State v. North ( 2013 )

[Cite as State v. North, 2013-Ohio-4607.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 13AP-110
v. : (C.P.C. No. 12CR-4405)
Michael William North, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 17, 2013
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellant.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
appellee.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio ("the state"), appeals from a judgment of
the Franklin County Court of Common Pleas imposing a prison sentence on defendant-
appellee, Michael William North ("appellee"), pursuant to his guilty plea. Because we
conclude that the trial court erred by holding that appellee was not subject to a mandatory
prison term pursuant to statute, we reverse and remand for resentencing.
{¶ 2} Appellee was indicted on five counts of gross sexual imposition against a
victim less than 13 years old. Ultimately, appellee entered an "Alford plea"1 of guilty to two
counts of gross sexual imposition against a victim less than 13 years old. In accepting the
guilty plea, the trial judge stated his understanding that appellee was entering an Alford
1 Under an "Alford plea," a criminal defendant "enters a guilty plea to avoid the consequences of a criminal
trial but denies his guilt as to the charge." State v. Cooper, 10th Dist. No. 06AP-150, 2008-Ohio-6119, ¶ 9.
No. 13AP-110 2
plea in order to preserve his claim that he was not subject to a mandatory prison sentence,
and appellee affirmed this statement. At the hearing, the parties stipulated that, if called
to testify, a police detective would have testified that the victim stated that appellee
sexually assaulted her and that appellee admitted to touching and fondling the victim. The
detective also would have testified to the authenticity of an audio recording of appellee's
statement.
{¶ 3} The state asserted that, pursuant to R.C. 2907.05(C)(2)(a), there was
corroborating evidence of the violation other than the victim's testimony and that appellee
was subject to a mandatory prison sentence. The trial court held that the corroborating-
evidence provision was unconstitutional and that it was not required to impose a
mandatory prison sentence on appellee. The trial court then sentenced appellee to two
three-year prison terms, to be served concurrently.
{¶ 4} The state appeals from the trial court's judgment, assigning one error for
this court's review:
THE COMMON PLEAS COURT ERRED WHEN IT FAILED
TO IMPOSE THE PRISON SENTENCES AS MANDATORY
SENTENCES FOR GROSS SEXUAL IMPOSITION AGAINST
A CHILD UNDER 13 WHEN THERE WAS CORROBOR-
ATING EVIDENCE OF THE VIOLATIONS.
{¶ 5} 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.
No. 13AP-110 3
{¶ 6} 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 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.
{¶ 7} 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
No. 13AP-110 4
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.
{¶ 8} 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 evidence before the trial court may impose a mandatory prison term
under R.C. 2907.05(C)(2)(a).
{¶ 9} 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 __, 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
No. 13AP-110 5
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.").
{¶ 10} 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 evidence presented in a case can be characterized as a "fact,"
we hold that that 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.").
{¶ 11} Appellee also argues that R.C. 2907.05(C)(2)(a) only applies where the
victim's testimony is offered into evidence and additional corroborating evidence is
presented in the case. Thus, appellee argues that the introduction of the victim's
testimony constitutes a predicate event before a mandatory prison sentence may be
imposed under R.C. 2907.05(C)(2)(a). Appellee claims that, because the victim's
testimony was not introduced in this case, the trial court could not have imposed a
mandatory prison sentence. Appellee argues that this court recognized the requirement of
No. 13AP-110 6
introducing the victim's testimony in Bevly, citing to portions of that decision referring to
corroborative evidence beyond the victim's testimony.
{¶ 12} This argument was not raised in Bevly, and the court did not directly
address it in its decision. We reject appellee's contention that the reference in Bevly to
"corroborative proof beyond the alleged victim's testimony" constituted implicit
recognition that the victim's testimony must be introduced as a predicate to imposing a
mandatory prison sentence. Rather, this portion of the Bevly decision simply mirrors the
statutory language, which refers to corroborating evidence "other than the testimony of
the victim." R.C. 2907.05(C)(2)(a). Therefore, we consider this argument for the first
time.
{¶ 13} "In construing a statute, a court's paramount concern is the legislative
intent in enacting the statute." State v. S.R., 63 Ohio St. 3d 590, 594 (1992). If the
statutory language is plain and unambiguous, the court must apply the statutory
language. White v. Westfall, 183 Ohio App. 3d 807, 2009-Ohio-4490, ¶ 16 (10th Dist.).
