State v. Hill , 2014 Ohio 919 ( 2014 )

[Cite as State v. Hill, 2014-Ohio-919.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 MA 1
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
FRANK HILL, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 12CR783.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Donna Jewell McCollum
201 E. Commerce Street, Suite 346
Youngstown, Ohio 44503
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 14, 2014
[Cite as State v. Hill, 2014-Ohio-919.]
VUKOVICH, J.
{¶1} Defendant-appellant Frank Hill appeals from his sentence entered in
the Mahoning County Common Pleas Court for assault and aggravated menacing.
Three issues are raised in this appeal. The first one is what is the standard of review
for felony sentencing? The second issue is whether the trial court considered
mitigating factors in R.C. 2929.12(E)(3)-(5) and if the failure to consider those factors
provides a basis for reversing the sentence. The third issue is whether the trial court
allowed its personal opinion to govern the sentence imposed.
{¶2} For the reasons expressed below, in reviewing a felony sentence we
will employ both the abuse of discretion standard and the clear and convincingly
contrary to law standard. That said, in this case it makes no difference what standard
is used because the result is the same. The record supports the sentence issued,
and thus, the judgment of the trial court is hereby affirmed.
Statement of the Case
{¶3} In mid July 2012, Hill was involved in a head-on car collision, in which
he was not at fault. Officer Lindsay Pallo, from the Youngstown Police Department,
was called to the scene to investigate the crash. At the scene, Hill threatened to
shoot Officer Pallo in the head, struck her in the ribs, attempted to pull her to the
ground multiple times, and kicked her multiple times. The fight with Officer Pallo
lasted 8 minutes. 12/12/12 Sentencing Tr. 4. She suffered a sprained neck,
sprained lumbar region, sprained right rotator cuff, sprained right shoulder, sprained
right elbow, sprained chest, tendinitis in the right shoulder, and severe large disc
protrusion at the L5/S1 effacing the “thecal sac” on the spinal cord. 12/12/12
Sentencing Tr. 4.
{¶4} As a result of his actions, Hill was indicted for assault, in violation of
R.C. 2903.12(A)(C)(3), a fourth-degree felony, resisting arrest, in violation of R.C.
2921.33(B)(D), a first-degree misdemeanor, and aggravated menacing, in violation of
R.C. 2903.21(A)(B), a fifth-degree felony. 07/26/12 Indictment.
{¶5} Thereafter, the state and Hill reached a plea agreement. The second
count of the indictment, resisting arrest, was dismissed and Hill pleaded guilty to the
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remaining assault and aggravated menacing charges. The state agreed to stand
silent at sentencing. After a plea colloquy, the trial court accepted the guilty pleas
and set sentencing for a later date. 10/10/12 Plea Tr. 18; 10/12/12 J.E.
{¶6} After hearing the victim impact statement, Hill’s character witness, and
Hill’s own statement, the trial court sentenced Hill to an 18-month sentence for
assault and a 12-month sentence for aggravated menacing. The sentences were
ordered to be served concurrent to each other. 12/19/12 J.E.; 12/12/12 Sentencing
Tr. 21. Hill filed a timely appeal from that sentence.
Standard of Review
{¶7} Before we address the merits, this court is asked by the state to decide
the standard of review used to review felony sentencing. Hill argues that we review
his sentence for an abuse of discretion. The state argues that we are to only apply a
clear and convincingly contrary to law standard of review as espoused in R.C.
2953.08(G)(2).
{¶8} Prior to the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, we consistently held that we would only
reverse or modify a sentence if we clearly and convincingly found that the sentence is
contrary to law. This standard of review is found in R.C. 2953.08(G)(2). That statute
specifically indicates that felony sentences are not reviewed for an abuse of
discretion.
{¶9} In Foster, the Ohio Supreme Court determined that portions of the
felony sentencing statutes were unconstitutional, specifically statutory mandates that
were required before a trial court could issue a non-minimum, maximum and/or
consecutive sentence. State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845
N.E.2d 470. It held that “trial courts have full discretion to impose a prison sentence
within the statutory range and are no longer required to make findings or give their
reasons for imposing maximum, consecutive, or more than the minimum sentences.”
