[Cite as State v. Ahlers, 2014-Ohio-3991.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2013-07-134 Plaintiff-Appellee, : OPINION : 9/15/2014 - vs - :
STEPHEN F. AHLERS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-05-0753
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
J. Gregory Howard, 110 Main Street, Hamilton, Ohio 45013, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Stephen F. Ahlers, appeals from his conviction and the
mandatory prison sentence he received in the Butler County Court of Common Pleas
following his guilty plea to two counts of gross sexual imposition. For the reasons outlined
below, we affirm.
{¶ 2} On May 15, 2013, Ahlers pled guilty to a bill of information that charged him
with two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), both third- Butler CA2013-07-134
degree felonies. The charges stemmed from Ahlers' inappropriate sexual contact with two
girls ages eleven and nine, respectively. It is undisputed Ahlers confessed to the crime when
interviewed by police, thereby establishing corroborating evidence of his guilt.1 It is also
undisputed that at the time he entered his plea, the trial court informed Ahlers he would be
subject to a mandatory prison sentence pursuant to R.C. 2907.05(C)(2)(a), a statute that
requires the trial court to impose a mandatory prison sentence on an offender convicted of
gross sexual imposition against a victim less than 13 years old when "[e]vidence other than
the testimony of the victim was admitted in the case corroborating the violation." Sentencing
was then scheduled for July 1, 2013.
{¶ 3} On June 4, 2013, Ahlers filed a motion with the trial court arguing R.C.
2907.05(C)(2)(a) was "unconstitutional under the current case law from the United States
Supreme Court." In support of this claim, Ahlers cited to the United States Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and argued "the
corroboration factor" found in R.C. 2907.05(C)(2)(a) "bears no rational relationship to making
the crime more serious and, therefore, is not a Constitutional sentencing factor authorizing
the Court to impose a more severe sentence."
{¶ 4} On July 1, 2013, after hearing arguments regarding Ahlers' motion, the trial
court denied Ahlers' motion finding R.C. 2907.05(C)(2)(a) was constitutional. The trial court
then sentenced Ahlers to a mandatory aggregate five-year prison term. The trial court also
classified Ahlers as a Tier II sex offender.
{¶ 5} Ahlers now appeals from his conviction and mandatory prison sentence, raising
two assignments of error for review. For ease of discussion, Ahlers two assignments of error
will be addressed together.
1. A compact disc recording of Ahlers' confession to police was later submitted to the trial court and admitted as an exhibit during his sentencing hearing. -2- Butler CA2013-07-134
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE PROVISIONS OF R.C. 2907.05(C)(2)(A) WHICH TREATS CASES WITH
CORROBORAING [sic] EVIDENCE DIFFERENTLY FROM THOSE WHERE THERE ARE
NONE HAS NO RATIONAL BASIS AND THEREFORE THE STATUTE VIOLATES DUE
PROCESS PROTECTIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶ 8} Assignment of Error No. 2:
{¶ 9} R.C. 2907.05(C)(2)(A) VIOLATES THE RIGHT TO TRIAL BY JURY
GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 10} Under his two assignments of error, Ahlers argues the trial court erred by
sentencing him to a mandatory aggregate five-year prison term under R.C. 2907.05(C)(2)(a).
We disagree.
{¶ 11} Generally, the crime of gross sexual imposition against a victim less than 13
years old in violation of R.C. 2907.05(A)(4) carries with it merely a presumption of prison.
See R.C. 2907.05(C)(2). However, as previously stated, pursuant to R.C. 2907.05(C)(2)(a),
a trial court is required to impose a mandatory prison sentence on an offender convicted of
that offense when "[e]vidence other than the testimony of the victim was admitted in the case
corroborating the violation." Thus, based on the plain language of the statute, "the General
Assembly intended to require trial courts to impose a mandatory prison sentence where a
conviction for gross sexual imposition against a victim less than 13 years old was based on
more than a single piece of evidence." State v. North, 10th Dist. Franklin No. 13AP-110,
2013-Ohio-4607, ¶ 14.
