[Cite as State v. Fry, 2021-Ohio-2838.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109593 v. :
MARK FRY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: August 19, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618983-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Jennifer A. Driscoll, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant. MARY EILEEN KILBANE, J.:
Defendant-appellant Mark Fry (“Fry”) appeals his sentence, alleging
it departs from and exceeds the mandatory statutory sentencing range. For the
reasons that follow, we vacate the judgment of the trial court and remand the case.
I. PROCEDURAL AND FACTUAL BACKGROUND
On July 1, 2017, Fry lured a seven-year-old girl into a car, drove her
to a remote area, and threatened to kill her if she did not follow his commands. Fry
then violently assaulted her, requiring the victim to undergo surgery. On July 14,
2017, a Cuyahoga County Grand Jury indicted Fry on the following six counts: Count
1, rape of a person less than thirteen years of age; Count 2, kidnapping with a sexual
motivation specification; Count 3, felonious assault with a sexual motivation
specification; Count 4, kidnapping with a sexual motivation specification; Count 5,
grand theft; and Count 6, possession of criminal tools.
On October 24, 2017, pursuant to an agreed plea, Fry pled guilty to
Count 1, rape of a person less than thirteen years of age; Count 3, felonious assault
with a sexual motivation specification; Count 4, kidnapping with a sexual motivation
specification; and an amended Count 5, attempted grand theft. Counts 2 and 6 were
nolled. On November 20, 2017, Fry was sentenced to a total of 35 years: 30 years
on Count 1, rape of a person less than thirteen years of age; five years on Count 2,
kidnapping with a sexual motivation, to run concurrently; six months on Count 5,
attempted grand theft, to run concurrently; and five years on Count 4, kidnapping
with a sexual motivation specification, which was to run consecutively. The transcript and the sentencing journal entry both reflect that the
trial court inadvertently sentenced Fry on Count 2, kidnapping with a sexual
motivation specification, instead of Count 3, felonious assault with a sexual
motivation specification, even though the trial court only accepted Fry’s guilty plea
on Count 3, had informed Fry of the appropriate sentencing range on Count 3, and
had stated that Counts 2 and 6 were nolled.
On December 26, 2017, Fry appealed his sentence as set forth in the
November 20, 2017 judgment entry in Case No. 106648. He alleged the trial court
erred in its sentence on Count 1, rape of a person less than thirteen years of age, and
the sentence was contrary to law. On June 28, 2018, the state filed its brief with a
motion to dismiss, alleging that because the trial court did not actually dispose of
Count 3, the appeal should be dismissed for lack of a final judgment. This court
agreed and granted that motion to dismiss on July 10, 2018, stating:
The trial court imposed a sentence on Counts 1, 2, 4 and 5. Appellant pled guilty to Counts 1, 3, 4, and 5. The trial court at the sentencing hearing and in the sentencing entry imposed a sentence on Counts 1, 2, 4 and 5. The trial court incorrectly sentenced appellant on Count 2, which was nolled, and failed to sentence the appellant on Count 3. When the trial court fails to impose a sentence on each count of a conviction, the order is merely interlocutory and, therefore, the court has no power to hear an appeal from such an order. State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137, ¶ 16; State v. Hall, 10th Dist. Franklin No. 16AP-408, 2017-Ohio-813, ¶ 9. Appeal is dismissed.
State v. Fry, 8th Dist. Cuyahoga No. 106648 (July 10, 2018).
On January 24, 2020, pursuant to this court’s remand and a joint
stipulation by the parties, the trial court, with Fry present via video conferencing,
held a hearing and then issued a corresponding nunc pro tunc judgment entry, correcting this mistake and sentencing Fry on Count 3 instead of Count 2. It is from
this judgment entry that Fry now appeals.
II. LAW AND ANALYSIS
Fry’s sole assignment of error asserts the trial court’s sentence on
Count 1, rape of a person less than thirteen years of age, is contrary to law pursuant
to R.C. 2971.03(B).
The standard of review of felony sentencing is governed by R.C.
2953.08(G)(2), which states that “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law.” State v. Butts, 8th Dist. Cuyahoga No.
108381, 2020-Ohio-1498, ¶ 50, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1 and 21.
A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-release control, and sentences a defendant within the permissible statutory range.”
State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-1393, ¶ 7, quoting
State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. Fry alleges that
his sentence on Count 1, rape of a person less than thirteen years of age, is outside
the permissible statutory range. Fry pled guilty to Count 1 as indicted for violating R.C.
