State v. Redman

A review of the authorities relied upon by the majority indicates that this appeal presents an issue for resolution for which there is no precedential authority. Nevertheless, with nothing more than a Committee Comment and an easily distinguished appellate decision for support, the majority by judicial legislation has created a "right" or "power" in the prosecution to determine the sentence to be imposed upon appellant upon conviction of multiple charges which are allied offenses of similar import.

By its interpretation of R.C. 2941.25, the majority has done what the legislature could have done, but chose not to do. It has implied a legislative intent to deny to the trial court its inherent power and statutory duty to determine the appropriate sentence after a defendant's convictions for such offenses.

Unlike the trial court in State v. Roberts (June 23, 1988), Auglaize App. No. 2-87-18, unreported, 1988 WL 68700, the court below refused to abdicate its authority to determine the sentence to be imposed. It refused to surrender its discretion in favor of the prosecution's asserted right.

In exercising its discretion, the trial court rejected the prosecution's recommendation or "diktat" and sentenced appellant in conformity with law. Judge McBridge in Roberts, supra, writing for the Court of Appeals for Auglaize County, stated:

"While not argued, we assume that the right to elect by the prosecution arises from its right to dismiss or withdraw charges. Whether this may be done without the consent of the court is a question not raised and need not be explored in this case."

Since the trial court accepted the prosecution's recommendation, the Roberts case did not squarely respond to the issue raised therein and in this cause.

Judge McBride further opined:

"It is appropriate to suggest that R.C. 2941.25 be amended to better fulfill the purpose of the legislature to prevent `shotgun' convictions and to expedite proceedings resulting from `shotgun' indictments. There comes a time when it should not be necessary in criminal cases to rely upon implied intent of the legislature or upon comments of the drafting committee."

In this cause, the trial court's resistance to the continued erosion of judicial discretion should be commended and, absent a showing of an abuse of discretion or a sentence contrary to law, the final judgment should be affirmed. Accordingly, I must dissent.