State v. Szozda

[Cite as State v. Szozda, 2022-Ohio-2294.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1026
Appellee Trial Court No. CR0202001368
v.
Michelle Szozda DECISION AND JUDGMENT
Appellant Decided: June 30, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
David Klucas, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a January 13, 2021 judgment of the Lucas County
Court of Common Pleas, sentencing appellant to an indefinite term of incarceration,
ranging from a minimum term of six years to a maximum term of nine years, following
appellant’s negotiated no contest plea on one count of aggravated vehicular homicide, in
violation of R.C. 2903.06, a felony of the second degree. For the reasons set forth more
fully below, this court affirms the judgment of the trial court and remands the case to the
trial court for the sole purpose of issuance of a nunc pro sentencing entry.
{¶ 2} Appellant, Michelle Szozda, sets forth the following sole assignment of
error:
THE SENTENCE IMPOSED BY THE TRIAL COURT IS
CONTRARY TO LAW.
{¶ 3} The following undisputed facts are relevant to this appeal. On October 6,
2019, appellant attended a bridal shower at the residence of a co-worker, with whom
appellant worked at a Toledo-area restaurant.
{¶ 4} It is undisputed that while at the bridal shower over the course of the
afternoon, appellant consumed approximately three alcoholic drinks, 10 alcohol-infused
jello shots, and ingested several lines (“bumps”) of cocaine.
{¶ 5} At approximately 8:00pm, after consuming the above-detailed drugs and
alcohol, appellant agreed to drive another party attendee to the residence of his sister’s
boyfriend in order to purchase additional cocaine.
{¶ 6} After driving to the location and purchasing an additional $200 in cocaine,
appellant began the return trip to the bridal shower. While driving back to the bridal
2.
shower, appellant turned directly into the path of a lawfully traveling vehicle at the
intersection of Dorr St. and Detroit Ave.
{¶ 7} A Toledo father traveling with his 22-month old daughter was driving the
other vehicle. At the intersection, appellant turned and drove directly into the path of the
oncoming vehicle. A high-impact collision occurred.
{¶ 8} The man driving the other vehicle sustained fatal injuries and died at the
scene. He was declared dead by the responding members of the Toledo Fire Department.
His infant daughter, who had been secured in her infant car seat, was uninjured.
{¶ 9} Appellant falsely claimed to responding officers that she had not consumed
alcohol prior to the accident. However, post-collision testing of appellant confirmed that
she had a blood alcohol level of .13, as well as cocaine metabolites in her system. In
conjunction, appellant’s passenger truthfully disclosed to the officers that both he and
appellant consumed alcohol prior to the accident.
{¶ 10} Testing further confirmed that the victim had no drugs or alcohol in his
system. The post-mortem conducted by the Lucas County Coroner determined that the
decedent’s cause of death was blunt force trauma to the chest sustained in the collision.
{¶ 11} On February 28, 2020, appellant was indicted on two counts of aggravated
vehicular homicide, in violation of R.C. 2903.06, with the charges being second degree
and third degree felonies, respectively.
3.
{¶ 12} On September 30, 2020, following plea negotiations, appellant entered a
voluntary plea of no contest to the first count set forth in the indictment, one count of
aggravated vehicular homicide, in violation of R.C. 2903.06, a felony of the second
degree. In exchange, the remaining felony offense was dismissed. A presentence
investigation was ordered.
{¶ 13} During the change of plea colloquy, uncontroverted evidence was
presented by appellee establishing that on October 6, 2019, appellant was driving while
returning to a bridal shower, after consuming alcohol and cocaine, and then leaving the
party to purchase additional cocaine.
{¶ 14} Evidence was presented reflecting that while appellant falsely claimed to
investigators that she had not consumed alcohol or drugs prior to the accident, subsequent
blood alcohol testing and subsequently obtained recorded telephone conversations
between appellant and her husband established that she had consumed both drugs and
alcohol during the party and that she was trying to “beat a traffic light” when the collision
occurred.
