State v. Grimmette

2019 Ohio 3576

STATE OF OHIO, Plaintiff-Appellee/Cross-Appellant, v. RANDY GRIMMETTE, Defendant-Appellant/Cross-Appellee.

Case No. 18CA3830

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

August 28, 2019

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.¹

Shane A. Tieman, Scioto County Prosecuting Attorney, and Joe Hale, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. Randy Grimmette, defendant below and appellant/cross-appellee (appellant) herein, pled no contest to one count of abuse of a corpse in violation of R.C. 2927.01(B), a fifth-degree felony. The court ordered appellant to serve a six-month prison term. Appellant assigns one error for review:

APPELLANT'S ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY IMPOSING A DEFINITE PRISON SENTENCE UNDER R.C. 2929.14 FOR A FELONY OF THE FIFTH DEGREE THAT MET ALL OF THE REQUIREMENTS OF R.C. 2929.13(B)(1)(a) AND NONE OF THE EXCEPTIONS OF R.C. 2929.13(B)(1)(b)."

{¶ 2} Appellee/Cross-Appellant (Appellee) assigns seven errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE SECTIONS 2929.13(B)(1)(a)/2929.13(B)(1)(b), CRIMINAL SENTENCING STATUTES WHICH MANDATE THE IMPOSITION OF A 'COMMUNITY CONTROL SANCTION' UPON CERTAIN FELONS CONVICTED OF A FELONY OF THE FOURTH OR FIFTH DEGREE THAT IS NOT AN 'OFFENSE OF VIOLENCE' OR THAT IS AN 'OFFENSE OF VIOLENCE' BUT IS A 'QUALIFYING ASSAULT OFFENSE,' IN THE ABSENCE OF CERTAIN FINDINGS, ARE UNCONSTITUTIONAL IN THAT SAID STATUTES INTERFERE WITH THE COMMON PLEAS COURT'S "FULL DISCRETION TO IMPOSE A PRISON SENTENCE WITHIN THE STATUTORY RANGE" BY REQUIRING THE COMMON PLEAS COURT TO MAKE FINDINGS BEFORE IMPOSING A PRISON TERM WITHIN THE STATUTORY RANGE UPON CERTAIN FELONS CONVICTED OF A FELONY OF THE FOURTH OR FIFTH DEGREE THAT IS NOT AN 'OFFENSE OF VIOLENCE' OR THAT IS AN 'OFFENSE OF VIOLENCE' BUT IS A 'QUALIFYING ASSAULT OFFENSE,' IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE SECTIONS 2929.13(B)(1)(a)/2929.13(B)(1)(b), CRIMINAL SENTENCING STATUTES WHICH MANDATE THE IMPOSITION OF A 'COMMUNITY CONTROL SANCTION'

UPON CERTAIN FELONS CONVICTED OF A FELONY OF THE FOURTH OR FIFTH DEGREE THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE,' IN THE ABSENCE OF CERTAIN FINDINGS, IS UNCONSTITUTIONAL IN THAT SAID STATUTES INTERFERE WITH THE FUNCTION OF THE COMMON PLEAS COURT RELATIVE TO THE COURT'S JURISDICTION OVER FELONY 'CRIMES AND OFFENSES,' BY UNCONSTITUTIONALLY USURPING THE COMMON PLEAS COURT OF ITS INHERENT POWER TO SENTENCE A FELON CONVICTED OF A FOURTH OR FIFTH DEGREE FELONY THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE' TO A PRISON TERM WITHIN THE STATUTORY RANGE, IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE 2929.13(B)(1)(a)(I)-(iv) AND 2929.13(B)(1)(b)(I)-(xi), AS AMENDED BY HB 86, AND AGAIN AMENDED BY HB 59 IN 2013, ARE UNCONSTITUTIONAL IN THAT SAID STATUTES UNREASONABLY AND ARBITRARILY LIMIT THE FACTORS WHICH MUST BE PRESENT BEFORE A COMMON PLEAS COURT CAN CONSIDER WHETHER TO IMPOSE A PRISON TERM OF UPON A FELON CONVICTED OF A FELONY OF THE FOURTH OR FIFTH DEGREE THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE' TO SUCH EXTENT AS TO INTERFERE WITH AN INTRUDE UPON THE COMMON PLEAS COURT'S INHERENT POWER TO SENTENCE, IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE 2929.13(A)/2929.13(B)(1)(a), AS AMENDED BY HB 86, IS UNCONSTITUTIONAL IN THAT SAID STATUTE BY MANDATING THAT, IN THE ABSENCE OF CERTAIN STATUTORY FINDINGS, A COMMON PLEAS COURT SHALL SENTENCE CERTAIN FELONS CONVICTED OF A FELONY OF THE FOURTH OR FIFTH DEGREE THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE,' TO A 'COMMUNITY CONTROL SANCTION' AND NOT TO A TERM OF IMPRISONMENT WITHIN THE STATUTORY RANGE, MANDATES THAT THE COMMON PLEAS COURT EXERCISE A DISCRETIONARY POWER WITHIN THE COMMON PLEAS COURT'S INHERENT SENTENCING POWERS, IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE 2929.13(A)/2929.13(B)(1)(a)/2929.13(B)(1)(c), AS AMENDED BY HB 86, IS UNCONSTITUTIONAL IN THAT IT USURPS THE OHIO SUPREME COURT'S EXCLUSIVE POWER TO 'PRESCRIBE RULES GOVERNING PRACTICE AND PROCEDURE IN ALL COURTS OF THE STATE' BY LEGISLATIVELY ESTABLISHING A PROCEDURE TO BE FOLLOWED IN THE SENTENCING PROCESS INVOLVING CERTAIN FELONS CONVICTED OF A FOURTH OR FIFTH DEGREE FELONY THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE, IN VIOLATION/DEROGATION OF ARTICLE IV, SECTION 5 OF THE OHIO CONSTITUTION, AND THE DOCTRINE OF SEPARATION OF POWERS."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE 2929.13(A)/2929.13(B)(1)(a)/2929.13(B)(1)(c), AS AMENDED BY

