State v. Colbert

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[Cite as State v. Colbert, 2005-Ohio-2524.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : OPINION : CASE NO. 2003-A-0114 - vs - : MARCUS COLBERT, Defendant-Appellant. : : Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 03 CR 108. Judgment: Affirmed. Thomas L. Sartini, Ashtabula County Prosecutor, and Angela M. Scott, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee). Dean F. Topalof, 4920 State Road, #102, Ashtabula, OH 44004 (For Defendant-Appellant). DIANE V. GRENDELL, J. {¶1} Defendant-appellant, Marcus Colbert ( Colbert ), appeals the October 10, 2003 judgment entry of the Ashtabula County Court of Common Pleas sentencing Colbert to serve a prison term of ten years. For the following reasons, we affirm the lower court s judgment entry of sentence. {¶2} The charges against Colbert stemmed from his involvement in the March 21, 2003 murder of Willie Smith ( Smith ) at a home, located at 4012 Station Avenue, Ashtabula, Ohio. Smith, a drug dealer, was involved in a dispute with Colbert s co- defendants regarding the selling of drugs on Station Avenue. The previous evening, Colbert s co-defendants had assaulted Smith and Smith, in turn, had made threats against Colbert s co-defendants. At about 6:20 p.m. on March 21, 2003, Colbert and his co-defendants went to the house where Smith was staying and confronted Smith on the front porch of the house. During the confrontation, co-defendant Richard Thomas Corpening shot Smith six times. Thereafter, Colbert fled the scene before turning himself into the police. {¶3} Colbert was indicted by the Ashtabula County Grand Jury on one count of Complicity to Aggravated Murder, with a gun specification, in violation of R.C. 2923.03 and 2903.01(A), and one count of Complicity to Murder, with a gun specification, in violation of R.C. 2923.03 and 2903.02(A). On August 21, 2003, Colbert entered Alford pleas of guilty to Complicity to Voluntary Manslaughter, a first degree felony in violation of R.C. 2923.03 and 2903.03(A), and to Participating in a Criminal Gang, in violation of R.C. 2923.42(A), a felony of the second degree. See North Carolina v. Alford (1970), 400 U.S. 25. {¶4} The trial court sentenced Colbert to the maximum prison term of ten years for Complicity to Voluntary Manslaughter and to a prison term of five years for Participating in a Criminal Gang, to be served concurrently. Colbert timely appeals and raises the following assignment of error: The trial court erred and abused its discretion to the prejudice of the defendant-appellant when it sentenced him to the maximum sentence. {¶5} An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. R.C. 2953.08(G)(2). An appellate court may not disturb a sentence unless the court clearly and convincingly finds that the record does not 2 support the sentencing court s findings, or that the sentence is otherwise contrary to law. R.C. 2953.08(G)(2)(a) and (b). Clear and convincing evidence is that evidence which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. {¶6} Pursuant to R.C. 2929.14(C), a court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense *** only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders ***, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. As interpreted by the Ohio Supreme Court, [i]n order to lawfully impose the maximum term for a single offense, the record must reflect that the trial court imposed the maximum sentence based on the offender satisfying one of the listed criteria in R.C. 2929.14(C). State v. Edmonson, 86 Ohio St.3d 324, 329, 1999-Ohio110. {¶7} In addition to stating its reasons for imposing the maximum sentence under R.C. 2929.14(C), the trial court must also comply with R.C. 2929.19(B)(2)(d), which requires the trial court to give its reasons for imposing the maximum prison term. State v. Chike, 11th Dist. No. 2001-L-120, 2002-Ohio-6912, at ¶8; State v. Edmonson (Sept. 25, 1998), 11th Dist. No. 97-P-0067, 1998 Ohio App. LEXIS 4541, at *21 ( the court must submit findings of the operative facts and the reasoning as to why the court considered this to be one of the worst forms of the offense ), aff d 86 Ohio St.3d 324, 1999-Ohio-110. 