{¶ 15} On January 13, 2021, the trial court conducted appellant’s sentencing
hearing. In conformity with the terms of the negotiated plea agreement, appellee
declined to make a sentencing recommendation and deferred to the discretion of the trial
court.
4.
{¶ 16} At sentencing, counsel for appellant presented a vigorous statement in
mitigation on his client’s behalf, discussing her responsibilities and history as a working
mother.
{¶ 17} Although advocating for a minimum sentence for appellant, counsel
conceded that, “[T]here may be an argument made by some that a sentence at the bottom
of the range isn’t adequately punitive [given that appellant caused a fatal accident while
under the influence of cocaine and alcohol].”
{¶ 18} During this statement in mitigation, counsel for appellant acknowledged,
“In these kind of offenses, maybe more than any other kind[,] the court has to consider a
deterrent factor here because try as we might as a society we seem to be only marginally
successful keeping people from driving when they shouldn’t. And I know that in this
effect -- or in this offense[,] that deterren[ce] is a real factor.” (Emphasis added).
{¶ 19} The family members impacted by the death in this case elected to have the
victim’s mother present a collective victim impact statement to the trial court at
sentencing. In addition, letters from the family members were read into evidence.
{¶ 20} The victim’s mother detailed the life altering consequences resulting from
the sudden, untimely death of her son. She described arriving on the scene of the
accident and seeing her son’s body lying on the pavement and not being permitted to hold
him. She described witnessing her 22-month-old granddaughter placed in the back of a
police cruiser because the infant’s father had just been killed in an accident.
5.
{¶ 21} The victim’s mother then described how her son’s girlfriend had
coincidentally called him just after the accident occurred, but before he passed away. He
managed to hit the answer button on his mobile phone, but was unable to communicate.
The victim’s girlfriend heard loud background noises, including hearing the moans of her
dying boyfriend.
{¶ 22} The victim’s mother stated, “She destroyed our family and [also] damaged
her own family. She wasn’t thinking of anyone that night, only herself and having a good
time.”
{¶ 23} Additional victim impact letters within read into the record that had been
written by the victim’s father, brother, sons, and several close family members.
{¶ 24} The letter from the victim’s father stated, “I think she deserves the
maximum. She took a part of our lives [that] we will never get back. Less than the
maximum is a slap on the hand. She gets to go back to her family, he doesn’t have that
choice.” (Emphasis added).
{¶ 25} Following the statement in mitigation and the victim impact statement and
letters, the trial court reflected and discussed in detail the competing interests to be
weighed in crafting a sentence.
{¶ 26} Ultimately, the trial court imposed a mandatory, less than maximum,
indefinite sentence, ranging from six years to nine years. The sentence was more than
6.
that the minimum requested by appellant, and less than the maximum requested by the
victim’s family. This appeal ensued.
{¶ 27} In the sole assignment of error, appellant argues that the felony sentence
imposed in this case is contrary to law.
Analysis
{¶ 28} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v.
Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 7. R.C. 2953.08(G)(2) allows
an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the
sentence and remand for resentencing if the court finds by clear and convincing evidence
that the sentence is contrary to law.
{¶ 29} That section states in relevant part:
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
7.
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. R.C. 2953.08
(G)(2).
State v. Jones
{¶ 30} In principle support, appellant argues, “Jones [State v. Jones], 163 Ohio
St.3d 649, 2020-Ohio-6729, 169 N.E.3d 242] extinguishes meaningful appellate review
for thousands of sentences.”
{¶ 31} In State v. Jones, 163 Ohio St.3d 649, 2020-Ohio-5729, 169 N.E.3d 242,
the Ohio Supreme Court explicitly defined the issue of law pending before it for
determination as, “The state sought this court’s discretionary review on one proposition
of law: ‘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 R.C. 2929.12.’ We accept jurisdiction.”
