State v. Kawaguchi , 137 Ohio App. 3d 597 ( 2000 )

In my opinion, the trial court adequately explained on the record at the sentencing hearing its valid reasons for imprisoning the appellant; therefore, I would overrule the second assignment of error. I would reach the constitutional issue presented by the first assignment of error and would hold that the trial court's sentence could not have deprived appellant of her right to terminate her pregnancy; therefore, I would affirm the trial court's decision.

I. R.C. 2929.13(B) provides the basic standards for sentencing fourth and fifth degree felony offenders. It states:

(1) Except as provided in division (B)(2), (E), (F), or (G) of this section, in sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:

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(e) The offender committed the offense for hire or as part of an organized criminal activity.

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(2)(a) If the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender.

(b) Except as provided in division (E), (F), or (G) of this section, if the court does not make a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a community control sanction or combination, of community control sanctions is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall impose a community control sanction upon the offender.

R.C. 2929.13 does not create any explicit presumption in favor of either community control sanctions or imprisonment for fourth and fifth degree felony offenders. Nor can any presumption be implied, particularly in light of the incomplete¹ statutory scheme. Therefore, I disagree with the majority's contention that there is a statutory "preference" for the imposition of community control sanctions.

The majority's assertion of such a preference is inconsistent with our previous holdings in State v. Davis (Dec. 3, 1998), Cuyahoga App. Nos. 73680-82, unreported, and State v. Jordan (Nov. 12, 1998), Cuyahoga App. No. 73493, unreported. It is neither required nor justified by the Ohio Supreme Court's decision in State v. Edmonson (1999), 86 Ohio St.3d 324. One of the two statutes at issue in Edmonson created a clear presumption favoring minimum terms of imprisonment for offenders who have never been in prison before; the other expressly limited the circumstances under which the court could impose a maximum term of imprisonment, allowing the court to impose the maximum sentence "only" upon certain listed offenders. R.C. 2929.13(B) does neither of these.

R.C. 2929.19(B)(2)(a) demands that the trial court "shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances":

* * * if it imposes a prison term for a felony of the fourth or fifth degree * * * its reasons for imposing the prison term, based upon the overriding purposes and principles of felony sentencing set forth in section 2929.11 of the Revised Code, and any factors listed in divisions (B)(1)(a) to (h) of section 2929.13 of the Revised Code that it found to apply relative to the offender.

Though not grammatical, this statute demands that the trial court must state its reasons for imposing a prison term for a fourth or fifth degree felony. Those reasons must be based on (1) the overriding purposes and principles of felony sentencing under R.C. 2929.11 and (2) any factors in 2929.13(B)(1)(a) to (h) that the court finds applicable.

The requirement that the trial court state reasons demands that the court's finding must be something more than a "note that [the court] engaged in the analysis." Cf. State v. Edmonson (1999),86 Ohio St.3d 324, 326. While it may be the better practice "for the trial court to state its reasons for imposing a prison term in the judgment entry," State v. Jordan (Nov. 12, 1998), Cuyahoga App. No. 73493, unreported, at 6, there is no requirement that the court's reasons must be in writing. It is enough if the court orally states its reasons for imprisoning the defendant at the sentencing hearing.

The trial court here did not find any of the factors listed in R.C. 2929.13(B)(1)(a)-(h) before it sentenced appellant.² Nonetheless, a sentence of imprisonment still can be imposed on a fifth degree felony offender if the court finds such a sentence meets the overriding purposes and principles of felony sentencing under R.C. 2929.11 and states its reasons on the record.

Here, the trial court found that appellant posed a risk of flight if placed on probation in Ohio, both because she was not a United States citizen and because she had strong ties to California.³ The risk of flight concerns "the need for incapacitating the offender," a factor that R.C. 2929.11(A) requires the court to consider in assessing whether the sentence imposed serves the overriding purposes of felony sentencing to protect the public and to punish the offender.

In my view, the risk that appellant would flee the jurisdiction of the court provided sufficient reason for imprisoning her rather than placing her on probation. Significantly, the court sentenced appellant to the minimum term of imprisonment available, so the length of her sentence is not at issue.⁴ Cf. State v. Edmonson (1999),86 Ohio St.3d 324.