Id. at ¶ 100. Specifically, as to R.C. 2953.08(G), the statute regarding appellate
review of felony sentences, the Court recognized that Foster would affect subsequent
appellate review of sentences, noting that “[t]he appellate statute R.C. 2953.08(G),
insofar as it refers to the severed sections, no longer applies.” Id. at ¶ 99.
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{¶10} Those holdings in Foster created confusion among the appellate courts
as to what standard of review was applicable in felony sentencing. Some courts
applied both an abuse of discretion and clearly and convincingly contrary to law
standards. Others only applied a clearly and convincingly contrary to law standard
that was set forth in R.C. 2953.08(G)(2).
{¶11} In an attempt to dispel the confusion, in State v. Kalish the Ohio
Supreme Court addressed what standard of review is to be employed when
reviewing a felony sentence. 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
Kalish is a plurality decision.
{¶12} Justices Moyer, O’Donnell and O’Connor concluded that both an abuse
of discretion and clearly and convincingly contrary to law standards were to be
employed. Id. at ¶ 26. They explained it is a two-step approach. Id. First, an
appellate court must examine “the sentencing court's compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law.” Id. “If this first prong is satisfied, the trial
court's decision in imposing the term of imprisonment is reviewed under the abuse-
of-discretion standard.” Id. Specifically, an abuse of discretion standard of review is
employed in reviewing the application of R.C. 2929.11 and 2929.12, which are not
fact-finding statutes. Id. at ¶ 17.
{¶13} Judge Willamowski, sitting by assignment from the Third Appellate
District, concurred in judgment only with the above three Justices and wrote a
separate opinion. He opined that R.C. 2929.12 has always set forth its own standard
of review as an abuse of discretion and that even prior to Foster that was the correct
standard to apply when reviewing arguments that the trial court failed to comply with
R.C. 2929.12. Id. at ¶ 39-42.
{¶14} The dissent, Justices Lanzinger, Pfeifer, and Lundberg Stratton,
concluded that “Foster's severance of certain statutes has neither changed the
standard of review for felony sentences to abuse of discretion nor created a void in
the standard of appellate review.” Id. at ¶ 57. Thus, according to the dissent felony
sentences were only to be reviewed under the mandates of R.C. 2953.08(G)(2),
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which specifically states that an abuse of discretion standard of review does not
apply. Id. at ¶ 66.
{¶15} Following Kalish, we have continually applied the two-step approach
espoused by the plurality.
{¶16} The state, however, contends that our continued application of Kalish is
incorrect in light of the general assembly’s enactment of House Bill 86, which became
effective in September 2011. House Bill 86 modified R.C. 2953.08 to include
references to the mandatory statutory findings for imposition of consecutive
sentences. These provisions in House Bill 86 were enacted in response to the Ohio
Supreme Court’s decision in State v. Hodge. 128 Ohio St. 3d 1, 2010-Ohio-6320, 941
N.E.2d 768. In Hodge, the Ohio Supreme Court concluded, based on a United
States Supreme Court decision, that statutory mandates for consecutive sentencing
are not unconstitutional. Id. at ¶ 1-6, citing Oregon v. Ice, 555 U.S. 160, 129 S. Ct.
711 (2009). The Ohio Supreme Court explained:
Although we affirm the judgment below, we acknowledge that
given the holding and reasoning of the United States Supreme Court in
Ice, the General Assembly is no longer constrained by Foster's holdings
regarding the constitutionality of the consecutive-sentencing provisions
invalidated in Foster and may, if it chooses to do so, respond with
enactment of a statutory provision in light of Ice's holding.
Id. at ¶ 6.
{¶17} Although House Bill 86 modified portions of R.C. 2953.08, subsection
(G)(2), which provides that felony sentences are not reviewed for an abuse of
discretion, was retained and remained unchanged.
{¶18} Due to the passage of House Bill 86 some appellate courts are
concluding that the Kalish two-step standard of review is no longer applicable.
Rather, R.C. 2953.08(G)(2) is only applicable and an abuse of discretion standard of
review is no longer allowed. The Eighth Appellate District has explained:
Coinciding with this revived version of R.C. 2929.14(C)(4) are
amendments to R.C. 2953.08 governing the standard of review to be
applied by appellate courts when reviewing consecutive sentences.
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The former version of R.C. 2953.08(G)(2) was substantially similar in
form to the version currently in effect. The former version required the
court to “take any action * * * if it clearly and convincingly finds either of
the following: (a) That the record does not support the sentencing
court's findings under * * * division (E)(4) of section 2929.14, * * * (b).
