State v. Jones (Slip Opinion) , 2020 Ohio 6729 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jones, Slip Opinion No. 2020-Ohio-6729.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-6729
THE STATE OF OHIO, APPELLANT, v. JONES ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Jones, Slip Opinion No. 2020-Ohio-6729.]
Criminal law—Felony sentencing—Standard of review upon appeal of sentence—
R.C. 2953.08(G)(2)(a) does not provide a basis for an appellate court to
modify or vacate a sentence based on the lack of record support for the trial
court’s findings made under R.C. 2929.11 and 2929.12—R.C.
2953.08(G)(2)(b) does not provide a basis for an appellate court to modify
or vacate a sentence based on its view that the sentence is not supported by
the record under R.C. 2929.11 and 2929.12.
(No. 2018-0444—Submitted August 4, 2020—Decided December 18, 2020.)
APPEAL from the Court of Appeals for Cuyahoga County,
Nos. 103290 and 103302, 2018-Ohio-498.
__________________
O’CONNOR, C.J.
SUPREME COURT OF OHIO
{¶ 1} Appellees, Randy and Carissa Jones, were convicted of involuntary
manslaughter for the tragic death of their adopted daughter, T.J., and they each were
sentenced to ten years in prison. This appeal concerns whether the Eighth District
Court of Appeals properly vacated their sentences. We hold that it did not. We
therefore reverse the judgments of the court of appeals and reinstate the sentences
imposed by the trial court.
I. RELEVANT BACKGROUND
A. Convictions
{¶ 2} Randy and Carissa Jones adopted T.J. in 2002, when she was nine
months old. In 2006, they had T.J. evaluated by a psychologist and a psychiatrist,
who diagnosed her with autism, attention-deficit/hyperactivity disorder, and an
intellectual disability. The psychologist also told the Joneses that T.J. would likely
not progress beyond the sixth-grade level in school. The Joneses found that T.J.
had difficulty communicating; she had a limited ability to understand what was said
to her and an even more limited ability to verbalize a response. They began home-
schooling T.J. when she was in the second grade.
{¶ 3} On February 18, 2013, Carissa found that T.J. was not breathing and
called 9-1-1. First responders attempted to resuscitate T.J. while taking her to the
hospital.
{¶ 4} At the hospital, Dr. Jamil Alarafi immediately noticed that T.J.
smelled like “necrotic and decaying flesh, * * * like gangrene.” She also had
wounds on her chest and neck, and she was visibly malnourished, with a
“distended” belly. Dr. Alarafi also observed severe wounds on T.J.’s lower
extremities, including dying tissue on her feet and abscesses on her ankle and legs.
Ultimately, all efforts to save T.J.’s life were unsuccessful, and she was pronounced
dead at the hospital. She was 12 years old.
{¶ 5} Dr. Andrea McCollum of the Cuyahoga County Medical Examiner’s
Office conducted an autopsy. She concluded that T.J. died from sepsis and
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pneumonia caused by bacteria in the abscess on T.J.’s ankle entering T.J.’s
bloodstream and traveling to her lungs. Dr. McCollum also determined that the
manner of death was homicide due to the Joneses’ lack of care for T.J.
{¶ 6} The Cuyahoga County Department of Children and Family Services
then conducted an investigation into T.J.’s death. The Joneses told an investigator
that T.J. had been sick for a little over a week, but they said they had often been
forced to guess what was wrong with her when she was sick because she never
complained about anything and she seemed to have a very high tolerance for pain.
When the investigator questioned the Joneses about the injuries to T.J.’s body, they
stated that the injuries had been caused by her own self-injurious behavior and that
although they had made efforts to stop that behavior, such injuries were not unusual.
{¶ 7} After the investigation, Randy and Carissa Jones were each charged
with involuntary manslaughter under R.C. 2903.04(A), three counts of endangering
children under R.C. 2919.22, and permitting child abuse under R.C. 2903.15(A).
At the conclusion of a joint jury trial, they were each found guilty of involuntary
manslaughter, two counts of endangering children, and permitting child abuse.
They were each acquitted of one count of endangering children.
B. Sentencing
{¶ 8} The trial court merged all counts and the state elected to proceed to
sentencing on the involuntary-manslaughter count for both defendants under
former R.C. 2929.14(A)(1), 2012 Am.Sub.S.B. No. 337, which required the trial
court to impose definite sentences between 3 and 11 years in prison.
