State v. RadyState v. Rady
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Synthia L. Rady, appeals from the September 5, 2006 judgment entry of the Lake County Court of Common Pleas, in which she was resentenced for theft from an elderly person, theft, and forgery.
{¶2} On October 25, 2005, appellee, the state of Ohio, charged appellant by way of information with three counts: count one, theft from an elderly person, a felony of the second degree, in violation of
{¶3} A sentencing hearing was held on December 22, 2005. Pursuant to its December 30, 2005 judgment entry, the trial court sentenced appellant to serve a prison term of four years on count one, ten months on count two, and ten months on count three. The trial court ordered that the sentences were to be served concurrently to one another. Appellant was given one day of credit for time already served. She filed a timely notice of appeal with this court, Case No. 2006-L-012, in which she asserted four assignments of error, all concerning her sentence.
{¶4} On June 30, 2006, in State v. Rady, 11th Dist. No. 2006-L-012, 2006-Ohio-3434, this court vacated appellant‘s sentence, and reversed and remanded the matter to the trial court for appellant to be resentenced pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
{¶5} Pursuant to this court‘s remand, a resentencing hearing was held on August 31, 2006. In its September 5, 2006 judgment entry, the trial court sentenced appellant to serve a prison term of four years on count one, ten months on count two, and ten months on count three. The trial court ordered that the sentences were to be served concurrently to one another. Appellant was given one day of credit for time already served. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignments of error:
{¶6} “[1.] The trial court erred when it sentenced [appellant] to more-than-the minimum prison terms in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions.
{¶7} “[2.] The trial court erred when it sentenced [appellant] to more-than-the minimum prison terms in violation of [appellant‘s] right to due process.
{¶8} “[3.] The trial court erred when it sentenced [appellant] to more-than-the minimum prison terms based on the Ohio Supreme Court‘s severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers.
{¶9} “[4.] The trial court erred when it sentenced [appellant] to more-than-the minimum prison terms contrary to the rule of lenity.
{¶10} “[5.] The trial court erred when it sentenced [appellant] to more-than-the minimum prison terms contrary to the intent of the Ohio legislators.
{¶11} “[6.] The trial court erred to the prejudice of [appellant] when it sentenced her to prison which sentence is contrary to law.”
{¶12} Initially, we note that the issues contained in appellant‘s first through fifth assignments of error have recently been addressed by this court in State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011.
{¶13} In her first assignment of error, appellant argues that the trial court erred by sentencing her to more than the minimum prison terms in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions. She alleges that the sentences imposed were not available to the trial court at the time the offenses were committed.
{¶14} In her second assignment of error, appellant contends that the trial court erred by sentencing her to more than the minimum prison terms in violation of her right to due process. She asserts two issues. In her first issue, appellant maintains that the trial court erred by sentencing her to more than the minimum prison terms when no additional factual findings were made by the jury. In her second issue, she alleges that she had neither actual nor constructive notice that the sentences were possible punishments for the offenses.
{¶15} Appellant‘s first and second assignments of error are interrelated since they both are premised on alleged violations of ex post facto principles embedded in the notion of due process. Thus, we will address them in a consolidated fashion.
{¶16} Having been issues of first impression in Elswick, we concluded that Foster did not violate the due process and ex post facto clauses of the Ohio and United States Constitutions, because defendants face the same potential sentence as they did before Foster. See Elswick, supra, at ¶16-30 (for a complete and thorough analysis). See, also, State v. Smith, 2d Dist. No. 21004, 2006-Ohio-4405; State v. Newman, 9th Dist. No. 23038, 2006-Ohio-4082; and State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162.
{¶17} Prior to Foster, individuals who decided to commit crimes were aware of what the potential sentences could be for the offenses committed.
{¶18} The range of sentences available for second and fifth degree felonies remains unchanged post-Foster.
{¶19} Foster does not violate Section 28, Article II of the Ohio Constitution, or Article I, Section 10 of the United States Constitution.
{¶20} Appellant‘s first and second assignments of error are without merit.
{¶21} In her third assignment of error, appellant maintains that the trial court erred by sentencing her to more than the minimum prison terms based on the Supreme Court of Ohio‘s severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers.