{¶ 12} Initially, Ahlers argues the phrase "admitted in the case" as found in R.C. -3- Butler CA2013-07-134
2907.05(C)(2)(a) should be interpreted to preclude the statute's application in this matter as
he was not found guilty following a trial. In other words, Ahlers argues the statute only
applies where there is a trial, and since he pled guilty, there was no corroborating evidence
"admitted in the case." The Tenth District Court of Appeals, however, explicitly rejected this
argument in State v. Bevly, 10th Dist. Franklin No. 12AP-471, 2013-Ohio-1352. As the Tenth
District stated:
The trial court also held that the evidence was not admissible because it was not admitted in the case and that it was not evidence as anticipated in R.C. 2907.05(C)(2)(a). The trial court erred in both of these holdings. The case includes all parts thereof, one of which is sentencing. Rules of evidence are not applicable to miscellaneous criminal proceedings including sentencing. However, the sentence procedure is part of the case despite the fact that defendant had pled guilty to two charges. There is no conflict with Evid.R. 102, which provides that the purpose of the rules is to provide procedures for the "adjudication of causes." Criminal cases are not fully adjudicated without a sentence having been ordered. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The disputed testimony meets that standard. It is evidence that is of great value in determining the crucial issue of whether the court "shall impose" a mandatory prison sentence. The fact that the rules of evidence do not apply in some situations in a trial such as in sentencing does not affect the character of the evidence but only the procedure for introducing it.
Id. at ¶ 18.
{¶ 13} We agree with the Tenth District's decision in Bevly as it relates to their
interpretation of the phrase "admitted in the case" as found in R.C. 2907.05(C)(2)(a). Ahlers'
argument to the contrary is therefore without merit and overruled.
{¶ 14} Next, Ahlers argues R.C. 2907.05(C)(2)(a) violates his Fifth, Sixth and
Fourteenth Amendment rights under the United States Constitution, Section 16, Article I of
the Ohio State Constitution, and is contrary to the United States Supreme Court's decisions
in Apprendi and Alleyne v. United States, __ U.S.__ , 133 S.Ct. 2151 (2013). However, just -4- Butler CA2013-07-134
like his first argument addressed above, all of Ahlers' arguments regarding the
constitutionality of R.C. 2907.05(C)(2)(a) have already been rejected by the Tenth District
Court of Appeals in Bevly, 2013-Ohio-1352; North, 2013-Ohio-4607 State v. F.R., 10th Dist.
Franklin No. 13AP-525, 2014-Ohio-799; and State v. D.M.J., 10th Dist. Franklin No. 13AP-57,
2014-Ohio-1377.
{¶ 15} As the Tenth District stated in providing a detailed and thorough analysis of
these issues in North:
R.C. 2907.05(C)(2)(a) provides that a trial court shall impose a mandatory prison term on an offender convicted of gross sexual imposition against a victim less than 13 years old when "[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation." In this case, the trial court concluded that the statute was unconstitutional and declined to apply it, relying in part on a decision by another judge of the Franklin County Court of Common Pleas in State v. Bevly, Franklin County C.P. No. 11CR-4152. After the trial court's decision in the instant case, we reversed the common pleas court decision upon which the trial court relied. State v. Bevly, 10th Dist. No. 12AP-471, 2013-Ohio-1352. Bevly addressed a similar scenario and guides our consideration of this appeal, but, due to additional developments in the law since that decision and additional arguments raised by appellee, we cannot rely solely on the precedent set in Bevly.