3 {¶8} In the present case, the trial court found on the record [at the sentencing hearing] [t]his is the worst form of a complicity to commit voluntary manslaughter offense. The courted based its decision on the fact that the crime was premeditated; the crime was part of an organized criminal activity; and the crime was committed in broad daylight. Colbert argues that his is not one of the worst forms of complicity to voluntary manslaughter because he was not the actual shooter and was not involved in the drug deal or the assault leading up to the shooting. We disagree. {¶9} This court has previously considered and rejected this argument. We have held that [t]he argument that appellant is less culpable because he was convicted as an accomplice ignores R.C. 2923.03(F), which provides: Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense. [Emphasis added]. State v. Whittenberger (Dec. 3, 1999), 11th Dist. No. 98-P-0047, 1999 Ohio App. LEXIS 5770, at *9. Therefore, as long as the gangland-style killing of Willie Smith constitutes one of the worst forms of voluntary manslaughter, it is within the court s discretion whether to impose the maximum sentence regardless of Colbert s precise role in that killing.1 {¶10} Even if the trial court did err in finding this one of the worst forms of complicity, the trial court additionally found that Colbert, age twenty at the time of Smith s murder, possesses [sic] the greatest likelihood of committing future crimes. Cf. R.C. 2929.12(D). This section of the Revised Code sets forth five factors for the 1. The court rejected Colbert s characterization of his involvement as being in the wrong place at the wrong time. The court stated: The evidence is clear in this case that the four people that were ultimately charged with complicity, one of which is Mr. Colbert, walked up, stood behind Corpening at the base of the steps, listened to what was being said, and -- by their mere physical presence, I think were lending their support, backing him up, telling the world, if you do anything to our friend Corpening, who s going to kill this guy, you got to face and deal with us. 4 sentencing court to consider when determining the likelihood of an offender committing future crimes. The trial court s finding that Colbert possesses the greatest likelihood of committing future crimes is supported by four of the five statutory factors: Colbert was out on bail or under a felony court sanction or post-release control when the [current] offense was committed, R.C. 2929.12(D)(1); Colbert s massive number of criminal and/or juvenile adjudications, R.C. 2929.12(D)(2); Colbert s failure to respond favorably to previous sanctions, R.C. 2929.12(D)(3); and Colbert s lack of genuine remorse, R.C. 2929.12(D)(5). {¶11} We hold that Colbert s record of juvenile adjudications, by itself, clearly and convincingly supports the finding that Colbert poses the greatest likelihood of committing future crimes and, therefore, the imposition of the maximum sentence.2 Cf. Chike, 2002-Ohio-6912, at ¶10 ( There is no requirement that more than one of the five factors be present in order for the trial court to determine that the offender poses the greatest likelihood of committing future crimes. ). 2. The trial court s recitation of Colbert s juvenile record is as follows: It starts out in December of 94, and as near as I can tell, the defendant s [sic] about twelve years old. Criminal damaging and endangering. *** December 94, adjudicated delinquent based on an assault charge. February 95, curfew and home truancy. May 96, curfew and home truancy. July 96, same thing, curfew and home truancy. In August 96, curfew and home truancy. There for about six months you were in Juvenile Court every month. October 96, probation violation. 12/96, probation violation. May 97, defrauding delivery. June 97 probation violation. Another probation violation the same month. A third one the next month in July. Another one in September of 97. Another probation violation, October 97, on the 2nd. October 24th, another probation violation. And then you re charged with assault in December 97. Probation violation, January 98. February 98, menacing. Assault, March of 98. Probation violations in April and May of 98. Possession of drugs, which would have been a felony offense, in October of 98. Domestic violence, two counts, October 98. It goes on. Another domestic violence, two counts, March of 99. October 99, parole revocation. School truancy in December of 99. January 2000, parole violation. January 2000, a week later, felonious assault and serious physical harm. That s a felony of the second degree in this Court. September 2000, curfew and home truancy. September 2000, same thing. October 2000, parole violation. March 01, tampering with evidence, carrying concealed weapons. March 01, parole violation. August 01 receiving stolen property. Than as an adult, in June of 02, possession of Vicodin, that s possession of drugs. Apparently, that charge was dismissed in Municipal Court. You get the instant offense. And then you ve got another assault charge here in July of 03. This Court can t help but believe that the Juvenile Court was trying to work with you while you were eleven, twelve, thirteen plus years. You were in there almost on a weekly or monthly basis and you just thumb your nose at the whole system. The probation, the parole, nothing worked. The treatment that was offered to you didn t work. And then you come out, and as a result of these recent charges, we get a death. 