That the sentence is otherwise contrary to law.”
In State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896
N.E.2d 124, the supreme court considered the relevant standard of
review in the post-Foster era in which the findings necessary to impose
consecutive sentences under former R.C. 2929.14(E)(4) had been
declared unconstitutional. A plurality of the court held that R.C.
2953.08(G)(2) was inapplicable because it expressly related to
“findings” that had been abrogated as unconstitutional. Instead, the
plurality set forth the following method of reviewing criminal sentences:
(1) is the sentence contrary to law and (2) if not, was it an abuse of
discretion. Id. at ¶ 14–19.
Kalish, as is any plurality opinion, is of “questionable
precedential value.” See Kraly v. Vannewkirk, 69 Ohio St. 3d 627, 633,
635 N.E.2d 323 (1994). Nevertheless, panels of this court have found it
persuasive, at least insofar as it was applied to sentencing in the post-
Foster era. See, e.g., State v. Martinez, 8th Dist. No. 96222, 2011-
Ohio-5832, 2011 WL 5507367, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and
the revival of statutory findings necessary for imposing consecutive
sentences under R.C. 2929.14(C)(4). By reviving the requirement for
findings as a predicate for imposing consecutives, the ground offered
by Kalish for rejecting the standard of review set forth in former R.C.
2953.08—that it could not stand as a standard of review for a statute
that improperly required findings of fact before imposing consecutive
sentences—was nullified. With the basis for the decision in Kalish no
longer valid, and given that Kalish had questionable precedential value
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in any event, we see no viable reasoning for continuing to apply the
standard of review used in that case. Henceforth, we review
consecutive sentences using the standard of review set forth in R.C.
2953.08.
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 7-10 (8th Dist.).
{¶19} The First and Twelfth Appellate Districts agree with the Eighth Appellate
District. State v. Kennedy, 1st Dist. No. C-120337, 2013-Ohio-4221, ___ N.E.2d ___,
¶ 117; State v. Crawford, 12th Dist. No. CA2012–12–088, 2013–Ohio–3315.
Currently, there is a dispute in the Eleventh District Court of Appeals as to whether
H.B. 86 renders the Kalish holding inapplicable. Compare State v. Rardin, 11th Dist.
No. 2012-P-0100, 2013-Ohio-4297 with State v. Blair-Walker, 11th Dist. No. 2012-P-
0125, 2013-Ohio-4118. Other courts are still applying the Kalish plurality holding.
State v. Forney, 2d Dist. No. 2012-CA-36, 2013-Ohio-3458, ¶ 33; State v. Nguyen,
4th Dist. No. 12CA14, 2013-Ohio-3170, ¶ 111; State v. Robinson, 5th Dist. No.
CT2012-0005, 2013-Ohio-2893, ¶ 8-13; State v. Keil, 6th Dist. No. L-12-1237, 2013-
Ohio-3468, ¶ 6; State v. Anthony, 7th Dist. No. 12JE2, 2013-Ohio-2955, ¶ 35; State
v. Brooks, 9th Dist. No. 26437, 2013-Ohio-2169, ¶ 5-6.
{¶20} Recognizing the different appellate courts’ stance on this issue, we are
choosing to continue to employ both standards of review. Our reason for doing so
can be illustrated by an example. If a trial court imposes a sentence that is within the
statutory range and the record clearly shows that all statutory considerations are of
record, but that record clearly shows the court had a demonstrable bias or prejudice,
is a review court powerless? We conclude the better course is to answer that
question in the negative. That said, as the below analysis shows, in this case,
regardless of what standard is employed, the result is the same – the trial court did
not err in rendering the sentence that it did.
First Assignment of Error
{¶21} “The trial court erred by abusing its discretion in failing to consider
mitigating factors listed in O.R.C. 2929.12 prior to sentencing Defendant/Appellant to
the maximum term of incarceration.”
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{¶22} A sentencing court must consider the principles and purposes of
sentencing espoused in R.C. 2929.11 and the seriousness and recidivism factors in
R.C. 2929.12. State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, ¶ 38. The Ohio
Revised Code does not mandate that the sentencing judge use specific language or
make specific findings on the record when considering these statutes. State v.
Arnett, 88 Ohio St. 3d 208, 215 (2000); R.C. 2929.12.
