 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: COURT MUST MAKE APPROPRIATE FINDINGS. State v. Smith, No. 1998CA00304 (5th Dist. Ct. Apps., Stark Co., 6-14-99). On July 27, 1998, Troy L. Smith entered a guilty plea to possessing cocaine, a fifth degree felony. He was sentenced to three years of community control. The entry provided as follows: "Violation of any condition of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of up to 12 months." In October, 1998, the adult parole authority asked the court to revoke Smith's community control because he had failed to report to be transported to the Barberton Rescue Mission for drug treatment and had tested positive for cocaine. The court revoked Smith's community control and sentenced him to twelve months, the maximum sentence for a fifth degree felony. On appeal, the appellant argued the court had failed to sufficiently state it's reasons for imposing the maximum sentence. The Stark County Court of Appeals reversed. The trial court said the following: "And let me just say, for the record, that Mr., ah Smith was given the opportunity in this case at his request to participate through the Barberton, ah, Rescue Mission and that it is his, because of his own doing that he no longer wishes to participate in that program and did not report for participation in that program. "And, in addition to that, he, since he stipulated to, to the probable cause -- "He's also tested positive, ah, for cocaine and stipulated to the other violations. He was given a chance, Mr. Smith was given a chance to participate in a rehabilitation program of his own choosing. And he, again, chose not to do so." "He chose, knowing that the Court would impose a prison sentence, to um, come before this Court and to stipulate and to waive his right to an evidentiary hearing and for that, those reasons, the sentence is, will stand." The statute, R.C. 2929.14(C), provides in part as follows: "Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section." R.C. 2929.19(B)(2) provides in part (d) as follows: "If the sentence is for one offense and it imposes a prison term for the offense that is the maximum prison term allowed for that offense by division (A) of section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term." Before a trial court may impose a maximum sentence, the appellate court said, the trial court must find one of the things listed in R.C. 2929.14(C). In other words, the court's "reason" must be 1) the offender committed the worst form of the offense or 2) the offender poses the greatest likelihood of committing future crimes or 3) the offender is a major drug offender or 4) the offender is a repeat violent offender. One of the four is both necessary and sufficient. A trial court must use the language of the statute. The appellate court remanded for resentencing. SENTENCING: WORST FORM OF CRIME: QUESTIONS RECORD KEEPING NOTATION OF RACE AND GENDER. State v. Kershaw, No. C-980164 (1st Dist. Ct. Apps., Hamilton Co., 2-5-99). Delores Kershaw appealed her conviction for voluntary manslaughter. The victim, Leona Anderson, arrived at Kershaw's house at 3:00 A.M., looking for Kershaw's brother. Anderson was yelling obscenities and refused to go away. Kershaw got a gun and went outside. Holding her hand in her pocket, Anderson approached Kershaw. Kershaw fired two "warning shots" before shooting Anderson to death. The court sentenced Kershaw to the ten-year maximum sentence. The court's sentencing worksheet observed that Kershaw was a "female, black." Although the court disapproved of applying what the court called the not-yet implemented record keeping requirements of R.C. 2953.21(A)(5) dealing with the race and gender of postconviction petitions to all persons sentenced, the majority held that nothing showed that the trial court had considered the defendant's race or sex in determining her sentence. Nevertheless, the court admonished trial judges that the practice "creates an unfavorable impression" and said it would reverse future cases. Judges Doan and Painter agreed that the sentence should be reversed because the offense was not the "worst form" but Judge Doan would also reverse on the race and gender issue. Judge Hildebrandt dissented and would have affirmed the sentence. The court remanded for resentencing. SENTENCING: COURT MAY NOT SUA SPONTE CHANGE SENTENCE AFTER DEFENDANT BEGINS SERVING SENTENCE. State v. Keller, No. CA-98-07-011 (12th Dist. Ct. Apps. Fayette Co., 2-16-99). In July, 1997, Tiffinie Keller was sentenced to one year for perjury. In August, 1997, she was sentenced to one year each on seven theft counts, consecutive to each other. The second sentencing entry said nothing about the perjury sentence. Because Keller committed her crimes before S.B. 2, and the parole board considered her sentence to be seven years, her potential sentence, considering good time, was less than five years. Therefore, she was eligible for a boot camp program, which she completed. Having been paroled in April, 1998, and having served sixty days in a half-way house, Keller was released and started working in Columbus. On June 3, 1998, the trial court sua sponte filed an entry saying the following: "On review of this matter, it is ordered that the sentences imposed in these cases be served consecutively with the sentence the defendant received for perjury in case number 960181." Appellant was returned to prison and she appealed. The Fayette County Court of Appeals reversed. A trial court is without jurisdiction to change a valid sentence after the defendant begins serving the sentence. The court rejected the state's argument that the original entry in the theft cases meant that those sentences were to be consecutive to the perjury sentence also. The court also said that the change violated the Double Jeopardy Clause of the United States Constitution. The court relied on State v Draper (1991) 60 Ohio St. 3d 81, in which the trial court had increased the sentence for an offense, not, as here, merely changed the sentence from concurrent to consecutive . The court vacated the trial court's entry attempting to change the sentences from concurrent to consecutive and remanded for consistent proceedings. SEARCH AND SEIZURE: REASONABLE TO SEARCH CAR FOR WEAPONS, WHEN OFFICERS PRIOR KNOWLEDGE OF DRIVER MAKES THEM SUSPICIOUS. State v. Reurer, No. 98-CA-91 (5th Dist. Ct. Apps., Richland Co., 6-1-99). Antonio Reurer's motion to suppress having been denied, he entered a no contest plea to having a weapon while being under disability and appealed the ruling on the motion. The light that should have illuminated the license plate of Reurer's car was burned out. The two Mansfield police officers who stopped Reurer and his passenger, Martin Rawls, suspected both men of having been involved in a murder and had heard that both men dealt drugs. After learning that Reurer's license had been suspended, one patrolman frisked Reurer and put him in the cruiser while the officer wrote a citation for driving without a license. Rawls, who also lacked a license, left to find a licensed driver to avoid the car's being impounded. The second patrolman, searching the passenger compartment for weapons, found a gun in the unlocked glove compartment. The patrolmen issued appellant a citation for mishandling firearms and driving without a license. The patrolmen then allowed appellant to leave in the car with Rawls and a third man, who drove the car. After the authorities learned that an indictment for aggravated trafficking was pending against Reurer, he was indicted for having a weapon while being under disability. In a 2-1 decision, the Richland County Court of Appeals affirmed the conviction. Because the patrolmen always intended to allow Reuter to re-enter his car, the court said, it was reasonable to search for weapons. Although the officers' prior knowledge of Reuter was mostly rumor, it was sufficient to give them reasonable articulable suspicion that Reurer might be armed. Judge Edwards dissented, believing the support for the patrolmen's suspicion too tenuous. |