5 {¶12} The First District Court of Appeals has recently held that the fact of previous juvenile-delinquency adjudications cannot be used to justify a finding regarding the likelihood of future crime under the prior conviction exception in Blakely v. Washington (2004), --- U.S. ---. State v. Montgomery, 1st App. No. C-040190, 2005Ohio-1018, at ¶13. The First District relies on case law for the proposition that in Ohio *** an adjudication that a juvenile is delinquent is not the same as a criminal conviction. Id. (citations omitted). {¶13} We note that, for the purpose of determining an offender s likelihood of committing future crimes, a court must consider an offender s delinquency adjudications as well as his history of criminal convictions. R.C. 2929.12(D)(2). In practice, trial courts routinely rely on juvenile records to impose non-minimum, maximum, and consecutive sentences. See, e.g. State v. Lamberson (March 19, 2001), 12th App. No. CA2000-04-012, 2001 Ohio App. LEXIS 1255, at *48. {¶14} Although juvenile proceedings have been characterized as civil rather than criminal proceedings, the Ohio Supreme Court has made clear that this distinction is of limited significance. Whatever their label, juvenile delinquency laws feature inherently criminal aspects that we cannot ignore. *** For this reason, numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings. *** Just as we cannot ignore the criminal aspects inherent in juvenile proceedings for purposes of affording certain constitutional protections, we also cannot ignore the criminality inherent in juvenile conduct that violates criminal statutes. *** Whether the state prosecutes a criminal action or a juvenile delinquency matter, its goal is the same: to vindicate a vital interest 6 in the enforcement of criminal laws. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio5059, at ¶26 (emphasis sic) (internal citations omitted). {¶15} Therefore, a trial judge may consider an offender s juvenile record for the purposes of sentencing. {¶16} In Blakely, and earlier in Apprendi v. New Jersey (2000), 530 U.S. 466, the United States 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. 124 S.Ct. at 2536, citing Apprendi, 530 U.S. at 490. {¶17} The Supreme Court has recently shed light upon the nature of the prior conviction exception in Shepard v. United States (2005), 125 S.Ct. 1254. In Shepard, the court reconsidered what sort of evidence a sentencing judge may consider to establish the existence of prior generic convictions under the Armed Career Criminal Act ( ACCA ). Under prior case law, the factual basis of a prior conviction could be established only by referring to charging documents filed in the court of conviction, or to recorded judicial acts of that court ***, as in giving instruction to the jury. Id. at 1259, citing Taylor v. United States (1990), 495 U.S. 575. The Shepard court reaffirmed this prior case law, noting that it anticipated the very rule later imposed [in Apprendi and its progeny] for the sake of preserving the Sixth Amendment right, that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury ***. Id. at 1262, citing Jones v. United States, 526 U.S. 227, 243 n. 6, and Apprendi, 530 U.S. at 490. In Shepard, the Supreme Court characterized the sort of evidence that may be considered to establish the facts of a prior conviction to include evidence that bears the conclusive significance of a prior judicial record, such as the 7 terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 12621263. {¶18} In light of the foregoing, we hold that delinquency adjudications bear the conclusive significance of a prior judicial record and, therefore, may be considered by a sentencing court under the prior conviction exception to the rule of Apprendi and Blakely. {¶19} Colbert s sole assignment of error is without merit. The ten-year sentence imposed by the Ashtabula County Court of Common Pleas is affirmed. CYNTHIA WESCOTT RICE, J., concurs, WILLIAM M. O NEILL, J., dissents with a Dissenting Opinion. ______________________ WILLIAM M. O NEILL, J., dissenting. {¶20} The tragedy in this matter clearly demonstrates the inadequacy of Ohio s current sentencing guidelines. As a result of a drug deal gone bad, one young man lies dead and a twenty-year-old ends up with a maximum sentence for complicity to commit voluntary