the affidavit reveals that counsel determined that a guilty plea would be in the best interests of the defendant, that the defendant was in agreement with counsel's assessment and was fully aware of the maximum range of sentences, that counsel engaged in conversations with the trial judge wherein the judge did not allude to any specific sentence, and that the trial judge never gave any indication that the maximum sentence would be imposed.
The defendant would have this court believe that his case is analogous to this court's decision in State v. Collins(Feb. 13, 1998), Hamilton App. No. C-970138, unreported, 1998 WL 57791; however, this case is distinguishable. In Collins, this court reversed the sentence imposed upon a defendant because counsel incorrectly informed the defendant that his sentences were to run concurrently, when, in fact, the sentences were to run consecutively. In this case, counsel did not misinform the defendant of the possible sentences, nor did counsel's performance in the plea negotiations or at the plea hearing in any way induce the defendant to plead guilty to the offenses charged in the indictment. The defendant's claim that counsel should have informed him of the trial judge's *107 antipathy towards him is speculative at best. The trial judge did not convey any antipathy toward the defendant, nor did the judge express that feeling to counsel for the defendant.
Without a showing that counsel's performance was deficient, defendant's claim of ineffective assistance of counsel must fail. Therefore, we overrule the defendant's second assignment of error and turn now to the defendant's first assignment of error.
Post-sentence motions to withdraw guilty pleas are not freely granted because that would allow defendants to withdraw their pleas when unfavorable sentences are received. State v. Peterseim
(1980),
The trial judge complied strictly with Crim.R. 11 in this case, demonstrating that the defendant knowingly, voluntarily, and intelligently entered his guilty plea. The defendant points to no other basis for manifest injustice that would lead us to conclude that the trial judge abused his discretion in denying the defendant's motion to withdraw his plea. While the defendant may have been surprised by the severity of the punishment imposed, that alone is not enough to demonstrate a manifest injustice. Therefore, the defendant's first assignment of error is overruled, and we turn now to the defendant's third assignment of error.
The heart of the defendant's appeal comes in his third assignment of error, wherein the defendant challenges the sentences imposed upon him. The defendant claims that the trial judge erred when he (1) imposed the maximum sentence for each conviction, (2) found that the crimes were the worst forms of the charged offenses, and (3) imposed consecutive sentences. We disagree. *108
The felony sentencing scheme pursuant to R.C.
Regardless of the level of offense, the trial court must consider the factors set forth in R.C.
For fourth- and fifth-degree felonies, the trial court must make one of the required findings under R.C.
We turn our attention now to the imposition by the trial judge of the maximum term of imprisonment for each sentence. Although the trial court must continue *109
to determine how best to comply with the purposes of sentencing pursuant to R.C.
"committed the worst forms of the offense,"
"pose[s] the greatest likelihood of committing future crimes,"
is a major drug offender, or
is a repeat violent offender.
R.C.
We cannot disagree with the trial judge's finding that the defendant committed "the worst forms of the offense," thereby warranting the maximum term of imprisonment for each conviction, unless we conclude that the trial judge's finding was not supported by clear and convincing evidence. Because "the worst forms of the offense" is not defined in the Revised Code, and may appear to allow for the arbitrary and discriminatory exercise of judicial discretion, we have asked the parties to provide memoranda to the court on the issue of whether "the worst forms of the offense" is unconstitutionally void for vagueness. The parties and the court agree that the phrase "the worst forms of the offense" is not unconstitutionally void for vagueness.
A statute is "void for vagueness if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden, or if the statute encourages arbitrary and discriminatory enforcement." See Kolender v. Lawson(1983),
Furthermore, we note that there is no constitutional requirement, except in capital cases, for clearly defined guidelines. See Lockett v. Ohio(1978),
In order for the trial court to determine "the worst forms of the offense," and for this court to review such a finding, we must look to the sentencing guidelines as a whole. Of some assistance in our review of the trial judge's determination that the defendant in this case committed "the worst forms of the offense" is the statement set forth in R.C.
As we have discussed previously, upon review of the guidelines in R.C.
At the sentencing hearing, the trial judge reviewed the seriousness of the offenses as a whole, rather than each offense individually. We hold that where, as here, the separate offenses were part of a single course of conduct, a trial court may review the separate offenses collectively when determining whether the offender committed "the worst forms of the offense." The trial judge stated that "the defendant has committed the worst form of this offense." In making that finding, the trial judge found that the mass exodus from the auditorium was "an extreme form of inducing panic," that "people could have been trampled or suffocated as a result of this [offense]," that people "could have been crushed," and that one of the victims had a seizure, went into convulsions, and "could have choked to death." The trial judge went on to say:
To do anything else [except impose the maximum sentence] in this case would demean the seriousness of this offense and wouldn't adequately protect the public. Any other — there's no way I can give him the minimum term, and he's not amenable to community control. Prison clearly is consistent with all the sentencing purposes in the statute, and this case really is one that cries out for the maximum sentence. Considering everything that's happened in our schools, with the violence that's been in our schools lately, this case really, really, demands the maximum term.
