DocketNumber: No. 664
Citation Numbers: 550 N.E.2d 497, 49 Ohio App. 3d 75
Judges: STEPHENSON, J.
Filed Date: 6/13/1988
Status: Precedential
Modified Date: 1/13/2023
I respectfully dissent. *Page 78
When the legislature enacted the comprehensive Criminal Code and specifically enacted R.C.
The trial court, without comment, sentenced appellant to a one-year definite term. Since the prosecution had recommended probation, and since appellant met most of the criteria of R.C.
"* * * [H]owever, Mr. Bivens is, I guess, in sort of a state of shock that he got a year instead of at least the minimum sentence of six months to five years on a felony four, since this is his first felony.
"Under the Rules, unless there's something here that I don't know about, he probably should have been a candidate for probation on this charge.
"THE COURT: We're not arguing that, we're arguing the bond. Let's go with that. What other reasons are there for a bond?" Cf.State v. Davis (1983),
My perception of the line of cases relied on by the majority is as follows: Clardy, supra, stands for the proposition that an averment by the court that it followed the sentencing criteria may be contradicted by the record. Yontz, supra, at 344,
The record in this case is devoid of any consideration of the statutory criteria, and like Clardy, supra, contains only the court's assertion that the matter was referred for a presentence report, and that "[t]he Court did that, and the written report is in the Court's hands, and we are now ready to consider sentencing."
After listening to the statements of counsel, and asking the defendant his age, the court imposed sentence. As a reviewing court, we can only guess whether the criteria were considered.Koons, supra, at 290, 14 OBR at 347,
"Clardy, supra, stands for the proposition that where the record itself reveals affirmatively a lack of such consideration it may be concluded that the trial court did not consider the statutory standards."
My position on this issue is set forth in Maple Hts. v.Dickard (1986),
"It has been recognized that `not all judges exercise their discretion on the basis of the facts and circumstances of the case and the character and background of the offender but [some] act out of bias, prejudice and preconceptions.' Miamisburg v.Smith (1982),
Thus, I dissent because the record in this case is devoid ofany indication the mandatory requirements of R.C.