         [Cite as State v. Bowers, 2018-Ohio-30.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-160756
                                                        TRIAL NO. B-1305688
        Plaintiff-Appellee,                         :

  vs.                                               :     O P I N I O N.

ADAM BOWERS,                                        :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 5, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}       We are presented with two questions.          The first requires us to

interpret R.C. 2971.03, in conjunction with R.C. 2907.02(B) to determine which

sentencing options were available for the trial court’s consideration. The second

question presents a constitutional issue of whether judicial fact-finding that creates a

middle sentencing option violates Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). As to the constitutional issue, because neither the

sentencing floor nor ceiling is raised, we hold that it does not. However, we reverse

the sentence because the trial court was unaware of the shortest available sentencing

option, and remand for resentencing among the three available sentencing options

the court may impose: 15 years to life, 25 years to life, or life without parole.

                              Procedural Posture and Facts

       {¶2}       This is Adam Bowers’s second appeal. Following a jury trial, Bowers

was convicted of raping a child, in violation of R.C. 2907.02(A)(1)(b), with the

accompanying specification that the child was under ten. He was also convicted of

gross sexual imposition. In his first appeal, we held that the trial court had applied

the wrong sentencing scheme when sentencing Bowers for rape. State v. Bowers, 1st

Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 41-42 (“Bowers I”). We therefore

reversed his sentence, remanded, and instructed the trial court to sentence Bowers in

accordance with R.C. 2907.02(B). Id. at ¶ 42-43. We affirmed the convictions in all

other respects.

       {¶3}       On remand, the trial court concluded that it had two sentencing

options—25 years to life or life without parole. The 25-years-to-life sentence was

available only upon a finding that Bowers had purposely compelled his victim to



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submit by force or threat of force. See R.C. 2971.03(B)(1)(c). Based on the evidence

adduced at trial, but not expressly found by the jury, the trial court imposed a 25-

years-to-life sentence.

                                           Analysis

       {¶4}     In his sole assignment of error, Bowers contends that his sentence is

contrary to law because the trial court, and not the jury, determined facts necessary

to impose the sentence—i.e., that Bowers had purposefully compelled his victim to

submit by force or threat of force. Our standard of review is set forth in R.C.

2953.08(G)(2). We will not modify or vacate Bowers’s sentence unless we clearly

and convincingly find that it is contrary to law. See R.C. 2953.08(G)(2); State v.

White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶5}     Bowers claims that, absent the trial court’s impermissible finding, his

sentence should have been 15 years to life. We agree with Bowers that 15 years to life

should have been an available sentence. See R.C. 2971.03(B)(1)(b). However, we also

agree with the state that 25 years to life was an available sentence. See R.C.

2971.03(B)(1)(c).

       {¶6}     Statutory Construction. Bowers was convicted of rape of a minor

under the age of 13, violating R.C. 2907.02(A)(1)(b). Bowers was also convicted of the

accompanying specification that the minor was under ten. Because of the specification,

the trial court had the option under R.C. 2907.02(B) of sentencing Bowers to life without

parole. Division (B) refers the court to R.C. 2971.03 for lesser sentencing options.

       {¶7}     We previously held that because Bowers was not convicted of a sexually

violent predator specification, it was improper to sentence him under R.C. 2971.03(A).

Bowers I, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, at ¶ 42. Thus, we turn to

R.C. 2971.03(B)(1) for the sentencing options in addition to life without parole.



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       {¶8}    In pertinent part, R.C. 2971.03(B)(1) provides,

       [I]f a person is convicted of or pleads guilty to a violation of division

       (A)(1)(b) of section 2907.02 of the Revised Code committed on or after

       January 2, 2007, if division (A) of this section does not apply regarding

       the person, and if the court does not impose a sentence of life without

       parole when authorized pursuant to division (B) of section 2907.02 of the

       Revised Code, the court shall impose upon the person an indefinite prison

       term consisting of one of the following:

       (a) Except as otherwise required in division (B)(1)(b) or (c) of this section,

       a minimum term of ten years and a maximum term of life imprisonment.

       (b) If the victim was less than ten years of age, a minimum term of fifteen

       years and a maximum of life imprisonment.

       (c) If the offender purposely compels the victim to submit by force or

       threat of force, or if the offender previously has been convicted of or

       pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the

       Revised Code * * * or if the offender during or immediately after the

       commission of the offense caused serious physical harm to the victim, a

       minimum term of twenty-five years and a maximum of life

       imprisonment.