Although the findings made by the trial judge indicate what may have happened as a result of the defendant's actions, had there been victims who were actually trampled, suffocated, choked, or crushed to death, the defendant would be facing much more serious charges than simply felonious assault, assault, and inducing panic. In our view, the evidence clearly and convincingly supports the trial judge's findings that the defendant committed the worst forms of felonious assault, assault, and inducing panic. Therefore, we have no legal basis to increase, reduce, modify, or vacate the imposition of the maximum sentence.
In addition to finding that the defendant committed "the worst forms of the offense," the trial judge could have found that the defendant posed the greatest likelihood of committing future crimes, which also would have allowed for the imposition of the maximum sentence. R.C.
We conclude that finding that the defendant had committed "the worst forms of the offense" was clearly and convincingly supported by the record, and that the maximum term of imprisonment for each level of offense was properly imposed.
We must now determine whether the imposition of consecutive sentences for assault, felonious assault, and inducing panic was contrary to law. In order to impose consecutive sentences, the trial court must find that consecutive sentences are necessaryto protect the public or to punish the offender. A court must also find that consecutive sentences are not disproportionate to the seriousness ofthe defendant's conduct and the danger thedefendant poses to the public. Finally, the court must find that the defendant was under some form of court control when he committed the offenses, that the physical harm he caused was so great orunusual that a single term would not satisfythe seriousness factor, or that his criminal historyindicates a need to protect the public. [Emphasis added.]State v. Johnson(Oct. 23, 1998), Hamilton App. Nos. C-980013 and C-980014, unreported, 1998 WL 735409.
In this case, the trial judge determined that the nature and circumstances surrounding the defendant's conduct created "harm in this case [that] was great and unusual," that "people could have been crushed," and that the defendant's juvenile record indicated a criminal history such that incarceration was necessary to protect the public. Furthermore, the trial judge found that the defendant's conduct was very serious and that "prison clearly is consistent with all the sentencing purposes in the statute." The trial judge also pointed out that the purpose of the sentence in this case was to deter the defendant and others from committing violence in our schools, which was a proper purpose for imposing a sentence of this type upon the defendant. R.C.
Our review of the sentences imposed upon the defendant reveals that the trial judge properly complied with the statutory requirements of R.C.
Judgment affirmed. Doan, P.J., concurs in judgment only.
Painter, J., dissents.
Dissenting Opinion
My mistake. I thought we lived east of the Pecos.
Because the decision today (1) abandons our legal responsibility to review sentences, (2) misinterprets the law, and (3) allows a shocking travesty of justice, I must dissent. I also note that, because Judge Doan concurs in "judgment only," the lead opinion has no precedential value.
Just about a month after his eighteenth birthday, Christopher Mushrush took a handfull of pills and flipped out. He somehow ended up at Oak Hills High School, spraying pepper spray (described by the prosecutor as a "chemical irritant") around the auditorium, where about 400 people were attending a talent performance. The room was evacuated, and two people, including Anna Weber, passed out from the spray. Paramedics treated both at the scene. Perhaps worse, Mushrush visited personal violence on a person who tried to apprehend him (by biting him). The school principal, James Williamson, attempted to grab Mushrush, and as Mushrush pulled away, Mr. Williamson fell and reinjured one of his knees. Other citizens apprehended Mushrush and held him for the police. Mushrush woke up in jail, beaten, and with no memory of the incident.
Much more serious consequences could have ensued. Fortunately, they did not. No victims were hospitalized. To Mr. Mushrush in his drug-addled state, this may have seemed a prank. But the seriousness of his conduct needed to be impressed upon him. Though he could have received probation subject to drug treatment, such a sentence would perhaps not have received his full attention. Sometimes the "2 x 4" approach is called for. And because he did cause injury, the jail door needed to hit his backside.
The most proper sentence would have been for inducing panic.2 Because Mushrush ruined the evening of 400 people who were, in the words of the prosecutor, "caused great inconvenience and alarm," because the biting incident was indicted as part of this charge, and because his actions could have caused a panic, his sentence on the charge of inducing panic could have been 400 days, or perhaps a year and a half, 540 days, the maximum sentence. Apart from the statutory factors and considerations, this would have been a harsh, but reasonable sentence. Coming out of prison at age twenty, having drug treatment while inside, and having a long time to think about where his life was heading, maybe he could become a productive citizen. The trial court's finding that this was one of the "worst forms" of inducing panic is supported by the record.
