[Cite as State v. Barnes, 2014-Ohio-2721.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 13CA010502 13CA010503 Appellant
v. APPEAL FROM JUDGMENT GREGORY BARNES ENTERED IN THE COURT OF COMMON PLEAS Appellee COUNTY OF LORAIN, OHIO CASE Nos. 11CR083896 12CR085278
DECISION AND JOURNAL ENTRY
Dated: June 23, 2014
WHITMORE, Judge.
{¶1} Appellant, State of Ohio, appeals from the judgment of the Lorain County Court
of Common Pleas. This Court reverses.
I
{¶2} In November 2011, Gregory Barnes was indicted for tampering with records, in
violation of R.C. 2913.42(A)(1), and failing to register, in violation of R.C. 2950.05(F)(1). In
July 2012, in a separate case, Barnes was indicated for failing to register, in violation of R.C.
2950.05(F)(1). The two cases were consolidated, and Barnes pleaded guilty to all three charges.
In his written pleas, it was noted that the two failure to register counts carried a mandatory three
year prison sentence, pursuant to R.C. 2950.99(A)(2)(b), because he had a prior conviction for
failing to register under R.C. 2950.04. 2
{¶3} Prior to sentencing, Barnes filed a memorandum asserting, in part, that R.C.
2950.99(A)(2)(b) is unconstitutional. The State filed a memorandum in opposition. At the
sentencing hearing, the court found the statute to be unconstitutional and sentenced Barnes to
community control. The State now appeals and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED IN SENTENCING GREGORY BARNES TO A COMMUNITY CONTROL SANCTION WHEN A PRISON TERM WAS MANDATORY PURSUANT TO R.C. 2950.99(A)(2)(b).
{¶4} In its sole assignment of error, the State argues that the court erred in finding
2950.99(A)(2)(b) unconstitutional and sentencing Barnes to community control. We agree.
{¶5} R.C. 2950.99(A)(2)(b) imposes a three year mandatory sentence on an offender
that fails to register if (1) he or she has previously been convicted of failing to register, and (2)
the sexual offense that gave rise to the duty to register was a felony. See State v. Hoselton, 6th
Dist. Lucas No. L-09-1150, 2011-Ohio-1396, ¶ 8-10.
{¶6} Barnes pleaded guilty to failing to register and acknowledged that he had a prior
conviction under R.C. 2950.04. There does not appear to be any dispute that R.C.
2950.99(A)(2)(b) applies.1 Instead, Barnes argued to the trial court in a sentencing memorandum
that R.C. 2950.99(A)(2)(b)’s mandatory three year sentence is unconstitutional because it
impermissibly infringed on the court’s discretion in sentencing.
All statutes have a strong presumption of constitutionality. See Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-419 (1994). Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
1 Barnes has not filed a brief in this appeal. 3
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25.
{¶7} In his sentencing memorandum to the trial court, Barnes argued that R.C.
2950.99(A)(2)(b) is unconstitutional because it mandated a maximum prison sentence for
felonies of the third degree and “in essence [took] away a judge’s discretion and power.”
However, “[i]t is well settled that the General Assembly has the plenary power to prescribe
crimes and fix penalties.” State v. Banks, 9th Dist. Summit No. 25279, 2011-Ohio-1039, ¶ 48.
“Mandatory sentencing laws enacted pursuant to this authority do not usurp the judiciary’s
power to determine the sentence of individual offenders.” Id., quoting State v. Campa, 1st Dist.
Hamilton No. C-010254, 2002 WL 471174, *6 (Mar. 29, 2002). See also State v. Conner, 8th
Dist. Cuyahoga No. 84073, 2005-Ohio-1971, ¶ 58-61 (maximum mandatory sentence does not
violate the separation of powers doctrine).
{¶8} In a transcript of the sentencing hearing, the court found the statute to be
unconstitutional. However, the court did not make any such finding in its sentencing entry. “It
is axiomatic that a court speaks only through its journal entries, and not through mere oral
pronouncements.” State v. Douglas, 10th Dist. Franklin No. 13AP-570, 2014-Ohio-317, ¶ 5,
quoting State v. Huddleston, 10th Dist. Franklin No. 12AP-512, 2013-Ohio-2561, ¶ 7.
Nevertheless, even reviewing the court’s findings in the transcript, we conclude that the court
erred in failing to apply R.C. 2950.99(A)(2)(b).
{¶9} The court found that the statute is unconstitutional because it is inconsistent with
changes to various sentencing statutes made in September 2011, pursuant to H.B. 86. In
particular, the court noted that the legislature changed the sentencing structure for felonies of the
third degree by creating “tiers” and detailing permissible sentencing ranges in terms of months,
not years. However, R.C. 2950.99(A)(2)(b) still reflected the mandatory sentence in terms of 4
years, not months. Additionally, prior to the sentencing changes the mandatory three year
penalty under R.C. 2950.99(A)(2)(b) was in the middle of the sentencing range for felonies of
the third degree, which was one to five years. See Former R.C. 2929.14(A)(3). After the
change, the mandatory three years was the maximum sentence allowed for most third degree
felonies. See R.C. 2929.14(A)(3). Moreover, the court reasoned that many of the sentencing
changes were made by the legislature in an effort to reduce the prison population. Ultimately,
the court found that there was no “clear indication from the legislature that they understood and
appreciated” the mandatory penalty in R.C. 2950.99(A)(2)(b) in light of the recent sentencing
changes.
