[Cite as State v. Cargill, 2013-Ohio-2689.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98705
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES CARGILL DEFENDANT-APPELLANT
JUDGMENT: VACATED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561451
BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 27, 2013 ATTORNEYS FOR APPELLANT
Robert L. Tobik State Public Defender
By: Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Mary Weston Daniel T. Van Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant, James Cargill, appeals his 12-month prison sentence
for failure to comply. We hold that the trial court improperly found appellant’s
conviction constituted an “offense of violence” pursuant to R.C. 2901.01(A)(9), vacate
his sentence as contrary to law and remand for resentencing.
{¶2} Appellant was charged with failure to comply in violation of R.C.
2921.331(B). The indictment contained a furthermore clause specifying that through the
operation of his motor vehicle appellant “caused a substantial risk of serious physical
harm to persons or property.” The offense, as indicted, was a felony of the third degree.
R.C. 2921.331(C)(5)(a)(ii).
{¶3} Pursuant to a plea agreement with the state, the furthermore clause was
deleted and Cargill pled guilty to a violation of R.C. 2921.331 and 2921.331(C)(4), which
provides that, “in committing the offense, the offender was fleeing immediately after the
commission of a felony.” The crime to which appellant pled guilty was a felony of the
fourth degree pursuant to R.C. 2921.331(C)(4).
{¶4} At sentencing the trial court, relying upon information in the presentence
investigation report, found appellant’s offense constituted an offense of violence,
sentenced him to a 12-month prison term and suspended his drivers license permanently.
This appeal followed.
{¶5} Cargill’s sole assignment of error states: The trial court erred when it sentenced Mr. Cargill contrary to law, imposing a one-year term of imprisonment rather than community control sanctions as required by R.C. 2929.13.
{¶6} R.C. 2929.13(B)(1)(a) provides that a trial court shall sentence an offender
to a community control sanction if an offender pleads guilty to a felony of the fourth
degree that is not an offense of violence and the factors in R.C. 2929.13(B)(1)(a)(i)-(iv)
are satisfied. Appellant argues that he did not enter a guilty plea admitting that his
conduct involved physical harm to persons or a risk of serious physical harm to persons
and the trial court erred in engaging in judicial fact finding to conclude that his crime
constituted an offense of violence. The state does not dispute that the required factors
are applicable to appellant, but argues that the trial court was not bound to impose a
community control sanction because appellant’s offense constituted an offense of
violence.
{¶7} R.C. 2901.01(A)(9) defines an “offense of violence” as any of the
following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons.
R.C. 2901.01(A)(9).
{¶8} As appellant’s conviction is not an offense that the legislature has
categorically deemed an offense of violence in all instances by way of R.C.
2901.01(A)(9)(a), his conviction may only be treated as an offense of violence if R.C.
2901.01(A)(9)(c) applies.
{¶9} The question before this court is how to properly apply R.C.
2901.01(A)(9)(c). The state urges the adoption of a categorical approach that considers
whether the elements of the offense are of the type that would justify the offense’s
categorization as an offense of violence without inquiry into the specific conduct of the
particular offender at issue. In other words, under the categorical approach, a court must
look generally at an offense and decide if it commonly involves “physical harm to persons
or a risk of serious physical harm to persons.” Importantly, the categorical approach
does not require the defined elements of the offense itself to actually include “physical
harm to persons or a risk of serious physical harm to persons.” Under this approach,
although a particular offense in certain instances does not involve “physical harm to
persons or a risk of serious physical harm to persons,” if the court deems that such
offense commonly does involve such harm or risk, the offense is judicially amended into
the list of automatic crimes of violence contained within R.C. 2901.01(A)(9)(a). The
categorical approach is utilized by the federal courts in applying their own distinct,
violent felony statute defined in 18 U.S.C. 924(e)(2)(B)(ii). Because we find significant differences between Ohio’s offense of violence definition and the federal violent felony
definition, we reject the use of the categorical approach to classify crimes under R.C.
2901.01(A)(9)(a).
{¶10} Our prior cases in which R.C. 2901.01(A)(9)(c) has arisen have not delved
into significant analysis of the statutory language and provide little guidance as to the
proper manner for determining whether a crime qualifies as an offense of violence
pursuant to that section.
{¶11} In State v. McCain, 48 Ohio Misc. 13, 357 N.E.2d 420 (2d Dist.1976), the
Montgomery County Court of Common Pleas held that the offense of carrying a
concealed weapon was an offense of violence irrespective of whether the underlying
conduct at issue actually involved physical harm. The court noted that, at the time, the
list of crimes contained within R.C. 2901.01, which the legislature had automatically
deemed offenses of violence, included the offense of carrying a concealed weapon.
Nonetheless, in dicta, the court asserted that “it could convincingly be argued that [the
offense of carrying a concealed weapon] does involve a ‘risk of serious physical harm.’
