2006 Ohio 6087 | Ohio Ct. App. | 2006
{¶ 2} On May 11, 2004, Schweitzer's ex-girlfriend, Cortney Cox ("Cox"), was talking to her boyfriend, Sean Bowsher ("Bowsher"), in the driveway of her home when they observed Nicholas drive up. Cox was frightened by Schweitzer's arrival, and she yelled for Bowsher to come inside the residence with her and away from Schweitzer. As Cox and Bowsher ran inside, Schweitzer exited his car and ran after them carrying a 10-inch buck knife. Schweitzer forced his way into the home by breaking the window on the door from the garage into the house. While Cox called 911, Bowsher struggled with Schweitzer. He attempted to keep Schweitzer away from Cox and to force Schweitzer back outside. During the struggle, Schweitzer stabbed Bowsher in the back piercing his lung. Auglaize County Sheriff deputies arrived shortly thereafter and placed Schweitzer under arrest.
{¶ 3} On May 20, 2004, Schweitzer was indicted by the Auglaize County Grand Jury on one count of aggravated burglary, a violation of R.C.
{¶ 4} On December 10, 2004, a sentencing hearing was held. The trial court sentenced Schweitzer to eight years in prison on the aggravated burglary count, seven years in prison on the felonious assault count, and eleven months in prison on the possession of criminal tools count. The trial court ordered that the first two counts run consecutively and the last count run concurrently for a total prison term of fifteen years. On January 10, 2005, Schweitzer filed his notice of appeal with this Court in State v. Schweitzer, Auglaize App. No. 2-05-03,
{¶ 5} Schweitzer then filed an appeal with the Supreme Court of Ohio concerning his case. On May 18, 2006, the Supreme Court of Ohio accepted his appeal and filed a judgment entry reversing the judgment of this Court and remanding the case to the trial court for resentencing consistent with State v. Foster,
{¶ 6} On June 1, 2006, the trial court resentenced Schweitzer to the same fifteen year sentence he had received on December 10, 2004. On June 28, 2006, Schweitzer filed a notice of appeal raising the following assignments of error:
{¶ 7} Schweitzer's first assignment of error poses an issue concerning his felony sentencing. He alleges that the trial court violated his right to a jury trial by sentencing him to a term exceeding the statutory maximum mandated by the
{¶ 8} The Supreme Court of Ohio recently addressed constitutional issues concerning felony sentencing in Foster,
supra. In Foster, the Supreme Court of Ohio held that portions of Ohio's felony sentencing framework are unconstitutional and void, including R.C.
{¶ 9} As this Court is required to follow precedent, as set forth by the Supreme Court of Ohio and the United States Supreme Court, we find no error in the trial court's decision to sentence Schweitzer to the same fifteen year prison term as it had sentenced him to on December 10, 2004. Schweitzer pled guilty to a first degree felony, a second degree felony, and a fifth degree felony.
{¶ 10} Pursuant to R.C.
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(5) For a felony of the fifth degree, the prison term shall besix, seven, eight, nine, ten, eleven, or twelve months.
Schweitzer could have been sentenced to as little as three years or as much as nineteen years for the counts that he pled guilty to. In this case, Schweitzer was sentenced on December 20, 2004 to a prison term of fifteen years and on June 1, 2006, he was resentenced by the trial court to the same term. Therefore, pursuant to the ruling in Foster, Schweitzer's first assignment of error is overruled.
{¶ 11} Schweitzer asserts in his second and third assignments of error that the application of Foster to his case and sentence violates the ex post facto clause of the United States Constitution. He argues that his due process rights are violated because the effect of Foster is to create an ex post facto law. He contends that Foster applies retroactively and increases the penalty for offenses committed prior to the court's decision. In his second assignment of error, he alleges that the announcement of Foster is incompatible with the controlling precedent of the United States Supreme Court and must be rejected. In his third assignment of error, he claims that the decision rendered inFoster is invalid under Rogers v. Tennessee (2001),
{¶ 12} However, for the reasons articulated in State v.McGhee, 3rd Dist. No. 17-06-05,
{¶ 13} On June 1, 2006, the trial court resentenced Schweitzer to fifteen years in prison. We note, as to this case, that the offense occurred subsequent to the United States Supreme Court's holding in Apprendi v. New Jersey (2000),
{¶ 14} Schweitzer argues in his fourth assignment of error that the "rule of lenity" requires that a defendant receive minimum and concurrent sentences. He argues that legislatures and not the courts are to define the criminal activity and the punishments therefore because of the seriousness of criminal penalties and how criminal punishment usually represents the moral condemnation of the community.
{¶ 15} The "rule of lenity" was originally a common law rule of statutory construction that was codified in R.C.
Except as otherwise provided in division (C) or (D) of thissection, sections of the Revised Code defining offenses orpenalties shall be strictly construed against the state, andliberally construed in favor of the accused.
{¶ 16} While courts are required to strictly construe statutes defining criminal penalties against the state, the rule of lenity applies only where there is ambiguity in a statute or conflict between multiple states. United States v. Johnson
(2000),
{¶ 17} In his fifth assignment of error, Schweitzer contends that the sentence imposed upon him was an abuse of discretion. Specifically, he alleges that the trial court clearly abused its discretion by imposing a fifteen year prison term and reversal is required.
{¶ 18} Pursuant to Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster,
{¶ 19} Therefore, Foster altered the appellate court's standard of review for sentencing appeals from clear and convincing to abuse of discretion. Foster,
{¶ 20} Upon review of the record, we cannot say that the trial court abused its discretion in sentencing Schweitzer to fifteen years in prison. As stated previously, he could have been sentenced to as little as three years or as much as nineteen years for the three counts that he pled guilty to. Therefore, it is clear that his sentence fell within the statutory range.
{¶ 21} Furthermore, the record reflects that the trial court considered the record, oral statements, any Victim Impact Statement, and Pre-Sentence Report prepared, as well as the principles and purposes of sentencing under R.C.
that the overriding purposes of felony sentencing are toprotect the public from future crime by the offender and othersand to punish the offender; considering the need forincapacitating the offender; deterring the offender and othersfrom future crime; rehabilitating the offender and makingrestitution to the victim of the offense, the public or both andrecognizing that on those charges that you have plead guilty to,the Court could have gone up to nineteen (19) years; that afifteen (15) year sentence, I believe is appropriate and, indeed,necessary.
June 1, 2006, Sent. Hearing p. 52.
{¶ 22} Based on the sentencing hearing and the subsequent judgment entry, this Court cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably in its sentencing Schweitzer. As previously discussed, Schweitzer's sentence was within the statutory range for the counts he pled guilty to. Therefore, Schweitzer's fifth assignment of error is overruled.
{¶ 23} Accordingly, Schweitzer's assignments of error are overruled and the June 1, 2006 Judgment of conviction and sentence entered in the Court of Common Pleas, Auglaize County, Ohio, resentencing him to a term of fifteen years in prison is affirmed.
Judgment affirmed. Rogers and WALTERS, JJ., concur. (Walters, J., sitting by assignment in the Third AppellateDistrict.)