manslaughter. The trial court did impose the greatest or longest sentence under the complicity to commit voluntary manslaughter for the reason that the Court finds that this offender has committed the worst form of the offense. (Emphasis added.) The court went on to find that the defendant possesses the greatest likelihood of committing future crimes. Thus, the trial court made two critical findings to support the 8 imposition of a maximum sentence. While I do not disagree with the sentence imposed, I find fault with the procedure employed to arrive at that result. {¶21} The trial court may very well be right in all its findings. However, it is those very findings that the Supreme Court of the United States has specifically prohibited. {¶22} In enacting Senate Bill 2, with an effective date of July 1, 1996, the Ohio General Assembly radically altered its approach to criminal sentencing. The new law essentially designated three classes of citizens who would have statutorily defined roles in determining the amount of time an individual would be incarcerated for a particular crime. The three classes defined were: (1) the Ohio General Assembly; (2) judges; and (3) jurors. {¶23} Senate Bill 2 also provided three distinct areas of judicial limitations when it set about its task of providing truth in sentencing. Those would be: (1) sentences imposed beyond the minimum; (2) sentences imposing the maximum; and (3) consecutive sentences. The objective was apparently to provide a degree of consistency and predictability in sentencing. {¶24} It is clear that the legislature did not interfere with the role of juries to determine guilt. Thus, the first task in sentencing went to juries. In the second phase, the legislature reserved unto itself the role of establishing minimum sentences that would be imposed once the finding of guilt, either by trial or admission, was accomplished. And finally, the new law set forth the findings that were required before a judge would be permitted to depart from the minimum or impose consecutive sentences. Thus, everyone had a clearly defined role to play. {¶25} The first major pronouncement by the Ohio Supreme Court concerned the findings necessary to support the imposition of a maximum sentence. In Edmondson, 9 the Supreme Court of Ohio held that a trial court must make a finding that gives its reasons on the record for the imposition of a maximum sentence.3 {¶26} Following that pronouncement, the Supreme Court of Ohio, in State v. Comer, required the sentencing courts to make their findings and give reasons supporting those findings on the record at the sentencing hearing. 4 Thus, it is clear that the courts, in applying Senate Bill 2, imposed duties upon judges to make specific findings to support their sentences whenever they went beyond the minimum; or imposed maximum sentences or consecutive sentences. {¶27} In 2004, however, the United States Supreme Court issued its judgment in Blakely v. Washington and made it clear that judges making findings outside a jury s determinations in sentencing violated constitutional guarantees.5 Specifically, the court held: {¶28} Our precedents make clear, however, that 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. *** In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, *** and the judge exceeds his proper authority. 6 3. 4. 5. 6. State v. Edmonson (1999), 86 Ohio St.3d 324, 328-329. State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, paragraph one of the syllabus. Blakely v. Washington (2004), 124 S.Ct. 2531. (Emphasis in original and internal citations omitted.) Id. at 2537. 10 {¶29} Thus, it is clear that the statutory judicial findings, which provide the framework for all sentencing in Ohio, are prohibited by the United States Supreme Court. {¶30} Following the United States Supreme Court s release of Blakely, this court determined that a trial court s reliance on a previous conviction as evidenced in the record would still be permissible for the purpose of imposing a sentence greater than the minimum.7 As stated by this court in State v. Taylor: {¶31} Under R.C. 2929.14(B)(1), the court is entitled to depart from the shortest authorized prison term if the offender had previously served a prison term. Under Apprendi, the fact of a prior conviction may be used to enhance the penalty for a crime without being submitted to a jury and proven beyond a reasonable doubt.[8] According to Taylor s pre-sentence investigation report, Taylor had served at least one prior prison term. *** Therefore, the trial court s imposition of prison terms of three years, *** seventeen months *** and eleven months *** are all constitutionally permissible under Apprendi and, by extension, Blakely. 