DocketNumber: No. 2008-CA-10.
Citation Numbers: 2008 Ohio 6707
Judges: GWIN, P.J.
Filed Date: 12/15/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 3} Appellant had removed Tyler from their backyard and walked him at least 350 yards to place him in a dumpster located behind several businesses. Appellant then closed the lid on her son during one of the hottest days of the year and abandoned him. Appellant changed her clothes after she walked Tyler down the street and left him in the dumpster. *Page 3
{¶ 4} Officers arrived at appellant's home within three minutes. Appellant continued her "kidnapping" story for several hours. Appellant also lied to her mother and her aunt about what had happened to her son.
{¶ 5} Michael Morin, Tyler's father, found his son in a dumpster at 11:15 a.m. Tyler was found in a sealed dumpster covered with paint chips. Tyler was distraught, unresponsive, and suffered from heat exhaustion. At 4:45 p.m. Tyler told Patrolman Underwood and a nurse that mommy had put him in the dumpster.
{¶ 6} Finally, at 7:15 p.m. appellant, after first explaining why she didn't place her older children in the dumpster, admitted that she placed Tyler in the dumpster. Appellant blamed stress and stated she wanted to create an emergency so Michael would come home.
{¶ 7} The Fairfield Count Grand Jury returned a six (6) count Indictment against appellant: Count I — Attempt to Commit Murder, a felony of the first degree; Count II-Felonious Assault, a felony of the second degree; Count III — Endangering Children, a felony of the third degree; Count IV — Kidnapping, a felony of the first degree; Count V-Kidnapping, a felony of the first degree and Count VI — Kidnapping, a felony of the first degree.
{¶ 8} Appellant was arraigned July 25, 2006 and entered a plea of not guilty and/or not guilty by reason of insanity. The Court ordered a sanity and competency evaluation of the appellant.
{¶ 9} Dr. Kevin Edwards provided the trial court with a competency and sanity report on August 29, 2006. Dr. Edwards found that appellant was competent to stand *Page 4 trial and was not insane at the time of the offense. Dr. Edwards' reports indicated that appellant did have a serious mental illness, Major Depressive Order.
{¶ 10} Appellant moved for a second evaluation of her competency and sanity. The trial court appointed Dr. Kristen Haskins to perform the evaluations.
{¶ 11} Dr. Haskins found that appellant was competent to stand trial and was not insane at the time of the offense. Dr. Haskins' reports indicated that appellant did have a serious mental illness, Major Depressive Order and Borderline Personality Disorder.
{¶ 12} Thereafter, appellant moved the trial court to appoint a forensic psychologist to assist with her defense. The Court appointed Dr. Christopher Ray. Dr. Ray concurred with the opinions of Dr. Edwards and Dr. Haskins that appellant was mentally ill.
{¶ 13} On November 6, 2007, after extensive, plea negotiations, appellant entered a guilty plea to Counts Two, Three and Four of the Indictment, with the remaining counts in the Indictment being dismissed upon the motion of the State.
{¶ 14} Appellant requested a separate sentencing hearing. On December 14, 2007, the trial court conducted an evidentiary hearing. Upon conclusion of the hearing, the trial court sentenced appellant to a penal institution for a total period of nine (9) years on Counts Two (4 years) and Three (5 years), less credit for time already served. Appellant was sentenced to three (3) years on Count Four, with that sentence being suspended and appellant being placed on community control upon her release from prison.
{¶ 15} Appellant timely appealed, raising four assignments of error: *Page 5
{¶ 16} "I. THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE UPON THE APPELLANT.
{¶ 17} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO IMPOSE THE MINIMUM PRISON SENTENCE UPON THE APPELLANT.
{¶ 18} "III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES UPON THE APPELLANT.
{¶ 19} "IV. THE SENTENCING OF APPELLANT, WHO HAS A SERIOUS MENTAL HEALTH ILLNESS, TO PRISON CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT."
{¶ 21} In the case at bar, appellant was convicted of one count of kidnapping, R.C.
{¶ 22} It would appear that what the appellant is really arguing is that the trial court erred by not overcoming the presumption of imprisonment contained in R.C.
{¶ 23} R.C.
