State v. Stewart, CA2001-09-217.

• Decision Date: 12 August 2002
• Docket Number: No. CA2001-09-217.,CA2001-09-217.
• Parties: The STATE of Ohio, Appellee, v. STEWART, Appellant.
• Court: Ohio Court of Appeals

775 N.E.2d 563

149 Ohio App.3d 1

2002 Ohio 4124

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

No. CA2001-09-217.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided August 12, 2002.

Robin N. Piper, Butler County Prosecuting Attorney, and Randi E. Froug, Assistant Prosecuting Attorney, appellee.

Repper & Powers and Christopher J. Pagan, Middletown, for appellant.

POWELL, Judge.

{¶ 1} Defendant-appellant, Dale Stewart, appeals his sentence in the Butler County Court of Common Pleas for sexual battery.

{¶ 2} In August 2000, appellant pled guilty to a bill of information charging him with two counts of sexual battery in violation of R.C. 2907.03(A)(9). The charges stemmed from a continuing course of conduct that lasted at least three years during which appellant allegedly engaged in sexual conduct with two teenage boys (ages 14 and 15), which included oral sex and masturbation. At the time of the offenses, appellant, a former law enforcement officer, was a civilian employee with the Butler County Sheriff's Department and an assistant advisor with the Eagle Scout's Explorers Post program. The two victims were participants in the Eagle Scout program.

{¶ 3} The trial court accepted the guilty plea, found appellant to be a sexually oriented offender, and sentenced him to two four-year prison terms to be served consecutively. Although appellant had never before served a prison term, he was sentenced to more than the minimum term for the sexual battery charges. This court vacated appellant's sentence on the grounds that the trial court had failed to make the required findings in sentencing appellant to more than the minimum prison term. State v. Stewart (June 25, 2001), Butler App. No. CA2000-11-220, 2001 WL 721352. On remand, following a sentencing hearing, the trial court again sentenced appellant to two consecutive four-year prison terms. Appellant appeals and raises two assignments of error.

Assignment of Error No. 1:

{¶ 4} "The trial court erred in failing to permit appellant with the opportunity to read and rebut sentencing evidence contained in the victim impact statements."

{¶ 5} Prior to the sentencing hearing, appellant subpoenaed the Butler County Probation Department to provide him with copies of the victim impact statements. The state filed a motion to quash the subpoena and argued at the sentencing hearing that appellant should not be allowed to review the victim impact statements because the victims had indicated a strong fear of appellant, were concerned about appellant's ability to see what they had told the court, and were scared of retaliation if the statements were disclosed. The trial court granted the state's motion to quash as follows:

{¶ 6} "I've reviewed, again, this morning the victim impact statements. The victim's [sic] names are sprinkled and spread throughout these victim impact statements. The most recent victim impact statement * * * indicates to this court, once again, the severe emotional trauma and impact that this case has had on these defendants [sic]. * * * Wes been brought to the court's attention by the victims that they are in fear of reprisals by the defendant. And this court is not inclined to risk any more harm coming to these defendants [sic] or their families by the release of the victim impact statements. Your request is denied[.]"

{¶ 7} Under his first assignment of error, appellant presents three issues for our review. Appellant first argues that the trial court's refusal to allow him access to the victim impact statements violated due process.

{¶ 8} R.C. 2947.051(A) requires a trial court to consider the victim impact statements in determining the sentence to be imposed upon an offender. R.C. 2947.051(C) provides that "[a] victim impact statement * * * shall be kept confidential and is not a public record * * *. However, the court may furnish copies of the statement to both the defendant or the defendant's counsel and the prosecuting attorney." In light of the trial court's sound discretion as expressly granted by R.C. 2947.051 and based upon the record before us, we find no violation of due process. See State v. Bayless (1982), 4 Ohio App.3d 301, 4 OBR 552, 448 N.E.2d 511, and State v. Brewton (Mar. 3, 1993), Hamilton App. No. C-920193, 1993 WL 55636.

{¶ 9} In his second issue for review, appellant argues that R.C. 2930.13(B) and 2947.051(C), in combination with R.C. 2951.03(B), violate his right to equal protection of the laws as guaranteed by the Fourteenth Amendment of the Constitution.