       {¶9}    This statute affords three potential alternative sentences to life without

parole. First, ten years to life is the default sentencing option. R.C. 2971.03(B)(1)(a).

Second, 15 years to life is an available sentence where the victim was less than ten years

old. R.C. 2971.03(B)(1)(b). Finally, a sentence of 25 years to life is an option upon a

finding that the rape occurred through force or threat of force, the offender previously




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                      OHIO FIRST DISTRICT COURT OF APPEALS



was convicted of raping a child, or the offender caused serious physical harm to the

victim. R.C. 2971.03(B)(1)(c).

       {¶10}    In this case, 15 years to life was available because Bowers’s victim was

less than ten years old—a fact determined by the jury. See R.C. 2971.03(B)(1)(b). The

15-years-to-life option became the statutory minimum because ten years to life is not

available where either sentence in division (B)(1)(b) or (c) is available.           R.C.

2971.03(B)(1)(a). Thus, the permissible sentencing floor was 15 years to life, and the

ceiling was life without parole.

       {¶11}    As painstakingly detailed in Bowers I, there was ample evidence that

Bowers compelled his victim to submit by force. Bowers I, 1st Dist. Hamilton No. C-

150024, 2016-Ohio-904, at ¶ 4-6, 27. Accordingly, 25 years to life was also an available

option under the statutory sentencing scheme. R.C. 2971.03(B)(1)(c).

       {¶12}    While subsection (B)(1)(a) explicitly states that a ten-year minimum

term is not an option if either 15- or 25-year minimum sentences are available, nothing

in the language of the statute precludes a 15-year minimum term where a 25-year

minimum term is also available. See State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606,

861 N.E.2d 512, ¶ 9 (holding that when construing a statute, the court first examines

its plain language and applies the statute as written when the meaning is clear and

unambiguous). Moreover, the introductory clause of the sentencing provision states

that the trial court shall impose “one of the following”—not the longest—sentence,

affording the trial court discretion. See R.C. 2971.03(B)(1).

       {¶13}    The dissent reads into this statute a nonexistent requirement that the

trial court must impose the greatest of the available options. While the plain language of

the statute does not require this, even any arguable ambiguity concerning sentencing

options would require an interpretation that both the 15- and 25-year options were



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                      OHIO FIRST DISTRICT COURT OF APPEALS



available. Pursuant to the rule of lenity, ambiguity in a sentencing statute cannot be

interpreted so as to increase a minimum penalty. See State v. Elmore, 122 Ohio St.3d

472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38 (“The rule of lenity is a principle of statutory

construction that provides that a court will not interpret a criminal statute so as to

increase the penalty it imposes on a defendant if the intended scope of the statute is

ambiguous.”). Thus, the availability of the 25-years-to-life option does not automatically

remove the 15-years-to-life option.

       {¶14}    Because the trial court was unaware that 15 years to life was an available

option, we reverse Bower’s sentence and remand for resentencing. However, this does

not fully address the assignment of error because Bowers also argues that the trial court

is constitutionally prohibited from making a factual finding to make the 25-years-to-life

option available, and that the only options that should be available to the trial court on

remand are 15 years to life or life without parole.

       {¶15}    The Statute does not Violate Alleyne or Apprendi. We now

consider whether a judge can constitutionally make a factual finding to support the

imposition of the middle sentencing option of 25-years-to-life, as occurred below.

Specifically, whether sentencing Bowers under R.C. 2971.03(B)(1)(c) without a jury

finding of force violates the Sixth Amendment’s prohibition against judicial fact-

finding in sentencing as set forth in Alleyne, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d

314, and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.

       {¶16}    The Sixth Amendment to and the Due Process Clause of the United

States Constitution guarantee a defendant’s right to have a jury determine whether the

state has proven each element of a crime beyond a reasonable doubt. Apprendi at 476-

477. This protection is extended to facts that expose a defendant to a sentencing range

greater than would be otherwise legally prescribed absent the additional fact. Id. at 490.