{¶ 9} The court sentenced both Randy and Carissa Jones to ten years in
prison, followed by five years of postrelease control. In doing so, the trial judge
stated that she had taken “copious notes” during the long trial and that she had
reviewed those notes in preparation for the sentencing. She also said, “I’ve perhaps
given this case more thought than just about any case that I’ve ever had in my
career.” Finally, the trial judge specifically stated that she had considered all the
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required factors under R.C. 2929.11, 2929.12, and 2929.13, and the sentencing
entry indicates the same.
{¶ 10} The trial judge also made statements concerning the evidence
introduced at trial and her view of the Joneses’ conduct. She stated that the
photographs of T.J.’s injuries were among the worst photographs of a child’s
injuries she had ever seen. She also stated that she doubted that the injuries on
T.J.’s body were self-inflicted and that she did not believe Randy Jones’s claim that
he had not been aware of how severe those injuries were. A large number of people
sought to support the Joneses at the sentencing hearing, but the trial judge noted
that they had not seen the evidence presented at trial, including the photographs of
T.J.’s injuries, and that their support could not undo the Joneses’ failure to provide
care for T.J. The trial judge also noted that she had not observed the Joneses shed
a single tear.
C. The Joneses’ Appeals
{¶ 11} The Joneses separately appealed, but their appeals were
consolidated. The Eighth District Court of Appeals issued three separate decisions
in their cases. The first two are not relevant to this appeal. In State v. Jones, 2016-
Ohio-5923, 76 N.E.3d 417 (“Jones I”), the court affirmed the Joneses’ convictions
but vacated their sentences and remanded for resentencing, see id. at ¶ 113-114. In
State v. Jones, 2016-Ohio-7702, 76 N.E.3d 596 (“Jones II”), the court upon
reconsideration vacated the decision in Jones I and again affirmed the convictions
and—after applying a different analysis regarding the propriety of their sentences—
again vacated their sentences and remanded for resentencing, see id. at ¶ 117-118.
The Eighth District then granted the state’s motion for en banc consideration and
heard the Joneses’ appeals en banc due to a conflict between its decision in Jones
II and one of its prior decisions that also involved the standards for appellate review
of felony sentences. State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 1 (“Jones
III”). Ultimately, in the decision now on appeal to this court, it vacated the Joneses’
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sentences a third time and remanded for resentencing, in the process vacating the
decision in Jones II and again affirming the convictions, see Jones III at ¶ 3, 150,
153.
{¶ 12} The Eighth District’s en banc decision in Jones III focused on R.C.
2953.08. In relevant part, R.C. 2953.08(A)(4) permits a criminal defendant to
appeal his or her sentence on the ground that it is “contrary to law.” R.C.
2953.08(G)(2) then provides:
The court hearing an appeal under division (A), (B), or (C)
of this section 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 under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 13} In Jones III, a majority of the judges of the Eighth District joined the
holding stated in the lead opinion that our decision in State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, interpreted R.C. 2953.08(G)(2)(a) to
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permit an appellate court to modify or vacate a sentence if it finds that the record
does not support the sentencing court’s findings under R.C. 2929.11 and 2929.12.
Jones III, 2018-Ohio-498, 105 N.E.3d 702, at ¶ 5-6, 21 (lead opinion); id. at ¶ 22
(Stewart, J., concurring in judgment only). Marcum concerned the question
whether appellate courts may review felony sentences under an abuse-of-discretion
standard, rather than the clear-and-convincing-evidence standard. Marcum at ¶ 14-
19. We concluded that R.C. 2953.08 “specifically and comprehensively defines the
parameters and standards—including the standard of review—for felony-
sentencing appeals,” id. at ¶ 21, and that R.C. 2953.08(G)(2) expressly requires an
appellate court to use the clear-and-convincing-evidence standard, id. at ¶ 22. In
doing so, however, we made additional statements relating to R.C. 2929.11 and
2929.12. We noted that “some sentences do not require the findings that R.C.
2953.08(G) specifically addresses.” Id. at ¶ 23. We then stated:
Nevertheless, it is fully consistent for appellate courts to review
those sentences that are imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12 under a standard that is equally
deferential to the sentencing court. That is, an appellate court may
vacate or modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence.
Id. Based on these statements, the lead opinion in Jones III stated that an appellate
court may review “the considerations under R.C. 2929.11 and the findings under
R.C. 2929.12” and if, “after reviewing those findings, [the appellate court] find[s]
that the sentence is contrary to law or not supported by the record, [it] may take
action.” Id. at ¶ 19.
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{¶ 14} Five judges dissented. In their view, the trial court considered
everything it was obligated to consider and the record supported the Joneses’
sentences. Id. at ¶ 48, 53 (Sean C. Gallagher, J., dissenting). They would therefore
have affirmed the Joneses’ sentences. Id. at ¶ 53.
