State v. Powell

[Cite as State v. Powell, 2022-Ohio-1343.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 29097
:
v. : Trial Court Case No. 1985-CR-2210
:
DONALD E. POWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 22nd day of April, 2022.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellant
JON PAUL RION, Atty. Reg. No. 0067020 & CATHERINE H. BREAULT, Atty. Reg. No.
0098433, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
.............
EPLEY, J.
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{¶ 1} The State appeals from the judgment of the Montgomery County Court of
Common Pleas which granted Donald E. Powell’s “motion to refrain from ordering return
to prison,” contrary to our mandate in State v. Powell, 2d Dist. Montgomery No. 28108,
2019-Ohio-3005 (“Powell III”), essentially keeping Powell out on “shock probation.” For
the reasons that follow, the trial court’s judgment will be reversed, and Powell must be
returned to prison.
I. Facts and Procedural History
{¶ 2} The following facts are taken from our 1987 opinion in State v. Powell, 2d
Dist. Montgomery No. 9881, 1987 WL 12638 (June 9, 1987) (“Powell I”) and Powell III.
On November 12, 1985, Corissa Miller was walking down Main Street in Miamisburg
when Powell and co-defendant James E. Eaton stopped their vehicle and offered her a
ride. She got in the car and asked them to drive her to Franklin. Instead of driving her
south to Franklin as promised, Powell and Eaton drove to a remote road, parked, and
forced Miller to undress, whereupon they each tried unsuccessfully to have intercourse
with her. During that encounter, both men digitally penetrated and performed oral sex on
Miller.
{¶ 3} Powell and Eaton then drove Miller to Eaton’s residence where, over the
course of several hours, they took turns having vaginal intercourse with her. At one point
Miller was threatened with a knife, and Powell and Eaton also made threatening
references to a gun and a baseball bat. After several hours, Miller persuaded Powell to
let her go by assuring him she would not tell anyone about what had happened.
{¶ 4} Miller eventually did go to the police, and Powell was charged with one count
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of kidnapping, five counts of rape, five counts of gross sexual imposition (GSI), and one
count of attempted rape. The case proceeded to trial, at which the State elicited testimony
from another woman that, on the same day Miller was victimized, she was offered a ride
by Powell and Eaton, taken to Eaton’s apartment, and forced to engage in sexual activities
as well.
{¶ 5} At the end of the trial, Powell was convicted of all counts and sentenced to
5-25 years in prison for kidnapping; 5-25 years for each count of rape; one year for each
count of GSI; and 4-15 years for attempted rape. The court ordered all the rape sentences
to run concurrently with each other and all the GSI sentences to run concurrently with
each other. The court then ordered Powell to serve the sentences for each class of crime
consecutively to each other for an aggregate term of 15-65 years in prison. Powell’s
convictions were affirmed on appeal in Powell I, as was his sexual predator designation
in State v. Powell, 2d Dist. Montgomery No. 19658, 2003-Ohio-1568 (“Powell II”).
{¶ 6} On June 18, 2018, Powell filed a motion for shock probation pursuant to R.C.
2929.201. One month later, the State filed its opposition, arguing that Powell’s rape
conviction made him ineligible for shock probation. The next day, the trial court granted
Powell’s motion, reasoning that Powell had completed the prison term for rape and could
be released on probation for the remainder of his sentence. In a supplemental decision,
the trial court concluded that the eligibility requirements for shock probation in the former
R.C. 2951.02 did not apply to offenders who remained incarcerated after July 14, 2014,
for crimes committed prior to July 1, 1996. In other words, the trial court found that Powell
was eligible for shock probation even though he had been convicted of rape.
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{¶ 7} The State appealed, and on July 26, 2019, we reversed and remanded
stating that “[Powell] was ineligible for shock probation, and the trial court therefore erred
by granting his motion for shock probation. * * * The trial court’s judgment is reversed,
and this matter is remanded for further proceedings.” Powell III, 2d Dist. Montgomery No.
28108, 2019-Ohio-3005, at ¶ 18-19.
