Lead Opinion
{¶ 3} Mr. Trifari eventually entered into a plea agreement with the State, under which it dismissed the rape charge against him and he pleaded guilty to the sexual battery charge. The State requested the trial court to sentence Mr. Trifari to the maximum permissible term of five years in prison on the sexual battery charge, while Mr. Trifari, through his lawyer, requested that the trial court sentence him to community control. The trial court sentenced him to three years in prison.
{¶ 4} Mr. Trifari has assigned two errors on appeal. Both are challenges to his three-year sentence.
{¶ 6} Courts disagreed about whether Section
{¶ 7} In State v. Foster,
{¶ 8} If a trial court has "full discretion" to impose a sentence within the statutory range, it would seem that review of a particular sentence falling within that range would be limited to a determination of whether the trial court abused it discretion in choosing that sentence. In State v. Kalish,
{¶ 10} Besides not being a decision of this Court, Fisher was decided before State v. Foster,
{¶ 11} As noted above, the plurality in Kalish wrote that now the first step in reviewing a criminal sentence is a determination of whether the sentence is "clearly and convincingly contrary to law."State v. Kalish,
{¶ 12} Appellate courts review questions of law de novo. E.g.,Nationwide Mut. Ins. Co. v. Guman Bros. Farm,
{¶ 13} When the General Assembly wrote, in 2953.08(G)(2), that an appellate court had to make a clear and convincing finding before it could change a criminal sentence, it confused two concepts. Clear and convincing evidence is a quantum of evidence, not a standard of appellate review. "Clear and convincing evidence is that measure or degree of proof which will *6
produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases."Cross v. Ledford,
{¶ 14} In the Wizard of Oz, after Dorothy's house fell on the Wicked Witch of the East, the Munchkins called upon the coroner to determine whether the witch who had terrorized them was morally, ethically, spiritually, physically, positively, absolutely, undeniably, and reliably dead. The coroner assured them that he had thoroughly examined her "And she's not only merely dead, she's really most sincerely dead." She was dead. An assurance that she was "most sincerely dead" added nothing.
{¶ 15} A determination that the trial court imposed a sentence "clearly and convincingly" contrary to law means nothing different from a determination that the trial court imposed a sentence contrary to the law. In particular, in this case, the three-year sentence the trial court imposed on Mr. Trifari was within the permissible range of sentences for a third-degree felony. The trial court's sentence was neither contrary to law nor "clearly and convincingly contrary to law." Mr. Trifari's first assignment of error is overruled.
{¶ 17} Somewhat later, after the trial court seemed to say that the stepdaughter was under 18 at the time of the sexual conduct and Mr. Trifari's lawyer corrected it, the court said, in apparent reaction to the lawyer's previous statement that the conduct would not have been a crime but for the fact Mr. Trifari was married to the stepdaughter's mother, "Yes, I understand that she was over the age of 18, but your client's entered a plea of guilty to an F-3 to avoid the consequences of a prosecution on an F-1." The court continued:
He could have rolled the dice and put this in front of 12 people and he could have told his story and they could have — the State would have told its story and we could have seen what happened.
He chose not to do that. . . . [T]hat's his choice but what it's not his choice then is to come in to this court and say well, yes, but even though I pled guilty, you know, it's only — you are attempting as an advocate to minimize his conduct. I understand that but the fact that you choose to do that does not mean that I have to agree with it.
{¶ 18} According to Mr. Trifari, the trial court's statement was evidence that it improperly took into account that Mr. Trifari had been charged with rape in sentencing him on the sexual battery charge. Such an inference is not possible from the court's statements. Rather, the court was simply pointing out that, by entering into a plea agreement with the State, Mr. Trifari had given up his opportunity to tell his story to a jury.
{¶ 19} The transcript of the sentencing hearing indicates that the trial court relied upon a presentence report in sentencing Mr. Trifari, but that presentence report is not included in the record before this Court. See State v. Hultz, 9th Dist. No. 07CA0043,
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to appellant.
MOORE, J.
*9CONCURS IN JUDGMENT ONLY