{¶22} In Elswick, supra, at ¶37-38, we stated:
{¶23} ”
{¶24} “In the case sub judice, we do not agree with appellant that the Supreme Court of Ohio violated the separation of powers doctrine. We note that severance is a specific remedy that the judicial branch may use when interpreting a statute‘s constitutionality. Pursuant to
{¶25} Further, we note that the inferior tribunals of this state are strictly bound by the constitutional mandates and statutory constructions made by the Supreme Court of Ohio. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 475, (constitutional mandates); State v. Sides, 11th Dist. No. 2005-L-175, 2006-Ohio-2778, at ¶13 (statutory constructions). Neither the trial court, nor this court, can alter the remedies prescribed by the Supreme Court in curing a constitutionally-infirm statute.
{¶26} Appellant‘s third assignment of error is without merit.
{¶27} In her fourth assignment of error, appellant argues that the trial court erred by sentencing her to more than the minimum prison terms contrary to the rule of lenity. She alleges that the rule of lenity dictated a lesser penalty.
{¶28}
{¶29} “‘The “rule of lenity” is a principle of statutory construction which states that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant where the intended scope of the statute is ambiguous.’ State v. Brown (May 2, 1997), 2d Dist. No. 96 CA 92, 1997 Ohio App. LEXIS 1747, at 10, citing Moskal v. United States (1990), 498 U.S. 103, 107-108 ***. The rule of lenity ‘provides that ambiguity in criminal statutes is construed strictly so as to only apply to conduct that is clearly prescribed.’ State v. Goist, 11th Dist. No. 2002-T-0136, 2003-Ohio-3549, at ¶23, citing United States v. Lanier (1997), 520 U.S. 259, 266 ***.” Elswick, supra, at ¶42. (Parallel citations omitted.)
{¶30} In the instant case, appellant was resentenced after Foster, and, thus, the trial court was bound to apply the law announced by the Supreme Court of Ohio. Because
{¶31} Appellant‘s fourth assignment of error is without merit.
{¶32} In her fifth assignment of error, appellant contends that the trial court erred when it sentenced her to more than the minimum prison terms contrary to the intent of the Ohio legislators.
{¶33} Elswick contains an extensive discussion of the foregoing issue, fully applicable to this matter. Id. at ¶45-54. All we would add here is that this court is without power to review the Ohio Supreme Court‘s decisions regarding legislative intent. Sheward, supra, at 475; Sides, supra, at ¶13.
{¶34} Appellant‘s fifth assignment of error is without merit.
{¶35} In her sixth assignment of error, appellant contends that the trial court erred when it sentenced her to prison, which sentence is contrary to law. She presents two issues. In her first issue, appellant stresses that the trial court erred by sentencing her to prison rather than community control. In her second issue, appellant maintains that the trial court erred by imposing a sentence that was not consistent with and proportionate to sentences imposed upon similarly situated offenders committing similar offenses.
{¶36} Because her issues are interrelated, we will address them together.
{¶37} In examining a felony sentence, an appellate court conducts a de novo review.
{¶38}
{¶39} “(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. 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.
{¶40} “(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶41} This court stated in State v. Adams, 11th Dist. No. 2003-L-110, 2005-Ohio-1107, at ¶57:
{¶42} “although ‘a trial court is required to engage in the analysis set forth by
{¶43} In State v. Spicuzza, 11th Dist. No. 2005-L-078, 2006-Ohio-2379, at ¶14-15, this court indicated that the Supreme Court of Ohio in Foster, supra, at ¶37, stated the following with respect to
{¶44} “‘(***)
{¶45} We additionally stated in Spicuzza at ¶16:
{¶46} “[t]his court has held that, ‘“although the trial court is required ‘to consider the seriousness and recidivism factors,’ the court does not need to ‘make specific findings on the record in order to evince the requisite consideration of all applicable seriousness and recidivism factors.’”’ State v. Blake, 11th Dist. No. 2003-L-196, 2005-Ohio-686, at ¶16, quoting State v. Matthews, 11th Dist. No. 2003-L-043, 2004-Ohio-1849, at ¶15.”
{¶47}
{¶48}
{¶49}
{¶50} “(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under
{¶51} “(b) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under
{¶52} In the instant matter, the trial court applied and considered the requisite statutory sentencing factors under
{¶53} After considering the record, oral statements, pre-sentence report and drug and alcohol evaluation, as well as the principles and purposes of sentencing in
{¶54} Based on our review of the record, the trial court did not err when it sentenced appellant to prison rather than community control.
{¶55} Appellant‘s sixth assignment of error is without merit.
{¶56} For the foregoing reasons, appellant‘s assignments of error are not well taken. The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.