{¶23} Here, both the transcript and the judgment entry indicates that the trial
court considered the record, presentence investigation (PSI), the purposes and
principles of sentencing espoused in R.C. 2929.11 and the seriousness and
recidivism factors listed in R.C. 2929.12. 12/19/12 J.E.; 12/12/12 Sentencing Tr. 15-
16.
{¶24} Specifically, as to the recidivism factors, during the sentencing hearing,
the trial court found that it did not “believe” there is anything to indicate that recidivism
is less likely. 12/12/12 Tr. 16. Hill concludes that this statement is an indication that
the trial court did not consider R.C. 2929.12(E)(3)-(5) when it sentenced him.
Division (E) lists factors that show recidivism is less likely. Provisions (3) through (5)
provide:
(3) Prior to committing the offense, the offender had led a law-abiding
life for a significant number of years.
(4) The offense was committed under circumstances not likely to recur.
(5) The offender shows genuine remorse for the offense.
R.C. 2929.12(E)(3)-(5).
{¶25} Hill argues that the trial court did not consider the fact that he has not
committed many offenses since 2000 and this shows he led a law-abiding life for a
significant number of years. Furthermore, he contends that his statement to the court
at sentencing indicated that he was sorry for what he did and that his reaction,
according to him, was caused because he had just been in a head-on collision and
had hit his head and suffered injuries. 12/12/12 Sentencing Tr. 13-14. The witness
who testified on his behalf, the mother of one of his children, indicated that he is a
good man and that she and her daughter, who Hill raised, were previously in a car
accident that almost took both their lives. 12/12/12 Sentencing Tr. 12. She stated
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that that was going through his mind after the instant car accident and that caused
his frustration and anger and caused him to be scared. 12/12/12 Sentencing Tr. 12-
13. However, she also admitted that Hill does not know how to express himself at
times. 12/12/12 Sentencing Tr. 11.
{¶26} In reviewing his criminal record, the PSI shows that in 2000 he was
convicted in Pennsylvania of theft by deception and disorderly conduct. In 2003 he
was convicted and fined for having a vicious dog. In 2011, in Pennsylvania, he was
convicted of disorderly conduct and was fined. His record before 2000 is extensive.
As aforementioned, the trial court stated that it considered his record. Furthermore,
the trial court gave his record the appropriate weight given its extensiveness and the
fact that he was convicted of an offense in 2011. This does not demonstrate that the
offender lead a law abiding life for a number of years.
{¶27} Likewise, it is apparent from reading the transcript that the trial court did
consider the above statements regarding remorse and his character in determining
the appropriate sentence. The trial court stated:
Certainly the statements from the witness that the defendant
produced were statements indicating that the defendant is not all bad. *
* * But I do believe that a judge in sentencing anyone needs to take into
account not only the wrong that they’ve done, but also the – whether or
not there’s any good in them.
So, I mean, this is all pretty simple to me. It’s a basic rule of life.
It’s a basic rule for everyone to follow, man. You know, you don’t tug
on superman’s cape. You don’t spit into the wind. You don’t pull the
mask off the old Lone Ranger, and you don’t disrespect a cop. You just
can’t do it. It’s just one of those things that there’s no justification, no
excuse, no explanation for someone who assaults a peace officer.
Think of that. Assault on a peace officer, someone there to make peace
who’s assaulted. It’s a moral sin. It is something for which I don’t know
if the police officer came in here and said I want this guy to get
probation, if I could give you probation even then because there’s
something basically wrong, something truly bad about somebody who
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would assault a peace officer, someone who’s called to the scene of an
automobile accident to sort it out and make sure everybody’s rights are
protected and make sure everybody is properly advised and treated
and that the matter is cleaned up properly and that nobody else gets
hurt, nobody else is involved. And there’s this police officer who comes
to the scene and is trying to sort things out and you threaten to shoot
her head off. You threaten to do bad things to her. And you get into
such a rage, such an uncontrollable frenzy, that there’s nothing left to
do but arrest you, calm you down somehow, do something to stop
what’s going on here and make sure that nobody gets hurt and that
your conduct is controlled.
