finding that the concept of the "worst" form of an offense is nebulous
How later courts described this case
- finding that the concept of the "worst" form of an offense is nebulous
- noting the abstract nature of the worst form factor
Written by the judges who cited it.
The opinion
Doan, Presiding Judge,
concurring in part and concurring in judgment.
I concur with the lead opinion regarding imposition of the maximum sentence. I respectfully disagree with the lead opinion as to appellant’s contention that the trial court erred in considering her race and gender in sentencing.
R.C. 2929.11(C) precludes sentencing an offender based upon race, ethnic background, gender, or religion. While the trial court did not specifically state that it was basing the sentence on race or gender, and I do not believe that the trial court actually based the sentence upon such considerations, it did write “female-black” in the comments section of the sentencing-findings form, commonly referred to as the sentencing worksheet. The form is designed to contain the mandated matters for consideration in selecting a sentence. The “comments”
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portion is logically available to expand on the listed considerations by noting information pertinent to one or more of the listed items. The insertion of the notation “female-black” does not relate to the mandated considerations and implicitly impresses a detached reader that the notation was, or at least possibly could have been, a part of the sentencing considerations.
In fairness, it may be the trial court was intending to keep a personal statistical record pertaining to race and gender sentencing, not required by statute or rule, in anticipation of a petition for postconviction relief under R.C. 2953.21(A)(5) alleging sentencing disparity. To keep such a record is understandable and commendable, considering current disparity concerns and accusations visited upon sentencing judges, but the sentencing worksheet form is not the appropriate place to do it absent a specified explanatory section for such record-keeping. The challenged information on the sentencing worksheet being here reviewed can generally be separately obtained and recorded from other documents available to the courts such as the arrest forms or presentence investigation reports.
I must reluctantly conclude that the sentencing worksheet contemplates only appropriate sentencing considerations, and that the notation “female-black” thereon, without other explanation, must be viewed as a reflection that gender and race were considered as a basis of sentencing in violation of R.C. 2929.11(C). I would therefore overrule
State v. Howard,
cited in the lead opinion.
I would also reverse and remand for resentencing in compliance with R.C. 2929.11(C) and the appropriate statutory sentencing guidelines.