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State v. Bowers

Court of Appeals of Ohio, First District, Hamilton

January 5, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
ADAM BOWERS, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1305688

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.

          OPINION

          Miller, Judge.

         {¶1} We are presented with two questions. The first requires us to interpret R.C. 2971.03, in conjunction with R.C. 2907.02(B) to determine which sentencing options were available for the trial court's consideration. The second question presents a constitutional issue of whether judicial fact-finding that creates a middle sentencing option violates Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As to the constitutional issue, because neither the sentencing floor nor ceiling is raised, we hold that it does not. However, we reverse the sentence because the trial court was unaware of the shortest available sentencing option, and remand for resentencing among the three available sentencing options the court may impose: 15 years to life, 25 years to life, or life without parole.

         Procedural Posture and Facts

         {¶2} This is Adam Bowers's second appeal. Following a jury trial, Bowers was convicted of raping a child, in violation of R.C. 2907.02(A)(1)(b), with the accompanying specification that the child was under ten. He was also convicted of gross sexual imposition. In his first appeal, we held that the trial court had applied the wrong sentencing scheme when sentencing Bowers for rape. State v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 41-42 ("Bowers I "). We therefore reversed his sentence, remanded, and instructed the trial court to sentence Bowers in accordance with R.C. 2907.02(B). Id. at ¶ 42-43. We affirmed the convictions in all other respects.

         {¶3} On remand, the trial court concluded that it had two sentencing options-25 years to life or life without parole. The 25-years-to-life sentence was available only upon a finding that Bowers had purposely compelled his victim to submit by force or threat of force. See RC. 2971.03(B)(1)(c). Based on the evidence adduced at trial, but not expressly found by the jury, the trial court imposed a 25-years-to-life sentence.

         Analysis

         {¶4} In his sole assignment of error, Bowers contends that his sentence is contrary to law because the trial court, and not the jury, determined facts necessary to impose the sentence-i.e., that Bowers had purposefully compelled his victim to submit by force or threat of force. Our standard of review is set forth in R.C. 2953.08(G)(2). We will not modify or vacate Bowers's sentence unless we clearly and convincingly find that it is contrary to law. See RC. 2953.08(G)(2); State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

         {¶5} Bowers claims that, absent the trial court's impermissible finding, his sentence should have been 15 years to life. We agree with Bowers that 15 years to life should have been an available sentence. See R.C. 2971.03(B)(1)(b). However, we also agree with the state that 25 years to life was an available sentence. See R.C. 2971.03(B)(1)(c).

         {¶6} Statutory Construction.

         Bowers was convicted of rape of a minor under the age of 13, violating RC. 2907.02(A)(1)(b). Bowers was also convicted of the accompanying specification that the minor was under ten. Because of the specification, the trial court had the option under RC. 2907.02(B) of sentencing Bowers to life without parole. Division (B) refers the court to RC. 2971.03 for lesser sentencing options.

         {¶7} We previously held that because Bowers was not convicted of a sexually violent predator specification, it was improper to sentence him under RC. 2971.03(A). Bowers I, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, at ¶ 42. Thus, we turn to RC. 2971.03(B)(1) for the sentencing options in addition to life without parole.

          {¶8} In pertinent part, R.C. 2971.03(B)(1) provides, [I]f a person is convicted of or pleads guilty to a violation of division (A)(1)(b) of section 2907.02 of the Revised Code committed on or after January 2, 2007, if division (A) of this section does not apply regarding the person, and if the court does not impose a sentence of life without parole when authorized pursuant to division (B) of section 2907.02 of the Revised Code, 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 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.

         {¶9} This statute affords three potential alternative sentences to life without parole. First, ten years to life is the default sentencing option. RC. 2971.03(B)(1)(a). Second, 15 years to life is an available sentence where the victim was less than ten years old. RC. 2971.03(B)(1)(b). Finally, a sentence of 25 years to life is an option upon a finding that the rape occurred through force or threat of force, the offender ...


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