Update: On July 10, 2014, the Supreme Court of Ohio dismissed this case as improvidently accepted. Read more about that here.
Read the analysis of the argument here.
On March 12, 2014, the Supreme Court of Ohio will hear oral argument in the case of State v. Jeffery Belew, 2013-0711. At issue in this case is whether the judge properly considered Belew’s service-related mitigating factors in sentencing.
Jeffrey Belew had a difficult childhood. He moved in with his grandparents when he was about three, because both parents were in prison for drug offenses. He began using alcohol and drugs at an early age. After high school, he joined the Marine Corps. He was deployed to Iraq during the “surge” and as a member of the Quick Reaction Force his duties included witnessing the gruesome tragedies of war. Throughout his duty he experienced alcohol and drug binges and withdrawals. When he returned to the United States his abuse of alcohol worsened. Belew was given a Bad Conduct Discharge for wrongfully appropriating government property when he drunkenly attempted to steal a HumVee. Belew experienced severe post-traumatic stress upon his return and treated his condition with alcohol.
On April 10, 2011, police officers drove their squad cars through a parking lot in response to a domestic disturbance call. Belew, a party to the disturbance, charged towards the officers and fired his 9mm, semi-automatic pistol at the police cars four times, two of which stuck the cars. Belew disobeyed the officers’ commands to stand down and continued to advance. The officers fired shots in an attempt to subdue Belew; he was hit in the chest and taken to the hospital. No police officer was injured and Belew recovered from his injury.
Belew was charged with two counts of attempted aggravated murder and two counts of felonious assault. Each count included a firearms specification. Belew initially pled not guilty by reason of insanity. After evaluation, psychologists found that Belew did not qualify for an insanity defense. Belew then withdrew his insanity plea and entered a guilty plea to the felonious assault charges and corresponding firearms specifications. The trial judge sentenced Belew to twenty seven years in prison.
Belew appealed to the Sixth District Court of Appeals. On appeal, Belew argued that the trial court failed properly to consider his service-related severe post-traumatic stress syndrome and severe depression in mitigation of his sentence, and this failure constituted an abuse of discretion and manifest injustice. The Sixth District affirmed the sentence, finding that the trial court did not abuse its discretion with respect to the weight it gave to mitigating evidence.
Key Statute and Precedent
State v. Kalish, 2008-Ohio-4912 (established a two-step approach to examining a prison sentence. First, the reviewing court must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence was clearly and convincingly contrary to law. Second, if the first prong is satisfied the reviewing court then examines the sentencing court’s decision under an abuse of discretion standard.)
Belew posits that the two-step process outlined in Kalish is no longer followed in the Eighth, Tenth, and Twelfth Districts, and is replaced with the standard set forth in R.C. 2953.08(G)(2).
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase . . . or otherwise modify a sentence . . . or may vacate the sentence and remand the matter . . . for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under . . . division (B)(2)(e) or (C)(4) of section 2929.14 [consecutive sentencing] . . . ; [or]
(b) That the sentence is otherwise contrary to law.
First and foremost, Belew submits that this case is about holding veterans accountable for their crimes while also considering how service-related mental illness should mitigate, but not eliminate, the punishment imposed.
Belew argues that the standard of review in this case is not abuse of discretion, but rather is set forth in R.C. 2953.08(G)(2), which is whether the sentence is “clearly and convincingly” contrary to law. Belew argues that the record clearly and convincingly indicates that the sentencing court did not properly weigh the mitigating and aggravating factors in his case and, therefore, the sentence was contrary to law.
Belew argues that his crime was clearly and convincingly tied to his post-traumatic stress disorder that resulted from his combat military service. Furthermore, the record indicates that Belew was not trying to excuse his behavior. Belew’s post-traumatic stress disorder, depression, and alcohol dependence were documented by and testified to by a court appointed psychologist, who also testified that in his opinion, Belew was trying to “commit suicide by cop.” Belew’s condition further exacerbated his alcoholism, which he used to treat his PTSD symptoms. The record shows that Belew did not use his military service as an excuse, but seeks only to consider his service-related PTSD, a recognized mitigating factor, in imposing sentence.
Belew also argues that the sentencing court imposed consecutive sentences based on a “mere rote recitation” of the statutory findings. Belew argued at his service related PTSD and service exacerbated alcoholism created “substantial grounds to mitigate” his conduct and the consecutive sentence was, therefore, clearly and convincingly not supported.
Finally, Belew submits that the sentencing court abused its discretion because its sentencing was based on a fundamental misunderstanding of how military service and combat affects people with pre-existing problems. The trial court mistakenly believed Belew was using PTSD as an excuse, and failed to recognize that PTSD can affect any Marine and turn manageable problems into dangerous ones.