In Bevly, the defendant pled guilty to two counts of gross sexual imposition against a victim less than 13 years old. Bevly at ¶ 3. At the plea hearing, the prosecution introduced the testimony of a police detective, who testified that the defendant confessed to the offenses. The state also introduced a compact disc recording of the defendant's confession. Id. The trial court declined to impose a mandatory prison sentence under R.C. 2907.05(C)(2)(a), holding that the mandatory sentence provision did not apply. Id. at ¶ 5. The trial court held that there was a question as to whether the evidence was "admitted" in the case because it was introduced at the sentencing hearing. The trial court also held that the statute was unconstitutional, in part because it violated the defendant's right to have a fact determining his sentence decided by a jury. Id. On appeal, this court reversed the trial court's decision. We concluded that the trial court erred in holding that R.C. 2907.05(C)(2)(a) was unconstitutional because the statutory provision was a "sentencing factor" that did not increase the maximum prison -5- Butler CA2013-07-134
sentence and, therefore, was not required to be submitted to the jury. Id. at ¶ 15. This court further concluded that the trial court erred by holding that the evidence was not admitted in the case and was not evidence as anticipated under R.C. 2907.05(C)(2)(a). Id. at ¶ 16. Accordingly, we remanded the case to the lower court.
On June 17, 2013, less than three months after this court's decision in Bevly, the United States Supreme Court issued its decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013). Prior to Alleyne, the Supreme Court distinguished between facts resulting in an increased mandatory minimum sentence and facts resulting in a sentence greater than the statutory maximum authorized by a jury verdict. With respect to facts resulting in a sentence greater than the statutory maximum based on a jury verdict, the Supreme Court held that, other than the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, in Apprendi, the Supreme Court found unconstitutional a New Jersey statute that allowed a judge to impose additional punishment based on the judge's finding, by a preponderance of the evidence, that a defendant's purpose for unlawfully possessing a weapon was to intimidate a victim based on a particular characteristic. Id. at 491-97. However, prior to Alleyne, the Supreme Court "declined to apply [the reasoning of] Apprendi to facts that increased [a] mandatory minimum sentence but not [a] maximum sentence." Alleyne at 2157, citing Harris v. United States, 536 U.S. 545, 557 (2002). The Supreme Court concluded that factual findings leading to a mandatory minimum sentence merely restrained a judge's sentencing power and, therefore, were not required to be submitted to the jury. Harris at 567. Accordingly, in Bevly, we referred to R.C. 2907.05(C)(2)(a) as a "sentencing factor" and concluded that it did not violate Apprendi because it did not increase the maximum prison sentence that could have been imposed. Bevly at ¶ 15.
In Alleyne, the United States Supreme Court overruled Harris and held that facts increasing a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Alleyne at 2162-63. Appellee asserts that the question of whether there was corroborating evidence other than the testimony of the victim in this case is a "fact" that increases the mandatory minimum sentence for a conviction for gross sexual imposition against a victim less than 13 years old. Appellee argues that, in accordance with Alleyne, the jury must determine beyond a reasonable doubt that there was corroborating -6- Butler CA2013-07-134
evidence before the trial court may impose a mandatory prison term under R.C. 2907.05(C)(2)(a).
We acknowledge that, under Alleyne, a fact that increases a mandatory minimum sentence must be submitted to the jury. Alleyne explained that this was necessary because "the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime." Id. at 2161. In Alleyne, the relevant fact was whether the defendant brandished a firearm, which increased the minimum penalty for using or carrying a firearm in relation to a crime of violence. Id. at 2155. Recent cases applying Alleyne have involved similar factual determinations. See United States v. Donovan, __ Fed. Appx. __, 2013 WL 4792866, *7 (6th Cir. Sept.9, 2013) ("[B]ecause the district court, rather than a jury, found discharging of the firearm, Moore's sentence for violation of [18 U.S.C] § 924(c)(1)(A) must be vacated and remanded for resentencing consistent with the jury's verdict."); United States v. Claybrooks, __ F.3d __, 729 F.3d 699, 2013 WL 4757201, *8 (7th Cir. Sept.5, 2013) ("After Alleyne, Claybrooks's mandatory minimum sentence must be determined by the drug quantity described in the jury's special verdict form. * * * The district judge cannot raise the mandatory sentencing floor based on its own determination that Claybrooks's offense involved additional amounts of narcotics beyond those determined by the jury."). However, the majority in Alleyne was careful to declare that the decision "[did] not mean that any fact that influences judicial discretion must be found by a jury." Alleyne at 2163. See also United States v. Gabrion, 719 F.3d 511, 532 (6th Cir.2013) ("Apprendi does not apply to every 'determination' that increases a defendant's maximum sentence. Instead it applies only to findings of 'fact' that have that effect.").