"When a court construes a statute, it may not delete words that are used or add words that
are not used." Id. " 'Absent ambiguity, statutory language is not to be enlarged or
construed in any way other than that which its words demand.' " Id., quoting Kneisley v.
Lattimer-Stevens Co., 40 Ohio St. 3d 354, 357 (1988).
{¶ 14} The relevant statutory clause states that the trial court shall impose a
mandatory prison term for an offender convicted of gross sexual imposition in violation of
R.C. 2907.05(A)(4) or (B) when "[e]vidence other than the testimony of the victim was
admitted in the case corroborating the violation." R.C. 2907.05(C)(2)(a). In our view, this
provision is straightforward and unambiguous. The statute mandates that a prison
sentence must be imposed when there is some evidence, other than the victim's
testimony, introduced in the case to corroborate the violation. Thus, it appears that 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.
{¶ 15} Appellee's interpretation of R.C. 2907.05(C)(2)(a), that the introduction of
the victim's testimony is required as a predicate to the imposition of a mandatory prison
sentence, requires adding words to the statute. Appellee's argument would be persuasive
No. 13AP-110 7
if the statutory provision began with the clause "if the victim's testimony was
introduced"—i.e., a mandatory prison sentence must be imposed when, "if the victim's
testimony was introduced, evidence other than the testimony of the victim was admitted
in the case corroborating the violation." Alternatively, introduction of the victim's
testimony would be a predicate event if the statute required corroboration of the victim's
testimony, rather than of the violation—i.e., if the statute provided for a mandatory prison
sentence when "evidence other than the testimony of the victim was admitted in the case
corroborating the victim's testimony." In construing a statute, however, we may not add
words not used by the General Assembly. White at ¶ 16. Therefore, we reject appellee's
construction of R.C. 2907.05(C)(2)(a) and hold that introduction of the victim's testimony
in a case is not required to trigger a mandatory prison sentence under that statutory
provision.
{¶ 16} In this case, the parties stipulated that, if called to testify, a police detective
would have testified that appellee acknowledged touching and fondling the victim
beginning when she was ten years old and would have testified to the authenticity of an
audio recording of appellee's statement to the police. This constituted additional evidence
to corroborate the violation, which was established through appellee's guilty plea.
Therefore, the trial court erred in holding that appellee was not subject to a mandatory
prison sentence under R.C. 2907.05(C)(2)(a).
{¶ 17} Finally, we note that the trial court in this case questioned the applicable
standard of proof in determining whether corroborating evidence was presented. In State
v. Economo, 76 Ohio St. 3d 56 (1996), the Supreme Court of Ohio considered a similar
statute, providing that an individual could not be convicted of sexual imposition solely
upon the victim's testimony unsupported by other evidence. The Supreme Court
concluded that the corroborating evidence necessary to satisfy the statute "need not be
independently sufficient to convict the accused, and it need not go to every essential
element of the crime charged." Id. at syllabus. The Supreme Court further held that
"[s]light circumstances or evidence which tends to support the victim's testimony is
satisfactory." Id. As the Economo court noted, corroboration requirements in criminal law
are rare. Id. at 58. Although the corroboration provision in Economo addressed the
amount of evidence required for conviction, rather than the quantity of evidence required
No. 13AP-110 8
to impose a particular sentence, we find that decision to be persuasive authority as to the
appropriate standard for determining whether corroborating evidence was introduced to
satisfy R.C. 2907.05(C)(2)(a). Accordingly, R.C. 2907.05(C)(2)(a) applies when the trial
court concludes that evidence was admitted in the case, other than the victim's testimony,
that tends to support the finding of a violation. In this case, the evidence that the parties
stipulated would have been presented by the police detective was sufficient to meet this
standard.
{¶ 18} For the foregoing reasons, we sustain the state's sole assignment of error.
We reverse the judgment of the Franklin County Court of Common Pleas and remand this
matter to that court for re-sentencing in accordance with law and consistent with this
decision.
Judgment reversed; cause remanded for re-sentencing.
TYACK and SADLER, JJ., concur.
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