The State agrees with Belew’s proposition of law, but argues there is nothing to review here because no error occurred in sentencing. The record amply demonstrates that the trial court did consider Belew’s post-traumatic stress disorder and service related problems in sentencing. The State argues that the sentencing court simply did not find that the mitigating factors outweighed the seriousness of Belew’s offenses so as to justify a lighter sentence. The State suggests that Belew is not seeking a re-evaluation; just a lighter sentence.
As evidence that the sentencing court considered all evidence, the State contends that although Belew did receive a stiff sentence, he did not receive the maximum sentence. (Belew argued that he received the maximum sentence.) Belew could have been sentenced to serve the firearms specifications consecutively, instead of concurrently, resulting in 34, instead of 27, years in prison.
Additionally, the State argues, the record demonstrates that Belew was given a full and fair opportunity to offer mitigating evidence, and did so. Before sentencing the court stated it reviewed the presentencing report, re-read the psychologists’ reports, read letters from Belew’s mother, and listen to the psychologist’s testimony carefully, in addition to hearing the thoughts of Belew and counsel. The court reached its sentencing decision after consideration of the principles and purposes of sentencing under the Revised Code and balanced the seriousness of Belew’s crime and recidivism factors. Before imposing sentence, the court specifically commented on Belew’s military service related PTSD mitigation claim, and stated that although compelled to weigh the mitigating factor, it was not an excuse for his crime.
The state also argues that although 2929.12(F)( which directs courts, after March 22, 2013, to consider military-related disabilities as mitigation) was not yet in effect, the court considered Belew’s military service record anyway. The court concluded that Belew did, in fact, have a service-connected condition, but determined that it was not the contributing factor to his crime nor did it outweigh the aggravating circumstances of his crime. The sentencing court is not required to give a detailed explain of how it algebraically applied each statutory seriousness and recidivism factor. Merely stating that the court considered the factors is sufficient, and, even in the absence of such recitation, it is presumed the court gave proper consideration to each statutory factor.
Finally, the State argues since the trial court considered all mitigating factors, it did not abuse its discretion. It was within the court’s discretion to weigh the factors in any manner it saw fit and assign each the weight it thought appropriate. Although there is a question of the proper standard of review, the State posits that the Court need not decide the issue, since Belew’s claims fail under either standard. The sentence was not clearly and convincingly contrary to law and did not amount to an abuse of discretion.
Belew’s Proposed Proposition of Law
When credibly diagnosed, a trial court must consider combat-related post-traumatic stress disorder and other service-related disabilities as mitigation when imposing sentence on a military veteran.
Amicus Briefs in Support of Belew
The Ohio Suicide Prevention Foundation, Disability Rights Ohio, National Disability Rights Network, National Alliance on Mental Illness of Ohio, and The Ohio Empowerment Coalition submitted an amicus brief in support of Belew. The Ohio Suicide Prevention Foundation focuses on and is a catalyst for the prevention of suicide. Disability Rights Ohio protects and advocates for the rights of people with disabilities in Ohio. The National Disability Rights Network is a non-profit membership association of protection and advocacy agencies. The National Alliance on Mental Illness is dedicated to improving the quality of life, dignity, and respect for persons with serious mental illness and to offering support to their families and close friends. The Ohio Empowerment Coalition aims to provide a platform for the voice of the people with mental illness, to support persons and groups working to transform systems, and to promote wellness, mental health recovery, and resiliency.
This amicus brief re-enforces Belew’s arguments and submits that the sentencing court improperly disregarded Belew’s mental illness by classifying his PTSD as an excuse and misunderstanding PTSD entirely. In addition, the sentencing court improperly disregarded Belew’s attempted “suicide by cop.” These amici sought to inform the Court of the wide-spread issues of PTSD and suicide by cop. They also argue that public policy supports consideration of mental illness and suicide attempts as mitigation, especially in regard to veterans.
The Arms Forces also submitted an amicus curiae brief in support of Belew. The Arms Forces is an Ohio non-profit corporation with the mission of serving military veterans with Post Traumatic Stress Disorder. This brief urges the court to accept the following proposed proposition of law:
“Courts must consider relevant issues of post traumatic stress and traumatic brain injury as mitigating factors when sentencing combat veterans who commit crimes.”
This amicus purports to inform the Court of the wide-spread issue of PTSD and Belew’s condition. The brief argues that consideration of mitigating evidence is crucial to craft a sentence that is just, fair, and no more harsh than necessary, which is the purpose of sentencing. PTSD is highly relevant to a court’s analysis of sentencing purposes and factors and, although not an excuse, is certainly a mitigating factor that should be considered. Belew presented ample evidence of his condition. However, the sentencing court mischaracterized his illness and his prior actions and failed to properly apply the sentencing factors.
Student Contributor: Katlin Rust