* * * ”. Id. at 16. The court therefore reasoned that the offense would additionally
qualify as an offense of violence under language substantially similar to that presently
found in R.C. 2901.01(A)(9)(c). 1 Id. at 16. In this analysis, the court appeared to
apply a categorical approach to classifying crimes as offenses of violence under the
language of R.C. 2901.01(A)(9)(c).
1 The “felony of violence” definition was found in R.C. 2901.01(I)(3) at the time. {¶12} In State v. Riggins, 35 Ohio App.3d 1, 519 N.E.2d 397 (8th Dist.1986),
this court, without extensive analysis, cited the reasoning in McCain for the proposition
that carrying a concealed weapon constituted a felony of violence. Id. at 18. Again, at
the time, the list of legislatively designated offenses of violence in R.C. 2901.01
specifically included carrying a concealed weapon, rendering the dicta rationale in
McCain superfluous. Subsequently, in 1996 the legislature removed the offense of
carrying a concealed weapon from the list of offenses of violence contained within R.C.
2901.01. See Ohio S.B. 2 (eff. 7-1-96).
{¶13} In contrast to the Riggins decision’s reference to McCain’s categorical style
approach to the statute, this court, in State v. Gauntt, 8th Dist. No. 63792, 1998 Ohio
App. LEXIS 1062 (Mar. 12, 1998), while examining an ineffective assistance of counsel
argument pertaining to an offense of violence, did not employ a categorical approach to
the R.C. 2901.01(A)(9)(c) language, but instead inferred that the proper approach would
be to examine whether the underlying offense for which the defendant was convicted
included a specification that would bring it within the purview of that subsection.
{¶14} The federal courts have applied a categorical approach to evaluating
whether a particular offense is to be considered a violent felony for the purposes of
sentencing. 18 U.S.C. 924(e)(2)(B) provides in relevant part:
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, * * * that
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;
{¶15} Unlike the Ohio “offense of violence” definition, the federal “violent
felony” definition does not contain an extensive list of crimes that must always be treated
as violent felonies. In response to this void, the federal courts have adopted the
categorical approach in order to classify which crimes will always be treated as violent
under the broad language of 18 U.S.C. 924(e)(2)(B)(ii). The Sixth Circuit Court of
Appeals explained in United States v. Yates, 6th Cir. No. 11-3833, 2012 U.S. App.
LEXIS 20857 (Oct. 5, 2012):
In determining whether an offense is a “violent felony,” the court must use the “categorical approach” and “consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offense. * * * [W]e are concerned with how the offense is generally or ordinarily committed, not how it might be committed in an unusual case.
(Internal citations omitted.)
Id. at *18, quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed
2d 532 (2007).
{¶16} Applying the categorical approach, the Sixth Circuit Court of Appeals in
Yates concluded that a violation of Ohio’s R.C. 2921.331(B), failure to comply,
constitutes a federal “violent felony” because generally a typical instance of vehicular
flight from a police officer “presents a serious potential risk of physical injury to another”
comparable to the enumerated offenses of burglary, arson and extortion. Yates at
*21-26. {¶17} Unlike the federal “violent felony” definition, the Ohio legislature has
already provided within R.C. 2901.01(A)(9)(c) an exhaustive list of over 30 separate
crimes that categorically constitute offenses of violence. It is illogical to read R.C.
2901.01(A)(9)(c) as an open invitation to Ohio courts to apply a categorical approach
such as that employed by federal courts to unilaterally amend R.C. 2901.01(A)(9)(a) with
additional offenses, the violation of which in every instance, qualifies as an offense of
violence. While the federal statute provides only comparative example offenses, R.C.
2901.01(A)(9)(a) provides a detailed list of offenses that are offenses of violence. Had
the legislature desired any further offenses to categorically constitute offenses of violence
without regard to the particular conduct in which an individual engaged, the legislature
would have included such offenses amongst the extensive list provided in R.C.
{¶18} We find that the McCain dicta, which applied a categorical-type approach,
mistakenly interpreted the statutory definition of “offense of violence” found in R.C.
2901.01.
{¶19} Appellant argues in favor of what he labels an elements-based approach to
R.C. 2901.01(A)(9)(c), where a court may only consider whether or not the elements of
the underlying offense include “physical harm to persons or a risk of serious physical
harm to persons.” This narrow approach is equally inconsistent with the language of the
statute for two reasons. First, the statute does not refer to elements. Secondly, if the
legislature desired only to include every offense with an element of “physical harm to
persons or a risk of serious physical harm to persons,” the legislature would not have needed the language of R.C. 2901.01(A)(9)(c), but instead would have simply included
such qualifying offenses in R.C. 2901.01(A)(9)(a).
