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State v. Bowers

Court of Appeals of Ohio, First District, Hamilton

August 9, 2019

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

          Zayas, Presiding Judge.

         {¶1} For the third time, defendant-appellant Adam Bowers appeals his sentence for one count of rape of a child under the age of ten. Raising one assignment of error, Bowers argues that the indefinite prison term of 25 years to life is not authorized by statute, as that sentence requires a conviction for a forcible rape of a child, a prior conviction for rape of a child less than 13, or serious physical harm to the victim. Because Bowers was not indicted for or convicted of any of the aggravating factors, the sentence is contrary to law. To the extent that this court previously determined that the trial court's factual finding of force was permissible, we conclude that analysis violates the Sixth Amendment. We sustain the assignment of error, and remand the matter for resentencing.

         Factual and Procedural Background

         {¶2} In 2013, Bowers was indicted and convicted by a jury for rape of a child under 13 with the additional specification that the child was under ten. See State v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 38 ("Bowers I "). The verdict form signed by the jury included the express finding that the victim was under ten. Id. Bowers was not charged with or found guilty of purposefully compelling the victim to submit by force or threat of force, a prior conviction for rape of a child less than 13, or causing serious physical harm to the victim.

         {¶3} The trial court determined that a sentence of life without parole, as authorized by R.C. 2907.02(B), was not an appropriate sentence. Instead, the court sentenced Bowers to an indefinite prison term of 25 years to life because the court mistakenly believed that that sentence was the mandatory alternative. Id. at 42. The court sentenced Bowers pursuant to R.C. 2971.03(A), which "applies only to a person who was convicted of or pleaded guilty to a sexually-violent-predator specification that was included in the indictment." Id. at ¶ 41. Because the court erred in sentencing Bowers as a sexually-violent predator when he was not indicted for or convicted of being a sexually-violent predator, we reversed the sentence and remanded the matter to the trial court with instructions to resentence Bowers in accordance with R.C. 2907.02(B). Id. at ¶ 41-42. The judgment was affirmed in all other respects. Id. . at ¶ 43.

         {¶4} At the first resentencing, the trial court again decided not to impose a sentence of life without parole. The court imposed a sentence of 25 years to life, again mistakenly believing that the court only had that as a sentencing alternative. See State v. Bowers, 2018-Ohio-30, 102 N.E.3d 1218, ¶ 4 (1st Dist.) ("Bowers II "). In reaching this decision, the trial court stated "based on all the evidence that I've read, and I read the transcript, and I'm going to choose the lesser of the two and keep the original sentence that was imposed by Judge Helmick, 25 years to life."

         {¶5} Again Bowers appealed, arguing that the trial court erred in imposing a 25-year-to-life sentence because the proper sentence for raping a child under ten is 15 years to life under R.C. 2971.03(B)(1)(b). Bowers further contended that he could not be sentenced to a 25-year-to-life sentence under R.C. 2971.03(B)(1)(c) because he was not convicted of purposely compelling the victim by force or threat of force, had not previously been convicted of rape of a child less than 13, and had not caused serious physical harm. The state contended that the 25-year-to-life sentence was available because force was inherent in the rape of a child under ten.

         {¶6} Neither party alleged or argued that the trial court made or could make a factual finding of force, and the record establishes that the trial court did not make any such factual findings. Nevertheless, this court sua sponte raised the issue, misconstrued the state's argument, and concluded that the trial court had made the factual finding of force, was authorized to make the finding, and a sentence of 25 years to life was a permissible sentencing option. Id. at ¶ 17. Based on this erroneous belief, this court further opined in dicta that the trial court's finding of force did not violate Bowers's Sixth Amendment right to a trial by jury. Id. at ¶ 16-17.

         {¶7} Ultimately, we vacated the sentence and remanded the cause to the trial court "because the trial court erroneously believed 15 years to life was not an available sentence." Bowers II at ¶ 20.

         {¶8} At the second resentencing hearing, the trial court, for the third time, determined that a sentence of life without parole was not warranted, and considered two sentencing options: 15 years to life and 25 years to life. The trial court imposed a sentence of 25 years to life because it concluded that the original sentencing judge had given the appropriate sentence.

         Law ...


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