State v. Moore
| Citation | 2014 Ohio 819 |
| Decision Date | 06 March 2014 |
| Docket Number | No. 99788,99788 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. JOHN MOORE, JR. DEFENDANT-APPELLANT |
| Court | United States Court of Appeals (Ohio) |
ATTORNEY FOR APPELLANT
Jonathan N. Garver
ATTORNEYS FOR APPELLEE
Heaven DiMartino
Special Prosecutor
Michael Cody
Assistant Prosecuting Attorney
{¶1} Appellant John Moore, Jr., once again appeals his sentence, which was rendered in Cuyahoga C.P. No. CR-392440. Moore argues that the trial court disregarded the mandate of this court from a prior appeal at his resentencing, that the prosecuting attorney improperly encouraged the trial court to disregard our mandate, and that his sentence is contrary to law. Moore also argues that the trial court erred by failing to rule on his motion to correct errors in his presentence investigation report and by failing to merge allied offenses of similar import. For the following reasons, we affirm the decision of the trial court.
{¶2} This is the fourth appeal to this court stemming from Moore's convictions for aggravated robbery and kidnapping. A detailed recital of the procedural and appellate history of this case is unnecessary for the purposes of this appeal and has been extensively set forth by this court in State v. Moore, 2012-Ohio-1958, 970 N.E.2d 1098 ("Moore III").
{¶3} In Moore III, this court reversed Moore's 33-year prison term stemming from his convictions for one count of aggravated robbery and two counts of kidnapping, each with three-year firearm specifications. A majority of the panel in Moore III held that Moore's sentence was contrary to law because the trial court failed to consider whether the sentence was consistent with similarly situated offenders, but that his aggravated robbery and kidnapping convictions were not subject to merger as allied offenses atsentencing.1 Moore's sentence was reversed in part, and the case was remanded to the trial court for resentencing for the limited purpose of reviewing a presentence investigation report, considering the consistency of the sentence with similarly situated defendants, and determining the appropriate sentence. Upon remand, the trial court imposed prison terms of eight years for the aggravated robbery count and each kidnapping count. The trial court ordered the three sentences to run consecutive to each other and consecutive to the mandatory three-year prison term for the firearm specification. Moore's cumulative sentence, then, was reduced to 27 years.
{¶4} Moore appeals, raising five assignments of error. In his second assignment of error, Moore contends the trial court erred by failing to correct inaccuracies in Moore's presentence investigation report. We summarily find no merit to Moore's claim. Upon the record presented, the trial court accepted every one of Moore's corrections to the inaccuracies contained in the report. Moreover, there is no evidence the trial court relied on any of the inaccurate statements. See State v. Caudill, 5th Dist. Ashland No. 06 COA 42, 2007-Ohio-6175, ¶ 21-22. For this reason, Moore's second assignment of error is overruled.
{¶5} Moore's first, third, and fourth assignments of error are each tied to the basic issue of whether Moore's sentence is contrary to law and contain interrelated legal questions. The assignments of error are as follows:
I. The trial court committed reversible error by disregarding the mandate of the Court of Appeals in the within cause, where this Court vacated the 33-year sentence previously imposed, remanded the case for resentencing, and directed the trial court to conduct a proportionality analysis related to the sentences imposed on Appellant's codefendants and impose a sentence that was proportionate to the sentences meted out to his codefendants.
III. The clearly excessive sentence imposed by the trial court is contrary to law and constitutes an abuse of discretion and a denial of due process of law.
IV. Appellant was denied due process of law by the misconduct of the prosecuting attorney in (i) disparaging this Court's decision in Moore III and urging the trial court to disregard it; and (ii) urging the court to punish Appellant because he had exercised his constitutional right to trial.
{¶6} Moore first argues that the trial court ignored the directive of this court in Moore III, on remand, by failing to engage in a proportionality analysis pursuant to R.C. 2929.11(B). Moore further argues that his sentence is contrary to law because of the trial court's failure to properly consider R.C. 2929.11(B). Moore's arguments are without merit, although we agree with one aspect of Moore's brief: "enough is enough."
{¶7} Before addressing the merits of Moore's appeal, we must address one important distinction lost in the forest of this case. On remand, the trial court reduced Moore's individual sentences to eight years on each count. Moore's aggregate sentence of 27 years is predicated on running his sentences for the individual counts consecutive to each other; and therefore, any concept of disproportionate sentencing is inherentlyderived from either the consecutive sentencing review established by R.C. 2958.08 and 2929.14(C)(4) or the constitutional prohibition against cruel and unusual punishment, as determined by the Ohio Supreme Court in State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073. Moore has not advanced any such claims, and although he couched his brief in terms of proportionality review, such references seemingly treat "proportionality" synonymously with "consistency."
{¶8} It is important to note that although courts have minced consistency in sentencing, pursuant to R.C. 2929.11(B), with this constitutional or statutory concept of proportionality, derived from consecutive sentencing or the prohibition of cruel and unusual punishment review, it must be clarified that in this context, proportionality is not a creature of R.C. 2929.11(B) consistency analysis. See, e.g., State v. Martin, 8th Dist. Cuyahoga No. 96834, 2012-Ohio-1633, ¶ 13 ().
{¶9} The concept of proportionality, referring to the shocking to the sense of justice in the community standard, under the cruel and unusual punishment analysis, or disproportionate to the offender's conduct standard, under consecutive sentencing review, focuses on the offender's conduct as it relates to his crimes, and not to the sentences of other similarly situated offenders.2 Chaffin at paragraph three of the syllabus ("[a]punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community"); R.C. 2929.14(C)(4) ().
{¶10} Nevertheless, even if Moore's proportionality claims raise the specter of a cruel and unusual punishment or consecutive sentencing claim, an appellate court cannot statutorily overturn consecutively imposed sentences, pursuant to the scheme provided in R.C. 2929.14(C)(4) or the prohibition against cruel and unusual punishment, unless the trial court failed to make the required findings or the defendant demonstrates that the findings are not clearly or convincingly supported by the record. In Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, for example, the Ohio Supreme Court specifically overruled the defendant's argument that his 134-year consecutive sentence — imposed on the defendant's guilty plea to four counts of aggravated robbery, three counts of aggravated burglary, four counts of kidnapping, all with firearm specifications, and three counts of having a weapon while under disability — was "shocking to a reasonable person and to the community's sense of justice and thus is grossly disproportionate to the totality of his crimes." Id. at ¶ 15. In so holding, the court determined in the confines of consecutive sentencing and constitutional cruel and unusual review, that"proportionality review should focus on individual sentences rather than on the cumulative impact of multiple sentences imposed consecutively." Id. at ¶ 20. Because each of the sentences were within the statutory range, the Ohio Supreme Court held that the 134-year sentence was constitutionally and statutorily firm.
{¶11} Moore received his 27-year aggregate sentence (8 + 8 + 8 on the felony charges and +3 for the gun specification) as a result of the court's imposition of consecutive sentences. According to the rationale advanced in Hairston, and because Moore failed to support his argument with any case authority or citations to the record to support the proposition that the aggregate sentence was disproportionate to his conduct, pursuant to App.R. 16(A), Moore's claims, if any, are overruled.
{¶12} As a result, the merits of Moore's argument are only appropriately reviewed under the auspices of whether the trial court's imposition of Moore's sentence was contrary to law because it failed to be "reasonably calculated to achieve the two overriding purposes of felony sentencing * * * and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B). State v. Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 26 (...
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