I agree with what the police officer said when she started. She
said I know this is part of my job. And believe me, I fight with that when
I have cases like this because a police officer going to a bar to break up
a fight, part of the deal is you may get hit, you may get punched, you
may get knocked down, but you sign up for that. So some of that is a
part of the job. But going to investigate an automobile accident and
having somebody threaten to kill you and then having somebody when
you try to arrest them assault you, hurt you, disrespect you, nobody
signs up for that. That’s just really bad stuff.
12/12/12 Sentencing Tr. 17-19.
{¶28} The trial court’s reasoning displays that it considered all relevant factors
and the facts of the case and when weighing those factors and facts it did not find
that recidivism was less likely. Furthermore, that conclusion is sound.
{¶29} This assignment of error lacks merit.
Second Assignment of Error
{¶30} “The trial court abused its discretion in allowing a personal opinion to
govern the sentence imposed.”
{¶31} Hill contends that the statements the trial court made during the
sentencing hearing regarding it being a moral sin to assault a police officer was an
indication that it had already determined that it would impose a prison term. He also
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asserts that the trial court indicated to the prosecutor that Hill should have been
indicted for a higher felony.
{¶32} Both of these assertions are factually incorrect. First, regarding the
position that the trial court already predetermined that it would impose a prison term
is proven wrong by the trial court’s own statements at sentencing:
From reading the police reports regarding these matters, I don’t
do sentencing – I don’t take these home and figure out the night before
what I’m going to do as some judges do. I feel that is inappropriate. It
means that this hearing means nothing if I’ve already decided what I’m
going to do. So I do read these things for the first time today, and they
are fairly lengthy so I need just a couple of minutes while I’m doing that.
12/12/12 Sentencing Tr. 16-17.
{¶33} Admittedly, the trial court did discuss that it was a moral sin to commit
an assault on a peace officer. The statement is provided in the portion of the
sentencing transcript that is regurgitated in the first assignment of error. However,
that statement when read in context, shows that the trial court was considering
everything when sentencing Hill. As the court explained, this was not a situation
where the police officer was breaking up a fight at a bar. In those situations, getting
hit, punched and knocked down is part of the job. However, here the officer was
responding to a car accident. This was not a situation where getting punched would
be considered part of the job. Thus, the trial court’s analysis does not show a
predetermination for the sentence imposed.
{¶34} As to the allegation that the trial court indicated to the state that it
should have charged Hill with a higher felony, this statement is also incorrect. After
the victim gave her statement, the trial court asked the following questions to the
prosecutor:
THE COURT: What’s your recommendation?
MR. McBRIDE [prosecutor]: It was to stand silent in this matter,
Your Honor.
THE COURT: This was originally a felony four. It was never
anything greater than that?
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MR. McBRIDE: Yes, Your Honor. And I believe several of the
diagnosis that Officer Pallo received were after the case had been
indicted and pled. So that’s why we’re here on a felony four.
12/12/12 Tr. 7-8.
{¶35} This conversation does not clearly indicate that the trial court believed
that Hill should have been charged with a higher degree felony. Furthermore, what
Hill was originally charged with is allowed to be considered at sentencing. State v.
Parsons, 7th Dist. No. 12BE11, 2013-Ohio-1281, ¶ 18, citing State v. Starkey, 7th
Dist. No. 06MA110, 2007–Ohio–6702, ¶ 2; State v. Cooey, 46 Ohio St. 3d 20, 35, 544
N.E.2d 895 (1989). Thus, the inquiry as to whether the charge he was pleading to
was a reduced charge was relevant to the court in determining the appropriate
sentence. Therefore, simply considering the question asked by the trial court, it
cannot be concluded that the trial court was implicitly indicating that Hill should have
been charged with a higher degree felony. This assignment of error also lacks merit.
Conclusion
{¶36} In conclusion, all assignments of error lack merit. The sentence
imposed is supported by the record and, thus, the judgment of the trial court is
hereby affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs in judgment only; see concurring in judgment only Opinion.
DeGenaro, P.J., concurring in judgment only.
Consistent with the analysis from the Eighth District as noted by the majority,
along with that from the First District noted below, we should join our sister districts in
the conclusion that that R.C. 2953.08(G)(2), as set forth in House Bill 86, provides
the standard of review in the post-Foster era. That statute specifically indicates that
felony sentences are not reviewed for an abuse of discretion, a more deferential
standard of review. Instead, appellate courts are to determine whether the record
demonstrates the sentence is clearly and convincingly contrary to law, a less
deferential standard. In other words, the trial court's sentence must be clearly and
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convincingly supported by the record and also consistent with Ohio's sentencing
statutes in order to be affirmed on appeal. I concur in the majority's judgment,
because when applying the R.C. 2953.08(G)(2) standard of review, the decision of
the trial court should be affirmed.
