State v. Arnett

• Decision Date: 15 March 2000
• Docket Number: No. 99-468.,99-468.
• Citation: 88 Ohio St.3d 208,724 NE 2d 793
• Parties: THE STATE OF OHIO, APPELLANT, v. ARNETT, APPELLEE.
• Court: Ohio Supreme Court

88 Ohio St.3d 208

724 NE 2d 793

THE STATE OF OHIO, APPELLANT, v. ARNETT, APPELLEE.

No. 99-468.

Supreme Court of Ohio.

Submitted December 14, 1999.

Decided March 15, 2000.

Michael K. Allen, Hamilton County Prosecuting Attorney, James Michael Keeling, Ronald Springman and Philip R. Cummings, Assistant Prosecuting Attorneys, for appellant.

Charles H. Bartlett, Jr., for appellee.

Mark B. Greenlee, pro se, urging reversal as amicus curiae.

Abby R. Levine, ACLU Cooperating Attorney, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

COOK, J.

This case asks whether the sentencing judge violated the statutory requirements of the Revised Code or the constitutional dictates of due process when she acknowledged referring to the Bible during her deliberations, and then quoted a biblical passage on the record at the sentencing proceeding. Because we determine that the trial court complied with the applicable provisions of R.C. Chapter 2929 and that the judge's reference to the Bible did not impair the fundamental fairness of the proceedings, we reverse the judgment of the court of appeals and reinstate the trial court's sentence. In Part I, below, we demonstrate that this trial judge's particular reference to the Bible did not offend the sentencing provisions of the Revised Code. Turning to the Bible during her deliberations merely assisted the judge in weighing a seriousness factor required for the court's consideration under R.C. 2929.12, and the Code does not prohibit the trial judge from describing the nature of her deliberations on the record. In Part II, we examine the guarantees of due process in the context of a sentencing proceeding, and conclude that the judge's acknowledged reference to the Bible did not violate Arnett's due process right to a fundamentally fair sentencing hearing.

I. R.C. Chapter 2929

Arnett entered guilty pleas to ten counts of rape, a first-degree felony, and one count of pandering obscenity involving a minor, a fourth-degree felony. R.C. 2907.02(A)(1)(b); R.C. 2907.321(A)(5). A court imposing penalties for these felonies must comply with the procedures outlined in R.C. 2929.11 et seq. The court of appeals noted that these provisions limit a sentencing court's discretion, and determined that "the religious beliefs of the trial judge are not a statutory factor that may be considered" during sentencing.

A. R.C. 2929.11

In general, the sentencing judge must adhere to the overriding purposes of felony sentencing described in R.C. 2929.11. This section provides that a sentence shall punish the offender and protect the public from future offenses by the offender and others. R.C. 2929.11(A). It also provides that a court "shall not base the sentence upon the * * * religion of the offender." (Emphasis added.) R.C. 2929.11(C). Arnett misreads R.C. 2929.11(C) to be a general prohibition on the "consideration of religious beliefs or * * * dogma" by a sentencing judge. This section, however, specifically prohibits a sentencing judge from discriminating against an offender on the basis of the offender's religion. R.C. 2929.11(C). It does not, therefore, support the court of appeals' decision to vacate Arnett's sentence.

B. The R.C. 2929.12 Seriousness and Recidivism Factors

R.C. 2929.12(A) requires the sentencing judge to consider the applicable seriousness and recidivism factors outlined in R.C. 2929.12(B), (C), (D), and (E) as she exercises her discretion to determine the most effective way to comply with the purposes and principles of sentencing outlined in R.C. 2929.11. A catchall provision in R.C. 2929.12(A) also permits the sentencing judge to consider "any other factors that are relevant to achieving those purposes and principles of sentencing." R.C. 2929.12(A). The parties here agree that the sentencing judge properly considered the R.C. 2929.12 seriousness and recidivism factors even though it would seem that the court need not consider those factors for the rape charges. Rape carries a mandatory prison term under R.C. 2929.13(F)(2) and the statutory mandate to assess the factors arises "[u]nless a mandatory prison term is required by division (F) of section 2929.13 or section 2929.14." (Emphasis added.) R.C. 2929.12(A).¹ Nonetheless, the pandering charge merits the judge's consideration of the applicable seriousness and recidivism factors before imposing Arnett's sentence. R.C. 2929.13(B)(2)(a); R.C. 2929.13(B)(1)(f).