                                              6
                      OHIO FIRST DISTRICT COURT OF APPEALS



Hence, judicial fact-finding that informs sentencing violates the Sixth Amendment only

where the fact alters the mandatory minimum or available maximum sentence. Alleyne

at 2162-2163 (“The essential point is that the aggravating fact produced a higher range,

which, in turn, conclusively indicates that the fact is an element of a distinct and

aggravated crime.”); Apprendi at 490, quoting Jones v. United States, 526 U.S. 227,

252-253, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), (Stevens, J. concurring.) (“ ‘It is

unconstitutional for a legislature to remove from the jury the assessment of facts that

increase the prescribed range of penalties to which a criminal defendant is

exposed.’ ”); see State v. Willan, 144 Ohio St.3d 94, 2015-Ohio-1475, 41 N.E.3d 366,¶

13-15 (explaining Alleyne and Apprendi); State v. Mavrakis, 9th Dist. Summit No.

27457, 2015-Ohio-4902, ¶ 38-39.

         {¶17}   In this case, the judicial finding of “force” under R.C. 2971.03(B)(1)(c)

altered neither the mandatory minimum or available maximum sentence. Instead, it

allowed the trial court a middle option of 25 years to life.         The fact of “force”

therefore did not have to be submitted to the jury and proven beyond a reasonable

doubt.

         {¶18}   The dissent’s reliance upon State v. Louis, 2016-Ohio-7596, 73 N.E.3d

917 (4th Dist.), and State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and

CA2013-06-050, 2014-Ohio-2340, is inapropos. Both addressed judicial findings of

fact that increased the available maximum sentence by making life without parole an

available sentence. Significant to our analysis is that life without parole was an

available sentence without any additional findings of fact. Accordingly, a trial court

would be free to consider evidence of force to impose a life without parole sentence.

See R.C. 2929.12(B) (in imposing sentence, a court shall consider “relevant factors”

to determine whether an offender’s conduct is more serious than conduct normally



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                     OHIO FIRST DISTRICT COURT OF APPEALS



constituting the offense). See also Alleyne at 2163 (“Our ruling today does not mean

that any fact that influences judicial discretion must be found by a jury. We have long

recognized that broad sentencing discretion, informed by judicial fact finding, does not

violate the Sixth Amendment.”).

       {¶19}   It would be problematic to conclude that even though a judicial fact-

finding of “force” sub silentio is permissible to impose a maximum sentence, an

express judicial fact-finding of “force” could not be used to make a lesser sentence

available. To hold as the dissent suggests might subject a defendant to the maximum

sentence by default where a trial judge decides the statutory minimum isn’t sufficient

punishment. And had the trial court agreed with the dissent that the middle option

wasn’t available and imposed life without parole, Bowers would likely be arguing that

the middle option should have been available. Situational arguments do not make

good law.

                                        Conclusion

       {¶20}    While Bowers’s sentence was not constitutionally infirm, we are

compelled to reverse his sentence and remand for resentencing because the trial

court erroneously believed 15 years to life was not an available sentence. It therefore

erred in applying R.C. 2971.03(B)(1). We cannot say that the trial court would not

have sentenced Bowers to 15 years to life had the court recognized that option was

available. We therefore sustain Bowers’s assignment of error, reverse his sentence,

and remand for resentencing on the rape conviction based on the three available

options.

                                               Judgment reversed and cause remanded.

D ETERS , J., concurs.
ZAYAS, P.J., concurs in part, dissents in part.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, P.J., concurring in part and dissenting in part.

           {¶21}    I concur that the sentence must be vacated and the cause remanded to

the trial court for a new sentencing hearing. However, I would reverse the trial

court’s decision for different reasons than the majority.                 Unlike the majority, I

conclude that the plain language of the statute prohibits a sentence of 25 years to life

for the rape of a child under the age of ten. Furthermore, the Sixth Amendment

prohibits the trial court from making a factual finding of force to increase the

minimum sentence from 15 years to 25 years.                   Accordingly, I would vacate the

sentence and remand the matter to the trial court to resentence Bowers in

accordance with R.C. 2907.02(B) and 2971.03(B)(1)(b).

                                Factual and Procedural Background

           {¶22}    Bowers was charged with and convicted by a jury of raping a child in

violation of R.C. 2907.02(A)(1)(b), with the additional specification that the child

was under the age of ten pursuant to R.C. 2971.03(B)(1)(b). See Bowers I, 1st Dist.