In addition to the Eighth District's decision in Venes, see Majority Opinion at
¶19, the First District recently provided a well-reasoned analysis of this issue in State
v. White, 2013-Ohio-4225, 1st. Dist. Hamilton No. C-130114, 997 N.E.2d 629,
outlining the other districts that have stepped away from Kalish in the wake of H.B.
86:
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."
R.C. 2953.08(G)(2). Rather, the standard is the one set forth by
statute:
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 * * *;
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(b) That the sentence is otherwise contrary
to law.
R.C. 2953.08(G)(2).
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.
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,
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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.
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 R.C. 2953.08(G)(2) that had been rejected by the
Kalish plurality. 2011 Am.Sub.H.B. No. 86, Section 1.
We presume the legislature knew what it was doing when it
reenacted the R.C. 2953.08(G)(2) standard of review. And we cannot
justify applying an abuse of discretion standard where the legislature
has explicitly told us that the standard of review is not an abuse of
discretion. Thus, henceforth, we will apply the statutory standard
rather than the Kalish plurality framework to our review of felony
sentences.
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, 2013-Ohio-1891, 992
N.E.2d 453, ¶10 ("By reviving the requirement for findings as a
predicate for imposing consecutives, the ground offered by Kalish for
rejecting the standard of review set forth in former R.C. 2953.08—that
it could not stand as a standard of review for a statute that improperly
required findings of fact before imposing consecutive sentences—was
nullified."); State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-
2525, 2013 WL 3156521 (concluding that the statutory standard
applies to all felony sentences, not just those where findings are
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required); State v. Crawford, 12th Dist. Clermont No. CA2012–12–
088, 2013-Ohio-3315, 2013 WL 3946242, ¶6 ("[F]rom this day
forward, rather than continue to apply the two-step approach as
provided by Kalish, we find" that the standard in R.C. 2953.08(G)(2)
applies to all felony sentences); State v. Worth, 10th Dist. Franklin No.
10AP–1125, 2012-Ohio-666, 2012 WL 554457, ¶83 (applying
statutory test and noting that, as a plurality opinion, Kalish is of limited
precedential value); State v. Blair–Walker, 11th Dist. Portage No.
2012–P–0125, 2013-Ohio-4118, 2013 WL 5347222 ("[W]e no longer
apply the two-step analysis contained in the 2008 Kalish case to
defendants sentenced under H.B. 86's enactment. Rather, we apply
R.C. 2953.08(G) and the clear and convincing standard"); see also
State v. Fletcher, 3rd Dist. Auglaize No. 2–13–02, 2013-Ohio-3076
(continuing to apply R.C. 2953.08 after Kalish).
White, supra, ¶5-10.
See also State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶7 (applying
R.C. 2953.08(G)(2) standard of review in a post-H.B. 86 appeal without reference to
Kalish); State v. Rodeffer, 2d Dist. No. 25574, 2013-Ohio-5759, ¶29. ("In order to be
consistent with the approach of other Ohio appellate districts that have already
considered this issue in light of H.B. No. 86, we will no longer apply the two-part test
in Kalish when reviewing felony sentences controlled by H.B. 86. From now on we
will use the standard of review set forth in R.C. 2953.08(G)(2).")
The Majority's Opinion at ¶20 needs clarification. Although it correctly states
that the Eleventh District is split on the issue, the other districts cited to therein,
including this one, did not discuss whether or not H.B. 86 legislatively replaced the
Kalish standard of review with R.C. 2953.08(G); the issue was never raised in any of
those cases. Thus, the majority has mischaracterized the state of the law on this
issue among Ohio's twelve appellate districts.
Although R.C. 2953.08(G)(2), the provision indicating that a felony sentence is
not reviewed for an abuse of discretion, was specifically retained and remained
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unchanged by H.B. 86, we must return to this standard of review in light of the judicial
and legislative give-and-take with respect to felony sentencing that has occurred over
the past decade and a half, beginning with S.B. 2 enacted in Ohio in 1996, through
Apprendi, Blakely and Foster and their respective progeny, and culminating most
recently with H.B. 86, effective in 2011. The reasoning articulated by the courts in
Venes and White in support of the conclusion that post-H.B. 86 the standard of
review of R.C. 2953.08(G)(2) supplanted the Kalish two-step analysis is persuasive.