2907.02(A)(1)(b), rape of a person less than thirteen years of age. The indictment
alleged that Fry:
did engage in sexual conduct, to wit: digital penetration, with Jane Doe 1, DOB 9/19/09 who was not the spouse of the offender, and Jane Doe 1, DOB 9/19/09 whose age at the time of the said sexual conduct was less than thirteen years of age, to wit: Jane Doe 1, DOB 9/19/09, whether or not the offender knew the age of Jane Doe 1, DOB 9/19/09.
The indictment on Count 1, rape of a person less than thirteen years
of age, mirrors the statutory language. It does not contain any specifications that
the victim was under the age of 10 or that she was compelled to submit by force or
threat of force; however, it does include her date of birth, which establishes that she
was seven years of age, clearly under the age of 10 at the time of the offense. Based
on this guilty plea, the trial court sentenced Fry to 30 years to life on Count 1, stating
at the sentencing hearing that the mandatory minimum on Count 1 was 25 years to
life, and then adding five additional years given the severity of the offense.
Pursuant to R.C. 2907.02(B), a trial court is authorized to sentence a
defendant for violating R.C. 2907.02(A)(1)(b) to either life without parole or one of
three indefinite sentences pursuant to R.C. 2971.03(B). The Ohio Supreme Court
recently clarified this sentencing scheme, stating that “[w]hen a trial court does not
sentence a defendant convicted under R.C. 2907.02(A)(1)(b) to life without parole
under R.C. 2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences
that may be imposed instead: 10 years to life, 15 years to life, or 25 years to life.” State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 947, ¶ 5. The three
possible indefinite sentences are set out in R.C. 2971.03(B)(1) which provides:
[I]f the court does not impose a sentence of life without parole [under R.C. 2907.02(B)], the court shall impose upon the person an indefinite prison term consisting of one of the following:
(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.
Under this statutory framework, the default mandatory sentence is ten years to life
pursuant to R.C. 2971.03(B)(1)(a), unless the provisions of R.C. 2971.03(B)(1)(b) or
(c) are applicable. State v. Mejia, 2020-Ohio-6870, 164 N.E.3d 1177, ¶ 22 (6th
Dist.).
In Bowers, the defendant was convicted of raping a person under the
age of 13 pursuant to R.C. 2907.02(A)(1)(b). Bowers at ¶ 2. A jury found Bowers
guilty and based on the victim’s age, the jury also found Bowers guilty of a
specification that the victim was under the age of 10. Id. Bowers was then sentenced
to 25 years to life in prison for rape under R.C. 2971.03(B)(1)(c) even though there
was no specification in the indictment that the victim was compelled to submit by force or the threat of force. Bowers at ¶ 2. At the third sentencing hearing, the trial
court sentenced Bowers again to 25 years to life without making any factual findings
under R.C. 2971.03(B)(1)(c).1 Id. at ¶ 6. Bowers appealed the trial court’s sentence
and the First District reversed the trial court, finding its sentence was not authorized
by law because “none of the prerequisites for such a sentence under R.C.
2971.03(B)(1)(c) — the use of force or the threat of force in the commission of the
offense, a prior conviction for rape of a child under 13, or serious physical harm
caused to the victim of the offense — was present.” Id. at ¶ 10.
In Bowers, the Ohio Supreme Court affirmed the First District’s
judgment that “a sentence of 25 years to life under R.C. 2971.03(B)(1)(c) was not an
option in the absence of a finding that the victim was compelled to submit by force
or that one of the other factors under that provision was present.” Id. at ¶ 17. The
state argued that a specific finding of force by a jury was not necessary because there
was sufficient evidence of force in the record. The state also argued that force could
be found based on the trial court’s finding that force was used in the commission of
1 While not relevant to this appeal, the trial court initially sentenced the defendant to an indefinite sentence of 25 years to life in prison under R.C. 2971.03(A); however, the First District reversed this sentence in part because that provision only applied to certain crimes with sexually violent predator specifications, which were not found in that case. On remand, the trial court sentenced the defendant again to 25 years to life, without making any factual findings set out in R.C. 2971.03(B)(1)(c), and indicated that it believed this was its only sentencing option. When the defendant appealed a second time, the First District reversed and remanded, clarifying to the trial court that it was able to sentence defendant to either 25 or 15 years. At the third sentencing hearing, the trial court again decided 25 years to life was the most appropriate sentence. On appeal for the third time, the First District reversed, saying 25 years to life was not authorized because none of the prerequisites for such a sentence under R.C. 2971.03(B)(1)(c) were present. the rape, because this was the type of discretionary judicial factfinding permitted
under United States Supreme Court precedent in Apprendi and Alleyne. Bowers at
¶ 22, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000); Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013).