Hamilton No. C-150024, 2016-Ohio-904, at ¶ 38. Bowers was not charged with or

found guilty of purposefully compelling the victim to submit by force or threat of

force.1

           {¶23}    He was initially sentenced to an indefinite term of 25 years to life,

under R.C. 2971.03(A), which only applies when a sexually-violent-predator

specification was included in the indictment. Id. at ¶ 39-41. Because Bowers was not

charged with or convicted of a sexually-violent-predator specification, we reversed

the sentence and remanded the matter to the trial court with instructions to

resentence Bowers in accordance with R.C. 2907.02(B). Id. at ¶ 43.




1   Bowers was also not charged with a forcible rape in violation of R.C. 2907.02(B).


                                                   9
                         OHIO FIRST DISTRICT COURT OF APPEALS



        {¶24}     On remand, the trial court imposed an indefinite term of 25 years to

life after making a factual finding that Bowers had purposefully compelled the victim

to submit by force or threat of force. On appeal, Bowers argues the sentence of 25

years to life is not authorized because he was not charged with or convicted of

purposely compelling his victim to submit by force or threat of force.

            The Plain Language of the Rape-Sentencing Statutes

        {¶25}     A trial court is authorized to impose a sentence of life without parole

pursuant to R.C. 2907.02(B) when the victim is under ten years of age.2 If the court

does not impose a sentence of life without parole, then the court is required to

impose a sentence under R.C. 2971.03. Under R.C. 2971.03(B)(1), the court shall

impose a minimum term of 15 years and a maximum of life imprisonment, if the

victim was less than ten years of age. R.C. 2971.03(B)(1)(b). See State v. Gibson, 2d

Dist. Clark No. 2013 CA 112, 2014-Ohio-5573, ¶ 13 (explaining that the trial court has

three sentencing options for a defendant convicted of raping a child under ten years

of age: “1) pursuant to R.C. 2907.02(B), the trial court can impose a sentence of life

imprisonment without the possibility of parole; 2) pursuant to R.C. 2971.03(B)(1)(b),

the trial court can sentence the defendant to life imprisonment with the possibility of

parole after fifteen years; or 3) the trial court can sentence the defendant to an

indefinite prison term with a minimum of fifteen years”); State v. Tschudy, 9th Dist.

Summit No. 24053, 2008-Ohio-4073, ¶ 8 (concluding that when the trial court did

not impose a sentence of life without parole for a violation of R.C. 2907.02(A)(1)(b),

“the trial court was then mandated to impose an indefinite term of fifteen years to


2R.C. 2907.02(B) states in relevant part: “Except as otherwise provided in this division, * * * an
offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life
imprisonment pursuant to section 2971.03 of the Revised Code. * * * [I]f the victim under
division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a
prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the
court may impose upon the offender a term of life without parole.”


                                                   10
                     OHIO FIRST DISTRICT COURT OF APPEALS



life imprisonment.”); State v. Jones, 12th Dist. Brown No. CA2014-09-017, 2015-

Ohio-2314, ¶ 10-11 (holding that “the statutory range within which appellant could

have been sentenced for [rape in violation of R.C. 2907.02(A)(1)(b), with the

specification that the victim was less than ten years old at the time of the offense]

was either fifteen years to life with the possibility of parole, pursuant to R.C.

2971.03(B)(1)(b), or life without parole, pursuant to R.C. 2907.02(B)”); State v.

Statzer, 2016-Ohio-7434, 72 N.E.3d 1202, ¶ 30 (12th Dist.) (vacating a sentence of 18

years to life because the sentencing options for a rape conviction when the victim is

under ten years of age are “an indefinite term of 15 years to life in prison, pursuant to

R.C. 2971.03(B)(1)(b), or life without parole, pursuant to R.C. 2907.02(B)”).

       {¶26}   Under R.C. 2971.03(B)(1)(c), a trial court is required to impose a

sentence of 25 years to life for the rape of a child if the offender purposely compelled

the victim to submit by force or threat of force, was previously convicted of violating

R.C. 2907.02(A)(1)(b), or caused serious physical harm to the victim. See State v.

Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 27 (explaining that the trial

court was authorized to impose a term of 25 years to life because “[t]he jury found

that Mr. Bulls violated R.C. 2907.02(A)(1)(b) and, in doing so, compelled T.H. to

submit by force or the threat of force”).

       {¶27}   Here, there is no dispute that Bowers was not charged with or found

guilty of any of the aggravating, factual findings contained in R.C. 2971.03(B)(1)(c).

