State v. Moore

24 N.E.3d 1197

STATE of Ohio, Plaintiff–Appellee

v.John MOORE, Jr., Defendant–Appellant.

No. 99788.

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

Nov. 20, 2014.

Jonathan N. Garver, Cleveland, OH, for appellant.

Heaven DiMartino, Special Prosecutor, Michael Cody, Assistant Prosecuting Attorney, Akron, OH, for appellee.

BEFORE: STEWART, P.J., S. GALLAGHER, J., and E.A. GALLAGHER, J.

ON RECONSIDERATION¹

MELODY J. STEWART, P.J.

{¶ 1} Defendant-appellant John Moore and his codefendant, Lamar Chaney, robbed the Hard Rock Café in May 2000. Two female employees in the office were held at gunpoint and subsequently bound with duct tape. The two men escaped with approximately $14,000 in cash taken from a safe. After their identities were discovered, Moore, Chaney, and two other codefendants (employees of the restaurant who were said to have aided and abetted in the crime) were charged with two counts of kidnapping with firearm specifications and one count of aggravated robbery with firearm specifications.

{¶ 2} Chaney, who by all accounts, masterminded the robbery and carried the gun, pleaded guilty and received concurrent nine-year prison terms on each count, without any firearm specifications. Moore, who was not armed and was described by one of the victim's as having shown some compassion during the robbery, went to trial and received a prison term of ten years on each count, to run consecutively to each other and to a three-year firearm specification, for a total of 33 years.²

{¶ 3} Moore has filed three appeals to this court prior to the current one.³

Relevant to this appeal, in his third appeal, disturbed by the unexplained disparity between the sentences given to the codefendants and the court's failure to conduct a “proportionality analysis,” we remanded for resentencing. Moore at ¶ 120. A newly-assigned judge resentenced Moore to eight years on each count, to run consecutively to each other and consecutive to the three-year firearm specification, for a total prison term of 27 years. On appeal from resentencing, Moore complains that the court erred by imposing a prison term that was inconsistent with the one given to Chaney and otherwise disregarded our mandate on appeal to conduct a proportionality review.⁴

I

{¶ 4} This appeal forces us to confront some unfortunate realities of Ohio's criminal sentencing scheme.

{¶ 5} The General Assembly has the sole authority to “define, classify, and prescribe punishment for offenses committed in Ohio.” State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Consistent with that authority, the General Assembly has given sentencing judges absolute discretion in balancing the need to “protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A).

{¶ 6} There is no mechanism in place to permit appellate review of discretionary sentencing decisions because the General Assembly seems to have made clear that appellate courts cannot review sentencing decisions for an abuse of discretion. See R.C. 2953.08(G)(2). However, the Ohio Supreme Court has continued to apply an abuse of discretion standard for appellate review. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 62–63 (Lanzinger, J., dissenting). And despite there being no mention of the phrase “meaningful review” contained in Title 29 of the Revised Code, the Supreme Court has stated that “[t]he legislature crafted the sentencing statutes in a manner that mandates individual consideration of each offense during sentencing and allows meaningful review of the sentence for each offense individually on appeal.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 20.

{¶ 7} The result is an internally contradictory sentencing scheme: the legislature wants sentencing judges to impose the minimum sanction necessary to accomplish the purposes and goals of felony sentencing, but gave sentencing judges complete discretion in choosing terms within a statutory range and told appellate courts that they cannot review sentencing decisions for an abuse of discretion. As written, appellate sentencing review is barely existent.

To be sure, appellate courts can review sentencing decisions for errors of law, see R.C. 2953.08(A)(4), but those errors are a mere sliver in the sentencing pie (for example, sentences that are outside the statutory range or disregards mandatory terms). When it comes to decisions involving the sentencing judge's discretion, we arguably have no authority at all to review them.

{¶ 8} For an example of this kind of limitation on appellate review, consider the following hypothetical with two codefendants who have identical criminal backgrounds. With equal culpability and conduct in committing an offense, they are convicted of three, first-degree felonies. Defendant 1 is sentenced to the three-year minimum on each count, to be served concurrently for a total of three years in prison; defendant 2 is sentenced to the 11–year maximum on each count, to be served consecutively for a total of 33 years in prison. The sentences are within the applicable range for first-degree felonies, so they are not contrary to law in this regard. As long as the sentencing judge indicated that the relevant statutory factors were considered and the applicable statutory findings made, on what grounds could an appellate court review those sentences? It seems that the statutory scheme would require us to affirm the sentences because they were imposed as part of the sentencing judge's discretion. But given the facts of the hypothetical, it is difficult to see how anyone could agree that the sentences were appropriate, much less consistent or that 33 years for one defendant was the least restrictive sanction when the equally culpable defendant received just a fraction of the time for the same conduct.

{¶ 9} The case before us serves as an example of the problem with appellate review of criminal sentences. Moore and Chaney were codefendants, acting in concert. Chaney pleaded guilty to all three of the charged offenses, minus the gun specifications, and received a concurrent prison sentence of nine years; Moore elected to go trial and received consecutive sentences totalling 27 years in prison. While Chaney could reasonably expect a reduced sentence for the offenses because he pleaded guilty, the fact remains that his actions in the commission of these offenses were more egregious than Moore's actions, so the large disparity in the sentences raises questions for appellate review.

{¶ 10} The difference in the two sentences in this case is the result of the court running Moore's sentences consecutively. To impose consecutive sentences, the trial court had to make certain findings, one of which is that consecutive sentences were not disproportionate to the seriousness of Moore's conduct in the commission of the offenses and to the danger he posed to the public. The court made that finding, but the record does not support it.

II

{¶ 11} Moore asserts several assignments of error arguing that the length of his sentence does not accomplish the purposes of felony sentencing because it was inconsistent with the sentence given to his codefendants, particularly Chaney.

A

{¶ 12} The General Assembly, acting within its sole discretion “to allow or not to allow [an appeal from a judgment of conviction] * * * on such terms and conditions as * * * the legislature seems proper,” Luff v. State, 117 Ohio St. 102, 157 N.E. 388 (1927), paragraph four of the syllabus, grants a criminal defendant the right to challenge a sentence on the basis that it is “contrary to law.” R.C. 2953.08(A)(4). In the context of criminal sentencing, the phrase “contrary to law” has been interpreted to mean “illegal” in the sense that the sentence is outside the statutory limits, see Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 15, or that the court failed to engage in certain mandatory considerations before imposing sentence. See State v. Bonds, 8th Dist. Cuyahoga No. 100481, 2014-Ohio-2766, 2014 WL 2932645, ¶ 6.

{¶ 13} There is no question that the sentences that the court ordered Moore to serve were within the applicable statutory range for each particular degree of felony. On that basis, the sentences on each individual count were not contrary to law. See State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, 2011 WL 2270410, ¶ 15.

B

{¶ 14} The court also stated that it considered all factors and guidance required by law.

{¶ 15} The “purposes” of felony sentencing “are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A). Those purposes are achieved by sentences that are “reasonably calculated” to be “commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).

{¶ 16} The court's sentencing entry states that it “considered all factors of the law.” This court has held that the court fulfills its obligations under R.C. 2929.11(B) by stating that it considered all relevant sentencing factors. See State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, 2012 WL 1649803, ¶ 61. It follows then that Moore's sentence cannot be deemed contrary to law due to a failure of the trial court to consider the purposes and goals of felony sentencing contained in R.C. 2929.11(B).

{¶ 17} Moore argues that the court failed to ensure that his sentence was “consistent” and “proportionate” to Chaney's sentence. In so arguing, Moore treats consistency and...