9 {¶32} It is clear that, for Blakely purposes, a trial court is permitted to take judicial notice that a defendant has served a prior prison term, for that is not a finding. It is a judicial acknowledgement of an indisputable fact. The trial court merely acknowledges the prior prison term and does not have to weigh conflicting evidence to make a factual finding. As such, a defendant s Sixth Amendment rights are not compromised by the exercise. 7. State v. Taylor, 158 Ohio App.3d 597, 2004-Ohio-5939. 8. Apprendi v. New Jersey (2000), 530 U.S. 466, 490, citing Jones v. United States (1999), 526 U.S. 227, 243, fn. 6. 9. State v. Taylor, at ¶25. 11 {¶33} I believe that a distinction must be made between findings, which courts make to justify maximum or consecutive sentences and acknowledging the existence of a prior sentence in a criminal matter, which would permit the court to exercise its discretion in departing from a minimum sentence. Clearly, Blakely no longer permits courts in Ohio to find that a defendant has committed the worst form of the offense or that his actions predict the greatest likelihood of recidivism without either an admission by the defendant or a finding by the trier of fact. {¶34} As so eloquently stated by the United States Supreme Court in Blakely: {¶35} This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment. 10 {¶36} The court went on to state that the Sixth Amendment was not a limitation of judicial power, but a reservation of jury power. 11 In what I believe to be the true thrust of this landmark case, the United States Supreme Court finally held that [t]he framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to the unanimous suffrage of twelve of his equals and neighbours, *** rather than a lone employee of the state. 12 {¶37} Recently, in State v. Montgomery, the First District Court of Appeals held that [a] plain reading of this statute indicates that R.C. 2929.14(B) entitles an offender who has not previously served a prison term to a presumption that the imposition of the minimum term is sufficient.[13] Thus, before imposing a term greater than the minimum, 10. 11. 12. 13. Blakely v. Washington, 124 S.Ct. at 2540. Id. Id. at 2543. State v. Edmonson, 86 Ohio St.3d at 326. 12 the sentencing court must make an additional finding under R.C. 2929.14(B)(2). 14 The court then went on to hold that the statutory maximum for an offender who has not previously served a prison term is the minimum prison term allowed by law for the offense. 15 {¶38} In addition to my firm belief that trial courts are no longer permitted to make findings such as those made herein, I do not agree with the majority s conclusions regarding juvenile adjudications. Rather, I agree with the First District s analysis of this issue as set forth in State v. Montgomery: {¶39} [T]he court based its R.C. 2929.14(B)(2) finding on [the defendant s] previous juvenile-delinquency adjudications and confinement in juvenile detention facilities. It is well established in Ohio that an adjudication that a juvenile is delinquent is not the same as a criminal conviction.[16] Accordingly, the fact of [the defendant s] previous juvenile-delinquency adjudications could not be used to justify a finding that the shortest prison term would not adequately protect the public from future crime by the offender or would demean the seriousness of the crime under Blakely s prior-conviction exception. 17 {¶40} In conclusion, I believe the trial court erred in sentencing the defendant to more than the minimum sentence in this matter; and, as a matter of law, I would hold that trial courts are only permitted to depart from the minimum sentence based upon facts admitted by the defendant or found by the trier of fact. The only exception I 14. State v. Montgomery, 159 Ohio App.3d 752, 2005-Ohio-1018, at ¶8. 15. Id. at ¶9. 16. In re Agler (1969), 19 Ohio St.2d 70, 80 ( The very purpose of the Juvenile Code is to avoid treatment of youngsters as criminals and insulate them from the reputation and answerability of criminals ); In re Good (1997), 118 Ohio App.3d 371, 375; In re Rayner (Nov. 8, 2001), 7th Dist. No. 00BA-7, 2001 WL 1468530 ( A juvenile court delinquency adjudication is not a criminal conviction *** unless specifically established by the legislature ). 17. State v. Montgomery, at ¶13. 13 believe permissible, consistent with Blakely, is the indisputable fact of a prior adult prison term, which would then permit judges to do their statutory job. And that job is, and always has been, to sentence criminals within the determinate bracket established by the Ohio General Assembly. 14

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