{¶ 8} Less than a week after our decision in Powell III was released, the State filed
a “notice of remand,” and then on December 9, 2019, after the Ohio Supreme Court
declined to exercise jurisdiction over the case, filed a “motion to place case on the docket
and for defendant to be returned to prison.” Ten days later, on December 19, 2019, Powell
filed a “motion to refrain from reimposition of sentence.” The State filed a memorandum
in opposition.
{¶ 9} Between mid-February 2020 and mid-October 2020, the case stalled due to
COVID and a series of continuances filed by the trial court and Powell. Finally, on October
16, 2020, the court held an evidentiary hearing at which Powell presented expert
testimony from Dr. Ronald Delong, who testified that Powell was unlikely to reoffend and
that placing him back into prison would be detrimental to his physical and emotional well-
being. The trial court agreed.
{¶ 10} In its March 22, 2021, Decision and Entry granting Powell’s “motion to
refrain from ordering return to prison,” the trial court made several key findings. First, the
court determined that Powell had demonstrated that he had been rehabilitated and had
been a productive citizen since his 2018 release, and the court stated it believed that
“return[ing] Powell * * * to prison to serve out the remainder of the sentence imposed in
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April 1986, would be a denial of the rights to liberty and justice and fundamental fairness.”
Decision and Entry at 4. The court further held that “[c]ontinued incarceration toward the
maximum of 65 years * * * would deny * * * Powell [his] constitutional rights not to be
subjected to cruel and unusual punishment and due process of law, especially in light of
this judge returning [him] to society in 2018.” Id. at 5. Finally, the trial court found “that
having served 33 years in prison, serving more time after being released would be cruel
and unusual punishment.” Id. at 7.
{¶ 11} The State has appealed and raises a single assignment of error.
II. The trial court erred by not returning Powell to prison
{¶ 12} In its assignment of error, the State argues that the trial court erred by failing
to carry-out this court’s mandate that Powell’s shock probation be revoked. While that
assignment of error is relatively straight forward, several important constitutional issues
are implicated in the trial court’s Decision and Entry and the parties’ briefs to this court;
we will address them in a way that facilitates our analysis.
There was a mandate to revoke shock probation
{¶ 13} The parties begin by disputing whether the trial court had a mandate from
our opinion in Powell III to revoke Powell’s shock probation and return him to prison.
There is no question that a mandate existed.
{¶ 14} App.R. 27 states that “[a] court of appeals may remand its final decrees,
judgments, or orders * * * to the court * * * below for specific or general execution thereof,
or to the court below for further proceedings therein.” Once given direction from the
reviewing court, the trial court may not vary the mandate and is required to execute it.
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State v. Watkins, 2d Dist. Clark No. 2010-CA-88, 2011-Ohio-2979, ¶ 10. See also Nolan
v. Nolan, 11 Ohio St.3d 1, 5, 462 N.E.2d 410 (1984) (absent extraordinary circumstances,
like an intervening decision from the Supreme Court, an inferior court has no discretion
to disregard the mandate of a superior court in a prior appeal in the same case).
{¶ 15} In our previous decision, we made it clear that Powell was ineligible for
shock probation and reversed the trial court’s judgment to the contrary. Powell III, 2d Dist.
Montgomery No. 28108, 2019-Ohio-3005, at ¶ 18. And while we were not explicit in our
direction for what was to come next (“The trial court’s judgment is reversed, and this
matter is remanded for further proceedings.” Id. at ¶ 19.), it is difficult to imagine any other
course of action stemming from our finding that Powell was ineligible for shock probation
than to remand him into the custody of the Ohio Department of Rehabilitation and
Corrections (“ODRC”).
{¶ 16} But even if the trial court did not believe there was a clear mandate from
Powell III, it still lacked the authority to alter Powell’s sentence, which it did by deciding
Powell did not have to go back to prison. “Ohio trial courts do not possess the inherent
authority to modify a criminal sentence once that sentence has been executed absent
specific statutory authority to do so.” State v. Palmer, 2d Dist. Montgomery No. 20101,
2004-Ohio-3571, ¶ 7. In this case, Powell’s 15- to 65-year term had not been completely
served, nor had he been granted parole by the Adult Parole Authority (“APA”); granting
him purportedly permanent release altered the sentence, and the trial court was without
the authority to take that action.
