In State v. Cyrus (1992), 63 Ohio St.3d 164, the Supreme Court of Ohio held that the burden is on the defendant to present evidence to rebut the presumption that the court considered the sentencing criteria.Summary of this case from State v. Brody
Submitted January 14, 1992 —
Decided March 11, 1992.
APPEAL from the Court of Appeals for Highland County, No. 707.
Appellee, Robert Cyrus, was indicted in the Court of Common Pleas of Highland County on four counts, as follows: Count One, aggravated burglary; Count Two, rape; Count Three, felonious assault; and Count Four, aggravated robbery. He was tried to a jury and convicted of Counts One, Two and Four, and on Count Three was found guilty of the lesser included offense of assault. Immediately upon conviction, appellee's attorney moved the court to order a presentence investigation. That motion was denied, and appellee was sentenced to two terms of ten to twenty-five years on Counts One and Two, and eight to twenty-five years on Count Four, all to run consecutively. On Count Three he received a concurrent six-month jail term. After sentencing, the trial court adjourned for three to five minutes and then reconvened. At that point the trial court stated:
"Mr. Cyrus, in the procedure of sentencing, the Court did not articulate it, but the Court had taken into consideration those factors that the statute required to determine the length of sentencing on felony cases, the nature of the crimes are [ sic] the matters that persuade the Court that there should be a considerable length of time involved.
"* * * I did not on the Fourth Count sentence you to the maximum of the minimum number of years by reason of the fact that there was not more violence, * * * and the fact that you have no felony record; those matters have all been taken into consideration as opposed to the type of activity it was, the time length that was involved, the obvious force that was used to accomplish your purposes, and for all those reasons, the Court has sentenced you on the basis that it did.
"And the record should reflect that it took into consideration your home life, your age, your record, or lack of it, and the nature of the crimes and all those matters that go into a sentencing procedure."
Appellee appealed to the court of appeals, raising three assignments of error. The appellate court overruled the first two assignments of error and thus affirmed appellee's convictions. However, the court sustained the third assignment of error, holding that the trial court erred in failing to order a presentence report in accordance with Crim.R. 32.2 and in failing to sentence the defendant in accordance with the sentencing guidelines of R.C. 2929.12. The court of appeals stated that pursuant to Crim.R. 32.2, a presentence report is mandatory in felony cases, and that the statement of the trial court that it had considered the provisions of R.C. 2929.12 was almost an "insuring afterthought." The appellate court remanded the case to the trial court for resentencing in accordance with its opinion.
The matter is before this court on the allowance of the state's motion for leave to appeal.
Rocky A. Coss, Prosecuting Attorney, for appellant.
Jeffrey Jon Lyle, for appellee.
This case presents two issues for our consideration: first, whether Crim.R. 32.2 requires a presentence investigation before a defendant convicted of a felony is sentenced; and second, what must appear in the record to reflect that the trial court considered the sentencing guidelines of R.C. 2929.12. For the reasons that follow, we reverse the court of appeals.
As to the first issue, appellee argues that in a felony case, a presentence report is mandatory. The appellate court agreed, stating: "Crim.R. 32.2 provides that a pre-sentence investigation be done prior to the court imposing `sentence on a convicted de-fendant [ sic].'" The appellate court misreads Crim.R. 32.2. That rule in relevant part states: "(A) * * * In felony cases the court shall * * * order a presentence investigation and report before granting probation." (Emphasis added.) If probation is not at issue, the rule does not apply. In this case, because one of his convictions was for rape, appellee is not even eligible for probation. See R.C. 2951.02(F)(4). Thus the failure of the trial court to order a presentence investigation was not error.
Appellee has characterized the trial court's post-sentence statement regarding the sentencing criteria of R.C. 2929.12 as an afterthought. Appellee argues that the record does not support the conclusion that the trial court considered these criteria before imposing sentence.
This court has held that: "A silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus; accord State v. O'Dell (1989), 45 Ohio St.3d 140, 147, 543 N.E.2d 1220, 1227. Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. Here, the defendant did not do so. Since such a statement is not required, its timing is irrelevant.
We do not suggest that the preferred practice is to pass sentence without a statement that the sentencing criteria were followed or that a statement, if made, should not be entered in the record prior to imposition of sentence. However, a post-sentencing statement that the sentencing criteria were followed is surely not a greater indication of criteria violation than the silent-record presumption approved in State v. Adams, supra. Since a defendant must rebut the presumption that the sentencing criteria were followed where the record is silent, it follows that the defendant in the case before us should be required to challenge the content (rather than the timing) of the trial court's statement.
We reverse the judgment of the court of appeals with respect to appellee's sentence and reinstate the sentence of the trial court.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.