Rather, he was charged with and convicted of the rape of a child under the age of ten.

Under the plain language of R.C. 2971.03(B)(1), the mandatory minimum sentence

for the rape of a child under ten is 15 years to life. Tschudy at ¶ 8; Jones at ¶ 10-11;

Statzer at ¶ 30.    Therefore, the trial court exceeded its statutory authority in

sentencing Bowers to 25 years to life absent a conviction that included the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



aggravated finding of compelling the victim to submit by force or threat of force. See

State v. Louis, 2016-Ohio-7596, 73 N.E.3d 917, ¶ 77 (4th Dist.) (concluding that

because the jury verdict form contained no specific finding that the victim was less

than ten or that the offender used force or threat of force, had a prior conviction, or

caused serious physical harm, the sentencing range for the rape of a child under 13 is

a minimum term of ten years and a maximum term of life imprisonment).

       {¶28}   Nevertheless, the majority concludes that the trial court may make

the finding of force, independent of the jury, to impose a sentence of 25 years to life.

In reaching this decision, the majority finds that the judicial fact-finding does not

violate the Sixth Amendment because the finding allows a middle sentencing option

instead of altering the minimum or maximum sentence imposed. However, under

R.C. 2971.03(B)(1), the minimum sentence varies “depending upon (b) the age of the

victim, or other aggravating factors found in (c).” Id. at ¶ 76. Thus, the majority fails

to recognize that the judicial fact-finding in this case increases the statutory

minimum sentence from 15 years to 25 years, in violation of Alleyne v. United States,

570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

       {¶29}   Although the trial court may impose a maximum sentence of life

without parole, if the court chooses not to impose a life sentence under R.C.

2907.02(B), as it did twice in this case, the court “shall impose” an indefinite prison

term. R.C. 2971.03(B)(1). Under R.C. 2971.03(B)(1), the court “shall impose” a

minimum term of 25 years and a maximum term of life imprisonment if the offender

purposely compelled the victim by force or threat of force. R.C. 2971.03(B)(1)(c).

The statute does not authorize the trial court to impose a minimum term of 15 years

to life if the offender used force. Thus, the majority’s claim that the judicial finding




                                           12
                     OHIO FIRST DISTRICT COURT OF APPEALS



of force merely gives the trial court a middle sentencing option ignores the plain

language of the statute.

       {¶30}   The majority’s desire to give the trial court additional sentencing

options is beyond the authority of this court. This court must respect the fact that

the authority to make policy decisions was conferred solely on the General

Assembly. See Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883

N.E.2d 377, ¶ 212. The legislature “is vested with the power to define, classify, and

prescribe punishment for offenses committed in Ohio.” State v. Taylor, 138 Ohio

St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12.        Accordingly, “[j]udges have no

inherent power to create sentences,” id., and instead “are duty-bound to

apply sentencing laws as they are written.” State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony

Sentencing Law, Section 1:3, 4, fn. 1 (2008).

       {¶31}   Prior to the enactment of Am.Sub.S.B. No. 260 in January 2007, any

offender who was convicted of the rape of a child under ten or the forcible rape of a

child automatically received a sentence of life imprisonment.      See former R.C.

2907.02(B). After the amendment, the legislature authorized a trial court to impose

an indefinite sentence of 15 years to life for the rape of a child under ten and

authorized an indefinite sentence of 25 years to life when the offender used force.

R.C. 2971.03(B)(1)(b) and (c). Had the legislature intended to give trial courts

additional sentencing options, it would have explicitly done so.

     Judicial Fact-Finding that Increases the Statutory Minimum
               Sentence Violates the Sixth Amendment

       {¶32}   As the United States Supreme Court explained, the statutory

minimum sentence is the minimum sentence the judge may impose based upon the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



facts as reflected in the jury verdict. Alleyne, 570 U.S. 99, 133 S.Ct. 2151 at 2157-

2158, 2161, 186 L.Ed.2d 314, fn.2 (“Juries must find any facts that increase either

the statutory maximum or minimum.”). Any “[f]acts that increase the mandatory

minimum sentence are therefore elements and must be submitted to the jury and

found beyond a reasonable doubt.” Id. at 2158. In Alleyne, the court reviewed a

sentencing statute that required a minimum sentence of five years if the offender

used or carried a firearm. Id. at 2155. If the offender brandished the firearm, the

sentence was increased to a minimum of seven years, and if the firearm were

discharged, the sentence was increased to a minimum of ten years. Id. at 2155-2156.

