State v. Kalish, 2007-1703.

• Decision Date: 02 October 2008
• Docket Number: No. 2007-1703.,2007-1703.
• Citation: 2008 Ohio 4912,120 Ohio St.3d 23,896 N.E.2d 124
• Parties: The STATE of Ohio, Appellee, v. KALISH, Appellant.
• Court: Ohio Supreme Court

896 N.E.2d 124

120 Ohio St.3d 23

2008-Ohio-4912

The STATE of Ohio, Appellee, v. KALISH, Appellant.

No. 2007-1703.

Supreme Court of Ohio.

Submitted May 21, 2008.

Decided October 2, 2008.

Charles E. Coulson, Lake County Prosecuting Attorney, and Alana A. Rezaee, Assistant Prosecuting Attorney, for appellee.

Rosplock & Perez and Richard J. Perez, Willoughby; and Jesse M. Schmidt, for appellee.

Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant State Public Defender, urging reversal for amicus curiae Ohio Public Defender.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

O'CONNOR, J.

{¶ 1} The issue before us today is yet another remnant from our decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In Foster, we severed the judicial-fact-finding portions of R.C. 2929.14, holding that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at ¶ 100.

{¶ 2} In so doing, we recognized that Foster would affect subsequent appellate review of sentencings, noting that "[t]he appellate statute R.C. 2953.08(G), insofar as it refers to the severed sections, no longer applies." Id. at ¶ 99.

{¶ 3} Since Foster, the courts of appeals have adopted varied standards for reviewing trial court sentencing decisions, ranging from abuse of discretion, as in the instant case, to a standard that considers whether the sentence is clearly contrary to law. State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, 2007 WL 1196579.

{¶ 4} In applying Foster to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard.

I. Relevant Background

{¶ 5} On November 14, 2005, the Lake County Grand Jury returned a six-count indictment against appellant, Laura Ann Kalish, for OVI and other driving offenses. Kalish eventually pleaded guilty to aggravated vehicular homicide, a felony of the second degree, in violation of R.C. 2903.06(A)(2)(a), and driving with a prohibited concentration of alcohol in bodily substances, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(b). Following this plea, on April 27, the trial court sentenced Kalish to five years in prison on the aggravated-vehicular-homicide charge¹ and a concurrent prison term of six months on the remaining count. In imposing the sentence, the trial court indicated in its judgment entry and on the record that it had considered the principles and purposes of sentencing under R.C. 2929.11, in addition to balancing the seriousness and recidivism factors under R.C. 2929.12.

{¶ 6} Kalish appealed the sentence to the Eleventh District Court of Appeals. Specifically, Kalish challenged her sentence on the basis that it was inconsistent with and disproportionate to other sentences for the same offense. In reviewing the sentence, the appellate court noted that because Foster left trial courts with the discretion to impose a sentence within the statutory range, the abuse-of-discretion standard was the appropriate standard of review and affirmed the sentence by a two-to-one vote. State v. Kalish, 11th Dist. No. 2006-L-093, 2007-Ohio-3850, 2007 WL 2164552, ¶ 14.

{¶ 7} The dissenting judge countered that the proper standard to review a sentence challenged under R.C. 2929.11 and 2929.12 should remain "de novo, applying the clear and convincing standard." Id. at ¶ 31. Furthermore, the dissent questioned the majority's ability to overrule precedent from the Eleventh District issued by differently constituted panels. Id. at ¶ 33.

{¶ 8} We accepted jurisdiction over Kalish's appeal. State v. Kalish, 116 Ohio St.3d 1455, 2007-Ohio-6803, 878 N.E.2d 33. Kalish now asks us to find (1) that Foster did not change the appellate standard of review for felony sentencing appeals and (2) that under the principle of stare decisis, courts of appeals do not have authority to overrule a decision of the same district reached by a different panel.

II. Analysis

A

{¶ 9} Prior to Foster, there was no doubt regarding the appropriate standard for reviewing felony sentences. Under the applicable statute, appellate courts were to "review the record, including the findings underlying the sentence or modification given by the sentencing court. * * * The appellate court's standard for review [was] not whether the sentencing court abused its discretion." R.C. 2953.08(G)(2).

{¶ 10} The statute further authorized a court of appeals to "take any action * * * 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 (E)(4) of section 2929.14, or division (H) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law." Former R.C. 2953.08(G)(2), 2004 Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5814.

{¶ 11} The obvious problem with the statute as written and its relation to Foster is the references to "the findings underlying the sentence" and to the determination "[t]hat the record does not support the sentencing court's findings." Foster's result was to sever the portions of the statute that required judicial fact-finding to warrant a sentence beyond the minimum term in order to make Ohio's sentencing scheme compatible with the United States Supreme Court's decisions in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. Therefore trial courts "have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." (Emphasis added.) Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100.

{¶ 12} As the passage cited above clearly indicates, Foster does not require a trial court to provide any reasons in imposing its sentence. For example, when imposing consecutive sentences prior to Foster, the trial court had to find that the sentence was necessary to protect the public and was not disproportionate to the seriousness of the offense and the danger the defendant posed to the public. R.C. 2929.14(E)(4). After Foster, a trial court can simply impose consecutive sentences, and no reason need be stated. Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under R.C. 2953.08(G)(2).

{¶ 13} Although Foster eliminated mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C. 2929.11 and 2929.12. The trial court must still consider these statutes. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. "In addition, the sentencing court must be guided by statutes that are specific to the case itself." Id. Furthermore, the trial court must still be mindful of imposing the correct term of postrelease control.

{¶ 14} Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised judicial-fact-finding portions of the sentencing scheme, an appellate court remains precluded from using an abuse-of-discretion standard of review when initially reviewing a defendant's sentence. Instead, the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G).

{¶ 15} If on appeal the trial court's sentence is, for example, outside the permissible statutory range, the sentence is clearly and convincingly contrary to law, and the appellate court's review is at an end. The sentence cannot stand. However, if the trial court's sentence is not contrary to law, what is the effect of R.C. 2929.11 and 2929.12 and their relevance to R.C. 2953.08(G)(2) and Foster?

{¶ 16} Because Foster now gives judges full discretion to impose a sentence within the statutory range without having to "navigate a series of criteria that dictate the sentence," State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 25, the state's position that an abuse-of-discretion standard must be used is understandable. Although R.C. 2953.08 did not allow appellate courts to use the abuse-of-discretion standard of review, the statute prior to Foster was concerned with review of the trial court's factual findings under the now excised portions of the statute.

{¶ 17} R.C. 2929.11 and 2929.12, however, are not fact-finding statutes like R.C. 2929.14.² Instead, they serve as an overarching guide for trial judges to consider in fashioning an appropriate sentence. In considering these statutes in light of Foster, the trial court has full discretion to determine whether the sentence satisfies the overriding purpose of Ohio's sentencing structure.³ Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its discretion in considering whether its sentence complies with the purposes of sentencing. It naturally follows, then, to review the actual term of imprisonment for an abuse of discretion. Cf. State v. Stroud, 7th Dist. No. 07 MA 91, 2008-Ohio-3187, 2008 WL 2555125, ¶ 63 (Donofrio, J., concurring in judgment). Therefore, assuming the trial court has complied with the applicable rules and s...