We conclude that the determination called for under R.C. 2907.05(C)(2)(a) does not involve the same type of "fact" that must be determined by the jury under Apprendi and Alleyne. As noted above, the key fact in Alleyne was whether the defendant brandished a firearm while committing his crime. Similarly, in Apprendi, the relevant fact was whether the defendant committed his crime with the purpose of intimidating an individual or group because of race, color, gender, handicap, religion, sexual orientation or ethnicity. Apprendi at 468-69. By contrast, in this case, the "fact" to be determined is whether corroborating evidence was introduced in the case. The volume of evidence introduced in a case is not the type of "fact" that, when combined with the "core crime" of gross sexual imposition against a victim less than 13 years old, constitutes "a new, aggravated crime." Alleyne at 2161. The elements of the crime of gross sexual imposition remain constant, irrespective of whether corroborating evidence was introduced. To the extent that the quantity of -7- Butler CA2013-07-134
evidence presented in a case can be characterized as a "fact," we hold that that (sic) it constitutes a fact influencing judicial discretion that may be determined by a judge and need not be submitted to the jury. See Alleyne at 2163 ("We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.").
Id. at ¶ 5-10; see also F.R., 2014-Ohio-799 at ¶ 8-15; and D.M.J., 2014-Ohio-1377 at ¶ 9-14.
{¶ 16} After a thorough review of the record, as well as the pertinent case law
addressed herein, we agree with the well-reasoned and thorough decisions issued by the
Tenth District as it relates to the constitutionality of R.C. 2907.05(C)(2)(a) as set forth in
Bevly; North; F.R.; and D.M.J.2 In so holding, we emphasize that just like in Bevly and
D.M.J., the state in this case submitted a recording of Ahlers' confession to police, thereby
corroborating the victims' allegations against him. Moreover, by entering a guilty plea, it is
well-established that Ahlers not only admitted to the acts described in the bill of information,
but he also admitted guilt of the substantive crime. A defendant who has entered a guilty
plea without asserting actual innocence, such as the case here, "is presumed to understand
that he has completely admitted his guilt." State v. Robinson, 12th Dist. Butler No. CA2013-
05-085, 2013-Ohio-5672, ¶ 20, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,
syllabus.
{¶ 17} Pursuant to its police powers, "the General Assembly has the authority to enact
laws defining criminal conduct and to prescribe its punishment." State v. Thompkins, 75 Ohio
St.3d 558, 560 (1996). Based on the plain language of R.C. 2907.05(C)(2)(a), "[i]t seems
obvious that the General Assembly felt that it was better to start out with a sentence that was
not required to be mandatory and to make the sentence mandatory only if there is
corroborative proof beyond the alleged victim's testimony that the crime was actually
2. We note that the Tenth District's decisions in Bevly and North are currently pending before the Ohio Supreme Court. -8- Butler CA2013-07-134
committed." Bevly, 2013-Ohio-1352 at ¶ 9. Just like the Tenth District before us, we find this
does not run afoul of the United States Constitution, the Ohio State Constitution, or the
United States Supreme Court's decisions in Apprendi or Allenye. Therefore, Ahlers'
arguments regarding the constitutionality of R.C. 2907.05(C)(2)(a) are without merit and
overruled.
{¶ 18} Accordingly, having found no merit to any of the arguments advanced by Ahlers
within his two assignments of error, Ahlers' first and second assignments of error are
{¶ 19} Judgment affirmed.
