What’s on their Minds: Requiring Military-Service Related Disabilities in Mitigation when Sentencing Veterans. State v. Jeffrey Belew.

Update: On July 10, 2014, the Supreme Court of Ohio dismissed this case as improvidently accepted.  Read more about that here.

On March 12, 2014, the Supreme Court of Ohio heard oral argument in the case of State v.  Jeffery Belew, 2013-0711.  At issue in this case is whether the trial judge properly considered Belew’s service-related mitigating factors in sentencing.

Case Background

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 and depression upon his return and treated his condition with alcohol.

In 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.  He was examined by two psychologists. Both agreed that he did not qualify for an insanity defense.  One, Dr. Wayne Graves, opined that Belew suffered from post traumatic stress, major depression and alcohol dependence. The other, Dr. Charlene Cassel, diagnosed malingering and a personality disorder. Belew then withdrew his NGRI 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. 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 Statutes

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.

R.C. 2929.12(C)(4)

A defendant’s crime is less serious when “[t]here are substantial grounds to mitigate the offender’s conduct, although the grounds are not enough to constitute a defense.”

R.C. 2929.12(F)(effective March 22, 2013)

The sentencing court shall consider the offender’s military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender’s service in the armed forces of the United States and that was a contributing factor in the offender’s commission of the offense or offenses.

Both lawyers in the case agreed that if Belew were to be re-sentenced, this new provision would apply.

At Oral Argument

Belew’s Argument

Jeffrey Belew was a Marine in Iraq during the surge.  One of his duties was to pick up body parts after firefights and explosions. Belew was surrounded by death and dying. He returned from Iraq with no physical injuries, but with a damaged mind. He had classic symptoms of Post Traumatic Stress Disorder (PTSD) when he returned home. He would wake up in middle of the night hiding beneath a table. He couldn’t let get go of his gun. He slept with it, and would point it at people in his sleep. He was terrified when he heard a foreign language.  He couldn’t cope with daily life. He had trouble keeping a job. One way he dealt with this was to self medicate with alcohol. He drank until he passed out. Belew has never received any kind of therapy for his problems.

The trial judge in this case confused excuse and mitigation. There is a huge difference between the two. Belew has never denied that he committed a very serious offense; he has fully accepted responsibility for his actions. But the trial judge did not understand PTSD, nor give it the proper consideration in mitigation.  She should have considered this factor in the catch-all provision of R.C. 2929.12 (C)(4). She demonstrated a fundamental misunderstanding of what it meant to be a marine in combat.

The record in this case does not clearly and convincingly support the sentence in this case, and this Court should so find in its independent review. We have a long history in this country of affording our veterans leniency in sentencing.  Belew is not asking to be let off. But he should be given the minimum sentence.

State’s Argument

The trial judge in this case carefully considered the reports of both psychologists, let Dr. Graves testify at length at the sentencing hearing, considered letters from Belew’s mother, listened both to Belew’s lawyer and to Belew, and specifically stated both at sentencing and in the judgment entry that she had balanced the seriousness of the offense and recidivist factors and principles and purposes of sentencing in imposing this sentence. She did not impose the maximum sentence in this case. (Belew strongly disagrees with this assertion.)  The judge made it clear that she did consider Belew’s PTSD. While she didn’t articulate any specific factors in mitigation, or the weight given to any particular factor, trial judges are not required to do so.

There are also factors in this case that cut against mitigation.  Belew has a criminal record, which included a number of misdemeanor assaultive types of crimes, including while in artillery school.

The trial judge did appropriately consider all the necessary factors in this case, and the sentence should be upheld.

What was on their Minds

What the Trial Court Did or Didn’t Consider

Did the trial judge give any consideration at all to PTSD, asked Justice Pfeifer?

What was in the record to indicate that Belew did have PSTD, asked Justice O’Neill?

Aren’t we bound by what the legislature says should be considered at sentencing? Isn’t the defendant asking the Court to write a factor into the statute that isn’t there, asked Justice O’Donnell? Was the defendant asking for retroactive application of the amendment requiring the trial court to consider the offender’s military service record? (answer: no) Didn’t the trial judge consider the catch-all provision which requires the trial judge to consider substantial grounds to mitigate the offender’s conduct?

The Sentence

Should our focus be on the consecutive sentences? Isn’t the tricky part is for us to be second guessing judges on sentencing when choosing within ranges they are given, asked Justice Pfeifer?  Isn’t that quicksand for us?

If this case is reversed and remanded, couldn’t the trial judge impose exactly the same sentence, asked Chief Justice O’Connor?

What exactly was before the trial court about why the sentence was too long, asked Justice O’Neill?

What in the record demonstrates that the trial judge did not consider PTSD, asked Justice French?

