State v. Bivens , 49 Ohio App. 3d 75 ( 1988 )

I respectfully dissent.

When the legislature enacted the comprehensive Criminal Code and specifically enacted R.C. 2929.12 and 2929.13 for sentencing in felonies and R.C. 2929.22 for sentencing in misdemeanors, it was a clear declaration of intent that sentencing be uniform. Uniformity in sentencing does not mean that sentences must be identical, because the circumstances of each crime and each defendant may differ. Uniformity in sentencing means that the same standards are used, regardless of the circumstances. I would sustain assignment of error one because, as noted in the majority opinion, "* * * we do not know upon what facts the court relied * * *."

The trial court, without comment, sentenced appellant to a one-year definite term. Since the prosecution had recommended probation, and since appellant met most of the criteria of R.C.2929.12(B), shortly after the sentence counsel for appellant approached the court about an appeal bond, but then said:

"* * * [H]owever, Mr. Bivens is, I guess, in sort of a state of shock that he got a year instead of at least the minimum sentence of six months to five years on a felony four, since this is his first felony.

"Under the Rules, unless there's something here that I don't know about, he probably should have been a candidate for probation on this charge.

"THE COURT: We're not arguing that, we're arguing the bond. Let's go with that. What other reasons are there for a bond?" Cf.State v. Davis (1983), 13 Ohio App.3d 265, 13 OBR 329,469 N.E.2d 83.

My perception of the line of cases relied on by the majority is as follows: Clardy, supra, stands for the proposition that an averment by the court that it followed the sentencing criteria may be contradicted by the record. Yontz, supra, at 344,515 N.E.2d at 1015, holds that reversal is warranted "[b]ecause the record is devoid of any indication that the court considered the mitigating factors contained in R.C. 2929.12 * * *." Similarly inCable, supra, the court held at 91, 24 OBR at 160,493 N.E.2d at 287: "In the instant case, the record is devoid of any indication that the statutory criteria were considered."

The record in this case is devoid of any consideration of the statutory criteria, and like Clardy, supra, contains only the court's assertion that the matter was referred for a presentence report, and that "[t]he Court did that, and the written report is in the Court's hands, and we are now ready to consider sentencing."

After listening to the statements of counsel, and asking the defendant his age, the court imposed sentence. As a reviewing court, we can only guess whether the criteria were considered.Koons, supra, at 290, 14 OBR at 347, 470 N.E.2d at 923, followsClardy:

"Clardy, supra, stands for the proposition that where the record itself reveals affirmatively a lack of such consideration it may be concluded that the trial court did not consider the statutory standards."

My position on this issue is set forth in Maple Hts. v.Dickard (1986), 31 Ohio App.3d 68, 70, 31 OBR 108, 110,508 N.E.2d 994, 997:

"It has been recognized that ``not all judges exercise their discretion on the basis of the facts and circumstances of the case and the character and background of the offender but [some] act out of bias, prejudice and preconceptions.' Miamisburg v.Smith (1982), 5 Ohio App.3d 109, 110, 5 OBR 225, 226,449 N.E.2d 500, 501. Consideration and application of the R.C. 2929.22 guidelines can avert much of the potential unfairness in the sentencing process. Consequently, the statute has been construed to impose a mandatory duty on the trial court, and the failure of that court to weigh the statutory factors amounts to an abuse of discretion. Cincinnati v. Clardy (1978),57 Ohio App.2d 153, 11 O.O.3d 137, 385 N.E.2d 1342. See, also,Cleveland v. Technisort, Inc. (1985), 20 Ohio App.3d 139, 20 OBR 172, 485 N.E.2d 294; State v. Wardlow (1985), 20 Ohio App.3d 1,20 OBR 1, 484 N.E.2d 276."

Thus, I dissent because the record in this case is devoid ofany indication the mandatory requirements of R.C. 2929.12(B) were followed.