RINGLAND, P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 20} R.C. 2907.05(C)(2)(a)'s requirement of a mandatory prison sentence triggered
solely by corroborating evidence is constitutionally infirm. Unlike the majority opinion, as well
as the reasons set forth by the Tenth District Court of Appeals, I would find, at the least, that
the statute violates a defendant's Sixth Amendment right according to Alleyne v. United
States, __U.S.__ , 133 S.Ct. 2151 (2013). I would also find that the statute runs afoul of
equal protection because it treats defendants with the exact same culpability, convicted of
the exact same crime, differently. This sentencing difference permits one the opportunity to
overcome the presumption of a prison sentence while ordering the other to a mandatory
sentence, without a rational basis for the disparate treatment.
{¶ 21} The Sixth Amendment of the United States Constitution provides that
defendants "accused" of a "crime" have the right to a trial "by an impartial jury." "This right, in
-9- Butler CA2013-07-134
conjunction with the Due Process Clause, requires that each element of a crime be proved to
the jury beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2156. "The substance and scope
of this right depend upon the proper designation of the facts that are elements of the crime."
Id.
{¶ 22} In discussing what differentiates elements of a crime from sentencing factors,
the Alleyne Court reviewed prior case law that first set forth the proposition that "any fact that
increased the prescribed statutory maximum sentence must be an 'element' of the offense to
be found by the jury." Id. at 2157, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348 (2000). The Alleyne Court also applied Apprendi when finding that "a fact is by
definition an element of the offense and must be submitted to the jury if it increases the
punishment above what is otherwise legally prescribed." 133 S.Ct. at 2158. The Court noted
that "Apprendi's definition of 'elements' necessarily includes not only facts that increase the
ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range
of sentences to which a defendant is exposed and do so in a manner that aggravates the
punishment." Id.
{¶ 23} Given this law, I would find that requiring the trial court to order a mandatory
sentence without first submitting the issue to a trier of fact runs afoul of the Sixth
Amendment. The issue of whether there is corroborating evidence to support the
defendant's conviction is an issue that must be submitted to the trier of fact before such a
determination can be made because whether there is corroborating evidence is a fact that
alters the range of the sentence to which a defendant is to be exposed. The determination of
corroborating evidence aggravates the possible punishment. In the absence of corroborating
evidence, the defendant has the ability to rebut the presumption of a prison sentence and
possibly avoid a prison term altogether. If there is corroborating evidence, however, the
ability to rebut the presumption of a prison sentence is nonexistent because the prison - 10 - Butler CA2013-07-134
sentence becomes mandatory.
{¶ 24} As stated by the Alleyne Court, Apprendi's definition of element, as that term is
considered within the concept of elements of a crime that must be proven by the state,
necessarily includes not only facts that increase the ceiling, but also those that increase the
floor of possible punishments that the defendant may face. Here, the imposition of a
mandatory prison sentence increases the floor of possible punishments that the defendant
may face because in one instance, the possible punishment is zero years in prison, where in
the other instance, there is a mandatory prison sentence of at least one year.
{¶ 25} When asked to reconcile its holding in Bevly with the Alleyne decision, the
Tenth District Court of Appeals found that "the determination called for under R.C.
2907.05(C)(2)(a) does not involve the same type of 'fact' that must be determined by the jury
under Apprendi and Alleyne." State v. North, 10th Dist. Franklin No. 13AP-110, 2013-Ohio-
4607, ¶ 10. The North court went on to state, "the 'fact' to be determined is whether
corroborating evidence was introduced in the case. The volume of evidence introduced in a
case is not the type of 'fact' that, when combined with the 'core crime' of gross sexual
imposition * * * constitutes a 'new aggravated crime.'" Id. I disagree.
{¶ 26} It is true that the elements of gross sexual imposition do not change regardless
of whether there is corroborating evidence because the elements are listed in R.C.
