Summary
In Toledo v. Reasonover (1965), 5 Ohio St.2d 22, it was held that this court "* * * will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court."
Summary of this case from State, ex Rel. Wallace, v. CelinaOpinion
No. 39447
Decided December 29, 1965.
Appeal — Criminal prosecution — Reversal for abuse of discretion in imposing too severe sentence — Not warranted, when — Claimed error to support judgment of reversal — Not available where error not previously presented to reviewing court.
1. The Court of Appeals cannot hold that a trial court abused its discretion by imposing too severe a sentence on a defendant convicted of violating an ordinance, where the sentence imposed is within the limits authorized by the applicable ordinance and statutes and there is nothing in the record to indicate whether defendant had a past criminal record or what his driving record was or that the trial court in sentencing defendant did not consider any such past records.
2. The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court. (Section 2505.21, Revised Code, construed and applied.)
APPEAL from the Court of Appeals for Lucas County.
Defendant was duly charged by affidavit with operating a motor vehicle upon a public highway in Toledo, under the influence of intoxicating liquor.
This is prohibited by a Toledo ordinance in substantially the words used in Section 4511.19, Revised Code.
The applicable ordinance provides for "a fine of not more than five hundred dollars or imprisonment in the county or municipal jail for not more than six months, or both such fine and imprisonment." Section 4511.99 (B), Revised Code, authorizes a fine and imprisonment within the same limits. Section 4507.16, Revised Code, reads so far as pertinent:
"The trial court * * * shall, in addition to * * * all other penalties provided by law or by ordinance, suspend for any period of time not exceeding three years or revoke the license of any person * * * convicted of * * *:
"(B) Operating a motor vehicle while under the influence of intoxicating liquor * * *."
Defendant while represented by counsel was tried in the Toledo Municipal Court and convicted by a jury. The trial court sentenced defendant to 60 days in the Toledo House of Correction, fined him $50 and costs and suspended his license to drive for three years. Upon appeal to the Common Pleas Court the judgment of the Municipal Court was affirmed.
In October 1964, defendant appealed from that Common Pleas Court judgment to the Court of Appeals on various grounds but did not in appealing raise any question as to the severity of his sentence. There was nothing in the record before the Court of Appeals to show whether defendant had a past criminal record or what his driving record was or to indicate whether or not the trial court had considered any such past records.
The Court of Appeals found "the sentence * * * excessive and under the circumstances * * * very much greater than the proper protection of society demands and not in the exercise of reasonable and sound discretion" and for that reason reversed the judgment and remanded the cause to the Municipal Court for resentencing.
The cause is now before this court on the appeal by the city from that judgment, pursuant to allowance of the city's motion to certify the record.
Mr. Louis R. Young, director of law, and Mr. Kenneth E. DeShetler, for appellant.
Mr. Sheldon M. Rosen and Mr. Steven L. Markowski, for appellee.
In effect, the Court of Appeals has held that the trial judge abused his discretion in imposing as severe a sentence upon defendant as he did.
In our opinion, the Court of Appeals cannot hold that a trial court abused its discretion by imposing too severe a sentence on a defendant convicted of violating an ordinance where the sentence imposed is within the limits authorized by the applicable ordinance and statutes and there is nothing in the record to indicate whether defendant had a past criminal record or what his driving record was or that the trial court in sentencing defendant did not consider any such past records. Lee v. State (1877), 32 Ohio St. 113.
Defendant contends further that the judgment of the Court of Appeals should be affirmed because the trial court erred in permitting the prosecutor to comment during his argument to the jury on the failure of defendant to take the stand and testify. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, decided April 28, 1965.
This contention was not made in the Court of Appeals or in this court in support of the cross-motion to certify of defendant which was argued before this court on June 10, 1965, and subsequently overruled. The question was never raised in this court until a brief was filed by defendant on November 10, 1965, only seven days before this case was set for argument and argued on the merits.
The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court.
Section 2505.21, Revised Code, provides in part:
"* * * Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or specified."
Thus, the Supreme Court ordinarily will not hold that the Court of Appeals erred in not considering or deciding a claim of error "not assigned or specified" in that court and "not argued by brief" in that court.
As pointed out in State v. Jones (1965), 4 Ohio St.2d 13, "if this court should now consider such a question before it had been presented to the Court of Appeals, we would be permitting the defendant to bypass the Court of Appeals."
It may reasonably be argued that defendant should be excused from raising in the Court of Appeals his claim of error with respect to the prosecutor's comment on his failure to testify, because he could not reasonably anticipate such an unusual decision as Griffin v. California, supra. But see 5 American Jurisprudence 2d 29, Section 545.
However, as early as June 15, 1964, when Malloy v. Hogan, Sheriff, 378 U.S. 1, 12 L.Ed. 2d 653, 84 S.Ct. 1489 was decided, there was considerable speculation among lawyers and laymen and in newspapers as to whether the Supreme Court would render a decision such as it later rendered in Griffin. Thereafter, any defendant who considered that he had been prejudiced by comment of the prosecutor on his failure to testify should have promptly raised that question. The defendant in the instant case did not do this although his case was not submitted to the Court of Appeals for decision until a substantial time after the decision in Malloy.
The judgment of the Court of Appeals is reversed, and the judgments of the Municipal Court and the Common Pleas Court are affirmed.
Judgment reversed.
ZIMMERMAN, MATTHIAS, SCHNEIDER and BROWN, JJ., concur.
HERBERT, J., concurs in paragraph one of the syllabus and in the judgment.
O'NEILL, J., concurs in paragraph one of the syllabus.
This dissent is confined to paragraph two of the syllabus. I believe that this court should decide appellee's claim because it challenges most seriously the integrity of the administration of justice in Ohio. Appellee claims that he was penalized by the prosecutor for exercising his constitutional right of silence, and that the trial court refused to render a corrective charge. In short, appellee claims that the trial was not fair.
The administration of justice is not a game. A procedural slip should not extinguish the Bill of Rights. In State v. Jones (1965), 4 Ohio St.2d 13, I stated that this court under Ohio law has discretion to review constitutional claims made in the trial court but not pressed in the Court of Appeals (Section 2505.21, Revised Code). Although this court now accepts that statement unanimously, a majority of the court chose to exercise their discretion only to scan the record, sua sponte, for a waiver of constitutional rights.
I do not find a waiver in the record. A finding that the failure to hire clairvoyant counsel on appeal to press a claim which this court previously found to be without substance ( State v. Howell, 177 Ohio St. 19) is a waiver is an unfair rule. Nor do I find a waiver where an appellee, not yet having heard of the Griffin decision ( Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229), fails to press the claim on a cross-motion to certify. If a fundamental right can be waived in a criminal case, it must be done consciously, not inadvertently.
The state courts have an obligation to safeguard the federal rights of an accused. If the state courts fail in that obligation, I foresee further intrusion by the federal judiciary into the domain of the state courts. See Henry v. Mississippi (1965), 13 L. Ed. 2d 408; Douglas v. Alabama (1965), 13 L. Ed. 2d 934.
O'NEILL, J., concurs in the foregoing dissenting opinion.