{¶ 17} The trial court attempted to justify its sentence alteration by critiquing both
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the length of Powell’s sentence imposed by its predecessor and the statutory indefinite
sentencing scheme used at the time. It is worth noting, as the State points out, that
Powell’s individual prison terms were within the statutory range authorized by the
legislature at the time, and the validity of his sentence (length or otherwise) has never
been disputed. And while the trial court was correct in pointing out that the indefinite
sentencing scheme used to sentence Powell was drastically altered in 1996 when S.B. 2
ushered in definite sentences (had he been sentenced under this scheme, he could have
faced a definite prison term for a rape conviction of 3, 4, 5, 6, 7, 8, 9, 10, or 11 years), the
pendulum has swung back to indefinite terms of incarceration under Reagan Tokes (S.B.
201). Regardless of any court’s personal view of the wisdom of a specific sentencing
system, “arguments for and against particular sentencing schemes are for legislatures to
resolve.” Harmelin v. Michigan, 501 U.S. 957, 1007, 111 S.Ct. 2680, 115 L.Ed.2d 836(1991).
{¶ 18} We conclude that after the trial court’s decision to put Powell on shock
probation was reversed in Powell III, it had a mandate to return him to the custody of the
ODRC. We further hold that the trial court had no legal basis to modify Powell’s sentence.
Equitable Estoppel
{¶ 19} Powell also argues that “the doctrine of equitable estoppel precludes the
reimposition of [his] sentence.” We disagree.
{¶ 20} “Equitable Estoppel is a defensive doctrine preventing one party from taking
unfair advantage of another when, through false language or conduct, the person
estopped has induced another person to act in a certain way, with the result that the other
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person has been injured in some way.” Black’s Law Dictionary (11th ed. 2019). The
doctrine is based on the principles of fraud. Id. See State v. Fraley, 2d Dist. Montgomery
No. 13822, 1993 WL 187929, *1 (June 3, 1993) (under the doctrine of equitable estoppel,
one who has by his statements or conduct induced another to take a course of action is
bound to adhere to it and cannot declare to the contrary, though he might otherwise have
a right to do so.).
{¶ 21} As a general rule, however, the doctrine does not apply against the State.
Columbus v. Pub. Util. Comm., 103 Ohio St. 79 (1921). “Exceptions exist with respect to
acts undertaken by the state in its proprietary capacity, such as operation of a water
department, or in the sale of its own lands.” (Citations omitted.) State v. Johnson, 2d Dist.
Montgomery No. 21074, 2006-Ohio-417, ¶ 13. Equitable estoppel will not be applied
against the State in its governmental, sovereign, or public capacity, “unless its application
is necessary to prevent fraud or manifest injustice.” Id.{¶ 22} In the case at bar, Powell attempts to argue that he detrimentally relied upon
the actions and statements of the trial court, so it should now be estopped from remanding
him back into the custody of the ODRC. There are, however, problems with that position.
First and foremost, the doctrine of equitable estoppel does not apply to the trial court. We
have previously said that “[t]he Montgomery County Court of Common Pleas performs a
function imposed upon the state as an obligation of sovereignty, a function which is
performed by counties as political subdivisions of the state pursuant to legislative
requirement. The court thus performs a governmental function. The doctrine of equitable
estoppel is therefore inapplicable to the common pleas court.” (Citations omitted). Id. at
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¶ 14.
{¶ 23} The doctrine would also be inapplicable to the Montgomery County
Prosecutor’s Office. See S.R. Prods. v. Gerrity, 156 Ohio App.3d 150, 2004-Ohio-472,
805 N.E.2d 104, ¶ 28 (8th Dist.) (“In performing those duties that are imposed upon the
state as obligations of sovereignty, such as protection from crime * * * or preserving the
peace and health of citizens and protecting their property, it is settled that the function is
governmental.”).
