State v. Jones

• Decision Date: 08 February 2018
• Docket Number: 103302,Nos. 103290,s. 103290
• Parties: STATE of Ohio, Plaintiff–Appellee v. Randy JONES, et al., Defendants–Appellants
• Court: Ohio Court of Appeals

105 N.E.3d 702

2018 Ohio 498

STATE of Ohio, Plaintiff–Appellee

v.Randy JONES, et al., Defendants–Appellants

Nos. 103290

103302

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: February 8, 2018

James J. Hofelich, 614 W. Superior Avenue, Suite 1310, Cleveland, Ohio 44113, For Randy Jones

Joseph V. Pagano, P.O. Box 16869, Rocky River, Ohio 44116, For Carissa Jones

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Christopher D. Schroeder, Jennifer Lynne O'Malley, Assistant County Prosecutors, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE

BEFORE: The En Banc Court

JOURNAL ENTRY AND OPINION EN BANC

LARRY A. JONES, SR., J.:

{¶ 1} Pursuant to App.R. 26(A)(2), Loc. App.R. 26, and McFadden v. Cleveland State Univ. , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, the en banc court determined that a conflict existed regarding reviews of felony sentences between State v. Jones , 2016-Ohio-7702, 76 N.E.3d 596 (" Jones II "), which was the second opinion issued in this case upon reconsideration of the first panel decision, and State v. Ongert , 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, 2016 WL 1464227, and agreed to hear the matter en banc. The en banc court narrowed its review to consider the following question:

Whether, under State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, the Ohio Supreme Court read R.C. 2929.11 and 2929.12 into R.C. 2953.08(G)(2)(a), allowing an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter to the sentencing court for re-sentencing if the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C), R.C. 2929.20(I), as well as R.C. 2929.11 and 2929.12.

{¶ 2} In this case, defendants-appellants, Randy and Carissa Jones, were convicted, after a joint jury trial, of involuntary manslaughter, endangering children, and permitting child abuse. They appealed their convictions and sentences.¹ In September 2016, the panel in this case issued its first opinion. State v. Jones , 2016-Ohio-5923, 76 N.E.3d 417 (" Jones I "). The panel affirmed the convictions, but found that, although the sentences were not contrary to law, it needed a "more developed record to determine whether, by clear and convincing evidence, the record does not support the sentences as the Joneses contend." Id. at ¶ 105, 112. Randy Jones then filed a motion to reconsider the sentencing issue, contending that the sentences were contrary to law. The state filed a motion to en banc the sentencing issue. In response, the panel reconsidered the sentencing issue, issued a new opinion, Jones II , and denied the state's motion to en banc. In the reconsidered opinion, the panel determined by clear and convincing evidence that the record did not support the ten-year sentences and that the sentences were, therefore, contrary to law. Id. at ¶ 108. The state then filed another motion for en banc consideration. This court determined that a conflict existed between Jones II and Ongert , and now reviews the foregoing question en banc.

{¶ 3} To secure and maintain uniformity of decisions within the district, we vacate the panel's decision in Jones II , issued November 10, 2016. This opinion is the court's journalized decision in this appeal.

{¶ 4} This opinion is divided into two parts: (1) the decision of the en banc court and (2) the decision of the merit panel. The decision of the en banc court is limited to an analysis and resolution of the foregoing question regarding reviews of felony sentences. Six judges of the court concur fully with the decision and one judge concurs in judgment only with a separate opinion.²

The decision of the merit panel reissues the original panel decision regarding appellants' convictions (assignments one through four), which is unaffected by this en banc review, and considers the fifth assignment of error regarding appellants' sentences in light of the standard of review in felony sentencing cases determined by the en banc court.

DECISION OF THE EN BANC COURT:

{¶ 5} In their fifth assignments of error, Randy and Carissa challenge their ten-year prison sentences. As mentioned, the sentencing issue to be considered by the en banc court has been framed as follows:

Whether, under State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, the Ohio Supreme Court read R.C. 2929.11 and 2929.12 into R.C. 2953.08(G)(2)(a), allowing an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter to the sentencing court for re-sentencing if the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C), R.C. 2929.20(I), as well as R.C. 2929.11 and 2929.12.

{¶ 6} We answer in the affirmative.

{¶ 7} In Marcum , the defendant challenged her near-maximum sentence, which was imposed after her conviction on a drug-related charge. The Fourth Appellate District found that the abuse of discretion standard of review used under State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, no longer applied. State v. Marcum , 2014-Ohio-4048, 19 N.E.3d 540, ¶ 2–22. The defendant conceded that her sentence was not contrary to law—that is, she conceded that it did not fall outside the statutory range for the offense of which she was convicted, or (2) the trial court did not fail to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. See State v. Hinton , 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, 2015 WL 7571481, ¶ 10, citing State v. Smith , 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, 2014 WL 1408284, ¶ 13. The Fourth Appellate District then considered whether the record supported the sentence, and found that it did. Marcum , 2014-Ohio-4048, 19 N.E.3d 540, at ¶ 23–24.

{¶ 8} In considering whether the record supported the sentence, the Fourth District necessarily considered R.C. 2929.11 and 2929.12 —not just whether the trial court stated that it had considered those provisions, but, rather, whether after review of the record, clear and convincing evidence existed that the record did not support the sentence; that is, that the sentence was not supported in light of the purpose of felony sentencing under R.C. 2929.11 and seriousness and recidivism factors under R.C. 2929.12. The issue in Marcum , therefore, only implicated the factors set forth in R.C. 2929.11 and 2929.12. On appeal, the Ohio Supreme Court stated the following:

In the final analysis, we hold that R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under "division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code."

Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting R.C. 2953.08(G)(2)(a).

{¶ 9} Because the case did not implicate any of the Ohio Revised Code sections listed in R.C. 2953.08(G)(2)(a), the Ohio Supreme Court went on to state:

We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

{¶ 10} The state contends that the above-quoted paragraph was dicta because the conflict certified to the court was on what standard of review applied to felony sentencing. " ‘Dicta’ is defined as ‘[e]xpressions in court's opinions which go beyond the facts before the court and therefore are * * * not binding in subsequent cases as legal precedent.’ " Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 85, quoting Black's Law Dictionary 454 (6th Ed.1990).

{¶ 11} Paragraph 23 of Marcum was not an expression that went beyond the facts of the case. If the court had simply concluded that appellate courts no longer review felony sentences under the abuse of discretion standard, then maybe it would be dicta. But the court concluded as follows:

The Fourth District correctly held that it could not modify or vacate Marcum's sentence unless it clearly and convincingly found that the record did not support the sentence. Its review of the record revealed that the facts amply supported the sentence. Accordingly, given that we have answered the certified-conflict issue in the negative and that we agree that the record supports the sentence, we affirm the Fourth District's judgment.

Id. at ¶ 24.

{¶ 12} Thus, Marcum states that felony sentences are reviewable beyond determining whether a trial court has considered all of the sentencing factors, and that we can take action (i.e., vacate and reverse) in regard to them if we find that they are not supported by the record. The Ohio Supreme Court's ultimate conclusion in Marcum was that the facts in the case supported the sentence. We therefore do not find paragraph 23 of the Marcum opinion to be mere dicta. And because none of the Revised Code sections enumerated in R.C. 2953.08(G)(2)(a) applied, the court necessarily considered the sentence relative to R.C. 2929.11 and 2929.12.

{¶ 13} State v. Ongert , 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, 2016 WL 1464227, was the first case in which this court addressed Marcum . In Ongert , the defendant complained that the trial court sentenced her to a three-year...