Jones at ¶ 16. (Emphasis added.)
{¶ 32} In chief support of that proposition of law, the state argued, “R.C.
2953.08(G)(2)(a) permits a sentence to be modified or vacated due to a 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.” Jones at ¶ 21. (Emphasis
added.)
8.
{¶ 33} Upon ruling on this proposition of law, the Ohio Supreme Court held, in
pertinent part, “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.” Jones at ¶ 42. (Emphasis added.)
{¶ 34} The Ohio Supreme Court further elucidated in State v. Toles, -- N.E.3d --,
2021 WL 4516062, 2021-Ohio-3531, ¶ 10, “R.C. 2953.08, as amended, precludes
second-guessing a sentence imposed by the trial court based on its weighing of the
considerations in R.C. 2929.11 and 2929.12.” (Emphasis added).
{¶ 35} As evident from the above, appellant’s legal reasoning underpinning this
appeal is premised upon discord with the Ohio Supreme Court decision in Jones.
{¶ 36} Given the impact of such a position upon our consideration of this case, we
note at the outset that, pursuant to the linchpin judicial doctrine of stare decisis, this court,
as a lower court, “is bound to follow a decision of the Supreme Court of Ohio.” State v.
Abuhashish, 6th Dist. Wood No. WD-07-048, 2008-Ohio-3849, ¶ 42.
{¶ 37} The Ohio Supreme Court encapsulated the stare decisis doctrine with
clarity in Westfield v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶
43, “[A] supreme court not only has the right, but is entrusted with the duty to examine
its former decisions and, when reconciliation is impossible, to discard its former errors.”
9.
{¶ 38} As such, it is not within the proper purview of this court, as a lower court,
to entertain requests to overturn intact rulings of the Ohio Supreme Court, a court of
higher authority to this court.
{¶ 39} In accord with the above, as this court held in Hoeflinger, et al. v. AM
Mart, LLC, 6th Dist. Lucas No. L-16-1124, 2017-Ohio-7530, 96 N.E.3d 1247,
“[A]lthough a prior decision of the supreme court may be overruled under limited
circumstances, the authority to examine previous decisions is vested in a ‘supreme court,’
not lower courts.” Hoeflinger at ¶ 37. (Emphasis added).
{¶ 40} Appellant next argues, without evidentiary support that, “Punishment and
retribution are the only considerations [of the trial court],” thereby suggesting that the
sentence in this case was improperly rooted on a purely punitive basis.
{¶ 41} We note that this claim is incongruous with appellant’s concession at
sentencing that the nature of this case necessarily entails deterrence consideration by the
trial court given that the fatal danger of people driving motor vehicles when under the
influence remains a societal ill.
{¶ 42} This is also unpersuasive given that the trial court exercised discretion in
diverging from the express request of the decedent’s family to impose a maximum
sentence, but rather, it imposed a less than maximum sentence.
{¶ 43} The trial court properly elected to do so given that it is well-established that
trial courts are vested with, “full discretion to impose a prison sentence within the
10.
statutory range.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 13. The trial court did not do otherwise in this case.
{¶ 44} Beyond appellant’s conjecture, the record is devoid of evidence in support
of the notion that the sentence was strictly punitive, rather than the product of the trial
court striking a balance in weighing competing considerations, as the transcripts of the
sentencing hearing reflect it to be.
{¶ 45} As referenced above, recent Ohio Supreme Court decisions establish that
appellate courts may not dispute a trial court’s R.C. 2929.11 and R.C. 2929.12
considerations, so as to then arguably warrant a felony sentence modification pursuant to
R.C. 2953.08(G)(2).
{¶ 46} Thus, in accord with the doctrine of stare decisis and the Ohio Supreme
Court decisions set forth in Jones and Toles, we find that the legal premise underlying
this appeal, arguing that Jones, and thereby its progeny, should be deemed unlawful by
this court, countermands controlling precedent and runs afoul of stare decisis.