{¶ 24} But even if the possibility of equitable estoppel could be imputed upon the
State (prosecutor), it has never acted in a way to which the doctrine would be applicable,
because Powell was never induced into a detrimental position by the State. From the get-
go, the State opposed shock probation. The State filed a memorandum in opposition to
Powell’s motion for shock probation a month after the original motion was filed. When the
motion was granted and Powell was released from prison, the State immediately filed an
appeal to this court. After we reversed and remanded the trial court in Powell III, the State,
less than a week later, filed a “notice of remand” with the trial court, and when the trial
court took no action, the State filed a “motion to place case on docket and for defendant
to be returned to prison.” Powell then filed his “motion to refrain from reimposition of
sentence,” which the State opposed, and finally, when the trial court granted Powell’s
motion to remain free, the State appealed. There would be the same result if Powell had
relied on the trial court’s position; he could not have reasonably expected finality as the
State was in opposition throughout. Powell could not have been ignorant to the fact that
his release might be in error.
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{¶ 25} The doctrine of equitable estoppel does not apply in this case.
Constitutional Issues
{¶ 26} Even though we have concluded that the trial court erred by granting
Powell’s “motion to refrain from ordering return to prison” and that the doctrine of equitable
estoppel is inapplicable in this case, our inquiry does not end there, as Powell and the
trial court allege constitutional issues.
A. Due Process
{¶ 27} Powell’s next argument is that reincarceration would be anathema to the
fundamental principles of liberty and justice and would be in violation of his due process
rights.
{¶ 28} “Due process” does not have a precise definition, but its source is found in
the Fifth Amendment to the United States Constitution which reads: “No person shall be
* * * deprived of life, liberty, or property without due process of law[.]” Though originally
only applicable to the federal government, the principle was extended to the states by the
Fourteenth Amendment. The concept is present in the Ohio Constitution as well. “All
courts shall be open, and every person, for an injury done him in his land, goods, person,
or reputation, shall have remedy by due course of law[.]” Article I, Section 16, Ohio
Constitution. “The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,
333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
{¶ 29} Over the course of time, two distinct branches of due process have
emerged. Procedural due process challenges the “adequacy of the procedures employed
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in a government action that deprives a person of life, liberty, or property.” Ferguson v.
State, 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250, ¶ 42. The reason for the
procedural due process requirement is “to ensure that whenever government action
deprives a person of life, liberty or property, such a deprivation is implemented in a fair
manner.” State v. Newberry, 77 Ohio App.3d 818, 821, 603 N.E.2d 1086 (4th Dist.1991).
{¶ 30} “Substantive due process claims are those that allege a violation of a
constitutional right which is implicit in the concept of ordered liberty, deprivation of which
is inherently offensive to notions of fundamental fairness.” I-Star Communications Corp.
v. City of E. Cleveland, 885 F.Supp. 1035, 1040 (N.D.Ohio 1995). See also Rochin v.
California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (due process is the
“constitutional guarantee of respect for those personal immunities which * * * are ‘so
rooted in the traditions and conscience of our people as to be ranked as fundamental’
* * * or are ‘implicit in the concept of ordered liberty’ ”). Deprivations of substantive due
process can be divided into two categories: (1) deprivations of a particular constitutional
guarantee; and (2) actions that shock the conscience. Mansfield Apt. Owners Assn. v.
Mansfield, 988 F.2d 1469, 1474 (6th Cir.1993).
{¶ 31} Powell’s primary argument seems to be that returning him to prison would
be “fundamentally unfair,” but it is unclear if he believes doing so would be problematic
under the procedural or substantive due process branches. Therefore, to be as thorough
as possible, we will analyze Powell’s claims under both prongs.
{¶ 32} Procedural due process “encompasses, at a minimum, notice and an
opportunity to be heard.” State v. Crews, 179 Ohio App.3d 521, 2008-Ohio-6230, 902
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N.E.2d 566, ¶ 9 (2d Dist.). The concept is flexible, however, and varies depending on the
importance attached to the interest. State v. Hochhausler, 76 Ohio St.3d 455, 459, 668
N.E.2d 457 (1996). In other words, the more important the interest is (in Powell’s case -
liberty), the more extensive the process needs to be.