{¶ 15} Jones III also included a new opinion by the three-judge panel that
had heard Jones I and Jones II. In that opinion, the panel applied the reasoning of
the en banc court’s lead opinion to the Joneses’ cases and concluded that the record
did not support their sentences because those sentences did not advance the
overriding purposes of felony sentencing, as stated in former R.C. 2929.11(A),
2011 Am.Sub.H.B. No. 86. Id. at ¶ 151-152. In full, the panel’s decision on this
point stated as follows:
A tragedy occurred in this case: T.J. died. On this record,
however, we find that imprisoning her parents for ten years does not
advance the two primary purposes of felony sentencing, that is, to
protect the public from the Joneses and to punish them using
minimum sanctions. The record demonstrates that the Joneses
exercised poor judgment in the care of T.J. But they cared for her
nonetheless and did what they believed was best for her. The public
does not need to be protected from them—the likelihood of this
happening again is almost nonexistent. And as for punishment—
what greater punishment can there be than the death of their child.
Id. at ¶ 152. The panel therefore vacated the Joneses’ sentences and remanded the
cases for resentencing. Id. at ¶ 153.
{¶ 16} The state sought this court’s discretionary review of one proposition
of law: “R.C. 2953.08(G)(2) does not allow a court of appeals to review the trial
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court’s findings made pursuant to R.C. 2929.11 and R.C. 2929.12.” We accepted
jurisdiction. 153 Ohio St. 3d 1474, 2018-Ohio-3637, 106 N.E.3d 1260.
II. ANALYSIS
{¶ 17} “The interpretation of a statute is a question of law, and accordingly,
we review the matter de novo.” State v. Vanzandt, 142 Ohio St. 3d 223, 2015-Ohio-
236, 28 N.E.3d 1267, ¶ 6.
A. R.C. 2929.11 and 2929.12
{¶ 18} Before considering the parties’ arguments, it is important to
understand exactly what R.C. 2929.11 and 2929.12 provide. R.C. 2929.111
addresses the purposes of felony sentencing. It provides as follows:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others, to punish the offender,
and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating
the offender, and making restitution to the victim of the offense, the
public, or both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate
1. The current version of R.C. 2929.11 quoted here is different from the former version applied by
the court of appeals. The differences are not material for purposes of this opinion.
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with and not demeaning to the seriousness of the offender’s conduct
and its impact upon the victim, and consistent with sentences
imposed for similar crimes committed by similar offenders.
(C) A court that imposes a sentence upon an offender for a
felony shall not base the sentence upon the race, ethnic background,
gender, or religion of the offender.
{¶ 19} R.C. 2929.12 addresses factors to be taken into account when
imposing a sentence under R.C. 2929.11. R.C. 2929.12(A) provides:
Unless otherwise required by section 2929.13 or 2929.14 of
the Revised Code, a court that imposes a sentence under this chapter
upon an offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set
forth in [divisions (B) through (F)] of this section * * * and, in
addition, may consider any other factors that are relevant to
achieving those purposes and principles of sentencing.
R.C. 2929.12(B) through (F) then set out factors for the court to consider relating
to matters such as the seriousness of the offender’s conduct, the likelihood of the
offender’s recidivism, and the offender’s service in the armed forces of the United
States, if any.
{¶ 20} We have previously held that neither R.C. 2929.11 nor 2929.12
requires a trial court to make any specific factual findings on the record. State v.
Wilson, 129 Ohio St. 3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett,
88 Ohio St. 3d 208, 215, 724 N.E.2d 793 (2000).
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B. The Parties’ Arguments
{¶ 21} The state argues that an appellate court is not permitted to modify or
vacate a sentence based on its own finding that the record does not support the
sentencing court’s findings under R.C. 2929.11 and 2929.12. Specifically, it notes
that R.C. 2929.11 and 2929.12 do not require the trial court to make any findings.
It also maintains that even when a trial court does make findings under R.C.
2929.11 and 2929.12, R.C. 2953.08(G)(2)(a) permits a sentence to be modified or
vacated due to lack of support in the record only with respect to findings made
pursuant to several specifically identified statutes—and R.C. 2929.11 and 2929.12
are not among them. Ultimately, the state argues that the Joneses’ sentences were
not contrary to law because the trial court considered all the factors it was required
to consider, properly imposed postrelease control, and imposed sentences within
the applicable range.
{¶ 22} Amicus curiae, the Ohio Attorney General, argues in support of the
state that R.C. 2953.08 does not permit an appellate court to review a trial court’s
discretionary determination that a particular sentence is warranted under R.C.