{¶ 24} "(D) Except as provided in division (E) or (F) of this section, for a felony of the first or second degree and for a felony drug offense that is a violation of any provision of Chapter
{¶ 25} "(1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section
{¶ 26} "(2) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more *Page 7
factors under section
{¶ 27} Thus, in order to impose a community control sanction in the instant case, the trial court would have been required to find that such a sanction would adequately punish appellant, that appellant was less likely to re-offend, and that such a sanction would not demean the seriousness of the offense, because appellant's conduct was less serious than conduct normally constituting the offense.
{¶ 28} RC.
{¶ 29} "(B) In addition to any other right to appeal and except as provided in division (D) of this section, a prosecuting attorney, a city director of law, village solicitor, or similar chief legal officer of a municipal corporation, or the attorney general, if one of those persons prosecuted the case, may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances described in division (B)(3) of this section the modification of a sentence imposed upon such a defendant, on any of the following grounds:
{¶ 30} "(1) The sentence did not include a prison term despite a presumption favoring a prison term for the offense for which it was imposed, as set forth in section
{¶ 31} The Legislature has expressly provided that the prosecution can appeal a trial court's decision overcoming the presumption of imprisonment contained in R.C.
{¶ 32} "Appellant seeks to appeal his sentence as of right based upon the trial court's refusal to supersede the presumption for a prison term on a second degree felony. R.C. Section
{¶ 33} Appellant's contention, therefore, is that the trial court abused the discretion conferred on it, which is not a matter for which R.C.
{¶ 34} In State v. Foster, 109 Ohio St.3d. 1,
{¶ 35} However, the Ohio Supreme Court in Foster found that the offending provisions of the sentencing law are severable. The Court concluded that after severing those provisions "[t]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."
{¶ 36} We further note there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross (1974),
{¶ 37} A trial court is vested with discretion to impose a prison term within the statutory range. See State v. Mathis,
{¶ 38} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant's case to suggest that *Page 11
his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the
{¶ 39} In the case at bar, the trial court reviewed the recording of appellant's 911 call to the police and the video recordings made from storefront surveillance cameras. (T., December 14, 2007 at 5-9; 94). The appellant presented the testimony of Dr. Christopher Ray. (Id. at 94). The court permitted appellant's trial counsel to make a lengthy argument for mitigation of appellant's sentence. (Id. at 66-88). The trial court further permitted appellant to address the court. (Id. at 22). The trial court reviewed the pre-sentence investigation report, and the revised report that was prepared following the appellant's interview. (Id. at 94). Appellant has a previous conviction for forgery. (Id. at 50; 54). The court reviewed the written record in the case. (Id.). The trial court specifically noted both on the record and in its sentencing entry that it had considered the purposes and principles of sentencing set out under Section
{¶ 40} We find nothing in the record of appellant's case to suggest that her sentence was based on an arbitrary distinction that would violate the Due Process Clause of the
{¶ 41} It appears to this Court that the trial court's statements at the sentencing hearing were guided by the overriding purposes of felony sentencing to protect the public from future crime by the offender and others and to punish the offender. R.C.
{¶ 42} Appellant's first, second and third assignments of error are denied.
{¶ 44} Although not cited by either of the parties in their respective briefs, R.C.
{¶ 45} "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 46} "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶ 47} In the case at bar, appellant pled guilty to kidnapping in violation of R.C.
{¶ 48} Under the doctrine of "invited error," it is well-settled that "a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." State ex rel. Smithv. O'Connor (1995),
{¶ 49} "The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible."Lester at 92-93, quoting State v. Kollar (1915),
{¶ 50} Felonious assault, as prohibited by Section
{¶ 51} Felonious assault and endangering children, as charged in the case at bar, each contain an element not found in the other. Felonious assault requires the use of a deadly weapon; child endangering does not. Further felonious assault encompasses "attempts" to cause physical harm; no such provision is made in the endangering children statute.
{¶ 52} We recognize that, in the case at bar, the "deadly weapon" was alleged to be the trash dumpster. Placing the child inside the trash dumpster is also the conduct alleged to constitute torture or cruel abuse under the child endangering charge. However, the prohibition against double jeopardy does not prohibit all instances of "cumulative punishment."
