State v. TaylorState v. Taylor
Michael D. Miller, Athens, Ohio, for appellant.
C. David Warren, ATHENS COUNTY PROSECUTOR, and George Reitmeier, ATHENS COUNTY ASSISTANT PROSECUTOR, Athens, Ohio, for appellee.
Harsha, J.
{¶1} John F. Taylor appeals the trial court’s judgment, entered on remand from the Supreme Court of Ohio, resentencing him to maximum, consecutive prison tеrms for two counts of rape, in violation of
{¶2} Second, Taylor contends that the trial court’s judgment is contrary to law
{¶3} Third, Taylor contends that his sentence is contrary to law because it violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Cоnstitution. Because Taylor failed to make this argument to the trial court and properly preserve the issue for appellate review, he forfeited the right to raise this issue on appeal. Thus, we find that Taylor’s sentence is not clearly and convincingly cоntrary to law.
{¶4} Next, Taylor argues that the trial court abused its discretion in sentencing him to maximum, consecutive prison terms, particularly in light of the fact that these terms are mandatory and not subject to any provisions for early release. According to Taylor, his crimеs “cannot be considered ‘the worst offenses’ that would warrant the imposition of consecutive sentences.” However, the court cited valid reasons for imposing Taylor’s sentence, i.e. facts demonstrating the seriousness of his crimes and his extensive criminal history. Therefore, the trial court’s decision to sentence Taylor to maximum, consecutive prison terms was not unreasonable, arbitrary, or unconscionable. Accordingly, we affirm the trial court’s judgment.
I. Facts
{¶5} On January 29, 2004, an Athens County Grand Jury indicted Taylor for two counts of rapе in violation of
{¶6} In his first appeal to this court, Taylor argued in part that the trial court violated his right to a jury trial under the Sixth Amendment to the United States Constitution based оn the United States Supreme Court’s holding in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Specifically, Taylor contended that the trial court improperly enhanced his sentences beyond the statutory minimum and ordered him to serve each sentence consecutively based on factual determinations made by the judge, rather than by the jury. We affirmed the trial court’s judgment in State v. Taylor, Athens App. No. 04CA32, 2005-Ohio-3721.
{¶7} Subsequently, the Supreme Court of Ohio concluded in Foster that several of Ohio’s sentencing statutes were unconstitutional to the extent that they required judicial fact-finding before imposition of maximum, consecutive, or greater-than-minimum sentences. Foster at paragraрhs one, three, and five of the syllabus. The Court severed the offending unconstitutional provisions from the statutes. See id. at paragraphs two, four, and six of the syllabus. The Foster court concluded that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to makе findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus.
II. Assignments of Error
{¶9} Taylor assigns the following errors for our review:
THE TRIAL COURT VIOLATED THE PROHIBITION AGAINST EX POST FACTO ADMINISTRATION OF THE LAW
THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE WHEN IT SENTENCED APPELLANT TO THE MAXIMUM SENTENCE AND IMPOSED THE SENTENCES CONSECUTIVELY
III. Sentencing
{¶10} In his first assignment of error, Taylor contends that his sentence violates the Ex Post Facto Clause of the United States Constitution. In his second assignment of error, Taylor contends that the trial court improperly imposed his sentence because (1) the court failed to adequately consider
{¶12} Here, Taylor contends that the trial court’s application of Foster’s severance remedy to his case violates the Ex Post Facto Clause of the United States Constitution because the severed provisions in
{¶13} Next, Taylor contends that his sentence is contrary to law because the trial court failed to adequately consider
{¶14} With conclusоry analysis and no citation to caselaw, Taylor also argues that his sentence is contrary to law because it violates the Cruel and Unusual Punishment Clause of the Eighth Amendment of the United States Constitution. Although Taylor could have raised this argument in the trial court so that it cоuld address the issue, he failed to do so. Therefore, Taylor has forfeited the right to raise this issue on appeal. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶¶21-23. And because Taylor provides only conclusory analysis and no citation to caselaw, he has failed to satisfy his burden of demonstrating рlain error. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶378. Taylor cites no other failure of the trial court to comply with “applicable rules and statutes” and we have found none from our review of the record. Accordingly, his sentence is not clearly and convincingly contrary to law.
{¶15} Next, we must detеrmine whether the trial court abused its discretion in selecting Taylor’s sentence. “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. As we explained in State v. Davis, Highland App. No. 06CA21, 2007-Ohio-3944, at ¶42:
“‘An “abuse of discretiоn” has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. * * * Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to explain the imposition of the sentence, the appellate court’s [sic] can reverse the sentence. [Id.] This by no means is
an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of [a] sentence in a particular case.’” [State v. Elswick, Lake App. No. 2006-L-075, 2006-Ohio-7011], at ¶49, quoting State v. Firouzmandi, Licking App. No. 2006-CA-41, 2006-Ohio-5823, at ¶56.
{¶16} Taylor contends that the trial court abused its discrеtion in sentencing him to maximum, consecutive prison terms, particularly in light of the fact that these terms are mandatory and not subject to any provision for early release. Taylor argues that his crimes, while serious, “cannot be considered ‘the worst offenses’ that wоuld warrant the imposition of consecutive sentences.” However, the court based its sentence upon reason and the facts before the court. The trial court noted facts demonstrating the severity of Taylor’s crimes. Taylor (1) raped both victims close in time; (2) threatened both victims with a knife; (3) forced both victims, one of whom was a 16-year old virgin, to perform various and multiple sex acts; and (4) was a long-time family friend of one of the victims. The trial court also understood that Taylor had an “extensive prior criminal record,” which the court detailed at length during the sentencing hearing, and had been imprisoned once before. The court felt Taylor’s criminal background “support[ed] the need to protect the public” from him. Under
IV. Conclusion
{¶17} Having overruled each of the assignments of error, we affirm the trial
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grоunds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant tо Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
Whether Kalish actually clarifies the issue is open to debate. The opinion carries no syllabus[,] and only threе justices concurred in the decision. A fourth concurred in judgment only[,] and three justice[s] dissented. As a result, our colleagues on the Cuyahoga County Court of Appeals have announced they simply will not follow the plurality and will continue to apply the standard the Eighth District has used all along. State v. Harris, Cuyahoga App. No. 90699, 2008-Ohio-5873, at ¶99, fn. 1. The same problem has been recognized in the Ninth District, but our colleagues on the Summit County Court of Appeals have applied the two-step Kalish analysis regardless. See State v. Jenkins, Summit App. No. 24166, 2008-Ohio-6620, at ¶10, fn. 1. We will do the same.