2929.11 and 2929.12. The attorney general submits that an appellate court’s
disagreement with such a determination is not a disagreement over whether the
sentence is “contrary to law” under R.C. 2953.08(G)(2)(b). The attorney general
argues that the nature of an amendment to R.C. 2953.08 compels this conclusion.
{¶ 23} The Joneses each respond that a sentence is “contrary to law” under
R.C. 2953.08(G)(2)(b) when an appellate court finds that the record does not
support a sentence with respect to R.C. 2929.11 and 2929.12. They rely on this
court’s statements concerning R.C. 2929.11 and 2929.12 in Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Furthermore, according to
the Joneses, requiring that the record reflect only that the trial court considered
those statutes would not permit meaningful appellate review.
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C. The Eighth District Erred
{¶ 24} At the outset, we find it necessary to distinguish the holding of the
en banc court in Jones III from the other significant conclusion reached in the lead
opinion. In the en banc decision, 7 of the 12 judges of the Eighth District held that
our decision in Marcum interpreted R.C. 2953.08(G)(2)(a) to permit an appellate
court to modify or vacate a sentence if it finds that the record does not support the
sentencing court’s findings under R.C. 2929.11 and 2929.12. Jones III, 2018-Ohio-
498, 105 N.E.3d 702, at ¶ 5-6, 21 (lead opinion); id. at 22 (Stewart, J., concurring
in judgment only). In the lead opinion, however, six of those seven judges also
reached a broader conclusion, determining that the statute permits an appellate
court to review whether the record supports the overall sentence, rather than simply,
as the en banc decision held for the court, to review whether the record supports
findings made by the trial court under R.C. 2929.11 and 2929.12. Jones III at ¶ 19.
{¶ 25} This distinction matters because, as explained below, the panel’s
decision in Jones III appears to have relied on reasoning stated in the lead opinion
to review whether the record supports the Joneses’ sentences, not just the specific
findings by the trial court under R.C. 2929.11 and 2929.12. Ultimately, however,
we hold that the Eighth District erred.
1. The en banc court’s holding that R.C. 2953.08(G)(2)(a) permits an
appellate court to review whether the record supports findings under R.C.
2929.11 and 2929.12
{¶ 26} The holding of the en banc court was that our decision in Marcum
had interpreted R.C. 2953.08(G)(2)(a) to permit an appellate court to modify or
vacate a sentence based on the lack of support in the record for the trial court’s
findings under R.C. 2929.11 and 2929.12. Jones III at ¶ 5-6, 21 (lead opinion); id.
at 22 (Stewart, J., concurring in judgment only). We disagree.
{¶ 27} As discussed above, we held in Marcum that R.C. 2953.08(G)
defines the standard of review for felony-sentencing appeals. Marcum, 146 Ohio
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St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 21. The statements in Marcum
at ¶ 23 suggesting that it would be “fully consistent” with R.C. 2953.08(G) for an
appellate court to modify or vacate a sentence when the record does not support the
sentence under R.C. 2929.11 or 2929.12 were made only in passing and were not
essential to this court’s legal holding. The statements are therefore dicta.
{¶ 28} Beyond that, nothing in the text of R.C. 2953.08(G)(2)(a) otherwise
supports the holding of the en banc court. R.C. 2953.08(G)(2)(a) permits an
appellate court to modify or vacate a sentence if it clearly and convincingly finds
that “the record does not support the sentencing court’s findings under” certain
specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and
(D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.
{¶ 29} The Eighth District therefore erred by relying on dicta in Marcum
and by concluding that R.C. 2953.08(G)(2)(a) provides a basis for an appellate
court to modify or vacate a sentence based on the lack of support in the record for
the trial court’s findings under R.C. 2929.11 and 2929.12.
2. The lead opinion’s conclusion that an appellate court may review whether
the record supports a sentence under R.C. 2929.11 and 2929.12
{¶ 30} The lead opinion concluded that an appellate court may review “the
considerations under R.C. 2929.11 and the findings under R.C. 2929.12” and if,
“after reviewing those findings, [the appellate court] find[s] that the sentence is
contrary to law or not supported by the record, [it] may take action.” Jones III,
2018-Ohio-498, 105 N.E.3d 702, at ¶ 19. That is broader than the en banc court’s
holding because it suggests that an appellate court may review whether the record
supports the sentence as a whole under R.C 2929.11 and 2929.12. This effectively
allows the appellate court to substitute its judgment for that of the trial court
concerning the overall selection of a sentence that is compliant with R.C. 2929.11
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and 2929.12. In our view, nothing in R.C. 2953.08(G)(2) permits such an action
by an appellate court.
