State v. Bowers, 111020 OHSC, 2019-1282

Docket Nº2019-1282
Opinion JudgeO'Connor, C.J.
Party NameThe State of Ohio, Appellant, v. Bowers, Appellee.
AttorneyJoseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellant. Stagnaro, Hannigan, Koop, Co., L.P.A., and Michaela M. Stagnaro, for appellee. Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant State Public Defender, ...
Judge PanelKennedy, French, Nelson, DeWINE, Donnelly, and Stewart, JJ., concur. Frederick D. Nelson, J., of the Tenth District Court of Appeals, sitting for Fischer, J.
Case DateNovember 10, 2020
CourtSupreme Court of Ohio

2020-Ohio-5167

The State of Ohio, Appellant,

v.

Bowers, Appellee.

No. 2019-1282

Supreme Court of Ohio

November 10, 2020

Submitted July 7, 2020

Appeal from the Court of Appeals for Hamilton County, No. C-180317, 2019-Ohio-3207.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellant.

Stagnaro, Hannigan, Koop, Co., L.P.A., and Michaela M. Stagnaro, for appellee.

Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant State Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.

O'Connor, C.J.

{¶ 1} This appeal concerns the trial court's decision to sentence appellee, Adam Bowers, to 25 years to life in prison for rape under R.C. 2971.03(B)(1)(c) based on its finding that Bowers had compelled the victim to submit by force. We hold that the Sixth Amendment to the United States Constitution requires that such a finding be made by a jury. We therefore affirm the judgment of the First District Court of Appeals reversing Bowers's sentence.

Relevant Background

{¶ 2} Bowers was convicted of rape of a child under the age of 13 under R.C. 2907.02(A)(1)(b).[1] The victim was Bowers's stepniece, who was approximately five to six years old at the time of the events leading to Bowers's conviction. Based on the victim's age, the jury also found Bowers guilty of a specification that the victim was under the age of ten. No other specification was set out in the indictment or contained in the verdict form submitted to the jury. That includes the specification relevant to this case-that the victim was compelled to submit by force or the threat of force-as we explain below.

{¶ 3} The trial court had the option of sentencing Bowers to either a definite sentence of life in prison without parole under R.C. 2907.02(B) or a sentence under R.C. 2971.03. It imposed an indefinite sentence of 25 years to life in prison under R.C. 2971.03(A). See State v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 39.

{¶ 4} On appeal, the First District reversed in part, holding that the trial court had erred by imposing a sentence under R.C. 2971.03(A), because that provision applies only to certain crimes with sexually-violent-predator specifications and no such specification was found in this case. Id. at ¶ 41-42. The court of appeals therefore remanded the case for resentencing under the correct provision, R.C. 2907.02(B).

{¶ 5} When a trial court does not sentence a defendant convicted under R.C. 2907.02(A)(1)(b) to life without parole under R.C. 2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences that may be imposed instead: 10 years to life, 15 years to life, or 25 years to life. R.C. 2971.03(B)(1) provides: [I]f the court does not impose a sentence of life without parole [under R.C. 2907.02(B)], the court shall impose upon the person an indefinite prison term consisting of one of the following:

(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.

(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.

(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.

{¶ 6} On remand, the trial court again sentenced Bowers to 25 years to life in prison. At the sentencing hearing, it did not make any factual findings, including any findings concerning the factors set out in R.C. 2971.03(B)(1)(c). It indicated that it believed that a sentence of 25 years to life was its only option if it declined to sentence Bowers to life in prison without parole.

{¶ 7} On appeal, a new panel of the First District reversed, holding that a sentence of 15 years to life under R.C. 2971.03(B)(1)(b) was also an option. State v. Bowers, 2018-Ohio-30, 102 N.E.3d 1218, ¶ 5, 14 (1st Dist.) ("Bowers II "). It therefore reversed Bowers's sentence and remanded the case to the trial court for it to impose a new sentence, this time with the correct understanding of its sentencing options.

{¶ 8} In reaching this holding, however, the First District also considered whether a sentence of 25 years to life under R.C. 2971.03(B)(1)(c) was permissible. First, it stated that such a sentence was permissible because "there was ample evidence that Bowers compelled his victim to submit by force," Bowers II at ¶ 11. It also indicated that it believed that the trial court had expressly found that Bowers had used force in the commission of the rape, stating that "[i]n this case, the judicial finding of 'force' under R.C. 2971.03(B)(1)(c) altered neither the mandatory minimum or available maximum sentence." Id. at ¶ 17. It further concluded that the fact that the trial court, rather than the jury, had made that finding did not violate Bowers's Sixth Amendment rights. Id. at ¶ 17-19, 20.

{¶ 9} At the second resentencing, the trial court again did not make any express factual findings concerning R.C. 2971.03(B)(1)(c). Instead, it proceeded on the understanding that in accordance with the First District's decision in Bowers II, its options in sentencing Bowers were life in prison without parole under R.C. 2907.02(B), 15 years to life under R.C. 2971.03(B)(1)(b), and 25 years to life under R.C. 2971.03(B)(1)(c). The trial court stated that it believed that the last of these was appropriate and therefore sentenced Bowers to 25 years to life under R.C. 2971.03(B)(1)(c). It did not otherwise explain why it was declining to impose a sentence of 15 years to life or life in prison without parole.

{¶ 10} On appeal for the third time, a new panel of the First District reversed. It held that Bowers's sentence was not authorized, because none of the prerequisites for such a sentence under R.C. 2971.03(B)(1)(c)-the use of force or the threat of force in the commission of the offense, a prior conviction for rape of a child under 13, or serious physical harm caused to the victim of the offense-was present. The First District stated that its conclusion in Bowers II that the trial court had found that Bowers used force was incorrect; no such finding had been made. It also stated that its related statements in Bowers II that the Sixth Amendment permits such a finding to be made by the trial court rather than the jury were nonbinding dicta. Finally, it concluded that permitting a trial court to make a finding of force for the purpose of imposing a sentence under R.C. 2971.03(B)(1)(c) would violate the Sixth Amendment based on the United States Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Specifically, the court of appeals noted that the verdict form submitted to the jury did not ask it to determine whether any of the factors under R.C. 2971.03(B)(1)(c) had been proved beyond a reasonable doubt. Instead, the only specification contained on the verdict form asked whether Bowers was guilty of raping a child under the age of ten. The jury found that he was, and the court of appeals held that that finding made a sentence of 15 years to life under R.C. 2971.03(B)(1)(b) an option. But because the jury had not found that any of the R.C. 2971.03(B)(1)(c) factors had been proved, the court of appeals concluded that a sentence of 25 years to life was not an option.

{¶ 11}...

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