{¶20} Quite nonsensically, under either a pure categorical approach or an
elements-only approach, a defendant could not be convicted of an “offense of violence”
where the proven or admitted facts of the underlying crime actually involved “physical
harm to persons or a risk of serious physical harm to persons” if the crime was not listed
in R.C. 2901.01(A)(9)(a), the categorical analysis did not generalize the crime as an
offense of violence, and the offense itself did not include the required elements. The
language of R.C. 2901.01(A)(9)(c), which only excludes traffic offenses and offenses
committed without the requisite mens rea, does not share the elements-only and
categorical-approaches limitations in this regard. The application of the statute is clear:
if the defendant pleads guilty to an offense that contains an element of physical harm or a
risk of serious physical harm, then the crime is an offense of violence. However, if the
offense does not include such elements, the crime may still qualify as an offense of
violence if the defendant admits or stipulates to the relevant facts in an attached
furthermore clause.2
{¶21} Although we reject the categorical labeling of a violation of R.C.
2921.331(B) as a crime of violence under R.C. 2901.01(A)(9)(c) and appellant’s
proposed elements-only test, it must be recognized that a violation of R.C. 2921.331
2 Although the present case concerns only a guilty plea, the same result would occur if the alleged fact was submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000). could constitute a crime of violence depending upon the admitted facts of the plea.
However, this is not a factual finding that a trial court is free to make at sentencing.
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, 530 U.S. at 490; Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). “The ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely at 303.
{¶22} In the present case, appellant was initially charged with a violation of R.C.
2921.331 with a furthermore clause that “the operation of the motor vehicle by the
offender caused a substantial risk of serious physical harm to persons or property.” See
R.C. 2921.331(C)(5)(a)(ii). Had appellant pled guilty to the offense as indicted, it would
have qualified as an offense of violence. However, pursuant to the plea agreement, the
furthermore clause was deleted and appellant pled to a violation of R.C. 2921.331 and
2921.331(C)(4), which provides that, “in committing the offense, the offender was
fleeing immediately after the commission of a felony.” The crime to which appellant
pled guilty was a felony of the fourth degree and, in this case, a legal fiction as there was
nothing to support that appellant had committed a felony. See R.C. 2921.331(C)(4).
{¶23} Pursuant to Blakely and Apprendi, the trial court was barred from engaging
in judicial fact finding to determine that appellant’s conduct in this instance qualified as
an offense of violence because such a factual finding increased the penalty for the crime
to which appellant pled guilty beyond the prescribed statutory maximum. Without this factual finding, the maximum sentence the trial court could have imposed solely on the
basis of the facts admitted by appellant was a community control sanction pursuant to
R.C. 2929.13(B)(1)(a).
{¶24} As Blakely explained, “[w]hen a defendant pleads guilty, the state is free
to seek judicial sentence enhancements so long as the defendant either stipulates to the
relevant facts or consents to the judicial fact finding.” Id. at 310. As neither occurred
in this case, the trial court was without authority to engage in judicial fact finding and
treat his conviction as an offense of violence.
{¶25} For these reasons we vacate appellant’s sentence and remand for
resentencing.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, J., CONCURS; LARRY A. JONES, SR., P.J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., P.J., DISSENTING:
{¶26} I dissent. I would adopt a categorical approach to classify crimes under R.C. 2901.01(A)(9)(a) and find that the trial court had the discretion to sentence
Cargill to prison because R.C. 2921.331(C)(4) is an offense of violence.
{¶27} As noted by the majority, R.C. 2901.01(A)(9) defines an “offense of
violence” as “an offense, other than a traffic offense, * * * committed purposely or
knowingly, and involving * * * a risk of serious physical harm to persons.” A risk is
defined as “a significant possibility, as contrasted with a remote possibility, that a certain
result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(7).
{¶28} I would find that whether failure to comply can be considered a violent
offense does not turn on the facts of a particular case. Instead, violations of statutes are
interpreted by the elements of the crime and any related statutes or definitions. “In
determining whether [a] crime is a violent felony, we consider the offense generically,
that is to say, we examine it in terms of how the law defines the offense and not in terms
of how an individual offender might have committed it on a particular occasion.” Begay
v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Thus, we
must consider whether the offense itself is a crime of violence, without weighing the
particulars of this case. Consequently, the specific finding the trial court made, that
Cargill’s offense was violent because he almost killed a pedestrian, does not affect our
analysis. Nor do we consider the fact the state amended the indictment so that it no
longer stated that Cargill caused a “substantial risk of serious physical harm to persons or
property.”
{¶29} Unlike the majority, I would find the Yates decision instructive. Yates,
6th Cir. No. 11-3833, 2012 U.S. App. LEXIS 20857 (Oct. 5, 2012). In Yates, the court had to determine whether the defendant would be sentenced as an armed career criminal
under the federal Armed Career Criminal Act (“ACCA”); to qualify as an armed career
criminal, a defendant has to have at least three prior “violent felony” convictions.