The Ohio Supreme Court rejected both of these arguments,
explaining that the state’s arguments incorrectly relied on the notion that this
statute involves the type of judicial factfinding permitted under Apprendi and
Alleyne. In Apprendi, the Court held that the Sixth Amendment of the United States
Constitution required that “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum,” except for the fact of a prior conviction, “must
be submitted to a jury, and proved beyond a reasonable doubt.” Id. at ¶ 13, citing
Apprendi at 490. In Alleyne, the Court held this principle applied to facts increasing
the mandatory minimum sentence. Id. at ¶ 13, citing Alleyne at 108.
The Ohio Supreme Court found that because the imposition of a
sentence of 25 years to life, based solely on a finding of force by the trial court,
whether by judicial factfinding or evidence in the record, would raise the mandatory
minimum sentence from 15 to 25 years, the finding must be made by a jury,
otherwise it violates the Sixth Amendment. Id. at ¶ 21. The court held that the
factors in R.C. 2971.03(B)(1)(b) and (c) are “‘[f]acts that increase the mandatory
minimum sentence,’ meaning that they are ‘elements [of the charged offense] and must be submitted to the jury and found beyond a reasonable doubt,’” Bowers, 163
Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d, at ¶ 24, quoting Alleyne at 108.
In State v. Morris, the Fifth District applied Bowers to a defendant
who pled guilty to three rape charges in violation of R.C. 2907.02(A)(1)(b), each with
a specification that Morris purposely compelled the victim to submit by force or
threat of force and two counts of gross sexual imposition. State v. Morris, 5th Dist.
Delaware No. 19 CAA 12 0069, 2020-Ohio-5361, ¶ 2-3. At the plea hearing, the trial
court made a specific finding that force was used. Id. at ¶ 3. The trial court
sentenced Morris to 25 years to life pursuant to 2971.03(B)(1)(c). Id. at ¶ 8. Morris
later appealed this sentence as contrary to law. Id. at ¶ 22.
On appeal, the Fifth District in Morris examined Bowers and R.C.
2971.03(B)(1)(c) and found for a trial court to be authorized to sentence a defendant
to 25 years to life, “[t]he use of force or threat of force must be alleged in the
indictment and there must be a finding that the victim was compelled to submit by
force [citing Bowers].” Id. at ¶ 26. The Morris Court found the sentence was not
contrary to law because the use of force was specifically included in the indictment,
the trial court made a finding of force, and Morris pled guilty to rape with a force or
threat of force specification. Id. at ¶ 27.
In Mejia, the Sixth District also dealt with a defendant who pled guilty
to rape of a person less than thirteen years of age in violation of R.C.
2907.02(A)(1)(b) and was sentenced by the trial court to 25 years to life pursuant to
R.C. 2971.03(B)(1)(c). State v. Mejia, 2020-Ohio-6870, 164 N.E.3d 1177, ¶ 7 (6th Dist.). Mejia was charged with one count for rape of a person less than thirteen years
of age in violation of R.C. 2907.02(A)(1)(b) and (B), a felony of the first degree
(“Count 1”), one count of rape in violation of R.C. 2907.02(A)(1)(b) and (B) with a
specification that appellant “purposely compelled the victim to submit by force or
threat of force,” a felony of the first degree (“Count 2”), and one count of sexual
battery in violation of R.C. 2907.03(A)(5) and (B), a felony of the second degree
(“Count 3”). Mejia at ¶ 2. The charges stemmed from sexual acts of violence Mejia
perpetrated on a 12-year-old victim. Id.
Similar to Fry, Mejia waived his right to a jury trial and pled guilty to
just one count of rape of a person less than thirteen years of age in exchange for the
remaining counts to be nolled. Id. at ¶ 3. At the sentencing hearing, the trial court
reiterated that Count 1, rape of a person less than thirteen years of age, required a
25-year mandatory minimum sentence, which the court imposed. Id. at ¶ 6. On
appeal, Mejia argued the 25-years to life sentence was contrary to law. The Sixth
District found itself presented with the following question:
[M]ay a defendant who pleads guilty to rape under R.C. 2907.02(A)(1)(b) and (B) be sentenced to 25 years to life under R.C. 2971.03(B)(1)(c) when the indictment fails to include a specification that force was used in the commission of the rape, the record is silent as to the issue of force, and the trial court does not make a determination that force was used in the commission of the rape at the time of accepting the plea or sentencing the defendant?