The jury verdict form included a finding that Alleyne used or carried a firearm, but

did not include an additional finding that Alleyne brandished or discharged the

firearm. Id. at 2156. The trial court made the factual finding that Alleyne had

brandished the weapon and sentenced Alleyne to seven years on the conviction. Id.

       {¶33}   In reversing the sentence, the Alleyne court found that any “fact

triggering a mandatory minimum alters the prescribed range of sentences to which a

criminal defendant is exposed.” Id. at 2162. As the court further explained,

       But for a finding of brandishing, the penalty is five years to life in

       prison; with a finding of brandishing, the penalty becomes seven years

       to life. Just as the maximum of life marks the outer boundary of the

       range, so seven year marks its floor. * * * The essential point is that the

       aggravating fact produced a higher range, which, in turn, conclusively

       indicates that the fact is an element of a distinct and aggravated crime.

       It must, therefore, be submitted to the jury and found beyond a

       reasonable doubt.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Id. at 2162-2163. Because the sentencing range based upon the facts found by the

jury was five years to life, the finding of brandishment by the court altered the range

to seven years to life in violation of Alleyne’s Sixth Amendment rights. Id. at 2163-

2164.

        {¶34}   Here, the jury found Bowers guilty beyond a reasonable doubt of rape

of a child under the age of ten. The minimum sentencing range for Bowers, based

upon the facts as found by the jury, is 15 years to life. The aggravated factual finding

of force by the court altered the minimum sentence to 25 years to life. Thus the

factual finding by the court violated Bowers’ Sixth Amendment rights. See id. See

also State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and CA2013-06-050,

2014-Ohio-2340, ¶ 120-121 (holding that the sentence for rape of a child based on

the trial court’s finding of serious physical harm, and not a jury finding, was contrary

to law and in violation of Apprendi); Louis, 2016-Ohio-7596, 73 N.E.3d 917, at ¶ 79

(concluding that “because the jury did not specifically find Louis had a prior

substantially similar rape conviction or caused serious physical harm during or

immediately after the rapes, or the victim was less than ten, the trial court could not

sentence her to life without parole” pursuant to Alleyne).

        {¶35}   Applying Alleyne to this case, the result is the same. The jury found

that the victim was under the age of ten mandating a minimum penalty of 15 years to

life. With a finding of force, the penalty increases to 25 years to life. Thus, the

aggravating fact of force produces a higher sentencing range, and must therefore, be

submitted to the jury and found beyond a reasonable doubt.

        {¶36}   The majority’s reliance on the fact that the trial court may consider

statutory factors in imposing a sentence within the statutory range is misguided. It is

of no consequence that a trial court may consider “relevant factors,” such as evidence



                                          15
                      OHIO FIRST DISTRICT COURT OF APPEALS



of force, to impose a sentence within the proscribed sentencing range. The Alleyne

court made it clear that its holding did not disturb discretionary judicial fact-finding

when imposing a sentence within the statutory range. Alleyne at 2163. Judges may

constitutionally consider “various factors relating both to offense and offender – in

imposing a judgment within the range prescribed by statute.”               (Emphasis in

original.) Id., quoting Apprendi, 530 U.S. at 481, 120 S.Ct. 2348, 147 L.Ed.2d 435.

Any factual finding that determines or alters the statutory range by increasing either

the mandatory minimum or maximum alters the legally proscribed range and must

be done by a jury. Id. at 2161, fn. 2.

                                         Conclusion

       {¶37}    Ultimately, statutes must be applied as written. Because Bowers was

found guilty by the jury of rape of a child under the age of ten, and the court decided

not to impose a sentence of life without parole, the court was required to impose an

indefinite sentence of 15 years to life. Allowing the court to engage in judicial fact-

finding, that bypasses the jury, to increase the minimum sentence to 25 years to life

violates Bowers’ Sixth Amendment rights. I therefore respectfully dissent.

       {¶38}    Accordingly, I would sustain the assignment of error, reverse the

sentence, and remand the matter to the trial court to resentence Bowers on the rape

offense under R.C. 2907.02(B) and R.C. 2971.03(B)(1)(b).


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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