2005 Ohio 1098 | Ohio Ct. App. | 2005
{¶ 2} On June 13, 2001, appellant was charged by way of information with eight counts of robbery, in violation of R.C.
{¶ 3} The trial court held a re-sentencing hearing on August 22, 2003. In an entry dated September 5, 2003, the trial court sentenced appellant to two years on each of the first seven counts to be served consecutively to each other, and a term of two years on the eighth count to be served concurrently with counts one through seven, for an aggregate term of fourteen years. It is from that entry appellant timely filed the instant appeal and now presents the following assignments of error for our review:
{¶ 4} "[1.] The trial court violated appellant's rights to equal protection and due process of law under the
{¶ 5} "[2.] The trial court ruled contrary to law when it ordered [consecutive] sentences.
{¶ 6} "[3.] The trial court erred when it sentenced [appellant] to more than the minimum prison term and consecutive sentences 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."
{¶ 7} In the first assignment of error, appellant claims that the trial court erred when it imposed a sentence upon him that was not consistent with similarly situated criminals who committed similarly situated crimes. Appellant also alleges that the fourteen-year sentence is not proportional to the crimes committed.
{¶ 8} Appellant pled guilty to eight robbery counts and received an aggregate sentence of fourteen years. One of appellant's co-defendants, his brother, was also sentenced on eight robbery counts and received a total prison term of fourteen years. The second co-defendant was sentenced on seven robbery counts and received a seven-year sentence.1
Appellant cites R.C.
{¶ 9} R.C.
{¶ 10} "(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."
{¶ 11} Appellant contends that, since his sentence was harsh in comparison to his co-defendants and all three were involved in the same activity, his sentence violates R.C.
{¶ 12} Pursuant to R.C.
{¶ 13} We further note that appellant asserts that his sentence is more "harsh" than his co-defendants as one co-defendant pled guilty to seven felony counts, compared to appellant's eight, and received seven years imprisonment, and the other co-defendant pled guilty to eight counts and was sentenced to fourteen years imprisonment, as was appellant. It is our position that when there is a multiple codefendant situation and those co-defendants are essentially charged with the same crimes, what may seem to be a disparity in certain situations may not be a disparate sentence. This may occur when the records submitted in such cases provide a different table of review which may appropriately result in a varied sentence in a given case when evaluated according to the pertinent statutory criteria. Accordingly, we conclude the trial court properly adhered to the sentencing guidelines in imposing appellant's sentence. Appellant's first assignment of error is without merit.
{¶ 14} Under the second assignment of error, appellant contends that the trial court erred in sentencing him to consecutive terms because the trial court failed to state the reasons as required by R.C.
{¶ 15} A reviewing court will not reverse a sentence unless an appellant demonstrates that the trial court was statutorily incorrect or that it abused its discretion by failing to consider sentencing factors.State v. Chapman (Mar. 17, 2000), 11th Dist. No. 98-P-0075,
{¶ 16} Before imposing consecutive sentences, a trial court must make the findings contained in R.C.
{¶ 17} If a trial court merely asserts that it has reviewed the provisions in R.C.
{¶ 18} Furthermore, when consecutive sentences are imposed under R.C.
{¶ 19} "(2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances:
{¶ 20} "* * *
{¶ 21} "(c) If it imposes consecutive sentences under section
{¶ 22} Here, the trial court satisfied the initial requirement of R.C.
{¶ 23} However, the trial court must also justify the imposition of consecutive sentences as required by R.C.
