State v. WhiteState v. White
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 27, 2013
Christine Y. Jones, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
DEWINE, Judge.
{1} Kendall White was convicted of felonious assault and sentenced to six years in prison. He argues on appeal that his sentence should be reversed because it was excessive and constituted an abuse of the trial court‘s discretion. We disagree both about the standard of review and about the ultimate issue. The appropriate standard to review a felony sentence is the one set forth by the legislature in
I.
{2} Kendall White approached Brandy Moore at a McDonald‘s restaurant and demanded a ride. When Ms. Moore refused, Mr. White punched her in the face. The punch broke her nose, fractured the bone of her left eye socket and caused bumps under her eyelid. She underwent surgery to repair her nose, but she still has difficulty breathing and may need another surgery.
{3} Mr. White pleaded guilty to a charge of felonious assault, a second-degree felony. Several weeks later, the trial court held a sentencing hearing. In mitigation, Mr. White and his attorney emphasized his history of psychological problems. The trial court engaged in a lengthy discussion with Mr. White, during which it noted Mr. White‘s long criminal history dating back over 30 years, including numerous violent offenses. At the conclusion of the hearing, the trial court imposed a prison sentence of six years. This appeal followed.
{4} Although Mr. White acknowledges that his sentence is within the statutory range, he argues that the trial court abused its discretion by failing to properly consider mitigating factors indicating that he showed genuine remorse, took full responsibility for his conduct by entering a plea, did not possess a weapon during the assault, and acknowledged a need to address his underlying mental health issues.
II.
{5} We disagree with Mr. White‘s assertion that we should review his sentence for an abuse of discretion. The legislature has been explicit that “[t]he appellate court‘s standard for review [of a felony sentence] is not whether the sentencing court abused its discretion.”
The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings * * *;
(b) That the sentence is otherwise contrary to law.
{6} True, we have in the past applied the abuse of discretion standard urged by Mr. White. That standard was provided for by a plurality of the Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish approach asks (1) whether the sentence is clearly and convincingly contrary to law, i.e. whether the trial court adhered to the applicable rules and statutes in imposing the sentence, and (2) if it is not contrary to law, whether the sentence nevertheless constitutes an abuse of discretion. Id. at ¶ 26. The Kalish plurality opinion was an outgrowth of the Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, which declared unconstitutional portions of Ohio‘s felony sentencing statutes that required judges to make certain findings before imposing maximum, consecutive, or more than the minimum sentences. The Kalish plurality is best understood as operating from the premise that because the findings requirements were unconstitutional and excised from the law, it also made sense to remove the standard of review that the legislature had crafted in conjunction with the findings requirements.
{7} Subsequent to Kalish, however, the United States Supreme Court made clear that it was constitutionally permissible to require judicial fact-finding as a prerequisite for the imposition of consecutive sentences. See Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Ohio Supreme Court subsequently acknowledged that the legislature could reenact consecutive sentence finding requirements, State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 36, and the legislature responded by enacting 2011 Am.Sub.H.B. No. 86 (“H.B. 86“). The new legislation, effective September 30, 2011, revived the judicial fact-finding requirement for consecutive sentences, but did not revive the requirement for maximum and more than minimum sentences.
{8} Prior to the enactment of H.B. 86, the portions of Ohio‘s sentencing laws found unconstitutional in Foster remained part of the Revised Code. H.B. 86 cleaned up the Code by removing the provisions found unconstitutional in Foster, but not reenacted in H.B. 86. 2011 Am.Sub.H.B. No. 86, Section 2. Thus, the provisions requiring findings for maximum and more than minimum sentences that the legislature did not intend to revive were explicitly repealed. Id. At the same time, H.B. 86 specifically reenacted the standard of review provisions of
{9} We presume the legislature knew what it was doing when it reenacted the
{10} Our decision today is consistent with the approach of the other Ohio appellate districts that have directly considered the issue since the enactment of H.B. 86. See State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10 (“By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review
III.
{11} Having settled upon the appropriate standard of review, we now apply the standard to Mr. White. Under
{12} “Although Kalish no longer provides the framework for reviewing felony sentences, it does provide * * * guidance for determining whether a sentence is clearly and convincingly contrary to law.” State v. Lee, 12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 10, quoting A.H. at ¶ 10. In Kalish, the plurality found that a sentence was not clearly and convincingly contrary to law where the trial court had considered the purposes and principles of sentencing set forth in
{13} Here, Mr. White‘s six-year sentence fit comfortably within the permissible range for a second-degree felony. Further, the record indicates that the trial court properly considered the applicable sentencing provisions before imposing the sentence. In sentencing Mr. White, the court stressed his violent history and the fact that despite numerous stints in prison he continued to “hurt people.” It noted that he was likely to continue to commit crimes and that a prison term was necessary to protect the public. The court deliberated upon a sentence to a community-based correctional facility, but determined that he needed a more severe sanction. The court also considered the serious physical harm done to the victim. The trial court heard Mr. White speak about the progress he made after receiving medication for his mental health conditions and noted his apparent remorse. The court
{14} We do not find that Mr. White‘s sentence was clearly and convincingly contrary to law. The sole assignment of error is overruled, and the judgment of the trial court is affirmed.
HENDON, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.