City of Cincinnati v. Clardy

• Court: Ohio Court of Appeals
• Writing for the Court: BETTMAN; Stewart; SHANNON, P. J., and BLACK
• Citation: City of Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342, 11 O.O.3d 137 (Ohio App. 1978)
• Decision Date: 17 May 1978
• Parties: , 11 O.O.3d 137 CITY OF CINCINNATI, Appellee, v. CLARDY, Appellant.

Page 153

57 Ohio App.2d 153

385 N.E.2d 1342, 11 O.O.3d 137

CITY OF CINCINNATI, Appellee, v. CLARDY, Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

May 17, 1978.

Syllabus by the Court

1. In imposing sentence, a trial court must give consideration to factors set forth in R.C. 2929.22 and a failure to do so is an abuse of discretion.

2. A court's statement that it has considered factors set forth in R.C. 2929.22 is not sufficient where such statement is contradicted by the record.

Thomas A. Luebbers, Paul J. Gorman and Timothy S. Hogan, Cincinnati, for appellee.

Steven D. Halper, Cincinnati, for appellant.

BETTMAN, Judge.

At 3 p. m. on March 30, 1976, an officer of the Cincinnati Police Division stopped defendant-appellant for jaywalking across Lincoln Park Drive. The officer informed the defendant that his transgression would cost him $10 in the form of a fine, to which defendant responded with an expletive. Defendant was promptly arrested for disorderly conduct and subjected to a patdown. A brief tugging match ensued while the officer attempted to force defendant to lean his body spread-eagle against the officer's patrol vehicle. During this encounter, the officer received one blow on his chest, sustaining what he described as "a minor contusion" which was "slightly black and blue." Defendant was thereafter charged with resisting arrest and assaulting a police officer.

On May 17, 1976, the case was tried to a jury on the charges of resisting arrest and assault on a police officer. The jury returned verdicts of not guilty of resisting arrest and guilty of assault on the officer. After a brief hearing the trial court imposed the maximum sentence of 180 days confinement and a $1000 fine.

Appellant's first assignment of error alleges that the trial court erred in imposing the sentence in disregard of the statutory criteria set forth in divisions (A), (E) and (F) of R.C. 2929.22. These sections provide:

"Imposing sentence for misdemeanor.

"(A) In determining whether to impose imprisonment or a fine, or both, for misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine, the court Shall consider the risk that the offender will commit another offense and the need for protecting the public therefrom, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him. (Emphasis added.) * * *

"(E) The court Shall not impose a fine in addition to imprisonment for misdemeanor, unless a fine is specially adapted to deterrence of the offense or the correction of the offender, or the offense has proximately resulted in physical harm to the person or property of another, or the offense was committed for hire or for purpose of gain. (Emphasis added.)

"(F) The court Shall not impose a fine or fines which, in the aggregate and to the extent not suspended by the court, exceeds the amount which the offender is or will be able to pay by the method and within the time allowed without undue hardship to himself or his dependents, or will prevent him from making restitution or reparation to the victim of his offense." (Emphasis added.)

Before examining the specific mandates of R.C. 2929.22, it is appropriate to consider briefly its historical background. Long ago our legal system recognized the inherent injustice of fixed sentences. The infinite variety of acts classified under the heading of a specific crime, the tremendous variety of circumstances and motivations leading to the commission of the offense and the inevitable differences in history, character and background of offenders mandated that, within specified limits prescribed by the legislature, the court be given discretion to "fit the punishment to the crime" and to the criminal. Unfortunately, not all judges exercised their discretion on the basis of the facts and circumstances of the case and the character and background of the offender but acted out of bias, prejudice and preconceptions.

Generally, appellate courts, on the theory that the trial judge was in the best position to weigh the factors relevant to a determination of the appropriate sentence, have refused to review sentences, so long as they were within the statutory limits.

Mr. Justice Stewart, while on the United States Court of Appeals for the Sixth Circuit, summarized the situation as follows:

"It is an anomaly that a judicial system which has developed so scrupulous a concern for the protection of a criminal defendant throughout every other stage of the proceedings against him should have so neglected this most important dimension of fundamental justice." Shepard v. United States (C.A. 6, 1958), 257 F.2d 293, 294.

This broad, unstructured and largely unreviewable discretion has shaken many people's faith that our system is just and it has evoked much critical comment. ¹

R.C. 2929.22 and R.C. 2929.12, which is incorporated therein by reference, were enacted as part of the new criminal code of Ohio in response to this criticism and in an attempt to bring some reason and structure into criminal sentencing. These sections speak throughout in terms of what the court Shall or Shall not do. They set down criteria and guidelines which the court must consider in exercising its discretion. Resultantly a failure to weigh these criteria and guidelines can only be considered an abuse or failure to exercise the required judicial discretion. This Court so held in State v. Scott, unreported, First Appellate District, No. C-76514, decided July 12, 1976.

In Woosley v. United States (C.A. 8, 1973), 478 F.2d 139, 144, the court stated:

"We reject the view that in all cases the trial judge's action is immune from review simply because we do not ordinarily review sentences within statutory limits. Although a trial judge possesses wide discretion in sentencing, he is not free to ignore sentencing guidelines established by the Supreme Court."

The court there discussed at length the decisions of the United States Supreme Court which, synthesized, hold that although appellate courts generally would not review the exercise of a trial court's discretion in sentencing, the exercise of that discretion mandated a judicious consideration of the circumstances of each offense and of the offender. ² It then held that the district court's failure to consider such factors amounted in effect to a failure to exercise the judicial discretion vested in it. ³

The same rationale applies here the failure of the court to weigh the factors mandated by R.C. 2929.22 amounts to a failure to exercise the discretion vested in the court by the legislature.

We turn then to a consideration of the record to ascertain whether the trial court complied with the mandate of R.C. 2929.22. It shows that upon the return of the verdict the following transpired.

"The Court: Is there any reason why I should not pronounce sentence at this time on Mr. Clardy?

"Mr. Halper (defense counsel): Step up here. Your Honor, I would request a presentence investigation in regard to Mr. Clardy. He's working and he's never been in trouble before as an adult. I think an investigation would be in order in this particular matter.

"The Court: I don't think so. I'll hear you in mitigation.

"Mr. Halper: In regard to mitigation, Mr. Clardy is presently gainfully employed with Gold Star Chili. He works there full time. He goes to school at night at McMillan School, here in the city. He lives with his parents and ...