Our review of trial court sentencing decisions is limited. This court may vacate a sentence and remand for re-sentencing only "if the court clearly and convincingly finds" one of the factors listed in R.C. 2953.08(B)(1). As relevant to this appeal, those factors include:

(a) That the record does not support the sentence;

(b) That the sentence included a prison term, that the offense for which it was imposed is a felony of the fourth or fifth degree * * *, that the court did not specify in the findings it makes at the sentencing that it found one or more of the factors specified in division (B)(1)(a) to (h) of section 2929.13 of the Revised Code to apply relative to the defendant who brought the appeal, and either that the procedures set forth in division (B) of section 2929.13 of the Revised Code for determining whether to impose a prison term for such an offense were not followed or that those procedures were followed but there is an insufficient basis for imposing a prison term for the offense.

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In this case, the trial court imposed a prison term on an offender convicted of a fifth degree felony. The court did not specify that it found any of the factors listed in R.C.2929.13(B)(1)(a) to (h) to apply, either in its journal entry or at the sentencing hearing. The court did follow the procedures set forth in R.C. 2929.13(B), and its basis for imposing a prison term — the risk that appellant would flee if released — was sufficient. Accordingly, I would affirm the trial court's decision.

Finally, even if it were appropriate to vacate the trial court's decision, I disagree with the majority's decision to remand for imposition of community control sanctions instead of remanding for re-sentencing. The trial court should be free to consider the entire range of available sentences, including both imprisonment and community control. As noted at footnote 2, above, there is already evidence in the record to support a finding on at least one of the R.C. 2929.13(B)(1) factors, and there is no reason why additional evidence could not be presented at re-sentencing. Sentencing is a classic matter of discretion, and reviewing courts should fear to tread in such areas.

II. Having concluded that the sentence was supported by the record, I would reach the constitutional question presented by the first assignment of error. Even when in prison, appellant had the right to obtain an abortion. Monmouth Cty. Correctional InstitutionalInmates v. Lanzaro (3d Cir. 1987), 834 F.2d 326, 351; Doe v. Barron (S.D.Ohio, Aug. 12, 1999), Case No. C-1-99-611, Order Granting plaintiff's Motion for Temporary Restraining Order. The sentence did not require her to carry the child to term or otherwise limit her ability to obtain an abortion; therefore, the sentence of imprisonment could not have deprived her of her right to terminate her pregnancy. III. I believe the six-month sentence of imprisonment was supported by valid reasons that the trial court explained in the sentencing hearing. Accordingly, I must dissent from the majority's decision to vacate the trial court's decision and to remand for imposition of community control sanctions.

I would hold that appellant's constitutional claim lacks merit. Because prisoners have the right to obtain medical care, including abortion services, the sentence of imprisonment could not have deprived appellant of her right to obtain an abortion.

Therefore, I would affirm the trial court's decision.

¹ Subsection (B)(2) does not cover the entire range of possible findings by the trial court. The statute does not explain what should happen if, for example, the trial court finds "that a prison term is consistent with the purposes and principles of sentencing" but that the offender is also "amenable to an available community control sanction." Likewise, the statute does not explain what should happen if the court does not make one of the findings described in subsection (B)(1) but finds that community control sanctions are not consistent with the purposes and principles of felony sentencing.

² At pages 21-22 of its opinion, the majority suggests that the record fails to demonstrate that any of these factors applies. To the contrary, the presentence investigation report would have amply supported a finding that appellant acted as part of an organized criminal activity. R.C. 2929.13(B)(1)(e). However, the trial court did not state that finding as a reason for its sentencing decision, and thus I do not rely upon it.

³ In response to appellant's request to be placed on probation, the court stated, "If I place you on probation, there's the problem of you serving probation here in the State of Ohio. You also represent a flight risk, too, on the west coast, and you are not an American citizen. * * * *"

⁴ Appellant's six-month sentence also was not disproportionately long in comparison to the six-year sentences imposed on her co-defendants.