{¶ 10} R.C. 2930.13(B) provides that "[i]f a probation officer * * * is preparing a presentence investigation report pursuant to [R.C.] 2951.03 * * * concerning the defendant in the case, the victim may make a written or oral statement regarding the impact of the offense to the probation officer * * *. The probation officer * * shall use the statement in preparing the presentence investigation report and, upon the victim's request, shall include a written statement submitted by the victim in the presentence investigation report."

{¶ 11} As previously noted, under R.C. 2947.051(C), a victim impact statement is confidential and not a public record, and the decision to release the statement to the defendant and the prosecuting attorney is within the trial court's sound discretion.

{¶ 12} R.C. 2951.03(B)(1) provides that if a presentence investigative report ("PSI") is prepared, the trial court, "at a reasonable time before imposing sentence, shall permit the defendant or the defendant's counsel to read the report, except that the court shall not permit the defendant or the defendant's counsel to read any of the following: (a) Any recommendation as to sentence; (b) Any diagnostic opinions that, if disclosed, the court believes might seriously disrupt a program of rehabilitation for the defendant; (c) Any sources of information obtained upon a promise of confidentiality; (d) Any other information that, if disclosed, the court believes might result in physical harm or some other type of harm to the defendant or to any other person."

{¶ 13} R.C. 2951.03(B)(3), in turn, provides that "[i]f the court believes that any information in the presentence investigation report should not be disclosed pursuant to division (B)(1) of this section, the court, in lieu of making the report or any part of the report available, shall state orally or in writing a summary of the factual information contained in the report that will be relied upon in determining the defendant's sentence."

{¶ 14} Appellant contends that "Ohio's sentencing statutes provide that redacted information from a presentence report must be summarized and disseminated to the defendant, but permit a victim to opt out from including his statement in the presentence report. R.C. 2951.03(B)(1)(a), (B)(3), and 2930.13(B). If opted out, the victim impact statement stands apart, and is not required to be released to the defendant. R.C. 2947.051(C). Consequently, Ohio has produced a classification between defendants who receive sentencing information, and those that do not. This violates the Equal Protection Clause."

{¶ 15} Appellant's argument assumes that a victim impact statement included in a PSI at the victim's request and redacted from the report under R.C. 2951.03(B)(1) would necessarily be summarized and disseminated to the defendant by the trial court pursuant to R.C. 2951.03(B)(3). We agree that a victim impact statement would be redacted from a PSI under R.C. 2951.03(B)(1)(c) or (d). However, R.C. 2951.03(B) clearly provides that when information is not disclosed, a trial court is only required to make a summary of the factual information that is not disclosed. See State v. Roberson (2001), 141 Ohio App.3d 626, 752 N.E.2d 984. R.C. 2951.03 does not require a trial court to summarize and disseminate information that was not disclosed pursuant to R.C. 2951.03(B)(1). Id.

{¶ 16} Upon reviewing R.C. 2951.03(B), we do not believe that a victim impact statement redacted from the report under R.C. 2951.03(B)(1) constitutes the "factual information" contemplated by the statute. Id. (holding that the only statements not disclosed were the probation officer's recommendations which did not constitute "factual information" as contemplated by the statute). It follows that whether or not a victim impact statement is included in a PSI, it is not required to be released to a defendant. Just because a victim impact statement is included in a PSI does not mean that a defendant will have access to it. We therefore find no constitutional infirmity in R.C. 2930.13(B) and 2947.051(C) on equal protection grounds.

{¶ 17} Finally, in his third issue for review, appellant argues that the trial court's refusal to allow him access to the victim impact statements was an abuse of discretion. At the sentencing hearing, appellant presented "voluminous evidence germane to his fit character, public service record, amenability to therapeutic treatment, sincere remorse, and overall value to his friends, family and community" in the form of psychiatric reports, letters, "testimony and allocution[.]" Appellant contends that such evidence "could only justify a minimum, concurrent prison term," that by sentencing him to an eight-year prison term, the trial court necessarily completely disregarded his evidence, only to rely upon the secret information contained in the victim impact statements, and that that was an abuse of discretion.

{¶ 18} As previously noted, a trial court is required to consider victim impact statements in determining which sentence to impose upon an offender. R.C. 2947.051(A). However, the decision to provide a defendant or his attorney with copies of victim impact statements rests within the trial court's sound discretion. R.C. 2947.051(C). The purpose of a victim impact statement is to apprise the trial court of "any economic loss suffered by the victim as a result of the offense, [and] identify any...