{¶10} After reviewing the sentencing transcript, it is unclear which constitutional
provision(s) the court found to be “clearly incompatible” with the statute. See Defenbacher, 164
Ohio St. at paragraph one of the syllabus. The court appeared to focus solely on legislative
intent and disregarded the presumption of constitutionality. See State v. Noling, 136 Ohio St.3d
163, 2013-Ohio-1764, ¶ 25. “A statute will be upheld unless the challenger meets the burden of
establishing beyond a reasonable doubt that the statute is unconstitutional.” Id. Barnes did not
meet his burden of establishing beyond a reasonable doubt that the statute is unconstitutional,
and the court erred in relying solely on legislative intent to make such a finding. Because it was
not established that the statute is unconstitutional, the court was required to apply R.C.
2950.99(A)(2)(b) and sentence Barnes to the mandatory three years in prison.
{¶11} The State’s sole assignment of error is sustained. 5
III
{¶12} The State’s sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed and the cause is remanded for further proceedings
consistent with the foregoing opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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[Cite as State v. Barnes, 2014-Ohio-2721.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 13CA010502 13CA010503 Appellant
v. APPEAL FROM JUDGMENT GREGORY BARNES ENTERED IN THE COURT OF COMMON PLEAS Appellee COUNTY OF LORAIN, OHIO CASE Nos. 11CR083896 12CR085278
DECISION AND JOURNAL ENTRY
Dated: June 23, 2014
WHITMORE, Judge.
{¶1} Appellant, State of Ohio, appeals from the judgment of the Lorain County Court
of Common Pleas. This Court reverses.
I
{¶2} In November 2011, Gregory Barnes was indicted for tampering with records, in
violation of R.C. 2913.42(A)(1), and failing to register, in violation of R.C. 2950.05(F)(1). In
July 2012, in a separate case, Barnes was indicated for failing to register, in violation of R.C.
2950.05(F)(1). The two cases were consolidated, and Barnes pleaded guilty to all three charges.
In his written pleas, it was noted that the two failure to register counts carried a mandatory three
year prison sentence, pursuant to R.C. 2950.99(A)(2)(b), because he had a prior conviction for
failing to register under R.C. 2950.04. 2
{¶3} Prior to sentencing, Barnes filed a memorandum asserting, in part, that R.C.
2950.99(A)(2)(b) is unconstitutional. The State filed a memorandum in opposition. At the
sentencing hearing, the court found the statute to be unconstitutional and sentenced Barnes to
community control. The State now appeals and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED IN SENTENCING GREGORY BARNES TO A COMMUNITY CONTROL SANCTION WHEN A PRISON TERM WAS MANDATORY PURSUANT TO R.C. 2950.99(A)(2)(b).
{¶4} In its sole assignment of error, the State argues that the court erred in finding
2950.99(A)(2)(b) unconstitutional and sentencing Barnes to community control. We agree.
{¶5} R.C. 2950.99(A)(2)(b) imposes a three year mandatory sentence on an offender
that fails to register if (1) he or she has previously been convicted of failing to register, and (2)
the sexual offense that gave rise to the duty to register was a felony. See State v. Hoselton, 6th
Dist. Lucas No. L-09-1150, 2011-Ohio-1396, ¶ 8-10.
{¶6} Barnes pleaded guilty to failing to register and acknowledged that he had a prior
conviction under R.C. 2950.04. There does not appear to be any dispute that R.C.
2950.99(A)(2)(b) applies.1 Instead, Barnes argued to the trial court in a sentencing memorandum
that R.C. 2950.99(A)(2)(b)’s mandatory three year sentence is unconstitutional because it
impermissibly infringed on the court’s discretion in sentencing.
All statutes have a strong presumption of constitutionality. See Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-419 (1994). Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
1 Barnes has not filed a brief in this appeal. 3
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25.
{¶7} In his sentencing memorandum to the trial court, Barnes argued that R.C.
2950.99(A)(2)(b) is unconstitutional because it mandated a maximum prison sentence for
felonies of the third degree and “in essence [took] away a judge’s discretion and power.”
However, “[i]t is well settled that the General Assembly has the plenary power to prescribe
crimes and fix penalties.” State v. Banks, 9th Dist. Summit No. 25279, 2011-Ohio-1039, ¶ 48.
“Mandatory sentencing laws enacted pursuant to this authority do not usurp the judiciary’s
power to determine the sentence of individual offenders.” Id., quoting State v. Campa, 1st Dist.