Mushrush received one additional year for the assault against Mr. Williamson, the principal.3 The normal penalty for assault is up to six months, but because Mr. Williamson is a school administrator, the law makes this assault a felony.4 Mushrush cannot complain that the event aggravated a previous injury — it was his conduct that occasioned the problem. We all have to be responsible for the actual harm caused by our conduct it is no answer to say that the fall might not have caused the same injury to someone else. While adding a full year to the sentence for this result borders upon excessive, I would not set it aside in this case.
The next eight years were imposed for the crime against Anna Weber.5 According to the presentence report, Ms. Weber passed out after leaving the building, she believed, from the effects of the spray. It is unclear how long she was "out," but she was examined by paramedics at the scene, and they did not take her to the hospital. She reported to the probation department that she has had no further difficulties since the night of the incident. Perhaps the worst part of the incident regarding Ms. Weber is that her three children were also present and were *115 understandably frightened at seeing their mother passed out. An eight-year sentence for this event is contrary to law, and to common sense.
The sentence is out of proportion with the incident and with other crimes. No weapon was involved. No blood flowed. No one went to the hospital. Many people who cause a death get less.6 Long after this incident is forgotten, Mushrush will be in prison. Mr. Mushrush will, as a result of this sentence, rot in prison for three presidential elections, and, rather than having some hope of redemption, will come out a hardened criminal. Has the justice system in Ohio abandoned hope of rehabilitation even for an eighteen-year-old? No matter how long the sentence, absent the death penalty, people return to society. This sentence is not "hard on crime" — it is hard on the taxpayers, who will spend hundreds of thousands of dollars to warehouse a mace-spraying eighteen-year-old kid for more than a decade.
*116(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement, or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain.8
No argument can be seriously advanced that the harm to Weber, unfortunate though it was, fits any of the above categories. The case cited by the lead opinion9 concerned a physical choking, and is, in any event, wrongly decided. We should not follow that court into error. Greater degrees of crime are there for a reason. When we elevate lesser crimes to greater crimes by judicial fiat, we frustrate the intent of the law.
As a matter of law, then, Mushrush was not guilty of the offense of felonious assault, but guilty of assault, and could have received only six months' incarceration, not eight years. We can not reverse his conviction for the greater offense, though, because he pleaded guilty. But we can examine this issue in considering his first assignment of error — the involuntariness of his plea.10 In State v. Fish, we held that one consideration in a motion to set aside a plea is "whether the accused was perhaps not guilty or had a complete defense to the charge or charges."11 And we could reverse the denial of Mushrush's motion to withdraw his plea. Or we could consider the issue with regard to the sentencing. I would do the latter, as set out below.
Apart from the problem of how one can commit the worst form of the offense when one did not even commit the offense itself, the offense here is clearly not the "worst form" of felonious assault. As can be seen from the above definitions, the worst form would entail very serious harm indeed. Beating someone with a baseball bat resulting in lengthy hospitalization and permanent brain damage would surely be worse. A stabbing with permanent scars or a shooting that almost results in death would qualify as felonious assault. The list could go on and on, but does not include the assault on Ms. Weber. The lead opinion's muddled attempt at justification — it says that the court can consider the offense which is the worst form of itself to make another offense the worst form of itself — that the court may not just add, butmultiply sentences — is a shocking insult to the sentencing guidelines, not to mention logic or common sense. The finding of "worst form" is so clearly not supported by the record that the error is beyond cavil.
If we compare other felonious-assault cases decided after the change in the sentencing law, myriad cases could be found in which a defendant charged with felonious assault caused much more harm and received a lesser sentence — just a few are set out below.17
But a comparison should not be necessary to demonstrate that this sentence is contrary to law. We may not be able to define what is not the "worst form" of an offense, but we must know it when we see it. What we may not do is pretend to be blind. *119
To impose consecutive sentences, a court needs to find that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."18 In attempting to satisfy this requirement here, the court strained to make findings to justify its conclusion. It determined that the "harm in this case was great and unusual" and that "people could have been crushed." But we must take the legislature's words at their meaning — the law does not say "almost caused" or "might have caused." The reality was that no victims were hospitalized, and nobody was crushed. And just as Mushrush cannot complain about the harm he actually caused to Mr. Williamson, he should not have to answer for harm he "might have," but did not, cause. In view of the maximum time given for felonious assault (already a disproportionate sentence), consecutive sentences were disproportionate to the seriousness of Mushrush's conduct and to the danger that he posed to the public.
Certainly, Mushrush deserves to be severely punished for the harm that he caused. But certainly the legislature did not intend for Mushrush to be punished as he was punished here. The trial court's decision to impose consecutive sentences was contrary to law and not supported by the record.
Therefore, to conform the sentence to the law, I would (1) affirm the sentence on counts two, four and five of the indictment, and (2) reduce the sentence on count three to two years, to be served concurrently with counts two and four. Mr. Mushrush would serve two and one half years in prison — a harsh but not unconscionable sentence.
Please Note:
The court has placed of record its own entry in this case on the date of the release of this Decision.