Id. at ¶ 29. The state argued that even though the transcript did not mention that
force was used, the use of force could be inferred since the case involved the rape of
a child. Id. at ¶ 23. The Sixth District was not persuaded by this argument. Id. Applying Bowers, the Mejia Court rejected the state’s argument that
an express finding of force was not required as long as there was evidence of force
in the record. Mejia at ¶ 34. The court held that force is an element of the offense
and “[b]ecause Count 1 of the indictment did not include a specification that
appellant used or threatened force during the commission of the offense in this case,
we conclude that R.C. 2971.03(B)(1)(c) is inapplicable, and thus appellant’s prison
sentence of 25 years to life founded upon that statutory section is contrary to law.”
Id. at ¶ 34 and 36. The court reversed the judgment and remanded to the trial court
for resentencing. Id. at ¶ 38.
In State v. Johnson, the Eighth District’s most recent decision
concerning this sentencing statute, the defendant, like Fry, was convicted of rape of
a person under 13 years old pursuant to R.C. 2907.02(A)(1)(b) by jury. State v.
Johnson, 8th Dist. Cuyahoga No. 109127, 2020-Ohio-2947. There, the jury made a
specific finding that the victim was less than ten years of age; however, there was no
separate finding that Johnson compelled the victim to submit by force or threat of
force, that he had been previously convicted of rape, or that he caused serious
physical harm to victim as required under R.C. 2971.03(B)(1)(c). Id. at ¶ 13. Despite
the lack of any of the prerequisite factors in R.C. 2971.03(B)(1)(c) the trial court
sentenced Johnson to 25 years to life. Id. at ¶ 6 and 12.
Upon review, this court found: “[b]ecause the jury did not find any of
these elements, Johnson could not be sentenced to 25 years to life pursuant to R.C.
2971.03(B)(1)(c).” Id. at ¶ 14. This court reversed the trial court’s sentence as contrary to law, holding: “[i]n circumstances such as this matter where the
defendant has been convicted of the rape of a child under the age of ten, and there
has been no other findings of force, physical harm, or prior rape convictions, 25
years to life is not an authorized sentence.” Johnson at ¶ 16. This court then vacated
the sentence and remanded to the trial court to resentence Johnson in accordance
with R.C. 2907.02(B) and 2971.03(B)(1)(b). Id. at ¶ 17.
In the instant case, the facts are unique and distinguishable from
Bowers, Mejia, Morris, and this court’s precedent in Johnson. Both Bowers and
Johnson involved jury verdicts where the rape convictions did not contain any force
specifications. The distinction between a jury trial, where the jury is the factfinder
to establish the use of force, and instant case where a defendant pleads guilty is
significant, placing greater emphasis on the language in the indictment a defendant
pleads guilty to. In Morris, we have a guilty plea; however, the indictment Morris
pled guilty to contained a force specification in each rape count he pled guilty to,
unlike here. Morris, 5th Dist. Delaware No. 19 CAA 12 0069, 2020-Ohio-5361. In
Morris, the court also made specific findings that force was used for each rape
offense he pled guilty to and the parties had jointly stipulated to an agreed sentence.
In Mejia, there also was a guilty plea to count 1 of the indictment for rape of a person
less than thirteen years of age, and like Fry’s indictment, the rape count did not
contain a force specification. Mejia was also charged with a second count of rape,
which did contain a force specification, but that charge was dismissed. Because the only count Mejia pled guilty to did not contain the force specification or any facts to
establish force, the sentence of 25 years to life was contrary to law.
Fry argues generally his sentence is contrary to law and that the trial
court was only authorized to sentence Fry to 15 years to life pursuant to R.C.
2971.03(B)(1)(b). The state makes identical arguments in this case as it did in
Bowers and Mejia, asserting that there is enough evidence in the record to establish
force in the commission of the rape offense. However, Bowers was clear that this
argument has no merit and that “evidence in the record” of force is not sufficient to
sentence a defendant pursuant to subsection (B)(1)(c). Bowers at ¶ 24. Bowers was
clear that the “factors in R.C. 2971.03(B)(1)(b) and (c) are ‘[f]acts that increase the
mandatory minimum sentence,’ meaning that they are ‘elements [of the charged
offense] and must be submitted to the jury and found beyond a reasonable doubt *
* * .’” Id., quoting Alleyne, 570 U.S. 99, 108, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
The state also argues that because Fry pled guilty on Count 3,
felonious assault with a sexual motivation specification, this is sufficient to establish
the factors required by R.C. 2971.03(B)(1)(c). We find this argument has merit and
has not been address by any of the foregoing cases because none of them contained
an additional guilty plea to felonious assault with a sexual motivation specification
committed against the same victim on the same day as the rape offense. This may
be sufficient to establish a defendant caused serious physical harm during or
immediately after the commission of the offense to authorize a 25-years to life sentence under R.C. 2971.03(B)(1)(c) depending on the specific facts contained in
the indictment to which the defendant pleads guilty.