{¶30} The Yates court noted that “[i]n determining whether an offense is a
‘violent felony,’ the court must use the ‘categorical approach’ and ‘consider whether the
elements of the offense are of the type that would justify its inclusion * * *, without
inquiring into the specific conduct of this particular offender.” (Citations omitted.) Id.
at *18. Importantly, the court found that the same analysis applies to determining
whether an offense is a “crime of violence.” Id. at fn. 6.
{¶31} At issue in Yates was whether failure to comply pursuant to R.C.
2921.331(C)(4) was a violent felony because it “otherwise involves conduct that presents
a serious potential risk of physical injury to another.” The court found that “Ohio’s
prohibition on willfully eluding and fleeing an officer in a vehicle immediately after the
commission of another felony, as a categorical matter, presents a serious potential risk of
physical injury to another,” and is, therefore, a violent felony. Yates at *21.
{¶32} The Yates court relied on the United States Supreme Court’s decision in
Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), which held
that, under Indiana law, felony vehicle flight qualifies as a violent felony. The Sykes
Court reasoned:
When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. This similarity is a beginning point in establishing that vehicle flight presents a serious potential risk of physical injury to another.
***
Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.
Unlike burglaries, vehicle flights from an officer by definitional necessity
occur when police are present, are flights in defiance of their instructions,
and are effected with a vehicle that can be used in a way to cause serious
potential risk of physical injury to another.
Sykes at 2273-2274; Yates at *22-*25.
{¶33} In Sykes, the offense in question was felony vehicle flight or “us[ing] a
vehicle” to “knowingly or intentionally” fle[e] from a law enforcement officer” after
being ordered to stop. Id. at 2268, citing Ind. Code 35-44-3-3(b)(1)(A) (2004). Thus,
in Sykes, unlike Yates and the case at bar, Indiana law did not require an additional
finding similar to that found in R.C. 2921.331(C)(4) to qualify as a violent felony.
{¶34} The Yates court concluded that the district court correctly found that R.C. 2921.331(C)(4) constituted a violent felony for purposes of the ACCA. In so doing, the
court noted that the finding in Sykes that
simple vehicular flight poses risks comparable to or more certain than the enumerated offenses of arson and burglary applies even more so to the offense at hand because fourth degree felony failure to comply requires not only that an offender willfully elude or flee from an officer’s signal to stop, but also that the offender be fleeing immediately after the commission of another felony.
Yates at *26.
{¶35} Using the same categorical analysis in our case, and in accordance with
Yates, I would likewise conclude that failure to comply in violation of R.C.
2921.331(C)(4) is an offense of violence. Consequently, it would not matter if, as in
this case, the “risk of serious physical harm” language from R.C. 2921.331(B)(5) is
absent, because failure to comply pursuant to R.C. 2921.331(C)(4) is, in my opinion,
categorically a violent offense.
{¶36} Therefore, I would find the trial court had the discretion to sentence
Cargill to prison for a violation of R.C. 2921.311(C)(4).
{¶37} I would note that it is not necessary to reach the issue of whether every
violation of Ohio’s failure to comply statute is an offense of violence for purposes of
sentencing; my analysis is limited to the specific offense for which Cargill was convicted.
{¶38} I would further note that federal courts have interpreted state laws
differently. Under Indiana law, as analyzed in Sykes, there are not varying penalties
under the vehicle-flight offenses. In Ohio, the legislature has assigned differing
penalties for violations of the failure to comply statute, ranging from a first-degree misdemeanor to a third-degree felony. Interestingly enough, the Sixth Circuit has
interpreted laws in Tennessee similar to Ohio’s failure to comply law and has consistently
held that all vehicle-flight offenses under Tennessee law are violent felonies under the
ACCA. See United States v. Doyle, 678 F.3d 429 (6th Cir.2012), cert. denied, ____
U.S. ____, 133 S.Ct. 456, 184 L.Ed.2d (2012); United States v. Rogers, 481 Fed.Appx.
250 (6th Cir.2012), cert. denied, ____ U.S. ____, 133 S.Ct. 456, 184 L.Ed.2d (2012).
{¶39} Finally, Cargill argued that he was deprived of the “benefit of his plea
bargain” because he pleaded guilty to a crime that had “mandatory probation.” But
Cargill did not lose the benefit of his plea bargain; if he had been convicted of his
original indictment, he would have faced a possible prison sentence ranging from 9 to 36
months in prison. R.C. 2929.14(A)(3)(b). Because he pleaded guilty to a
fourth-degree felony, the sentencing range was 6 to 18 months in prison. R.C.
2929.14(A)(4).
{¶40} Thus, I would overrule the assignment of error and affirm the trial court’s
judgment.