Due Process and Equal Protection Post-State v. Jones
{¶ 47} As an alternative argument, appellant invites us to consider a due process
and equal protection violation since, post Jones, an appellate review is limited to R.C.
2953.08(G)(2) without consideration of the factors enumerated in R.C. 2911.11 and
2911.12. This argument was not specifically addressed in Jones.
11.
Meaningful Appellate Review and Due Process
{¶ 48} Appellant argues that this court “still has the authority to examine her
sentence for compliance with O.R.C. 2929.11 and 2929.12 because denial of that review
violates her rights to meaningful appellate review and equal protection under the law.”
{¶ 49} The fundamental hypothesis underlying this contention is that appellant has
a right to appellate review. However, while the United States Supreme Court has long
held that a “right” to appeal is not found in the Constitution, McKane v. Durston, 153
U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), the court has also held that where a state
provides a process of appellate review, the procedures used must comply with
constitutional dictates of due process and equal protection. Griffin v. Illinois (1956), 351
U.S. 12, 18, 76 S.Ct. 585,100 L.Ed. 891.
{¶ 50} The Ohio Constitution does not specifically provide for a “right” to appeal.
Section 3(B)(1)(f), Article IV of the Constitution provides, however, for the
establishment of an appellate court system with jurisdiction “[i]n any cause on review as
may be necessary to its complete determination.” Atkinson v. Grumman Ohio Corp., 37
Ohio St.3d 80, 84-85, 523 N.E.2d 851, (1988).
{¶ 51} We have recently noted that the Ohio Supreme Court observed that there
are other grounds and avenues for appeal available beyond R. C. 2953.08(G)(2). In State
v. Bowles, 6th Dist No. L-21-1074, 2021-Ohio-4401 we stated:
12.
In her concurring opinion, Justice Brunner summarized the holding
in Jones stating “in Jones we simply observed that R.C. 2953.08 * * *
precludes second-guessing a sentence imposed by a trial court based on its
weighing of the considerations of R.C. 2929.11 and 2929.12.” Id. at ¶ 10 (J.
Brunner, concurring). Justice Brunner noted, however, that there are other
statutory and constitutional provisions under which an offender may appeal
their felony sentences outside of R.C. 2953.08(G)(2). Id. at ¶ 10,
citing State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d
952, ¶ 15-22 (R.C. 2953.08 is not the only basis for appealing a sentence
and it does not preclude an appeal of a sentence on constitutional grounds);
Jones at ¶ 48-49 (Fischer, J., concurring) (an appellate court may review
the trial court's findings under R.C. 2929.11 and 2929.12 for “certain
limited purposes,” including whether the sentence was “based on an
offender's ‘race, ethnic background, gender, or religion’ ”); R.C.
2953.08(F) (requiring an appellate court to review essentially the entire
trial-court record in evaluating the legality of a sentence). In these
instances, felony sentences are properly reviewed outside of the limitations
of Jones since that review is not established under the limits of R.C.
2953.08(G)(2). In resolving an appeal of felony sentences, we must,
therefore, limit our application of Jones to appeals in which the appellant’s
13.
sole argument is that the record does not support the trial court’s imposition
of a prison term after considering R.C. 2929.11 and 2929.12. That
argument remains “squarely prohibited” and, in light of Toles, appeals
based on that argument alone are subject to summary resolution as a matter
of law. Toles at ¶ 11.
Applied here, the limit of our appellate review established
in Jones precludes our review of appellant's assignment of error.
Appellant's sole argument is that his sentence was contrary to law as
described in R.C. 2953.08(G)(2) because the trial court improperly weighed
the sentencing factors established in R.C. 2929.11 and 2929.12 prior to
imposing his sentence. Notably, he does not assign error to his sentence
under any other statutory or constitutional provision which would permit
our review of his sentence. Therefore, in light of Jones and Toles, it is clear
that we are “squarely prohibited” from reviewing appellant's sentence as
requested and we find his assignment of error not well-taken. Id. at ¶ 9-10.