Pursuant to United States Supreme Court precedent in Blakely, when
there is no jury trial because a defendant waived that right, the only way to establish
facts that increase the penalty for a crime without violating the Sixth Amendment
are when the defendant admits to them. State v. Brito, 8th Dist. Cuyahoga No.
88223, 2007-Ohio-1311, ¶ 6 (“ * * * any fact (other than a prior conviction) that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt or admitted by the
defendant”), citing Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). A guilty plea is a complete admission of the facts set forth in
the indictment, including all specifications contained therein. State v. Sims, 2019-
Ohio-4975, 149 N.E.3d 1143, ¶ 18 (8th Dist.), citing State v. Colon, 2017-Ohio-8478,
99 N.E.3d 1197 (8th Dist.); State v. Diamond, 8th Dist. Cuyahoga No. 84898, 2005-
Ohio-3413, ¶ 27.
Based on the indictment in this case, Fry pled guilty to Count 1,
admitting to the facts that he:
On or about July 1, 2017 did engage in sexual conduct, to wit: digital penetration, with Jane Doe 1, DOB 9/19/09 who was not the spouse of the offender, and Jane Doe 1, DOB 9/19/09 whose age at the time of the said sexual conduct was less than thirteen years of age, to wit: Jane Doe 1, DOB 9/19/09, whether or not the offender knew the age of Jane Doe 1, DOB 9/19/09.
These facts admitted by Fry establish that he engaged in sexual conduct against a
person under the age of thirteen in violation of R.C. 2907.02(A)(1)(b). These facts admitted by Fry also establish that the victim was seven years old at the time of the
offense based on her date of birth as stated in the indictment. These facts admitted
by Fry are sufficient to establish that “the victim was less than ten years of age,” such
that the trial court would be required to sentence Fry to a mandatory minimum of
15 years to life pursuant to R.C. 2971.03(B)(1)(b). These facts in the indictment
increase the mandatory minimum sentence and do not violate his Sixth Amendment
rights because Fry admitted to them through his guilty plea. Sims at ¶ 18. Had the
indictment Fry pled guilty to not contained facts to establish the victim’s date of
birth, an increased sentence would not be authorized.
For a trial court to be required to sentence Fry pursuant to R.C.
2971.03(B)(1)(c), there must be facts in the indictment that are either proven to a
jury beyond a reasonable doubt or admitted by the defendant that there was: “use of
force or threat of force in the commission of the offense; a prior conviction for rape
of a child under 13; or serious physical harm caused to the victim of the offense.”
Morris at ¶ 26, citing Bowers. Again, looking at the indictment, Fry pled guilty to
Count 3, felonious assault, that “on or about July 1, 2017” he “did knowingly cause
serious physical harm to Jane Doe 1, DOB 9/19/09.” Count 3, felonious assault, also
contained a sexual motivation specification pursuant to R.C. 2941.147(A), stating
“the offender committed the offense with a sexual motivation.” By pleading guilty
to Count 1, rape of a person less than thirteen years of age, and Count 3, felonious
assault with the sexual motivation specification, Fry admits to the facts that he
knowingly caused serious physical harm to Jane Doe 1 with sexual motivation at the same time he also admitted that he engaged in sexual conduct with her. Sims at ¶
18.
