State of Ohio, Plaintiff-Appellant, v. Michael William North, Defendant-Appellee.
No. 13AP-110
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 17, 2013
[Cite as State v. North, 2013-Ohio-4607.]
(C.P.C. No. 12CR-4405) (REGULAR CALENDAR)
Rendered on October 17, 2013
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio (“the state“), appeals from a judgment of the Franklin County Court of Common Pleas imposing a prison sentence on defendant-appellee, Michael William North (“appellee“), pursuant to his guilty plea. Because we conclude that the trial court erred by holding that appellee was not subject to a mandatory prison term pursuant to statute, we reverse and remand for resentencing.
{¶ 2} Appellee was indicted on five counts of gross sexual imposition against a victim less than 13 years old. Ultimately, appellee entered an “Alford plea”1 of guilty to two counts of gross sexual imposition against a victim less than 13 years old. In accepting the guilty plea, the trial judge stated his understanding that appellee was entering an Alford
{¶ 3} The state asserted that, pursuant to
{¶ 4} The state appeals from the trial court‘s judgment, assigning one error for this court‘s review:
THE COMMON PLEAS COURT ERRED WHEN IT FAILED TO IMPOSE THE PRISON SENTENCES AS MANDATORY SENTENCES FOR GROSS SEXUAL IMPOSITION AGAINST A CHILD UNDER 13 WHEN THERE WAS CORROBORATING EVIDENCE OF THE VIOLATIONS.
{¶ 5}
{¶ 7} On June 17, 2013, less than three months after this court‘s decision in Bevly, the United States Supreme Court issued its decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013). Prior to Alleyne, the Supreme Court distinguished between facts resulting in an increased mandatory minimum sentence and facts resulting in a sentence greater than the statutory maximum authorized by a jury verdict. With respect to facts resulting in a sentence greater than the statutory maximum based on a jury verdict, the Supreme Court held that, other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, in Apprendi, the Supreme Court found unconstitutional a New Jersey statute that allowed a judge to impose additional punishment based on the judge‘s finding, by a preponderance of the evidence, that a defendant‘s purpose for unlawfully possessing a weapon was to intimidate a victim based on a particular characteristic. Id. at 491-97. However, prior to Alleyne, the Supreme Court “declined to
{¶ 8} In Alleyne, the United States Supreme Court overruled Harris and held that facts increasing a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Alleyne at 2162-63. Appellee asserts that the question of whether there was corroborating evidence other than the testimony of the victim in this case is a “fact” that increases the mandatory minimum sentence for a conviction for gross sexual imposition against a victim less than 13 years old. Appellee argues that, in accordance with Alleyne, the jury must determine beyond a reasonable doubt that there was corroborating evidence before the trial court may impose a mandatory prison term under
{¶ 9} We acknowledge that, under Alleyne, a fact that increases a mandatory minimum sentence must be submitted to the jury. Alleyne explained that this was necessary because “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime.” Id. at 2161. In Alleyne, the relevant fact was whether the defendant brandished a firearm, which increased the minimum penalty for using or carrying a firearm in relation to a crime of violence. Id. at 2155. Recent cases applying Alleyne have involved similar factual determinations. See United States v. Donovan, __ Fed. Appx. __, 2013 WL 4792866, *7 (6th Cir. Sept. 9, 2013) (“[B]ecause the district court, rather than a jury, found discharging of the firearm, Moore‘s sentence for violation of [18 U.S.C] § 924(c)(1)(A) must be vacated and remanded for resentencing consistent with the jury‘s verdict.“); United States v. Claybrooks, __ F.3d __, 2013 WL 4757201, *8 (7th Cir. Sept. 5, 2013) (“After Alleyne, Claybrooks‘s mandatory minimum sentence must be determined by the drug quantity described in the jury‘s special verdict form. * * * The district judge cannot raise the mandatory sentencing
{¶ 10} We conclude that the determination called for under
{¶ 11} Appellee also argues that
{¶ 12} This argument was not raised in Bevly, and the court did not directly address it in its decision. We reject appellee‘s contention that the reference in Bevly to “corroborative proof beyond the alleged victim‘s testimony” constituted implicit recognition that the victim‘s testimony must be introduced as a predicate to imposing a mandatory prison sentence. Rather, this portion of the Bevly decision simply mirrors the statutory language, which refers to corroborating evidence “other than the testimony of the victim.”
{¶ 13} “In construing a statute, a court‘s paramount concern is the legislative intent in enacting the statute.” State v. S.R., 63 Ohio St.3d 590, 594 (1992). If the statutory language is plain and unambiguous, the court must apply the statutory language. White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 16 (10th Dist.). “When a court construes a statute, it may not delete words that are used or add words that are not used.” Id. ” ‘Absent ambiguity, statutory language is not to be enlarged or construed in any way other than that which its words demand.’ ” Id., quoting Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354, 357 (1988).
{¶ 14} The relevant statutory clause states that the trial court shall impose a mandatory prison term for an offender convicted of gross sexual imposition in violation of
{¶ 15} Appellee‘s interpretation of
{¶ 16} In this case, the parties stipulated that, if called to testify, a police detective would have testified that appellee acknowledged touching and fondling the victim beginning when she was ten years old and would have testified to the authenticity of an audio recording of appellee‘s statement to the police. This constituted additional evidence to corroborate the violation, which was established through appellee‘s guilty plea. Therefore, the trial court erred in holding that appellee was not subject to a mandatory prison sentence under
{¶ 17} Finally, we note that the trial court in this case questioned the applicable standard of proof in determining whether corroborating evidence was presented. In State v. Economo, 76 Ohio St.3d 56 (1996), the Supreme Court of Ohio considered a similar statute, providing that an individual could not be convicted of sexual imposition solely upon the victim‘s testimony unsupported by other evidence. The Supreme Court concluded that the corroborating evidence necessary to satisfy the statute “need not be independently sufficient to convict the accused, and it need not go to every essential element of the crime charged.” Id. at syllabus. The Supreme Court further held that “[s]light circumstances or evidence which tends to support the victim‘s testimony is satisfactory.” Id. As the Economo court noted, corroboration requirements in criminal law are rare. Id. at 58. Although the corroboration provision in Economo addressed the amount of evidence required for conviction, rather than the quantity of evidence required
{¶ 18} For the foregoing reasons, we sustain the state‘s sole assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for re-sentencing in accordance with law and consistent with this decision.
Judgment reversed; cause remanded for re-sentencing.
TYACK and SADLER, JJ., concur.