{¶ 31} As an initial matter, the lead opinion’s conclusion in this regard
makes a distinction between a sentence that is “contrary to law” and one that is “not
supported by the record.” In so doing, it appears to track the types of review
permitted in R.C. 2953.08(G)(2)(a) and (b), which concern the same topics. But
R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an appellate court to
modify or vacate a sentence if it concludes that the record does not support the
sentence under R.C. 2929.11 and 2929.12 because, as explained above, R.C.
2929.11 and 2929.12 are not among the statutes listed in the provision.
{¶ 32} We also reject any suggestion that R.C. 2953.08(G)(2)(b) provides a
basis for the lead opinion’s conclusion. R.C. 2953.08(G)(2)(b) permits an appellate
court to modify or vacate a sentence if it clearly and convincingly finds that the
sentence is “otherwise contrary to law.” But an appellate court’s determination that
the record does not support a sentence does not equate to a determination that the
sentence is “otherwise contrary to law” as that term is used in R.C.
2953.08(G)(2)(b).
{¶ 33} The General Assembly did not define the term “contrary to law.” In
such a situation, we generally look to a term’s ordinary meaning at the time the
statute was enacted. See New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532,
539, 202 L. Ed. 2d 536 (2019); see also id. at ___, 139 S.Ct. at 544 (Ginsburg, J,
concurring) (agreeing that words in a statute should generally be interpreted as
taking their ordinary meaning at the time the statute was enacted but noting that a
legislative body “may design legislation to govern changing times and
circumstances” and citing decisions illustrating that principle).
{¶ 34} The term “contrary to law” was used in R.C. 2953.08(G)(4) when
R.C. 2953.08 was enacted in 1995. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV,
7136, 7565. At that time, legal dictionaries defined “contrary to law” as “in
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violation of statute or legal regulations at a given time,” e.g., Black’s Law
Dictionary 328 (6th Ed.1990). We must also “consider the statutory language in
context, construing words and phrases in accordance with rules of grammar and
common usage.” State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St. 3d 471,
2009-Ohio-5934, 918 N.E.2d 135, ¶ 25. Furthermore, the evolution of a statute
through amendments can inform our understanding of the meaning of the text. See
Lynch v. Gallia Cty. Bd. of Commrs., 79 Ohio St. 3d 251, 254, 680 N.E.2d 1222
(1997) (“When confronted with amendments to a statute, an interpreting court must
presume that the amendments were made to change the effect and operation of the
law”); Miracle v. Ohio Dept. of Veterans Servs., 157 Ohio St. 3d 413, 2019-Ohio-
3308, 137 N.E.3d 1110, ¶ 21-23 (considering the evolution of a statute to discern
the General Assembly’s intent). When we consider the evolution of R.C.
2953.08(G), it is evident that an appellate court’s conclusion that the record does
not support a sentence under R.C. 2929.11 or 2929.12 is not the equivalent of a
conclusion that the sentence is “otherwise contrary to law” as that term is used in
R.C. 2953.08(G)(2)(b).
{¶ 35} The General Assembly enacted former R.C. 2953.08 as part of a
substantial overhaul of the state’s sentencing laws in 1995. The provision took
effect on July 1, 1996. Am.Sub.S.B. No. 2, Section 6, 146 Ohio Laws, Part IV, at
7810. As originally enacted, R.C. 2953.08(G) authorized appellate courts to
“increase, reduce, or otherwise modify a sentence that is appealed under this section
or * * * vacate the sentence and remand the matter to the trial court for resentencing
if the court clearly and convincingly [found] any of” the following:
(1) That the record does not support the sentence;
(2) That the sentence included a prison term [for certain
felonies and, if the sentencing court did not make certain findings
under R.C. 2929.13(B), that the procedures in that provision] were
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not followed or that * * * there is an insufficient basis for imposing
a prison term for the offense;
(3) That the sentence did not include a prison term [for
certain felonies and that either the procedures in R.C. 2929.13(D)]
were not followed or that * * * there is an insufficient basis for
overriding the presumption [against a prison term] and imposing a
sanction other than a prison term for the offense;
(4) That the sentence is otherwise contrary to law.
(Emphasis added.) Id., Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, at 7564-7565.
{¶ 36} In 2000, however, the General Assembly materially amended this
provision, condensing it to the two scenarios found in R.C. 2953.08(G)(2) today.
Specifically, it was amended to provide that an appellate court may modify or
vacate a sentence if it clearly and convincingly finds either:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
(E)(4) of section 2929.14, or division (H) of section 2929.20 of the
Revised Code, whichever, if any, is relevant; [or]
(b) That the sentence is otherwise contrary to law.
Former R.C. 2953.08(G)(2), Sub.H.B. No. 331, 148 Ohio Laws, Part I, 3414, 3419.