{¶ 33} After examining the record, we conclude that Powell had no shortage of
procedural due process. After he filed his motion for shock probation, the State
responded, and the trial court granted his motion with a 12-page decision which was then
supplemented by an additional eight-page decision and entry. There was also a full and
complete appeals process which included an unsuccessful jurisdictional application to the
Ohio Supreme Court. Upon completion of the Powell III appeals process, Powell filed his
“motion to refrain from imposition of sentence,” which was met with an opposition
memorandum by the State, an evidentiary hearing, a lengthy decision by the trial court,
and now this appeal and oral argument. There can be no doubt that Powell received
extensive procedural due process befitting his important liberty interest.
{¶ 34} Having found no procedural due process violations, we turn now to
substantive due process. The concept of substantive due process is much more nebulous
than its procedural counterpart. Jurisprudentially, substantive due process protects
against (1) deprivations of a particular constitutional guarantee; and (2) actions that shock
the conscience. Mansfield Apt. Owners Assn., 988 F.2d at 1474. Because both the trial
court (although its main argument is couched under cruel and unusual punishment terms)
and Powell focus on the second prong, “actions that shock the conscience,” so too will
our analysis.
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{¶ 35} One of the things that makes this body of law so tricky is that there is no
bright line rule on what exactly “shocks the conscience.” The United States Supreme
Court has held conduct that shocks the conscience is so brutal and offensive that it does
not comport with traditional ideas of fair play and decency. Breithaupt v. Abram, 352 U.S.
432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). It has further stated that the type of
government methods that rise to the level of a due process violation must “do more than
offend some fastidious squeamishness or private sentimentalism about combating crime
too energetically.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 327, 96 L.Ed. 183(1952). The Sixth Circuit Court of Appeals has asserted that “[c]onduct shocks the
conscience if it violates the decencies of civilized conduct.” Range v. Douglas, 763 F.3d
573, 589 (6th Cir.2014). What shocks the conscience, then, is subjective; but the courts
have been clear that the “ ‘shocks the conscience’ standard is not a font of tort law, but is
instead a way to conceptualize the sort of egregious behavior that rises to the level of a
substantive due process violation.” Granato v. Davis, 2d Dist. Montgomery No. 26171,
2014-Ohio-5572, ¶ 79.
{¶ 36} In his brief, Powell only speaks in generalities about how reimposing his
prison sentence would be shocking to the conscience and fundamentally unfair. Instead,
he details the progress he has made as a law-abiding citizen since his release. And while
it is commendable that Powell has reestablished a “normal” life, and even has started a
business, that does not demonstrate that his substantive due process rights would be
violated if he were sent back to prison. It is hard to see how reimposing his sentence
would “violate the decencies of civilized conduct” or be “so brutal and offensive that it
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does not comport with traditional ideas of fair play and decency.”
{¶ 37} Nevertheless, Powell points us to several cases he believes to be
analogous. The first case cited is DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993). DeWitt
was convicted in 1978 of robbery, assault with intent to murder, and arson and sentenced
to life in prison with the possibility of parole after ten years. While in prison in 1981, DeWitt
came to the aid of a corrections officer who was being assaulted by another inmate, and
in recognition of his heroics, the trial court entered an order suspending all but 15 years
of the sentence.
{¶ 38} In 1983, the Rhode Island Supreme Court decided a case which held that
a trial court could not suspend a sentence once a defendant had begun to serve it. This
decision made DeWitt’s new, shorter sentence invalid. However, between 1983 and 1987,
the State did nothing to correct DeWitt’s now-invalid sentence.