{¶ 52} Accordingly, following State v. Toles, Slip Opinion No. 2021-Ohio-3531, ¶ 10
(Brunner, J., concurring), appellant’s argument that she has been denied any meaningful
review under R.C. 2953.08(G)(2) is found not violative of process due her in appellate
review under the federal or state constitutions and is, therefore, not well-taken.
14.
Equal Protection
{¶ 53} Appellant further argues that 2953.08(G)(2) establishes an irrational
classification and provides no remedy for review of sentences imposed that are
considered to be too harsh or too lenient and is contrary to her equal protection treatment
under the federal and state constitutions.
{¶ 54} In support, appellant cites State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-
5124, 74 N.E.3d 368 (holding that R.C. 2907.03[A][13], which criminalizes sexual
conduct between a minor and a peace officer at least two years older than the minor,
violates the Equal Protection Clause of the Ohio Constitution).
{¶ 55} We first note that, like Mole, appellant herein does not claim that this
purported classification of being too harshly sentenced involves a fundamental right or a
suspect class. Accordingly, the standard of review in this case is the “rational basis” test,
which requires that the statute be upheld if it is rationally related to a legitimate
governmental purpose. State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812
N.E.2d 963, ¶ 7, citing Roseman v. Firemen & Policemen's Death Benefit Fund, 66 Ohio
St.3d 443, 447, 613 N.E.2d 574 (1993).
{¶ 56} The Supreme Court in Mole reasoned:
Under a federal rational-basis analysis, the appropriate standard of
review is whether the difference in treatment between [the affected class
and those outside the class] rationally furthers a legitimate state interest. In
15.
general, the Equal Protection Clause is satisfied so long as there is a
plausible policy reason for the classification, see United States Railroad
Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179, 101 S.Ct. 453, 459, 461, 66
L.Ed.2d 368 (1980), the legislative facts on which the classification is
apparently based rationally may have been considered to be true by the
governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co.,
449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981), and the
relationship of the classification to its goal is not so attenuated as to render
the distinction arbitrary or irrational, see Cleburne v. Cleburne Living
Center, Inc., 473 U.S. [432] at 446, 105 S.Ct. [3249] at 3257 [87 L.Ed.2d
313]. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1(1992).
Similarly, under the Ohio Constitution,
“The rational-basis test involves a two-step analysis. We must first
identify a valid state interest. Second, we must determine whether the
method or means by which the state has chosen to advance that interest is
rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-
6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School
Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.
16.
“Under the rational-basis standard, a state has no obligation to produce
evidence to sustain the rationality of a statutory classification.” Columbia
Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882
N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ.
Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed
to be constitutional and * * * courts have a duty to liberally construe
statutes in order to save them from constitutional infirmities.” **379
Eppley [v. Tri–Valley Local School Dist. Bd. of Edn.], 122 Ohio St.3d 56,
2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron
(1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323. The party challenging the
constitutionality of a statute “bears the burden to negate every conceivable
basis that might support the legislation.” Columbia Gas Transm. Corp. at ¶
91, citing Lyons v. Limbach (1988), 40 Ohio St.3d 92, 94, 532 N.E.2d 106.
*224 Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d
104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19–20. Id. at ¶ 27.
{¶ 57} In this case, appellant believes that her less than maximum sentence was
too harsh and that she is effectively placed in a class of appellants that have no
meaningful appellate review under R.C. 2953.08(G)(2).
17.
{¶ 58} Nevertheless, the legislature has established an appellate review process
that requires a finding by clear and convincing evidence that the sentence violates the
relevant sections of R.C. 2953.08(G)(2) or the sentence is otherwise contrary to law.
{¶ 59} Although appellant would have preferred that the state legislature establish
a substantially less deferential standard of review, she has not established that the
standard of review fails the rational-basis test by an irrational relationship to a legitimate
governmental interest. Therefore, appellant’s due process and equal protection
challenges are also found not well-taken and are denied.
