State v. Brooks, 2006 Ohio 4610 (Ohio App. 9/1/2006)
| Decision Date | 01 September 2006 |
| Docket Number | No. 05 MA 31.,05 MA 31. |
| Citation | 2006 Ohio 4610 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Maurice Brooks, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
{¶1} Defendant-appellant Maurice Brooks appeals the maximum sentence imposed upon him by the Youngstown Municipal Court. He states that the court not only failed to consider the maximum sentence criteria for misdemeanor sentencing but also affirmatively placed upon the record evidence that the court relied wholly on a factor not listed as a required statutory factor for sentencing to a maximum jail term. Because the trial court made clear that its maximum sentence was based upon appellant's perceived lie rather than the only two available criteria for sentencing a misdemeanor defendant to the maximum, appellant's argument would have had merit up until a few months ago.
{¶2} However, a recent Supreme Court case on the unconstitutionality of the statutorily required findings for sentencing felons to the maximum effectively destroys the validity of the required statutory findings for sentencing misdemeanants to the maximum. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Although there is evidence on the record at the sentencing hearing that the trial court failed to correctly utilize the existing statutory maximum sentencing findings, resentencing is necessary as that was the remedy imposed by the Supreme Court in Foster and because the trial court's entry stated that it considered all relevant statutory criteria. For the reasons stated below, the judgment of the trial court is reversed and this case is remanded.
{¶3} Appellant was charged with receiving stolen property, a fourth degree felony since the property involved was a motor vehicle. R.C. 2913.51(A),(C). At his February 18, 2005, preliminary hearing in the Youngstown Municipal Court, he entered into a plea agreement with the city prosecutor whereby the prosecution agreed to amend the charge to a first degree misdemeanor partly due to appellant's lack of a prior record and lack of a juvenile record. (Tr. 2). No recommendation was made as to sentencing. Appellant then pled no contest, and his sentencing hearing immediately proceeded.
{¶4} The victim stated that her car was stolen after she left it running in her driveway. She said she called the police, and they found appellant in her car half an hour later. (Tr. 7). The court asked appellant what he cared to say, and he apologized to the court and the victim. The court then asked, (Tr. 7). Appellant responded, "I wasn't even in the car." (Tr. 8).
{¶5} Defense counsel, who was called that morning to fill in for appellant's actual defense counsel, then explained, "Your Honor, if I may, he's entering a no contest plea and entering an Alford plea, to avoid the consequences of proceeding." The court stated, "He's standing there saying he didn't do anything wrong." Defense counsel responded, (Tr. 8).
{¶6} The court then asked the police officer to explain appellant's involvement. The officer stated that cars stolen in the morning often end up at Wilson High School; so he checked there first. (Tr. 8). The officer said he saw appellant getting out of the stolen vehicle and told him not to run because he works at the high school and recognizes him. (Tr. 8-9). However, the person claimed to be appellant ran off. The officer stated that he arrested appellant when he saw him walking back to school later that morning. The officer also revealed that in his investigation, he heard rumors that someone lent appellant the car after they stole it. (Tr. 9).
{¶7} The court then made the following declarations:
{¶8} "Shame on you, Mr. Brooks, stealing this woman's car. Whether you did it or not doesn't matter to me. You were seen driving it, and you have the absolute audacity to stand here and say that you didn't do anything wrong.
{¶9} "So, not only are you a thief, you're a liar. Had you not lied to me, I would have had some compassion for you, but now you're trying to play me, and I'll not allow that to occur.
{¶10} "You can lie to your mother, you can lie to your father, you can lie to your friends. Do not ever lie to a judge that's about to sentence you because you know what happens when you do that? You get maxed out.
{¶11} "I don't understand how you could think that it's okay to lie in a courtroom and get away with it. Sorry counsel. You have earned yourself six months in jail.
{¶13} The court filed its sentencing entry imposing a maximum sentence that same day, February 18, 2005. Appellant filed timely notice of appeal and received a stay of sentence from the trial court. We threatened to dismiss the appeal in mid-2005. Then, counsel withdrew, and new counsel was appointed. Finally, an appellate brief was filed on December 20, 2005.
{¶14} Appellant's sole assignment of error provides:
{¶15} "THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE UPON THE APPELLANT BECAUSE THE COURT APPLIED FACTORS NOT CONTAINED IN R.C. 2929.22."
{¶16} Appellant argues that the trial court failed to consider the maximum sentence factors in R.C. 2929.22(C) and made affirmative statements regarding reasons not listed in that statute. Appellant complains that the court disapproved of his act of pleading no contest while maintaining his innocence. Appellant notes that there was no indication that the court thought this was the worst form of the offense or that appellant's response to a prior offense demonstrates that the longest jail term was necessary to deter him from committing future crimes.
{¶17} The overriding purposes of misdemeanor sentencing are to punish the offender and to protect the public from future crime by the offender and others. R.C. 2929.21(A). In order to achieve these purposes, the sentencing court shall consider the impact of the offense on the victim, the need to change the offender's behavior, the need to rehabilitate the offender, and the desire to make restitution to the victim and/or the public. Id.
{¶18} A misdemeanor sentence shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing set forth above, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders. R.C. 2929.21(B). The sentencing court has the discretion to determine the most appropriate method of achieving the aforestated purposes and principles of sentencing. R.C. 2929.22(A).
{¶19} In determining the appropriate sentence for a misdemeanor, the court shall consider all of the following factors: (a) the nature and circumstances of the offense; (b) whether the circumstances surrounding the offender and the offense indicate that the offender has a history of persistent criminal activity and that the offender's character and condition reveal a substantial risk that the offender will commit another offense; (c) whether the circumstances regarding the offender and the offense indicate that the offender's history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender's conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences; (d) whether the victim's youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious; (e) whether the offender is likely to commit future crimes in general. R.C. 2929.22(B)(1). The court may also consider any other relevant factors. R.C. 2929.22(B)(2). And, before imposing a jail term as a sentence for a misdemeanor, the court shall consider the appropriateness of imposing a community control sanction. R.C. 2929.22(C).
{¶20} Although the above advisory provisions give the sentencing court fairly broad discretion, the legislature recently added limitations on a court's ability to impose a maximum sentence for misdemeanants. R.C. 2929.22(C), effective January 1, 2004. This statutory section provides:
{¶21} "A court may impose the longest jail term authorized under section 2929.24 of the Revised Code only upon offenders who commit the worst forms of the offense or upon offenders whose conduct and response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing a future crime." R.C. 2929.22(C).
{¶22} The longest jail term for a first degree misdemeanor authorized under R.C. 2929.24 is one hundred eighty days in jail. R.C. 2929.24(A)(1). This was the sentence imposed by the court herein. However, the court did not make either of the two findings required for sentencing misdemeanor defendants to the maximum in R.C. 2929.22(C).
{¶23} Unlike the pre-Foster felony sentencing scheme, the misdemeanor sentencing scheme does not require the court to make specific findings on the record or provide reasons for those findings. Youngstown v. McElroy, 7th Dist. No. 05MA13, 2005-Ohio-6595, ¶27; Youngstown v. Glass, 7th Dist. No. 04MA155, 2005-Ohio-2785, ¶16....
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