HB 86, IS UNCONSTITUTIONAL IN THAT IT IS AN UNCONSTITUTIONAL DELEGATION OF THE POWER TO PARTICIPATE IN THE SENTENCING PROCESS INVOLVING CERTAIN FELONS CONVICTED OF A FOURTH OR FIFTH DEGREE FELONY, A JUDICIAL POWER, TO A STATE AGENCY UNDER CONTROL OF THE EXECUTIVE BRANCH, AND FURTHER SUBJECTS A FINDING MADE BY A COMMON PLEAS COURT DURING THE SENTENCING PROCESS INVOLVING CERTAIN FELONS CONVICTED OF A FOURTH OR FIFTH DEGREE FELONY TO REVIEW BY A STATE AGENCY OF THE EXECUTIVE BRANCH, IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS."

SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE SCIOTO COUNTY PROSECUTOR'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SEVERAL OF OHIO'S SENTENCING STATUTES, SPECIFICALLY IN THAT OHIO REVISED CODE 2929.13(A)/2929.13(B)(1)(a)/2929.13(B)(1)(c), AS AMENDED BY HB 86, IS UNCONSTITUTIONAL IN THAT THE PROCEDURE MANDATED ON THE COMMON PLEAS COURT TO BE FOLLOWED IN THE SENTENCING PROCESS INVOLVING A FELON CONVICTED OF A FOURTH OR FIFTH DEGREE FELONY THAT IS NOT AN OFFENSE OF VIOLENCE OR THAT IS AN OFFENSE OF VIOLENCE BUT IS A 'QUALIFYING ASSAULT OFFENSE' IS VOID BECAUSE IT IS VAGUE AND CONFUSING AS A CONSEQUENCE OF BEING POORLY DRAFTED AND, AS AMENDED BY HB 59, CONFLICTS WITH OTHER FELONY CRIMINAL STATUTES, IMPROPERLY DEFINES A CATEGORY OF OFFENSE, TO WIT, A 'QUALIFYING ASSAULT OFFENSE' BY REFERENCE ONLY TO A STATUTE DEFINING A DEGREE OF OFFENSE, AND CREATES A CATEGORY OF AN OFFENSE OF VIOLENCE REFERRED TO AS A 'QUALIFYING ASSAULT OFFENSE' AND DEFINES 'QUALIFYING ASSAULT OFFENSE' IN A MANNER THAT IS INSULTING AND DEMEANING TO A 'JUDGE, MAGISTRATE, PROSECUTOR, OR COURT OFFICIAL OR EMPLOYEE.'"

{¶ 3} On August 1, 2017, a Scioto County Grand Jury returned an indictment that charged appellant with one count of gross abuse of a corpse, a fifth-degree felony. Appellant entered a plea of not guilty. On October 24, 2017, appellee filed a motion challenging the constitutionality of several statutory provisions included in 2011 Am.Sub.H.B. No.86 [HB 86]. The trial court overruled the motion. On February 23, 2018, after appellant changed his plea to no contest, the trial court found appellant guilty and sentenced him to serve six months in prison. Both appellant and appellee appealed.

I. Appellant's Appeal

{¶ 4} In his sole assignment of error, appellant asserts that the trial court erred by imposing a definite prison sentence under R.C. 2929.14 for a fifth-degree felony that met all of the requirements of R.C. 2929.13(B)(1)(a) and none of the exceptions of R.C. 2929.13(B)(1)(b).

{¶ 5} R.C. 2953.08 provides for appeals based on felony sentencing guidelines, and, pursuant to R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either "that the record does not support the sentencing court's findings" under the specified statutory provisions, or "the sentence is otherwise contrary to law." State v. Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio-1132, ¶ 11; State v. Brewer, 2012-Ohio-1903, 11 N.E.3d 317, ¶ 37 (4th Dist.).

{¶ 6} Here, appellant was convicted of a R.C. 2927.01(B) violation, abuse of a corpse, which provides: (B) No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities. R.C. 2927.01(C) states that "[w]hoever violates division (B) of this section is guilty of gross abuse of a corpse, a felony of the fifth degree." At the change of plea hearing, appellee indicated that "the nature of this offense was such that it requires prison time." Trial counsel replied: "[B]y the sentencing laws in the state of Ohio on a F5 such as this, he should just be sentenced to community control * * * and put on probation * * *, nothing ...