2907.05(A). However, I would find that whether there is corroborating evidence is exactly the
type of fact that Apprendi and Alleyne anticipated as one that must be submitted to a trier of
fact because in the absence of a finding of corroborating evidence, the punishment for the 3 crime is less, and even includes the possibility of no prison time at all.
3. Even if the trial court sentences the defendant to prison because that defendant did not successfully rebut the presumption of a prison sentence, the defendant against whom no corroborating evidence was admitted could possibly receive judicial release or some other benefits not afforded to those serving a mandatory prison term. State v. Parsil, 6th Dist. Lucas No. L-13-1044, 2014-Ohio-1993. - 11 - Butler CA2013-07-134
{¶ 27} My opinion is not changed by the fact that Ahlers pled guilty to his crimes, thus
admitting full criminal culpability. While it is true that Ahlers has admitted to the crime as
charged by the state and was informed that his sentence would be mandatory before he
changed his plea, Ahlers did not plead guilty to the existence of corroborating evidence. Nor
was Alhlers advised that corroborating evidence would be introduced into the case at a later
hearing. The information charging the crimes against Ahlers did not "charge" corroborating
evidence, as would be the case with a gun specification. In fact, the trial court never made a
finding that there was corroborating evidence at sentencing or in its judgment entry of
conviction. We are left with circumstances wherein the offender was not charged with
corroborating evidence, no finding was made that corroborating evidence existed, and no
guilty plea was made to the existence of corroborating evidence.
{¶ 28} While it may be true that there is either corroborating evidence or there is not,
the Sixth Amendment's requirement that criminal defendants have their guilt determined by a
trier of fact applies to situations where the existence of those facts change the punishment to
which the offender is to be subjected.4 As recognized by the North court, federal courts have
applied Alleyne since its release. While the Tenth District found these federal cases
distinguishable, I believe these cases to be instructive because they are similar to the case at
bar. In Alleyne, the fact in question was specific to brandishing firearms. Either the
defendant brandished a firearm or he did not. In United States v. Donovan, 539 Fed Appx
648 (6th Cir.2013), the fact in question was specific to discharging a firearm. Either the
defendant discharged a firearm or he did not. In United States v. Claybrooks, 729 F.3d 699
(7th Cir.2013), the question involved the quantity of drugs possessed by the defendant.
Either the defendant possessed a certain amount of drugs or he did not.
4. I am also compelled to point out that there is no requirement that the "corroborating evidence" be reliable or trustworthy. The issue of whether evidence is truly corroborating or not should be determined by a trier of fact. - 12 - Butler CA2013-07-134
{¶ 29} However, in each of these cases, the facts were found to be elements of the
offense rather than mere sentencing factors because whether or not the defendant was
subject to those facts changed the sentence and aggravated it in some way. This was true,
despite the fact that it would seem straight forward for the trial court to make a determination
of whether the fact in question applied or not. The same situation applies to the case sub
judice. Although the trial court could seemingly make a simple determination as to whether
there was some evidence other than the victim's statement in any given case, this fact should
be submitted to the trier of fact pursuant to the Sixth Amendment.
{¶ 30} I would also find that the statute is unconstitutional because there is no rational
basis for statutorily requiring two defendants to be treated differently who have the same
culpability and were convicted of the same offense of gross sexual imposition. Once the
defendant is convicted, i.e., once the trier of fact has found beyond a reasonable doubt that
the defendant unlawfully had sexual contact with a child under 13 years of age, the "volume of
evidence" against that defendant is meaningless as it applies to sentencing. Although the
North court reasoned corroborating evidence is merely akin to recognizing that a higher
"volume of evidence" exists in a case, I would find that such reliance on volume of evidence 5 has no place in criminal law jurisprudence.
