State v. WeberState v. Weber
OPINION.
{¶ 1} The defendant-appellant, Laura Weber, appeals her sentence of a two-year prison term imposed following a plea bargain in which she entered a guilty plea to one count of aggravated theft, in violation of
{¶ 2} Weber and Jessica Sullivan-Griggs were charged with stealing $435,049.21 from their employer, Western and Southern Insurance Company, between January 5, 2004, and February 25, 2004, by means of fake documents and forged signatures. After Weber‘s arrest, police recovered all but $52,440 of the stolen funds.
{¶ 3} A third-degree felony is punishable by a prison term of one, two, three, four, or five years. See
{¶ 4} In State v. Montgomery, we followed the United States Supreme Court‘s decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, and United States v. Booker (2005), ___ U.S. ___, 125 S.Ct 738, and held that the Sixth Amendment renders
{¶ 5} In Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, the Court held that any fact necessary to impose a sentence longer than the “prescribed statutory maximum” must be submitted to the jury and proved beyond a reasonable doubt. Subsequently, in Blakely, the Court defined the “prescribed statutory maximum” not as the longest sentence, but as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” as the result of plea or stipulation. 542 U.S. at ___, 124 S.Ct. at 2537. In other words, the Sixth Amendment guarantee of a jury trial and proof beyond a reasonable doubt prohibits a determinate sentencing scheme that requires judicial fact-finding to enhance an offender‘s sentence beyond that authorized without the additional facts. See State v. Lowery at ¶ 37.
{¶ 6} A sentencing court in Ohio must follow the sentencing guidelines of Am.Sub.S.B. No. 2. See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473. As we stated in State v. Montgomery at ¶ 8 (citation omitted), “a plain reading of this statute indicates that
{¶ 7} Pursuant to
{¶ 8} While we agree with the state that a two-year prison term for Weber does not seem excessive based on the seriousness of her conduct, the trial court may not elevate the shortest sentence for an offender who has not previously served a prison term by consideration of the more serious factors under
{¶ 9} The Ohio Criminal Sentencing Commission, an author of Am.Sub.S.B. No. 2, argues that Apprendi and its progeny do not apply to Am.Sub.S.B. No. 2, because Ohio‘s sentencing scheme, unlike Washington State‘s and the federal sentencing guidelines, does not employ a matrix grid-type sentencing scheme. See Diroll and Anderson, Judicial Decisionmaking After Blakely and Booker (Feb. 16, 2005), Section IV(C)(2). The commission also notes that Ohio‘s sentencing scheme is “indeterminate and, therefore, safe” from the results required byBlakely. Anderson, Ohio Blakely and Booker Principles (Apr. 11, 2005), at 2; but, see, Diroll, Felony Sentencing under Senate Bill 2 and Senate Bill 269, (Aug. 1, 1996), Section II(B)(2) (the Ohio Criminal Sentencing Commission has previously referred to “truth in sentencing” as being in the “form of definite sentences“).
{¶ 10} The most persuasive argument is that historically sentencing decisions concerning subjective guidelines related to public protection and proportionality have typically been reserved to the court‘s discretion. See State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d 1281, at ¶ 23-24; State v. Trubee, 3rd Dist. No. 9-03-65, 2005-Ohio-522, at ¶ 43-45. The argument is not, however, supported by the majority opinion in Blakely, in which Justice Scalia did not followMcMillan v. Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, and the discussion of those facts traditionally relied on by the judiciary in sentencing. See Blakely v. Washington, 542 U.S. at ___, 124 S.Ct. at 2537. Furthermore, as Judge Karpinski correctly noted in her dissent in Statev. Lett at ¶ 109, “In McMillan, the sentence did not run afoul of Sixth Amendment rights, because the state permitted the trial judge to order more than the minimum sentence even if the judge did not make any findings.”
{¶ 11} Doubts about whether the majority in Blakely meant to limit judicial discretion under the Am.Sub.S.B. No. 2 scheme are resolved by the following quotation from Justice O‘Connor‘s dissent: “Under the majority‘s approach, any fact that increases the upper bound on a judge‘s sentencing discretion is an element of the offense. Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad range — such as drug quantity, role in the offense, risk of bodily harm — all must now be charged in an indictment and submitted to a jury, In re Winship, 397 U.S. 358, 25 L.Ed. 2d 368, 90 S. Ct. 1068 (1970), simply because it is the legislature, rather than the judge, that constrains the extent to which such facts may be used to impose a sentence within a pre-existing statutory range.” Id., 542 U.S. at ___, 124 S.Ct. 2546.
{¶ 12} Concededly, this court is in the minority as to the meaning of “statutory maximum” in Blakely and its application to the shortest prison term under the guidelines and findings of
{¶ 13} Weber‘s second assignment, in which she argues that the trial court erred by denying her early release or discharge in the sentencing entry, is overruled, as Weber withdrew her motion to mitigate the no-early-release portion of the sentence. Moreover, the trial court had wide discretion to prohibit early release to a transitional control, shock incarceration, or an intensive program prison, or to deny judicial release. See
{¶ 14} The judgment of the trial court is reversed as to the imposition of more than the minimum prison term. We remand this case to the sentencing court to modify its sentence to a one-year prison term.
Sentence vacated and cause remanded.
Sundermann and Hend