The Sentencing Judgment Entry
{¶ 60} In additional support of this appeal, appellant argues that an error in the
sentencing judgement entry requires reversal and resentencing before a new judge.
Specifically, the January 13, 2021 sentencing entry states the following:
The Court further finds that this offense is an offense of violence
pursuant to R.C. 2901.01(A)(9)(a)-(d).
R.C. 2901.01 specifically defines an offense of violence as:
(9) “Offense of violence” means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01,
2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03,
2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31,
18.
2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of
section 2903.34, of division (A)(1), (2), or (3) of section 2911.12, or of
division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or
felonious sexual penetration in violation of former section 2907.12 of the
Revised Code;
(b) A violation of an existing or former municipal ordinance or law
of this or any other state or the United States, substantially equivalent to
any section, division, or offense listed in division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or
former municipal ordinance or law of this or any other state or the United
States, committed purposely or knowingly, and involving physical harm to
persons or a risk of serious physical harm to persons;
(d) A conspiracy or attempt to commit, or complicity in committing,
any offense under division (A)(9)(a), (b), or (c) of this section.
{¶ 61} In fact, on September 30, 2020, the defendant entered a plea of No Contest
and was found guilty by the Court of Aggravated Vehicular Homicide, Count One of the
indictment, a violation of R.C. 2903.06(A)(1)(a) and (B).
{¶ 62} The state acknowledges this error that this is not one of the offenses
enumerated in 2901.01(A)(9)(a)-(d), nor is it substantially equivalent to such offenses
required by R.C. 2901.01(A)(9)(b).
19.
{¶ 63} We concur with the suggestion of the state that this error can be corrected
by remanding the case to the trial court with an order to issue a nunc pro tunc judgment
entry to correct the error. See State v. Simmons, 6th Dist. Lucas No. L-20-1150, 2021-
Ohio-4038.
Conclusion
{¶ 64} On consideration whereof, we find that appellant has failed to establish that
the felony sentence in this case was clearly and convincingly in violation of R.C.
2953.08, or was otherwise contrary to law.
{¶ 65} Wherefore, we find appellant’s sole assignment of error not well-taken.
However, we will remand this case back to the trial court to effectuate a nunc pro tunc
entry, deleting the finding that the offense for which appellant was convicted is an
offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d).
{¶ 66} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is hereby affirmed but remanded to effectuate an appropriate nunc pro
tunc entry as directed. Appellant is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed
and remanded.
20.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
CONCUR. ____________________________
JUDGE
Christine E. Mayle, J.
CONCURS IN JUDGMENT ____________________________
AND WRITES SEPARATELY. JUDGE
MAYLE J.
{¶ 67} I concur in the judgment. But I believe that the majority misstates
appellant’s primary arguments relating to R.C. 2953.08(G)(2) and State v. Jones, 163
Ohio St.3d 649, 2020-Ohio-5729, 169 N.E.3d 242. That is, appellant does not argue that
“Jones, and thereby its progeny, should be deemed unlawful by this court,” as stated by
the majority. Rather, appellant argues that R.C. 2953.08(G)(2)—as interpreted by the
Supreme Court of Ohio in Jones—is unconstitutional as applied to appellant.
{¶ 68} More specifically, appellant claims (1) R.C. 2953.08(G)(2) precludes any
meaningful review of her sentence—and thereby violates her right to due process—
because, as Jones clarifies, an appellate court has no authority under R.C. 2953.08(G)(2)
21.
to modify or vacate her sentence as unsupported by the record under R.C. 2929.11 and
R.C. 2929.12, and (2) the “classifications found at O.R.C. ¶2953.08(G)(2) [sic] are more
random than rational” and, therefore, the application of R.C. 2953.08(G)(2)—which, as
recognized by Jones, precludes review of the trial court’s sentence under R.C. 2929.11
and R.C. 2929.12 because those statutes are not specifically referenced in R.C.