{¶ 31} Equal protection requires that individuals be treated in a manner similar to
others in like circumstances. McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-
6505, ¶ 6. Rational-basis scrutiny applies when the statute does not involve a suspect class
or a fundamental right, and such statute will be held constitutional "if it bears a rational
relationship to a legitimate governmental interest." State v. Peoples, 102 Ohio St.3d 460,
5. In fact, jury instructions have included admonitions warning the jury to rely upon the quality of evidence, rather than the quantity. One credible witness can overcome a plethora of other evidence, and convictions based upon one piece of evidence are convictions nonetheless so long as that one piece of evidence has established the elements of a crime beyond a reasonable doubt. - 13 - Butler CA2013-07-134
2004-Ohio-3923, ¶ 7. In applying this standard, the Ohio Supreme Court has stated that
classifications "are invalid only if they bear no relation to the state's goals and no ground can
be conceived to justify them." Id.
{¶ 32} As noted by the majority, the purpose of the statute is to require a prison
sentence when the defendant has committed gross sexual imposition against a child younger
than 13 when that conviction is because of "more than a single piece of evidence." I have
trouble seeing how the government has a legitimate interest in sentencing a convicted sex
offender to a mandatory prison term only when there are two pieces of evidence, rather than
just one. As stated by the Ohio Supreme Court, "the overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish the
offender." Peoples at ¶ 8, citing R.C. 2929.11(A). If this is truly the purpose of felony
sentencing, I do not believe that permitting a convicted sex offender who was found guilty of
his crimes the chance to overcome the presumption of a prison sentence is rational simply 6 because there was no duplication of evidence. Again, either the trier of fact found the
defendant guilty, or it did not. Either the trier of fact found the victim's testimony credible, or it
did not.
{¶ 33} R.C. 2907.05(C)(2)(a) places an unlawful emphasis on the volume of evidence
presented by the state against the defendant. The statute literally provides that a convicted
sex offender can avoid a prison sentence, so long as the only evidence admitted against him
was the victim's own testimony. On the other hand, the prison sentence is mandatory so long
as the state presents any piece of evidence, other than the victim's testimony, against the
6. This "corroborating evidence" can simply be a duplication of evidence, i.e., the defendant pleads guilty, admits to the crime, and the state introduces evidence that he did so twice, once before the court by his guilty plea and another time when he was initially confronted with the accusations. - 14 - Butler CA2013-07-134
defendant.7
{¶ 34} Criminal sentences should be proportionate to "personal culpability of the
criminal offender." Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676 (1987). For this reason,
Ohio sentencing courts are required to consider the purposes and principles of sentencing,
as well as recidivism factors, and to sentence the defendant accordingly. R.C. 2929.11, as
discussed above, provides that the two purposes of felony sentencing are to protect the
public from future crime by the offender and others and to punish the offender. R.C. 2929.11
states, "to achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime, rehabilitating
the offender, and making restitution to the victim of the offense, the public, or both." The
statute, however, does not direct a court to punish based upon the volume of evidence the
state offered against the offender.
{¶ 35} R.C. 2929.12 directs a sentencing court to consider specific factors to
determine the proper sentence based upon the purposes and principles of sentencing as well
as any recidivism factors. In adhering to this statute, the sentencing court is directed to
consider certain factors, some of which are specific to the seriousness of the conduct,
including: the victim's physical, mental, or financial injuries because of the crimes against
them; whether the crime related to an offender's public office or position of trust in the
community; whether the offender's relationship with the victim facilitated the offense; or
whether the offender was motivated by prejudice when committing the crime.
{¶ 36} R.C. 2929.12(C) also directs a court to consider certain factors regarding the
7. As I previously noted, the statute does not require that the corroborating evidence be reviewed for its reliability. There is no rational basis for punishing a defendant by virtue of somewhat flimsy or circumstantial evidence differently from a defendant who was convicted based upon the testimony of one reliable and compelling victim. As this court has stated, "courts have consistently held that the testimony of the victim, if believed, is sufficient to support a conviction, even without further corroboration." State v. Hernandez, 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 40. - 15 - Butler CA2013-07-134
offender, the offense, or the victim, that would normally indicate that the offender's conduct is
less serious than conduct normally constituting the offense. These factors include: whether
the victim induced or facilitated the offense; whether the offender was provoked; whether the
offender did not cause or expect to cause physical harm; or whether there are grounds that
are not enough to constitute a defense but nonetheless offer grounds to mitigate the
offender's conduct.