When you argue that the trial judge did not properly consider the defendant’s PTSD, aren’t you just disagreeing with the trial judge’s conclusion, Justice Lanzinger asked defense counsel? Did the defendant actually receive a diagnosis of PTSD? (answer: yes)

What should the Court do with a judge who says I’ll consider the factors, but then rejects those factors, asked Justice O’Donnell? How would a re-sentencing benefit the defendant? Wouldn’t the trial judge still have same discretion to impose the penalty the legislature said is appropriate for this offense? Exactly what mitigating factors did the trial judge articulate in this case?

Standard of Review

Was the defense saying there was an abuse of discretion in sentencing, asked Justice O’Donnell? (Answer: no. The record does not clearly and convincingly support the findings for consecutive sentences) Later, he asked again if the problem were with the way the court exercised its discretion?

Justice Lanzinger commented that the statutory standard to review this sentence is not whether the court abused its discretion, but whether the sentence was contrary to law, or that the record does not support what the trial judge said.

Belew’s Life and Behavior

What was the significance of Belew not meeting the criteria for NGRI, asked Justice O’Neill?

Chief Justice O’Connor commented that this was a compelling record for both sides—on the one hand, what Belew was exposed to from an early age was terrible, but his response to that has also been pretty horrific. She added that not all veterans who return with PTSD act the way Belew did. She asked defense counsel a lot of questions about Belew’s discharge, whether it could be re-classified, and whether he was eligible for help.  She later asked whether many aspects of Belew’s problems such as alcohol, substance abuse, and a tendency toward violence materialized before he enlisted.

Surely the trial court had to consider the fact that were shots fired at uniformed police officers in response to an emergency call, commented Justice O’Donnell.

How it Looks from the Bleachers

To Professor Bettman

I’m calling this one for the state; Katlin is calling it for the defense.  A lot may well depend on the record in the case.  Katlin and I agree that the justices– especially Pfeifer and O’Neill ( a Vietnam veteran)– clearly showed a great deal of sympathy for Belew and what happened to him in Iraq.

It certainly seems clear that the trial judge didn’t take Belew’s PTSD into account in the way the defense thought it should be taken into account. But it didn’t sound like the trial judge ignored the PTSD either, and the law doesn’t require the sentencing judge to explain what weight is given to various factors. It may be very hard to determine if the trial judge misunderstood PTSD. Justice Pfeifer put his finger on the problem of appellate review of sentences when he commented that trying to meddle in telling a trial judge what sentence to impose within a range was like wandering into quicksand.  He also borrowed Justice O’Donnell’s favorite question, asking what law the court could write in this case. To me, all of this tilts toward upholding the sentence. Still, earlier this month, in State v. Long Slip Opinion No. 2014-Ohio-849, the Court ordered the re-sentencing of a juvenile homicide offender because  it found the trial court hadn’t specifically and separately  considered the offender’s youth as a mitigating factor under the same catch-all sentencing provision that Belew argues applies to his PTSD.

Chief Justice O’Connor, while sympathizing with Belew’s early life and the horrors of war he experienced, also suggested he had a propensity for violence before he became a Marine—a point on which defense counsel strongly pushed back, unapologetically using his time in rebuttal to disagree with her on that point.

The two sides disagreed on whether Belew received the maximum sentence, although ultimately I don’t think it will matter which side is correct on this point—defense counsel still thinks the sentence was too harsh.  And while both sides agreed that if Belew were re-sentenced, he would get the benefit of the amendment to the statute, which specifically requires consideration of military service in sentencing, as Chief Justice O’Connor pointed out, Belew could well receive the same sentence again. Still, going forward, the amendment to the statute will benefit other veterans with the same kinds of problems.

The Court may well discuss the standard of review.  The statute states that the standard on appellate review is not abuse of discretion, but whether the record clearly and convincingly supports the trial court’s findings.  The Court might clarify what this means.  The prosecutor argued this was a distinction without a difference.

To Student Contributor Katlin Rust

This case presented quite a compelling set of facts.  Belew is clearly a seriously troubled man, and all the Justices seem to appreciate his struggle.  However, as Justice Pfeifer pointed out, how does the decision in this particular case affect the hundreds of sentences handed down every day by trial judges across the state of Ohio?  As Justice Pfeifer noted, to second guess the choice within the applicable sentencing range of these judges is quicksand.

As the State noted, the trial court was not required to list every mitigating factor considered in sentencing, however, the trial court’s “cryptic” statements throughout the opinion strongly suggest that she did not understand or properly consider Belew’s military service and PTSD diagnosis.  Although articulating in what way the trial court failed to properly consider Belew’s PTSD may be difficult, I expect the Court to find that the trial court acted contrary to law in failing to consider Belew’s PTSD as a mitigating factor under the old “catch all” category that directs the court to consider all mitigating circumstances and remand the case for resentencing under the new statute.  I also expect this decision to be narrowly tailored to the facts and circumstances specific to Belew and those similarly situated.  Given that the legislature has made consideration of military service and PTSD mandatory in determining sentencing, Justice Pfeifer’s fears of the preverbal floodgates being opened and Justice O’Donnell’s fears of legislating from the bench may be less of a concern under these particular circumstances.

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