2953.08(G)(2) —violates her right to equal protection under the law.
{¶ 69} As an initial matter, it is important to note that appellant conflates two
distinct concepts—i.e., whether an appellate court may conclude that a sentence is
unsupported by the record under R.C. 2953.08(G)(2), and whether an appellate court may
determine that certain findings are unsupported by the record under R.C. 2953.08(G)(2).
In Jones, the Ohio Supreme Court clarified that “[t]his distinction matters” because “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,’ [and] it left the ‘otherwise contrary to law’ provision that is still in current R.C.
2953.08(G)(2)(b) unchanged.” (Emphasis added.) Jones at ¶ 25, 38. Accordingly,
because courts “must presume that the amendments were made to change the effect and
operation of the law,” the Ohio Supreme Court concluded that the phrase “otherwise
contrary to law,” as used in R.C. 2953.08(G)(2)(b), does not include “an appellate court’s
conclusion that a sentence is not supported by the record.” (Emphasis added.) Id. at ¶
38. So, although an appellate court lacks the authority to conclude that a sentence is
22.
unsupported by the record (which would entail substituting its judgment for that of the
trial court), it may nonetheless conclude that certain findings are unsupported by the
record under R.C. 2953.08(G)(2)(a), and then modify, remand, or vacate the sentence on
that basis.
{¶ 70} To that end, appellant’s as-applied challenge on equal-protection grounds is
centered upon what she characterizes as the “random”—and therefore “irrational”—
inclusion of only certain sentencing statutes within the appellate review of R.C.
2953.08(G)(2)(a). That statute provides that an appellate court may modify, remand, or
vacate a sentence if “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[.]”
Each of the enumerated provisions requires the trial court to make findings when
sentencing the defendant under certain circumstances: R.C. 2929.13(B)(1)(a) states that
the trial court must sentence the offender to community control for a felony of the fourth
and fifth degree that is not an offense of violence or that is a qualifying assault offense if
all of the factors of (B)(1)(a)(i)-(iii) apply;1 R.C. 2929.13(D) provides that, despite a
1
Although R.C. 2929.13(B)(1)(b) provides that the trial court nonetheless retains
discretion to impose a prison sentence for a felony of the fourth and fifth degree that is
not an offense of violence or that is a qualifying assault offense if any of the factors of
(B)(1)(b)(i)-(x) apply, R.C. 2953.08(A)(2) states that a “defendant is not entitled under
this division to appeal as a matter of right the sentence imposed upon the offender” if the
trial court “found one or more of the factors in division (B)(1)(b) of section 2929.13 of
the Revised Code to apply relative to the defendant.” Moreover, we note that R.C.
2929.13(B)(1)(b) is not at issue in this appeal.
23.
presumption of a prison term for certain first and second degree felonies and certain
felony drug offenses, a trial court may impose community control if it makes both of the
findings that are specified in (D)(2)(a) and (b); R.C. 2929.14(B)(2)(e) states that “[w]hen
imposing a sentence pursuant to division (B)(2)(a) or (b) of this section, the court shall
state its findings explaining the imposed sentence”; R.C. 2929.14(C)(4) requires the court
to make certain findings when imposing consecutive sentences; and R.C. 2929.20(I)
requires the trial court, at a hearing on a motion for judicial release, to afford an eligible
offender, his attorney, the prosecuting attorney, the victim or victim’s representative, and
other appropriate persons an opportunity to present written and or oral information
relevant to the motion.2.
{¶ 71} In contrast to these provisions, “R.C. 2929.11 and 2929.12 * * * are not
fact-finding statutes * * *. Instead, they serve as an overarching guide for trial judges to
consider in fashioning an appropriate sentence.” State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 17. Accordingly, it does not appear that it is either
2
I question whether R.C. 2929.20(I) is incorrectly referenced in R.C. 2953.08(G)(1).
