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Provision in Gross Sexual Imposition Statute Found Unconstitutional

The Ohio Supreme Court ruled today that part of the state’s gross sexual imposition law is unconstitutional. The problematic provision mandates a prison term when evidence other than the victim’s testimony corroborates the offense.

The penalty provision has no rational basis for distinguishing between cases with or without corroborating evidence – a violation of due process protections in the U.S. Constitution, Justice Judith Ann Lanzinger wrote in the court’s majority opinion.

In addition, when a defendant pleads guilty to gross sexual imposition and corroborating evidence is shown, the defendant’s constitutional right to a jury trial is infringed on when a court imposes the mandatory prison term, the Supreme Court determined.

The decision reverses the judgment of the Tenth District Court of Appeals. The case will return to the trial court in Franklin County to resentence Damon L. Bevly based on the ruling.

Case History
Bevly pled guilty in March 2012 to two counts of gross sexual imposition of a minor under the age of 13, a third-degree felony. At the plea hearing, a police detective testified that Bevly had confessed to the crimes, and the state presented a recording of the alleged confession. The state concluded that the recording was corroborating evidence that required a mandatory prison term.

The trial court did not impose the mandatory five-year prison term, but instead sentenced Bevly to three years in prison and five years of postrelease control.

The state appealed, and the Tenth District reversed. Bevly filed an appeal with the Ohio Supreme Court.

No Rational Basis for Requiring Prison in Cases with Corroborating Evidence
Bevly pled guilty to a violation of R.C. 2907.05(A)(4), gross sexual imposition of a child less than 13 years old. The penalty provision in R.C. 2907.05(C)(2)(a) states that the court must sentence such an offender to a mandatory prison term when evidence, other than the victim’s testimony, is admitted that corroborates the crime.

Justice Lanzinger pointed out that “R.C. 2907.05(C)(2)(a) is unique in Ohio felony-sentencing law in that it enhances the sentence imposed on the offender based on the quantity of evidence presented to prove guilt.”

She explained that other penalty statutes let a court consider factors such as culpability, likelihood of more criminal activity, and severity of the offense when sentencing a defendant.

“In contrast, R.C. 2907.05(C)(2)(a) arbitrarily increases the penalty for gross sexual imposition committed against a child, based solely on whether the state presented corroborating evidence — such as the testimony of a witness, DNA evidence, clothing samples, or a confession — to establish guilt,” Justice Lanzinger wrote. “But the quantity of evidence or the number of witnesses used to establish guilt is irrelevant to the imposition of punishment.”

“[T]he legislature has unconstitutionally created two different sanctions to be imposed on offenders who commit the same crime — differentiated only by the quantity of the evidence presented to prove guilt,” she reasoned. “This situation is impermissible because it denies due process and equal protection to those convicted of this criminal offense.”

On the practical side, she noted that by enhancing the penalty for those who confess before pleading guilty, the statute discourages a defendant from taking responsibility for an offense, which could force the victim to endure a trial for the state to prove its case.

“We conclude that there is no rational basis for imposing greater punishment on offenders based only on the state’s ability to produce additional evidence to corroborate the crime,” she concluded.

Right to Jury Trial Also Violated
When there is no corroborating evidence, a person guilty of gross sexual imposition of a child under 13 may be sentenced up to five years in prison. If corroborating evidence is admitted, however, the court must sentence the offender to five years.

Applying a 2013 U.S. Supreme Court ruling (Alleyne v. United States) to this case, Justice Lanzinger wrote, “[W]e conclude that the corroboration requirement in R.C. 2907.05(C)(2)(a) is an element that would have been required to be found by a jury and that application of the statute in Bevly’s case violated the Sixth Amendment right to a jury trial.”

“Evidence is not corroborating simply because it has been admitted by the court, and under Alleyne the fact that corroborating evidence has been admitted is an aggravating fact that must be submitted to the jury,” she added. “We therefore hold that a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) increases the penalty to which a defendant convicted of gross sexual imposition is subjected and thus is an element that must be found by a jury beyond a reasonable doubt.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Sharon L. Kennedy, and William M. O’Neill.

Justice Terrence O’Donnell concurred with the court in a separate opinion.

Justice Judith L. French dissented.

Concurring Opinion
Justice O’Donnell agreed with the majority that no rational basis exists to impose additional punishment on an offender based on the quantity of evidence and whether or not corroborating evidence is produced by the prosecution. Rather, sentencing enhancements should relate to the conduct of the defendant or statutory factors determined by the General Assembly, he noted.

He took the position that by concluding that corroborating evidence is not a factor in imposing a sentencing enhancement, the court should not have reached the jury trial issue implicated in this case.

“This resolution renders moot the question whether the trial court’s factual findings also violated the Sixth Amendment right to trial by jury, and in my view, the majority’s discussion of that claim is superfluous to our holding,” Justice O’Donnell reasoned, and he also referenced Chief Justice John Roberts’ view that “the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more.”

In Dissent
Justice French determined that the corroborating evidence sentencing provision survives rational-basis review and does not violate due process or equal protection.

“The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI [gross sexual imposition] against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony,” she wrote. “By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions.”

In her view, the majority has simply concluded that R.C. 2907.05(C)(2)(a) is bad policy. “As members of the judiciary, we cannot use rational-basis review to ‘substitute our personal notions of good public policy for’ such legislative choices,” she continued, quoting a 1981 U.S. Supreme Court decision.

In addition, Justice French reasoned that the existence of corroboration is a legal question related to the amount of evidence, rather than a factual finding to be made by a jury. Because corroboration is “additional proof of a fact,” rather than a fact, a court can decide whether the evidence is legally sufficient to impose the mandatory sentence provided in the statute, she concluded.

2013-0821. State v. Bevly, Slip Opinion No. 2015-Ohio-475.

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