Had Fry pled guilty to charges that did not contain facts to establish
any of the prerequisite factors listed in R.C. 2971.03(B)(1)(c), then the trial court
would have been required to sentence Fry pursuant to R.C. 2971.03(B)(1)(b), which
has a mandatory minimum of 15-years to life. However, by pleading guilty and
admitting to the specific facts contained in Count 1, rape of a person less than
thirteen years of age, and Count 3, felonious assault with the sexual motivation
specification, Fry established that “during or immediately after the commission of
the [sexual conduct] [he] caused serious physical harm to the victim,” which is the
last factor listed in R.C. 2971.03(B)(1)(c). Based on the facts Fry admits to in the
indictment through his guilty plea, the age of the victim and the serious physical
harm to the victim can be established, beyond a reasonable doubt, without resorting
to judicial factfinding or without looking to evidence in the record of Jane Doe 1’s
horrific injuries and the surgery she required after the assault. With these facts
admitted by Fry through his guilty plea to the indictment, the mandatory minimum
sentence can be applied without violating his Sixth Amendment rights. Therefore,
we hold Fry’s guilty pleas to Counts 1 and 3, as specifically charged in this
indictment, contain sufficient facts admitted by him to establish the required factor
to authorize the trial court to impose a mandatory 25 years to life sentence pursuant
to R.C. 2971.03(B)(1)(c) on Count 1. What is unclear is whether the statute permitted the trial court to
impose a 30 years to life sentence for Count 1 pursuant to R.C. 2971.03(B)(1)(c). In
his brief, Fry argues that the trial court improperly sentenced him to 15 years instead
of 25 years but does not discuss whether the 30-year sentence was contrary to law
or not. To address this issue and give the parties proper notice pursuant to State v.
Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, the court requested
supplemental briefing from the parties on July 7, 2021. Both parties filed
supplemental briefs on July 13, 2021.
Upon review of the supplemental briefing, it is the opinion of this
court that the Ohio Supreme Court was clear in Bowers when it stated that: “[w]hen
a trial court does not sentence a defendant convicted under R.C. 2907.02(A)(1)(b)
[rape of a person less than thirteen years of age] to life without parole under R.C.
2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences that may
be imposed instead: 10 years to life, 15 years to life, or 25 years to life.” Bowers at ¶
5. The statute explicitly states “the court shall impose upon the person an indefinite
prison term consisting of one of the following” three options the statute provides for:
10, 15, or 25 years to life. As discussed above, based on the facts admitted to in the
indictment, the trial court in this case was required to impose a sentence pursuant
to R.C. 2971.03(B)(1)(c) of 25 years to life.
Therefore, we find that while the trial court was correct that the
statute required it to sentence Fry to a mandatory minimum of 25 years for Count 1, we also find the statute did not authorize the court to add the additional five years
because the statute mandates the sentence to be 25 years to life.
Therefore, we sustain Fry’s sole assignment of error. The judgment
is vacated, and the case is remanded back to the trial court for the limited purpose
of resentencing Fry in accordance with R.C. 2971.03(B)(1)(c).
It is ordered that appellant recover from 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
common pleas 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.
____________________________ MARY EILEEN KILBANE, JUDGE
LISA B. FORBES, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE ATTACHED OPINION
SEAN C. GALLAGHER, P.J., CONCURRING:
I concur with the majority opinion, but respectfully disagree with any
reliance on State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 9947,
as controlling authority. In relating the “relevant background,” the Ohio Supreme
Court noted that “[w]hen a trial court does not sentence a defendant convicted under
R.C. 2907.02(A)(1)(b) to life without parole under R.C. 2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences that may be imposed instead: 10 years
to life, 15 years to life, or 25 years to life.”
That notation was not part of, nor integral to, the holding of the case:
We agree with Bowers that a sentence of 25 years to life under R.C. 2971.03(B)(1)(c) was not an option in the absence of a finding that the victim was compelled to submit by force or that one of the other factors under that provision was present. Furthermore, under the plain text of R.C. 2971.03(B)(1) and Alleyne [ v. United States, 570 U.S. 99, 133 S.Ct. 2151 186 L.Ed.2d, 314], the imposition of a sentence of 25 years to life based on such a finding by the trial court raises the mandatory minimum sentence to 25 years and, therefore, the finding must be made by the jury.
Id. at ¶ 17. Because the holding of Bowers does not include any conclusion as to the
scope of the permissible sentences under R.C. 2971.03(B), we cannot rely on that
statement as binding authority. An appellate court errs in relying on dicta. State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 29.
Further, Bowers provides that the sentences delineated under R.C.
2971.03(B)(1)(b) and (c) require the trial court to impose a “a minimum of 15 years
in prison and a sentence imposed under subsection (B)(1)(c) requires a minimum of
25 years in prison.” Bowers at ¶ 19. Bowers rendered no conclusion as to the issue
in this case, whether the imposition of a 30-year minimum term is authorized under
R.C. 2971.03(B)(1)(c).
On this point, I agree that the statute does not authorize the
imposition of a 30-year minimum term but instead requires the trial court to impose
a minimum term of 25 years with any release determinations to occur as statutorily
required after that time. For this reason, I concur with the majority’s conclusion.