{¶ 53} The federal and state constitutions' double jeopardy protection guards citizens against cumulative punishments for the "same offense."State v. Moss (1982),
{¶ 54} In State v. Brown,
{¶ 55} As did the court in Brown, supra, in determining the legislature's intentions, we compare the societal interests protected by the relevant statutes. State v. Mosley, supra. If the interests are similar, then the crimes are allied offenses of similar import and a court must then review the defendant's conduct to determine whether the *Page 16 crimes were committed separately or with a separate animus. State v.Brown, supra at ¶ 40-41. If, however, the societal interests differ, the crimes are not crimes of similar import and the court's analysis ends there. Id. at ¶ 36.
{¶ 56} A person of any age may be a victim of felonious assault, while a victim of child endangering must be under the age of eighteen. In finding that the offenses of felonious assault and child endangering do not constitute allied offenses of similar import within the meaning of R.C.
{¶ 57} "In our estimation, the offense of child endangering has, under the definition set forth in R.C.
{¶ 58} Accordingly, pursuant to State v. Brown, supra, we find that the societal interests protected by the felonious assault and child endangering statutes differ. We conclude, therefore, that the General Assembly intended to distinguish the offenses and *Page 17 allow separate punishments for the commission of the two crimes. Therefore, we find that the offenses of felonious assault and endangering children are not allied offenses of similar import.
{¶ 59} Likewise, kidnapping under R.C.
{¶ 60} Kidnapping under R.C.
{¶ 61} Child endangering under R.C.
{¶ 62} In the case sub judice, we find that the statutory provisions dealing with felonious assault, child endangering and kidnapping are intended to protect different social interests. The felonious assault and child endangering statutes are intended to prevent physical harm. "On the other hand, the kidnapping statute seeks to protect against the restraint of a person's liberty. See Legislative Service Commission Summary of Am. Sub. H.B. 511, The New Ohio Criminal Code (June 1973) 9; see, also, United States v. Wilford (1971),
{¶ 63} Accordingly, pursuant to State v. Brown, supra, we conclude that the General Assembly intended to distinguish the offenses of child endangering and felonious assault from the crime of kidnapping and allow separate punishments for the commission of the three crimes.
{¶ 64} Based upon the foregoing analysis, we find that the offenses of felonious assault, child endangering and kidnapping are not allied offenses of similar import.
{¶ 65} Appellant's fourth assignment of error is denied.
{¶ 67} The
{¶ 68} Section
{¶ 69} "The
{¶ 70} "It is well established that sentences do not violate these constitutional provisions against cruel and unusual punishment unless the sentences are so grossly disproportionate to the offenses as to shock the sense of justice in the community. State v. Chaffin (1972),
{¶ 71} In State v. Hancock, the Ohio Supreme Court found that the
{¶ 72} In State v. Hairston the Court reiterated, "`[a]s a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.'" State v. Hairston
{¶ 73} In holding that imposing a prison sentence upon a defendant who was confined to a wheelchair was not cruel and unusual punishment the Franklin County Court of Appeals noted, "While appellant because of [her mental] handicaps, may suffer greater hardships in prison than one without such disabilities, these hardships are not a result of [her] conviction or imprisonment but are the result of [her] mental condition which is essentially the same whether appellant is incarcerated or not. As long as appellant's medical [and mental health] needs are met during incarceration (and there is no reason to believe that they will not be met), the imposition of a prison sentence cannot constitute cruel and unusual punishment." State v. 0'Shannon (1988),
{¶ 74} In the case at bar, appellant's sentences fall within the range proscribed by statute. State v. Hairston, supra. Further, appellant was not convicted or punished for the offense of having a mental illness.Brookpark v. Danison (1996),
{¶ 75} As this is not a case involving punishment for offenses which makes it criminal to suffer from a physical malady or disease, and the prison sentences imposed on appellant are not grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not *Page 21
constitute cruel and unusual punishment State v. Hairston, supra 118 Ohio St.3d at, 295,
{¶ 76} Appellant's fifth assignment of error is denied.
{¶ 77} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is hereby affirmed.
Gwin, P.J., Wise, J., and Delaney, J., concur
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State v. Brown , 181 Kan. 375 ( 1957 )
Walker v. State, 2007ca00037 (10-1-2007) , 2007 Ohio 5262 ( 2007 )
State v. Basham, Ct2007-0010 (12-26-2007) , 2007 Ohio 6995 ( 2007 )
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