Hamilton No. C-010254, 2002 WL 471174, *6 (Mar. 29, 2002). See also State v. Conner, 8th
Dist. Cuyahoga No. 84073, 2005-Ohio-1971, ¶ 58-61 (maximum mandatory sentence does not
violate the separation of powers doctrine).
{¶8} In a transcript of the sentencing hearing, the court found the statute to be
unconstitutional. However, the court did not make any such finding in its sentencing entry. “It
is axiomatic that a court speaks only through its journal entries, and not through mere oral
pronouncements.” State v. Douglas, 10th Dist. Franklin No. 13AP-570, 2014-Ohio-317, ¶ 5,
quoting State v. Huddleston, 10th Dist. Franklin No. 12AP-512, 2013-Ohio-2561, ¶ 7.
Nevertheless, even reviewing the court’s findings in the transcript, we conclude that the court
erred in failing to apply R.C. 2950.99(A)(2)(b).
{¶9} The court found that the statute is unconstitutional because it is inconsistent with
changes to various sentencing statutes made in September 2011, pursuant to H.B. 86. In
particular, the court noted that the legislature changed the sentencing structure for felonies of the
third degree by creating “tiers” and detailing permissible sentencing ranges in terms of months,
not years. However, R.C. 2950.99(A)(2)(b) still reflected the mandatory sentence in terms of 4
years, not months. Additionally, prior to the sentencing changes the mandatory three year
penalty under R.C. 2950.99(A)(2)(b) was in the middle of the sentencing range for felonies of
the third degree, which was one to five years. See Former R.C. 2929.14(A)(3). After the
change, the mandatory three years was the maximum sentence allowed for most third degree
felonies. See R.C. 2929.14(A)(3). Moreover, the court reasoned that many of the sentencing
changes were made by the legislature in an effort to reduce the prison population. Ultimately,
the court found that there was no “clear indication from the legislature that they understood and
appreciated” the mandatory penalty in R.C. 2950.99(A)(2)(b) in light of the recent sentencing
changes.
{¶10} After reviewing the sentencing transcript, it is unclear which constitutional
provision(s) the court found to be “clearly incompatible” with the statute. See Defenbacher, 164
Ohio St. at paragraph one of the syllabus. The court appeared to focus solely on legislative
intent and disregarded the presumption of constitutionality. See State v. Noling, 136 Ohio St.3d
163, 2013-Ohio-1764, ¶ 25. “A statute will be upheld unless the challenger meets the burden of
establishing beyond a reasonable doubt that the statute is unconstitutional.” Id. Barnes did not
meet his burden of establishing beyond a reasonable doubt that the statute is unconstitutional,
and the court erred in relying solely on legislative intent to make such a finding. Because it was
not established that the statute is unconstitutional, the court was required to apply R.C.
2950.99(A)(2)(b) and sentence Barnes to the mandatory three years in prison.
{¶11} The State’s sole assignment of error is sustained. 5
III
{¶12} The State’s sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed and the cause is remanded for further proceedings
consistent with the foregoing opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE FOR THE COURT
CARR, J. CONCURS. 6
BELFANCE, P. J. CONCURRING IN JUDGMENT ONLY.
{¶13} I concur in the majority’s judgment. The State has appealed asserting in its sole
assignment of error that the trial court erred in sentencing Mr. Barnes to community control
when a prison term was required pursuant to R.C. 2950.99(A)(2)(b). Although, I agree that the
stated assignment of error should be sustained, I do not agree that the basis of reversal is the trial
court’s erroneous determination as to the constitutionality of R.C. 2950.99(A)(2)(b).
{¶14} At the sentencing hearing, the trial court considered Mr. Barnes’ claims that the
statute could not be applied to enhance his sentence because (1) he was not previously informed
of the potential enhancement and (2) the statute was unconstitutional as applied to him. The trial
court rejected Mr. Barnes’ first argument but agreed that R.C. 2950.99(A)(2)(b) was
unconstitutional. However, the trial court’s judgment entry does not mention R.C.
2950.99(A)(2)(b), nor does it declare the statute unconstitutional. See State v. Hawkins, 9th Dist.
Wayne No. 11CA0007, 2011-Ohio-6197, ¶ 7, quoting In re Guardianship of Hollins, 114 Ohio
St.3d 434, 2007-Ohio-4555, ¶ 30 (“‘[A] court speaks exclusively through its journal entries.’”);
see also State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 9 (“[A]ll statutes are presumed
constitutional, and the party challenging a statute bears the burden of proving otherwise.”).
Accordingly, it cannot be ultimately concluded that the trial court found R.C. 2950.99(A)(2)(b)
unconstitutional. See Hawkins at ¶ 7. As there was no finding in the trial court’s journal entries
that R.C. 2950.99(A)(2)(b) was unconstitutional or did not otherwise apply to Mr. Barnes, there
was no basis for the trial court not to follow the statute’s mandate and sentence Mr. Barnes to a
mandatory minimum term of three years. See R.C. 2950.99(A)(2)(b). Therefore, I agree that the
State’s stated assignment of error should be sustained. 7
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellant.
JENNIFER BERKI, Attorney at Law, for Appellee.