Though a consensus was reached on little else, a majority of the Kalish court
agreed that prior to Foster, the appropriate standard of review was the clearly and
convincingly contrary to law approach provided by R.C. 2953.08(G)(2). Kalish at ¶9-
10 (O'Connor, J., plurality opinion); ¶43-49 (Lanzinger, J., dissenting opinion). The
touchstone of the Kalish decision was the appropriate standard of review in felony
sentencing appeals following Apprendi, Blakely and Foster, given that trial courts'
sentencing discretion was no longer statutorily constrained as a result of that line of
cases. In crafting the two-prong approach, the O'Connor plurality opinion concluded
that Foster did indeed change the standard of review. Kalish at ¶14-19 (O'Connor,
J., plurality opinion). Specifically, in addition to conducting a clearly and convincingly
contrary to law analysis, the O'Connor plurality added the abuse of discretion review.
By contrast, the Lanzinger dissent concluded that the standard of review remained
unchanged by Foster, and that "[i]n reviewing any felony sentence, an appellate court
must determine whether the record clearly and convincingly demonstrates that the
sentence is contrary to law. R.C. 2953.08(G)(2) * * * This court should not impose
the more deferential abuse-of-discretion standard when the statute has expressly
rejected that standard." Kalish at ¶43, 66 (Lanzinger, J., dissenting ).
Since Kalish, in the wake of Ice and Hodge, the General Assembly has
specifically opted to re-institute constraints on a trial court's sentencing authority by
enacting H.B. 86:
SECTION 11. In amending division (E)(4) of section 2929.14 and
division (A) of section 2929.41 of the Revised Code in this act, it is the
intent of the General Assembly to simultaneously repeal and revive the
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amended language in those divisions that was invalidated and severed
by the Ohio Supreme Court's decision in State v. Foster (2006), 109
Ohio St. 3d 1. The amended language in those divisions is subject to
reenactment under the United States Supreme Court's decision in
Oregon v. Ice (2009), 555 U.S. 160, and the Ohio Supreme Court's
decision in State v. Hodge (2010), ___ Ohio St.3d ___, Slip Opinion No.
2010–Ohio–6320 and, although constitutional under Hodge, supra, that
language is not enforceable until deliberately revived by the General
Assembly.
Am.Sub.H.B. No. 86, 2011 Ohio Laws File 29.
Thus, in effect, the standard of review has come full circle. Further, Justice
Lanzinger's separation-of-powers point in the Kalish dissent resonates more sharply
now. Kalish at ¶66 (Lanzinger, J., dissenting.) Courts cannot apply a standard of
review that is expressly prohibited by the legislature. Instead, appellate courts are to
determine whether the record demonstrates the sentence is clearly and convincingly
contrary to law, rather than the more deferential abuse of discretion standard of
review. In other words, the trial court's sentence must be clearly and convincingly
supported by the record and clearly and convincingly consistent with Ohio's
sentencing statutes in order to be affirmed on appeal.
Moreover, the Majority's concerns at ¶21 are unfounded because although the
R.C. 2953.08(G) standard somewhat constrains appellate review, it would still allow
for reversal where "the record clearly shows the [trial] court had a demonstrable bias
or prejudice[.]" Majority Opinion at ¶21. In an extreme case, where such a sentence
would be violative of due process, it would necessarily be clearly and convincingly
contrary to law. Moreover, actual claims of judicial bias during sentencing must be
remedied via a separate process: the filing of an affidavit of disqualification with the
Ohio Supreme Court. See State v. Donald, 7th Dist. No. 09 MA 172, 2011-Ohio-
3400, ¶13 ("An appellate court is without * * * to void a judgment on the basis that a
judge should be disqualified for bias or prejudice.")
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Given all of the foregoing, the R.C. 2953.08(G) clearly and convincingly
contrary to law standard of review, rather than the two-part Kalish analysis, applies to
felony sentences on appeal as a result of the General Assembly enacting H.B. 86.
Applying the R.C. 2953.08(G)(2) standard of review to Hill's sentence, the trial court's
decision should be affirmed, and thus I concur in judgment only.