With this background, we summarize the arguments of the parties before the court as follows: Arnett contends that the Code prohibits the trial judge's acknowledged consideration of the Bible, because "religious consideration" does not appear as one of the seriousness or recidivism factors in R.C. 2929.12(B), (C), (D), or (E), and because, he submits, the R.C. 2929.12(A) catchall provision would not embrace such considerations. The state, on the other hand, argues that the Code does not prohibit the judge's acknowledged reference to the Bible during her deliberations. The state views the judge's reference to the particular biblical verse at issue as the "functional equivalent" of the judge's consideration of the seriousness factor in R.C. 2929.12(B)(1), which concerns the age of the victim.

We agree with the state that the sentencing court's reference to the Book of Matthew acknowledged her consideration, during her deliberations, of the societal interest in protecting children. The General Assembly specifically recognized this societal interest in the form of a seriousness factor for the sentencing court to consider under R.C. 2929.12(B)(1). This section requires a judge, when applicable, to consider how the victim's age relates to the seriousness of the offense. It provides:

"(B) The sentencing court shall consider all of the following that apply regarding * * * the victim * * * as indicating that the offender's conduct is more serious than conduct normally constituting the offense:

"(1) The physical or mental injury suffered by the victim of the offense * * * was exacerbated because of the * * * age of the victim." R.C. 2929.12(B)(1).

The General Assembly thus explicitly instructs sentencing courts to consider how the age of a victim relates to the relative seriousness of an offense when imposing a sentence in order to conform to the overriding purposes of felony sentencing set forth in R.C. 2929.11.

Here, the sentencing judge followed the General Assembly's mandate as expressed in R.C. 2929.12(B)(1). Arnett pleaded guilty to ten counts of engaging in various sex acts with a five-year-old girl on a continuing basis and to pandering obscenity involving a minor. The testimony at the sentencing hearing amply informed the judge that Arnett's principal victim suffered exacerbated harm due to her tender years. R.C. 2929.12(B)(1), then, required the sentencing court to consider whether the victim's age made Arnett's conduct more serious than conduct normally constituting the offense.

The Code does not specify that the sentencing judge must use specific language or make specific findings on the record in order to evince the requisite consideration of the applicable seriousness and recidivism factors. R.C. 2929.12. For this reason, the sentencing judge could have satisfied her duty under R.C. 2929.12 with nothing more than a rote recitation that she had considered the applicable age factor of R.C. 2929.12(B)(1).² See State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 715 N.E.2d 131, 134. Arnett's sentencing judge, however, helpfully supplemented the record by specifically referring to the young age of the victim and by explaining how the victim's age had exacerbated her injuries. The judge noted that "a child should not know" the sexually graphic details that Arnett exposed her to, and told Arnett that he "robbed that child of that whole sense of growing up and who she is." These remarks confirm that the sentencing court considered the statutory age factor.

The judge further supplemented the record with the religious remarks at issue in this case. She acknowledged that she had "turned to one additional source" to help her during her deliberations, and she quoted the biblical verse to which she referred. The verse describes the seriousness of offending a "little child" or "one of these little ones." Matthew 18:5, 6. The court explained how this biblical verse aided its "struggle" regarding the proper sentence to impose. Due to the text of this verse, and the judge's stated reason for considering it, we conclude that her reference to the Bible assisted her in determining the weight that she would give to a statutory factor—the age of the victim.

This court has held that the individual decisionmaker has the discretion to determine the weight to assign a particular statutory factor. State v. Fox (1994), 69 Ohio St.3d 183, 193, 631 N.E.2d 124, 132, citing State v. Mills (1992), 62 Ohio St.3d 357, 376, 582 N.E.2d 972, 978. A discretionary decision necessitates the exercise of personal judgement, and we have determined that when making such judgments, the sentencing court "is not required to divorce itself from all personal experiences and make [its] decision in a vacuum." State v. Cook (1992), 65 Ohio St.3d 516, 529, 605 N.E.2d 70, 84, citing Barclay v. Florida (1983), 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134. For this reason, we have previously permitted a judge in a death-penalty case to refer, during sentencing, to a personal friend of his who was murdered. Id.

This court has also recognized that there are limits to a court's discretion when the court refers to external sources while weighing a statutory factor. See State v. Bays (1999), 87 Ohio St.3d 15, 31, 716 N.E.2d 1126, 1143. In Bays, a court of appeals engaging in a review of a death sentence quoted at length from a two-year study of two hundred sixty-seven cocaine users. Based on the authors' hypothesis concerning addiction and recidivism, the court of...