State v. Jeffers

• Court: Ohio Court of Appeals
• Writing for the Court: PER CURIAM; KEEFE
• Citation: State v. Jeffers, 57 Ohio App.2d 107, 385 N.E.2d 641, 11 O.O.3d 101 (Ohio App. 1978)
• Decision Date: 31 May 1978
• Parties: , 11 O.O.3d 101 The STATE of Ohio, Appellee, v. JEFFERS, Appellant.

Page 107

57 Ohio App.2d 107

385 N.E.2d 641, 11 O.O.3d 101

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

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

May 31, 1978.

Syllabus by the Court

A sentencing judge may not increase the penalty imposed upon a defendant because the court believes he lied.

Thomas A. Luebbers, Paul J. Gorman and Dennis S. Helmick, Cincinnati, for appellee.

Darlene M. G. Kamine, Cincinnati, for appellant.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Municipal Court, and the transcript of the proceedings, the briefs and the arguments of counsel.

Appellant, a minor, was found guilty, after trial to the court, of consuming intoxicating liquor in violation of R.C. 4301.632. She was ordered to pay a fine of $500 and costs. In this appeal she assigns as error that the sentence imposed is contrary to law and an abuse of discretion. In support of her assignment she advances three arguments:

"1. The trial court's imposition of sentence without regard to the type and seriousness of the offense and the criminal propensities of the appellant is prejudicial error subject to review and correction.

"2. Imposition by the trial court of a fine in an amount which exceeds an indigent defendant's ability to pay is contrary to law.

"3. It is prejudicial error for the trial judge to impose a heavier sentence because he believes the defendant lied in maintaining her innocence on the stand."

Generally, an appellate court will not review the trial court's exercise of discretion in the matter of sentence so long as the sentence is within statutory limits. Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179. But see State v. Hashmall (1954), 160 Ohio St. 565, 117 N.E.2d 606; Montalto v. State (1935), 51 Ohio App. 6, 199 N.E. 198; State v. Perry (1972), 29 Ohio App.2d 33, 278 N.E.2d 50. However, it is the duty of the trial court to exercise a judicious discretion and to give consideration to the criteria set out in R.C. 2929.22. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342; State v. Scott, unreported, First Appellate District, No. C-76514, decided July 12, 1976.

I.

Although the fine imposed in this case seems extremely severe for appellant's offense simply taking an alcoholic drink, without misrepresentation and without creating any trouble it is unnecessary, in view of our conclusions on appellant's other arguments, to determine whether the trial court gave consideration to the criteria mandated by paragraph (A) of R.C. 2929.22.

II.

Paragraph (F) of R.C. 2929.22 provides:

"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."

The evidence before the court was that appellant was nineteen and one-half years old, had the care of her one-year-old child and was expecting another. She owned nothing, was unemployed and was separated from her husband, who was unable to contribute to her support or that of her child. She lived with her mother, who also was without employment. She received funds from the welfare department to support her child. The court found her indigent and granted her a stay of thirty days to pay the fine and costs or go to jail. Under those circumstances it is preposterous to say that appellant could pay $500 and costs "within the time allowed without undue hardship to (herself) or (her) dependents. The court patently ignored the mandate of R.C. 2929.22(F) and its sentence is therefore contrary to law. Confinement of appellant in lieu of fine under the circumstances of this case would violate the Equal Protection Clause. Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; In re Jackson (1971), 26 Ohio St.2d 51, 268 N.E.2d 812; Karr v. Blay (N.D.Ohio 1976), 413 F.Supp. 579; State v. Crawford (1977), 54 Ohio App.2d 86, 375 N.E.2d 69.

III.

Prior to announcing its sentence the court stated:

" * * * I must take into consideration the finding of this Court that this witness took the stand and did not tell the truth, and I have now taken that into consideration. * * * "

When defense counsel respectfully protested that she had discussed the case at length with appellant and they honestly believed she was not guilty, the court was unmoved and stated:

"She took this stand under oath and did not tell the Court the truth and I'm going to take that into consideration in this sentence."

No Ohio cases have come to our attention dealing with whether, in passing sentence, the court can properly consider the fact that it believes the defendant lied on the stand. We find the logic of Scott v. United States (1969), 136 U.S.App.D.C. 377, 419 F.2d 264 and Poteet v. Fauver (C.A.3, 1975) 517 F.2d 393, compelling. Those courts held that the sentencing judge may not increase a defendant's...