{¶ 37} This amendment eliminated the broad stand-alone provision from
the first paragraph of the original version of R.C. 2953.08(G), which allowed an
appellate court to modify or vacate the sentence when it found that “the record does
not support the sentence,” former R.C. 2953.08(G)(1), 146 Ohio Laws, Part IV, at
7564. In its place, the General Assembly enacted a narrower provision in which an
appellate court’s authority to modify or vacate a sentence is limited to situations in
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which it concludes that the record does not support the sentencing court’s findings
under certain specified statutes, not including R.C. 2929.11 and 2929.12.
Additionally, the “otherwise contrary to law” provision was not amended; it was
simply retained as R.C. 2929.08(G)(2)(b). And although R.C. 2953.08(G) has been
amended several times since 2000, none of those amendments materially changed
R.C. 2953.08(G)(2) for the purposes of this case.
{¶ 38} In our view, this evolution reveals two things of importance to this
case. First, when R.C. 2953.08 was enacted in 1995, the term “otherwise contrary
to law” in former R.C. 2953.08(G)(4), 146 Ohio Laws, Part IV, at 7565, meant
something other than an appellate court finding that the record does not support a
sentence. This is because such a finding would have fallen under the provision
permitting the appellate court to vacate a sentence if “the record does not support
the sentence.” Former R.C. 2953.08(G)(1), 146 Ohio Laws, Part IV, at 7564.
Second, since R.C. 2953.08 was first enacted, the term “otherwise contrary to law”
has not been expanded or modified to include such findings. This is because when
the General Assembly amended R.C. 2953.08(G) in 2000 to eliminate the broad
provision permitting an appellate court to review whether “the record does not
support the sentence,” it left the “otherwise contrary to law” provision that is still
in current R.C. 2953.08(G)(2)(b) unchanged. Concluding that the term “otherwise
contrary to law” nonetheless has expanded to include an appellate court’s
conclusion that a sentence is not supported by the record would run contrary to the
notion that we “must presume that the amendments were made to change the effect
and operation of the law,” Lynch, 79 Ohio St. 3d at 254, 680 N.E.2d 1222; see also
State v. Aguirre, 144 Ohio St. 3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, ¶ 1 (stating
that statutory amendments deleting language permitting awards of restitution to
third parties showed that legislature intended to disallow such awards).
{¶ 39} R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the sentence
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is not supported by the record under R.C. 2929.11 and 2929.12. Consequently, we
hold that the lead opinion erred by permitting this type of review.
3. The holding of the merits panel
{¶ 40} We next turn to the question whether the judgments of the merits
panel vacating the Joneses’ sentences might nonetheless be justified under R.C.
2953.08(G)(2). We conclude that they are not.
{¶ 41} The merits panel’s opinion appears to have substituted its own
judgment for that of the trial court regarding the appropriate sentences for the
Joneses under R.C. 2929.11 and 2929.12. Although the trial court engaged in a
lengthy discussion at sentencing addressing numerous aspects of the evidence and
clearly stating conclusions regarding its view of the Joneses’ conduct, the panel
vacated the Joneses’ sentences in a single paragraph. Jones III, 2018-Ohio-498,
105 N.E.3d 702, at ¶ 152. And the brief explanation it provided reflects that it
disagreed with the overall manner in which the trial court relied on R.C. 2929.11
and 2929.12 to select a sentence. The panel weighed the evidence and judged the
credibility of statements made by the Joneses, formed an opinion on the appropriate
overall view of the meaning of that evidence, and ultimately made an independent
determination that sentences of ten years in prison would not serve the primary
purposes of felony sentencing under R.C. 2929.11(A). Id. In other words, it
effectively conducted a plenary review of the sentencing and based its decision on
its own view of whether ten years in prison was appropriate under R.C. 2929.11
and 2929.12.
{¶ 42} Given this, the panel erred in the same way the lead opinion did.
Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh
the evidence in the record and substitute its judgment for that of the trial court
concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12. In particular, R.C. 2953.08(G)(2) does not permit an appellate court to
conduct a freestanding inquiry like the independent sentence evaluation this court
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must conduct under R.C. 2929.05(A) when reviewing a death penalty-sentence.
See State v. Hundley, ___ Ohio St.3d ___, 2020-Ohio-3775, ___ N.E.3d ___, ¶ 128
(recognizing that R.C. 2929.05(A) requires de novo review of findings and other
issues within its scope). We therefore conclude that the merits panel’s ultimate
judgments were erroneous.
III. CONCLUSION
{¶ 43} For the foregoing reasons, we reverse the Eighth District’s
judgments and reinstate the sentences imposed by the trial court.