{¶ 24} "* * * [P]ursuant to [R.C.] 2929.14(E)(4), (A) through (C), [the court] does find that consecutive sentences are necessary to protect the public and to punish the offender. The [c]ourt does find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger he poses. And, the harm caused by the multiple offenses was so great or unusual that a single prison term would not adequately reflect the seriousness of the offense. Now, this is the part where the Court of Appeals felt that I was inadequate or inarticulate. I have reasons in addition to those already stated. This was an organized crime spree. There were eight separate robberies. These were all crimes of violence. There were two robbers each time plus the get-a-way driver. [Appellant] was the get-a-way driver in probably six, maybe seven, of these instances. However, during the sentencing hearing on August 9, 2001 — I believe [one of the victims] came into court and positively identified [appellant] as the individual holding a gun to her * * *. [The] robbers * * * wore masks; they were screaming; they had what appeared to be a gun; they were making the victims believe that they had a firearm and [would] harm them for their money. They were robbing businesses. Each one of these was also a business, which makes the employees refuse to work, the customers reluctant to patronize — causing the community to live in fear because of widespread publicity * * *. The businesses suffered economic losses in excess of the monetary theft itself. * * * These robberies occurred in multiple jurisdictions[.] * * * There were ten persons victimized, not — not eight. * * * This has a lasting emotional trauma to the victims. These occurred over a twenty-four day period. Each case is a separate deliberate act — not a continuing course of conduct in the completion of any one crime. This was not the product of mental illness. According to Dr. Fabian, [appellant] is a moderate risk for violent re-offense, and that is one of my findings on making recidivism more likely.
{¶ 25} "* * *
{¶ 26} "* * * I also find that [appellant] committed the worst form of the offense of robbery. * * * [Appellant] here, did more than attempt a theft; he achieved a theft. [He] did more than threaten the victim to inflict physical harm. They used what the victim believed to be a firearm. * * * I believe that unless [appellant] was stopped when he was, he would have continued to rob * * *."
{¶ 27} Based on the foregoing colloquy, it is our view that the trial court supported its findings pursuant to the requirements of R.C.
{¶ 28} For the third assignment of error, appellant argues that his constitutional rights were violated because he was given sentences that were more than the minimum prison term and consecutive sentences based on findings of fact that appellant did not admit to and were not found by a jury.
{¶ 29} In Blakely v. Washington (2004),
{¶ 30} The United States Supreme Court reversed the sentence holding that a trial court may not extend a defendant's sentence beyond the statutory maximum when the facts supporting the enhanced sentence are neither admitted by the defendant or found by the jury. 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.)
{¶ 31} Here, appellant pleaded guilty to eights counts of robbery, felonies of the second degree. Appellant's plea reveals that he agreed to a sentence anywhere from two to eight years of imprisonment for each count. The trial court imposed a term of two years for counts one through seven to be run consecutively and two years on count eight to be run concurrently with counts one through seven.
{¶ 32} R.C.
{¶ 33} "* * * 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:
{¶ 34} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 35} "(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."
{¶ 36} 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 two year sentence, the trial court had to find that the shortest prison term would demean the seriousness of appellant's conduct or not adequately protect the public from future crime.
{¶ 37} Appellant contends the statute prescribes a two-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.
{¶ 38} 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),
{¶ 39} 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),
{¶ 40} "`* * * 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.
{¶ 41} 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
{¶ 42} The General Assembly has made it clear that the R.C.
{¶ 43} It is further our position that the imposition of consecutive sentences does not violate the rule set forth in Blakely.
{¶ 44} According to Apprendi v. New Jersey (2000),
{¶ 45} Blakely refined the Apprendi rule when it held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdictor admitted by the defendant." (Emphasis sic.) Blakely, supra, at 2537.
{¶ 46} Appellant argues that his consecutive sentences went beyond the statutory maximum for Apprendi purposes because the trial court made factual findings under R.C.
{¶ 47} Blakely and Apprendi are distinguishable from this case, as they deal with sentencing for a single crime. Ohio courts have consistently held Apprendi does not apply to consecutive sentences as long as the sentence does not exceed the statutory maximum for each individual underlying offense. See State v. Carter, 6th Dist. No. L-00-1082, 2002-Ohio-3433, at ¶ 25 (holding appellant's two eight-year consecutive sentences for rape did not violate Apprendi because each sentence was within the ten-year statutory range for a single offense.) Accord, State v. Gambrel (Feb. 2, 2001), 2d Dist. No. 2000-CA-29,
{¶ 48} In this case, appellant's individual sentences are each less than the statutory maximum. Thus, Blakely does not apply to appellant's sentence. State v. Taylor, 11th Dist. No. 2003-L-165,
{¶ 49} For the foregoing reasons, appellant's assignments of error are not welltaken. The judgment of the Lake County Court of Common Pleas is affirmed.
Grendell, J., Nader, J., Ret., Eleventh Appellate District, sitting by assignment, concur.