R.C. 2953.08(G)(1) previously referenced R.C. 2929.20(H). R.C. 2929.20(H) required
the court to make certain findings before granting judicial release to an eligible offender.
R.C. 2929.20(H) was renumbered as R.C. 2929.20(J) effective April 7, 2009. On that
same date, an amendment to R.C. 2953.08(G)(1) became effective, eliminating the
reference to R.C. 2929.20(H), and instead referencing R.C. 2929.20(I). Because the
findings in R.C. 2929.20(H) are now contained in R.C. 2929.20(J), I believe this may
have been in error and that the amended version of R.C. 2953.08(G)(1) should have
referenced R.C. 2929.20(J) instead of R.C. 2929.20(I).
24.
“random” or “irrational” that the Legislature did not include R.C. 2929.11 or R.C.
2929.12 within the scope of appellate review of R.C. 2953.08(G)(2)(a).
{¶ 72} Appellant also claims that her right to due process was violated because
R.C. 2953.08(G)(2)(a) precludes “meaningful” appellate review of a sentence—like
hers—that is not subject to the statutes that are enumerated within that provision. I
disagree for several reasons. First, R.C. 2953.08(A) begins by stating, “In addition to any
other right to appeal * * * a defendant who is convicted of or pleads guilty to a felony
may appeal as a matter of right the sentence imposed upon the defendant on one of the
following grounds * * *.” Thus, “[i]t is clear from the language in R.C. 2953.08 that the
statute does not establish the only avenue by which a party may appeal a sentence.” State
v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 15. For example, as
the Ohio Supreme Court recognized in Patrick, “R.C. 2953.02 also provides a right to
appeal a judgment or final order to the court of appeals ‘[i]n a capital case in which a
sentence of death is imposed for an offense committed before January 1, 1995, and in any
other criminal case.’” Id. at ¶ 16, quoting R.C. 2953.02. Moreover, “there is no
indication in the language of R.C. 2953.02 and 2953.08 that the rights to appeal described
in the statutes conflict with each other.” Id. at ¶ 17. In Patrick, the court determined
R.C. 2953.08(D)(3)—which provides that a sentence imposed for aggravated murder “is
not subject to review under this section”—did not preclude Patrick’s constitutional
challenge to his aggravated-murder sentence because “R.C. 2953.08(A)(4) does not
25.
describe an appeal taken on constitutional grounds and [therefore] such an appeal is not
an appeal ‘under this section’ as described in R.C. 2953.08(D)(3).” Id. at ¶ 22.
{¶ 73} In addition, as we recognized in State v. Bowles, 6th Dist. No. L-21-1074,
2021-Ohio-4401, ¶ 9, R.C. 2953.08(G)(2), as interpreted in Jones, merely precludes
review of appeals where “the appellant’s sole argument is that the record does not
support the trial court’s imposition of a prison term after considering R.C. 2929.11 and
2929.12.” (Emphasis added.) Indeed, in State v. Bryant, Slip Opinion No. 2022-Ohio-
1878, ¶ 22, the Ohio Supreme Court recently clarified that Jones has a “narrow holding”
and “[n]othing about [Jones] should be construed as prohibiting appellate review of a
sentence when the claim is that the sentence was improperly imposed based on
impermissible considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12.” In Bryant, the court determined that “when a
trial court imposes a sentence based on factors or considerations that are extraneous to
those that are permitted by R.C. 2929.11 and 2929.12, that sentence is contrary to law.
Claims that raise these types of issues are therefore reviewable.” Id. This is but one
example of a type of claim that would be reviewable notwithstanding Jones.
{¶ 74} For these reasons, I agree with the majority’s conclusion that R.C.
2953.08(G)(2), as interpreted in Jones and as applied to appellant, does not preclude
“meaningful” appellate review, nor does it violate appellant’s right to equal protection
under the law.
26.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
27.