Judgments reversed.
FRENCH, DEWINE, and BEATTY BLUNT, JJ., concur.
KENNEDY, J., concurs, with an opinion.
FISCHER, J., concurs, with an opinion.
DONNELLY, J., dissents, with an opinion.
LAUREL BEATTY BLUNT, J., of the Tenth District Court of Appeals, sitting
for STEWART, J.
_________________
KENNEDY, J., concurring.
{¶ 44} Because the majority adopts the views expressed in my separate
opinion in State v. Gwynne, 158 Ohio St. 3d 279, 2019-Ohio-4761, 141 N.E.3d 169,
¶ 44 (Kennedy, J., concurring in judgment only), that (1) our statement in ¶ 23 of
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, is dictum
that is not binding in future cases and (2) “an appellate court is without authority to
review a sentencing court's determinations under R.C. 2929.11 and 2929.12,” I
concur with the majority’s decision today.
_________________
FISCHER, J., concurring.
{¶ 45} I fully concur in the majority opinion. I write separately to
additionally address the arguments raised by appellees, Randy and Carissa Jones,
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that the legal principles stated by the Eighth District Court of Appeals in its decision
in this case are necessary to ensure that a trial court’s compliance with R.C. 2929.11
and 2929.12 is subject to meaningful appellate review and is not wholly
unreviewable.
{¶ 46} I acknowledge the Joneses’ concerns about meaningful appellate
review. But for the reasons stated in the majority opinion, R.C. 2953.08(G)(2)
simply does not permit a court of appeals to conduct the type of review that the
Eighth District conducted regarding the Joneses’ sentences under the rationales
stated by the Eighth District. If any changes to R.C. 2929.11, 2929.12, or
2953.08(G)(2) in relation to this court’s holding today are warranted, they are for
the General Assembly to make.
{¶ 47} There is also no reason to believe that a trial court’s consideration
under R.C. 2929.11 and 2929.12 is wholly unreviewable. First, although, as the
majority opinion explains, R.C. 2929.11 and 2929.12 do not require a trial court to
make any specific findings on the record, those statutes are not optional. Both
statutes use the term “shall” multiple times in relation to other matters. For
example, R.C. 2929.11(A) and 2929.12(A) through (F) set forth matters that a
sentencing court “shall consider,” and R.C. 2929.11(A) requires that the trial court
“shall be guided by” the three overriding purposes of felony sentencing. R.C.
2929.11(B) further requires that the sentence imposed by the trial court “shall” meet
certain specific criteria. This court construes the word “shall” as “ ‘mandatory
unless there appears a clear and unequivocal legislative intent that [it] receive a
construction other than [its] ordinary usage.’ ” (Emphasis and brackets added in
Morgan.) State v. Morgan, 153 Ohio St. 3d 196, 2017-Ohio-7565, 103 N.E.3d 784,
¶ 22, quoting Dorrian v. Scioto Conservancy Dist., 27 Ohio St. 2d 102, 271 N.E.2d
834 (1971), paragraph one of the syllabus.
{¶ 48} Second, R.C. 2953.08(G)(2) expressly requires an appellate court to
“review the record, including the findings underlying the sentence.” The breadth
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of this statutory provision necessarily means that if a trial court does make findings
under R.C. 2929.11 and 2929.12, the appellate court may review those findings for
certain limited purposes.
{¶ 49} Third, R.C. 2953.08(G)(2)(b) provides that an appellate court can
modify or vacate a sentence on the ground that it is “otherwise contrary to law.”
This court’s holding today specifies what an appellate court may not do under this
provision: it may not conduct an independent review of whether the record supports
the sentence and substitute its own judgment regarding the appropriate sentence.
But R.C. 2929.11(C), which prohibits sentences based on an offender’s “race,
ethnic background, gender, or religion,” indicates one way in which a sentence may
be “otherwise contrary to law” under R.C. 2953.08(G)(2)(b). This court has also
held that when a trial court sentences a juvenile offender to life in prison without
parole, “the record must reflect that the sentencing court specifically considered the
juvenile offender’s youth as a mitigating factor.” State v. Long, 138 Ohio St. 3d
478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 7. We are not presented with any specific
arguments of this sort, however, and it is therefore not necessary for this court to
express any opinion on the potential viability of any other arguments under R.C.
2953.08(G)(2)(b). Ultimately, it is sufficient for purposes of this case that this court
holds that the judgments of the Eighth District were erroneous and that the
statements in State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, on which the Eighth District relied were dicta.
_________________
DONNELLY, J., dissenting.