{¶ 37} R.C. 2929.12(D) and (E) also set forth several recidivism factors, including
whether: the offender was subject to community control at the time he committed the crime;
the offender had previously been adjudicated a delinquent child or had a history of criminal
convictions; the offender has not responded favorably to sanctions previously imposed for
criminal convictions; the offender has demonstrated a pattern of drug or alcohol abuse that is
related to the offense or has refused treatment; the offender shows remorse or not.
{¶ 38} Despite codifying multiple factors that a trial court shall consider when
determining a sentence, nowhere in R.C. 2929.11 or 2929.12 does the Legislature ask the
trial court to consider the volume of evidence presented against the offender. The volume of
evidence is not stated or inferred within the purposes and principles of sentencing, nor is it
stated or inferred within the factors a trial court is to consider when sentencing a defendant.
The volume of evidence is neither a mitigating nor aggravating factor to be considered by the
sentencing court, and any consideration of such when sentencing is contrary to Ohio's
statutory scheme. The Legislature has codified that criminal offenders should be subject to a
sentence based on the purposes and principles of sentencing, as well as recidivism factors,
none of which hinge upon the volume of evidence. The Ohio General Assembly has tread
down a slippery slope by impermissibly codifying the concept of residual doubt though R.C.
2907.05(C)(2)(a).
{¶ 39} "Residual doubt has been described as a lingering uncertainty about facts, a - 16 - Butler CA2013-07-134
state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute
certainty.'" State v. McGuire, 80 Ohio St.3d 390, 402 (1997). While the term is most often
used in connection with mitigation arguments offered in federal courts against imposition of
the death penalty, I find the term analogous to the concept that the Ohio Legislature
attempted to codify within R.C. 2907.05(C)(2)(a).
{¶ 40} I believe the Legislature was attempting to give trial courts an ability to avoid
imposition of a prison sentence in cases where the trial court had lingering doubts as to
whether the defendant truly had unlawful sexual contact with a child because of doubts as to
the credibility of the victim's testimony. Ohio courts no longer consider residual doubt as a
mitigating factor in death penalty cases because "our system requires that the prosecution
prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that
the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty
verdict by recommending mercy in case a mistake has occurred." McGuire, 80 Ohio St.3d at
403. I believe the same principle applies to the case at bar.
{¶ 41} There is no provision within Ohio's criminal statutes that provide for convictions
only upon a certain volume of evidence, nor do I believe there should be any sentencing
statutes that provide different sentences based upon the volume of evidence or the number
of witnesses presented against the defendant. There is no such thing as being a "little guilty"
or "sorta convicted." Yet, R.C. 2907.05(C)(2)(a) punishes two people convicted of the same 8 crime differently without a rational basis to do so.
{¶ 42} Based on either the Sixth Amendment issue, or because of equal protection
problems, I would find that R.C. 2907.05(C)(2)(a) is unconstitutional. I believe that the
8. This is especially true where the defendant who cooperates with police by giving a statement is treated more harshly than one who does not cooperate, does not admit his guilt, or refuses to accept responsibility for his actions. Some sexual offenders immediately admit their culpability because they are remorseful and desire to mitigate the impact of their crime upon the victim. There is no rational basis for treating this offender who has remorse more harshly than an offender who has no remorse. - 17 - Butler CA2013-07-134
Legislature needs to decide whether it wants a mandatory sentence for all defendants
convicted of gross sexual imposition, or whether all defendants convicted of gross sexual
imposition have the same opportunity to overcome a presumptive prison sentence. At the
very least, the trier of fact should make a finding regarding corroborating evidence, as
whether corroborating evidence exists in a case is an element of that offense. For these
reasons, I respectfully dissent from the majority opinion.
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