On July 10, 2014, by a vote of 4-3, the Supreme Court of Ohio dismissed State v. Belew, 2014-Ohio-2964 as improvidently accepted. The issue in the appeal was whether the trial judge properly considered Belew’s service-related mitigating factors in sentencing. The case was argued March 12, 2014. For background on this post, read the oral argument preview here and the analysis of that argument here.
The trial judge in this case sentenced Jeffrey Belew to twenty-seven years in prison for shooting at police officers responding to a domestic disturbance. Belew was a troubled ex-Marine, with alcohol and depression issues before, during, and after his military service in Iraq. He received a bad conduct discharge from the service. He argued that the judge did not properly understand or take into account the Post Traumatic Stress Disorder (PTSD) from which he suffered. The state argued the trial judge did consider the PTSD.
The Sixth District Court of Appeals found that the trial court appropriately weighed the statutory factors in imposing sentence.
Normally in a case that is improv’d, as we say in the trade, that is all the court says. But in this case Justice Lanzinger, joined by Chief Justice O’Connor, wrote a dissent from the dismissal, which is pretty much a full opinion affirming the sentence that was imposed, while Vietnam veteran O’Neill, in his dissent from the dismissal, wrote what is really a dissent from the sentence that was imposed.
Justice Lanzinger’s Position
Justice Lanzinger wrote that she thought the court needed to render an opinion on how PTSD should be considered by a trial court in sentencing a military veteran, and also should clarify the appellate standard of review in such cases. Lanzinger, who authored State v. Foster, knows an awful lot about sentencing statutes.
Lanzinger, joined by Chief Justice O’Connor, would have affirmed the court of appeals, which affirmed the sentence imposed by the trial court. She quoted extensively from the record of the sentencing hearing, which she believed clearly and convincingly demonstrated that the trial court did properly consider Belew’s PTSD, did not impose the maximum sentence (at argument Belew argued the judge had, the state argued she had not), and properly justified the imposition of consecutive sentences in accordance with the statutory requirements.
Additionally, the standard for appellate review of sentences is not abuse of discretion, but whether the record clearly and convincingly does not support the findings of the trial court. In this case, Lanzinger found that the record did support those findings.
“In essence, by objecting to the manner in which the court considered his PTSD, Belew is actually asking for a reweighing of the statutory factors that the trial court already balanced in determining his sentence. But as long as the trial judge properly considered all mitigating factors, it was within her discretion to weigh them in any manner that she saw fit and to assign such weight to each factor as she thought appropriate. See State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 130 (the weight, if any, to assign a given factor is a matter for the discretion of the individual decisionmaker). Stated another way, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge,” Lanzinger wrote.
Justice O’Neill’s Position
Justice O’Neill also dissented from the dismissal of the case, but came to the opposite conclusion from Justice Lanzinger. He chided the Court (and the lower courts) for their lack of understanding of PTSD. He wrote,
“I would respectfully suggest that one trial court judge, three appellate court judges, and the majority of this court simply do not get it. PTSD is not an excuse. It is an explanation.” He added that “it is without question, and well supported in the record, that this troubled throwaway from society wanted to commit suicide by cop.” Belew had strongly advanced that argument.
Justice O’Neill would find the sentence imposed far too harsh, and would reverse the court of appeals and remand the case for re-sentencing, properly taking Belew’s PTSD into account. “Anything else is unreasonable,” he wrote.
R.C. 2929.12(F) has been amended, effective March 11, 2013. The statute now expressly requires, as a stand-alone factor in sentencing, that the trial court consider the offender’s military service record and whether the offender has a service-related emotional, mental, or physical condition that was a contributing factor in committing the offense.
Despite this amendment, the bottom line is that trial courts have broad discretion in sentencing, and the standard on appellate review here is no longer abuse of discretion (a very deferential standard to begin with) but whether the record does not clearly and convincingly support the findings of the trial court. Trial judges will still need to be educated about PTSD, and could still, as in this case, come to different conclusions. A judge with Justice O’Neill’s background likely would have imposed a different sentence in this case.
During oral argument, Justice Pfeifer commented that trying to meddle in telling a trial judge what sentence to impose within a range was like wandering into quicksand. The majority decided to stay out of the quicksand.