State v. Elam

• Citation: 68 Ohio St.3d 585,629 N.E.2d 442
• Decision Date: 30 March 1994
• Docket Number: No. 93-194,93-194
• Parties: The STATE of Ohio, Appellant, v. ELAM, Appellee.
• Court: Ohio Supreme Court

Page 585

68 Ohio St.3d 585

629 N.E.2d 442

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

No. 93-194.

Supreme Court of Ohio.

Submitted Nov. 17, 1993.

Decided March 30, 1994.

SYLLABUS BY THE COURT

The fifteen-year limit on an aggregate minimum term of incarceration set by R.C. 2929.41(E)(2) does not apply to multiple terms imposed consecutively to a sentence for aggravated murder.

On August 8, 1991, the Hamilton County Grand Jury returned a nine-count indictment against defendant-appellee, Rex Elam. Count one was for aggravated murder and contained three death penalty specifications. Counts two, six and eight were for aggravated burglary, counts three, seven and nine were for aggravated robbery, and counts four and five were for rape. These alleged offenses were against three victims and occurred on three separate occasions.

Pursuant to a plea bargain, Elam pled guilty to all counts. In exchange for the plea, the state dropped the death penalty specifications to count one. The trial court sentenced Elam to a term of life imprisonment on count one, ten to twenty-five years on each of counts two through five, each to run consecutively to the prior count, and ten to twenty-five years on each of counts six through nine, all to run concurrently with count four. Elam thus received a total term of incarceration of life plus forty to one hundred years.

The trial court overruled Elam's motion to withdraw his guilty plea. He then appealed, asserting, inter alia, that R.C. 2929.41(E)(2) limited his aggregate minimum term for the felonies other than aggravated murder to fifteen years. The court of appeals held that R.C. 2929.41(E)(2) does, in fact, limit the aggregate minimum sentences for the four non-aggravated murder felonies to fifteen years, even when imposed consecutively to an aggravated murder count. Holding also that R.C. 2929.41(E)(2) is self-executing, however, the court of appeals affirmed the judgment of the trial court.

Finding its judgment to be in conflict with that of the Court of Appeals for Summit County in State v. Owens (1975), 51 Ohio App.2d 132, 5 O.O.3d 290, 366 N.E.2d 1367, the court of appeals certified the record of the case to this court for review and final determination.

Joseph T. Deters, Hamilton County Pros. Atty., and L. Susan Laker, Asst. Pros. Atty., for appellant.

Peter Rosenwald, Cincinnati, for appellee.

MOYER, Chief Justice.

The question certified for our review is whether, under R.C. 2929.41(E), there exists an aggregate minimum term of incarceration for consecutive multiple sentences for offenses that have been imposed consecutively to a life sentence for aggravated murder.

R.C. 2929.41(B) allows the imposition of consecutive terms of incarceration in several situations, including "[w]hen the trial court specifies" that they are to be served consecutively. R.C. 2929.41(B)(1). R.C. 2929.41(E) limits the trial court's discretion to impose consecutive sentences, and provides in relevant part:

"Consecutive terms of imprisonment imposed shall not exceed:

"(1) An aggregate minimum term of twenty years, when the consecutive terms imposed include a term of imprisonment for murder and do not include a term of imprisonment for aggravated murder;

"(2) An aggregate minimum term of fifteen years, * * * when the consecutive terms imposed are for felonies other than aggravated murder or murder;

"(3) An aggregate term of eighteen months, when the consecutive terms imposed are for misdemeanors."

Because Elam's consecutive sentences include a term for aggravated murder, subsection (E)(1) plainly does not apply. Because each of the terms is for a felony, neither does subsection (E)(3) apply.

The court of appeals in the instant case held that subsection (E)(2) does apply, following the reasoning of State v. Slider (1980), 70 Ohio App.2d 283, 24 O.O.3d 387, 437 N.E.2d 5. In Slider, the Court of Appeals for the Tenth District reasoned that subsection (E)(2) is different in terms of its application from (E)(1), which "applies to the whole consecutive term when one of the consecutive terms is for murder." Id. at 288, 24 O.O.3d at 390, 437 N.E.2d at 9. In contrast, (E)(2) "limit[s] the minimum aggregate term for all consecutive sentences, except those imposed for aggravated murder or murder." (Emphasis sic.) Id. at 288, 24 O.O.3d at 390, 437 N.E.2d at 10.

Following this logic, Elam argues that had there been no aggravated murder conviction in this case, R.C. 2929.41(E)(2) would have automatically limited his total sentence to fifteen to one hundred years. This assertion is correct, but it begs the...