{¶ 39} In 1987, DeWitt was paroled early but reoffended. As an alternative to
revoking DeWitt’s parole, the trial court vacated its 1981 order that had suspended his
original life sentence. After unsuccessfully appealing in Rhode Island state court, DeWitt
filed a federal habeas action which turned out to be successful. The federal court stated
that “due process must in principle impose an outer limit on the ability to correct a
sentence after the event.” Id. at 36. The First Circuit stated that it found several factors to
be important in reaching its conclusion, including the period between suspension and the
reimposition of sentence, the reasonableness of DeWitt’s reliance, and the state’s years-
long failure to correct the sentencing error. Id.{¶ 40} While on the surface DeWitt seems to be similar the case at bar, it is
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distinguishable in significant ways. First, Powell’s sentence was never changed by the
trial court. It started as 15-65 years in 1986 and remains so to this day. It was not
suspended in the way that DeWitt’s was; instead Powell was unlawfully granted shock
probation. This case is also different in that the State opposed Powell’s shock probation
from the start. That is in stark contrast to DeWitt, where the prosecutor never acted to
correct the trial court’s error. The difference in State action also illustrates a final
distinction – reliance. DeWitt’s reliance on his freedom in light of the complete inaction by
the State was much more reasonable than Powell’s in this case. It is unreasonable for
Powell to rely on the finality of his release when he knew the State had opposed it since
July 2018, even before he was granted shock probation by the trial court. The State has
never wavered in its opposition.
{¶ 41} Powell also cites a string of cases for the proposition that “when a prisoner
is released prior to service or expiration of his sentence through no fault or connivance of
his own, and the authorities make no attempt over a prolonged period of time to reacquire
custody over him, he may be given credit for the time involved, [and] he will not be
required at some later time to serve the remainder of his sentence.” Appellee’s Brief at 7,
citing White v. Pearlman, 42 F.2d 788 (10th Cir.1930) and others. Again, Powell’s case
is much different. The State has steadfastly tried to bring him back into custody since
2018.
{¶ 42} Powell has not demonstrated that remanding him back into the custody of
the ODRC would shock the conscience. The situation is no doubt unfortunate, but being
required to serve a lawfully imposed sentence does not rise to the level of a substantive
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due process violation.
B. Cruel and Unusual Punishment
{¶ 43} Both the trial court (in its decision and entry) and Powell (in his brief to this
court) based most of their arguments on the Eighth Amendment’s proscription of cruel
and unusual punishment. The Eighth Amendment to the United States Constitution
states, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” What cruel and unusual punishment looks like in practice,
however, is unclear. “The recent Supreme Court jurisprudence in this area has mainly
focused on capital punishment, mandatory life sentences, and life sentences for juvenile
defendants. For non-capital, non-life-sentence punishments, the Eighth Amendment
offers very little in the way of a check on the legislature’s ability to affix penalties to
crimes.” State v. Presley, 2013-Ohio-3762, 995 N.E.2d 256, ¶ 7 (2d Dist.).
{¶ 44} The Ohio Supreme Court has noted that cruel and unusual punishment
applies only to the rare case where the penalty would be “ ‘considered shocking to any
reasonable person.’ ” State v. Weitbrecht, 86 Ohio St.3d 368, 371, 715 N.E.2d 167 (1999),
quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964).
“[P]unishments which are prohibited by the Eighth Amendment are limited to torture or
other barbarous punishments, degrading punishments unknown at common law, and
punishments which are so disproportionate to the offense as to shock the moral sense of
the community.” McDougle at 69.
{¶ 45} Powell, in his brief, walks a fine, line knowing that challenging the length of
his sentence as cruel and unusual is a losing proposition because “[a]s a general rule, a
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sentence that falls within the terms of a valid statute cannot amount to cruel and unusual
punishment.” Id. In contrast, he tries to thread the needle, conceding that the original
sentence imposed on him was not cruel and unusual, but that “the sentence has become
so disproportionate as to ‘shock the conscience’ given the underlying circumstances
before the Court at this time[.]” The changed circumstance, he argues, is that he has lived
a law-abiding life since being released from prison in 2018. He also cites the expert
opinion of Dr. Ronald Delong, who testified that Powell was unlikely to reoffend and that
placing him back into prison would be detrimental to his physical and emotional well-
being.