{¶ 50} Today’s decision is a vote of no confidence in our appellate court
judges. In essence, they are told that they are incapable of appropriately and
selectively reviewing outlier criminal sentences to ensure a trial court’s compliance
with R.C. 2929.11 and 2929.12. If our decision in State v. Gwynne, 158 Ohio St. 3d
279, 2019-Ohio-4761, 141 N.E.3d 169 was exhibit A for eviscerating the statutory
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January Term, 2020
right to appellate review of criminal sentences, then this case surely qualifies as
exhibit B. Regrettably, this may provide the final nail in the coffin, the death knell
for meaningful appellate review. I dissent.
{¶ 51} As I explained in my dissenting opinion in Gwynne, a meaningful
and lawful criminal sentence is a sentence that is clearly and convincingly
supported by the record, proportional to a defendant’s conduct, and deliberately
considered in accordance with all relevant law. Id. at ¶ 45 (Donnelly, J.,
dissenting). Because R.C. 2929.11 and 2929.12 are mandatory laws that govern
criminal sentencing, a sentence that is imposed without the judge’s having
considered the statutes is contrary to law. A sentence issued by a judge who fails
to consider them is no less contrary to law just because a judge recites, through
“magic words,” that they were considered. Nevertheless, the majority establishes
by judicial decree that a sentence that is contrary to law cannot be reviewed by a
court of appeals for being contrary to law. And it does so even though R.C.
2953.08(G)(2)(b) expressly authorizes Ohio’s courts of appeals to increase, reduce
or modify, or vacate and remand for resentencing, any sentence a court of appeals
clearly and convincingly finds is “contrary to law.”
{¶ 52} In this case, the Eighth District Court of Appeals reviewed a record
in which, although the sentencing judge said that the purposes of felony sentencing
set forth in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C.
2929.12 had been considered, the sentence imposed appeared to have been driven
primarily by nonstatutory outrage. The judge was clearly enraged that appellees,
Randy and Carissa Jones, did not accept personal responsibility for their failure to
intervene or provide medical care for T.J. The trial judge was especially fixated on
photographs of T.J.’s injuries, particularly state’s exhibit No. 87, which depicted
T.J.’s gangrenous left foot.
{¶ 53} Based on this record, the appellate court determined that the record
did not support the ten-year sentences imposed—one year less than the maximum
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sentence permitted under Ohio law—because they did not advance the two primary
purposes of felony sentencing stated in former R.C. 2929.11(A), 2011
Am.Sub.H.B. No. 86, as applicable to this case, which were to protect the public
from offenders and to punish offenders using minimum sanctions. The appellate
court determined that the record demonstrated that the Joneses exercised poor
judgment in the care of T.J. but that they cared for her nonetheless and did what
they believed was best for her. The appellate court found that the public did not
need to be protected from them, as the likelihood of this happening again is almost
nonexistent. As for punishment, the appellate court concluded that there was no
greater punishment than the death of their child. 2018-Ohio-498, 105 N.E.3d 702,
¶ 152. I cannot fault the court of appeals for its responsible exercise of appellate
authority.
{¶ 54} To be sure, judges are human and the death of a child caused by the
parents’ neglect is hard for anyone to stomach, but sentences must still fit the crime
and be governed by objective factors, as dictated by Ohio law. No judge should let
emotion rule the day. Appellate courts serve as an independent and impartial layer
of review to correct outcomes that lack legal justification.
{¶ 55} The Ohio General Assembly has wisely mandated that trial courts
take into account the objective sentencing considerations prescribed by R.C.
2929.11 and 2929.12 when imposing criminal sentences so as to guide their
decision-making and guard against emotionally wrought decisions. The General
Assembly intended for appellate courts to be an essential check to ensure that R.C.
2929.11 and 2929.12 are observed, applied, and enforced. The General Assembly
did not forbid Ohio’s courts of appeals from exercising their appellate
responsibilities. The Ohio Supreme Court has done that by today’s decision.
{¶ 56} By determining that R.C. 2953.08(G)(2) does not allow a court of
appeals to review the trial court’s findings made pursuant to R.C. 2929.11 and
2929.12, the majority has chosen to hide these statutes behind a curtain that is off
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January Term, 2020
limits to our appellate courts. The guardrails are off. I cannot join this grant of
unconstrained discretion to trial courts. I dissent.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Anthony T. Miranda and Kevin Filiatraut, Assistant Prosecuting Attorneys, for
appellant.
James J. Hofelich, for appellee Randy Jones.
Mark A. Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellee Carissa Jones.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General,
Michael J. Hendershot, Chief Deputy Solicitor General, and Zachery P. Keller,
Deputy Solicitor General, urging reversal for amicus curiae, Ohio Attorney General
Dave Yost.
_________________
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