{¶ 46} But even taking all that to be true, nothing has changed about Powell’s
sentence. If sent back to prison, he would still be serving the same 15- to 65-year
sentence he was serving when he was improperly released from prison in 2018. The trial
court, though, found that Powell had “already served a prison term grossly
disproportionate to [his] offense in one course of conduct in November, 1985. More than
‘a pound of flesh’ has been extracted from [him].” Decision and Entry at 7. And while it is
true that Powell has served a long time, his sentence itself was not cruel or unusual. See
State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21
(sentences that fall within the terms of a valid statute are not cruel and unusual
punishment). Further, “[w]here none of the individual sentences imposed are grossly
disproportionate to their respective offenses, an aggregate prison term resulting from
consecutive imposition of those sentences does not constitute cruel and unusual
punishment.” Id. at syllabus. We cannot say that Powell’s disposition was grossly
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disproportionate to his crimes considering the underlying facts of the case: the teenage
victim was held against her will for hours, repeatedly raped, and threatened with knives.
{¶ 47} Powell also contends that “a sentence lacking any legitimate penological
justification is by its nature disproportionate to the offense and cruel and unusual.”
Appellee’s brief at 5. This position seems to ignore the fact that his sentence was imposed
based on the facts in the previous paragraph and convictions on five counts of rape, five
counts of GSI, kidnapping, and attempted rape. There was a penological justification.
{¶ 48} Powell then directs our attention to McKellar v. Arizona State Dept. of Corr.,
115 Ariz. 591, 566 P.2d 1337 (1977), a case which he claims cuts in his favor. McKellar
was mistakenly released from prison after the parole authority miscalculated his release
date. Upon release, he obtained a well-paying job, applied for college, and “conducted
himself as a model parolee.” Id. at 592. A few months later, corrections authorities realized
their mistake, and McKellar was summarily taken back into custody; he appealed on cruel
and unusual punishment grounds.
{¶ 49} The Arizona Supreme Court concluded that while the error which caused
McKellar to be reincarcerated was the government’s fault, it did not “methodically and
purposefully plan to cause appellant further punishment by its mistake.” Id. at 593. The
court went on to conclude that it was not punishment so severe as to “shock the moral
sense of the community.” Id. So while Powell cited this case to bolster his own argument,
it actually militates against it, because just like in McKellar, the error here was not
deliberately planned to cause unnecessary emotional pain.
{¶ 50} Finally, the trial court found that Powell’s sentence had become
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“constitutionally impermissible as disproportionate to [his] remorse and rehabilitation and
outweighs the culpability for which [he has] already been punished.” Decision and Entry
at 7. However, it is not the duty of the trial court to determine whether Powell has been
“punished enough.” The decision as to whether he has been sufficiently rehabilitated is
left to the adult parole authority. “It may grant him parole when in its judgment there is
reasonable ground to believe that paroling him would further the interests of justice and
be consistent with the welfare and security of society.” State ex rel. Moore v. Ohio Adult
Parole Auth., 8th Dist. Cuyahoga No. 81757, 2003-Ohio-1844, ¶ 9. The APA may find
that Powell’s release is proper, that he has been rehabilitated, and that he has served
enough time for the crimes he committed in 1985, but that is not a judgment the trial court
has authority make.
{¶ 51} We do not believe that returning Powell to serve his validly-imposed
sentence after a legally invalid respite is shocking to any reasonable person or the
community. Therefore, we conclude that returning Powell into the custody of ODRC is not
cruel and unusual punishment in violation of his Eighth Amendment rights.
{¶ 52} The State’s assignment of error is sustained.
III. Conclusion
{¶ 53} Having rejected all of Powell’s constitutional and non-constitutional
arguments, the judgment of the trial court will be reversed, and the case will be remanded
for proceedings which will facilitate the return of Powell into the custody of the ODRC.
The trial court will have 45 days from this decision to effectuate the mandate.
.............
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WELBAUM, J., concurs.
DONOVAN, J., concurs:
{¶ 54} I concur in the majority’s legal analysis, which is technically sound, although
some may conclude, in this case, that mercy and the law cannot be reconciled.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jon Paul Rion
Catherine H. Breault
Hon. Richard S. Skelton