[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Belew, Slip Opinion No. 2014-Ohio-2964.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-2964
             THE STATE OF OHIO, APPELLEE, v. BELEW, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
      it may be cited as State v. Belew, Slip Opinion No. 2014-Ohio-2964.]
Appeal dismissed as having been improvidently accepted.
     (No. 2013-0711—Submitted March 12, 2014—Decided July 10, 2014.)
               APPEAL from the Court of Appeals for Lucas County,
                          No. L-11-1279, 2013-Ohio-1078.
                               ____________________
        {¶ 1} The cause is dismissed as having been improvidently accepted.
        PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
        O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., dissent.
                               ____________________
        LANZINGER, J., dissenting.
        {¶ 2} I respectfully dissent from the court’s decision to dismiss this case
as having been improvidently accepted. Amici curiae in support of appellant,
Jeffery Belew, filed two memoranda in support of jurisdiction asserting that this
case involves a matter of great general interest and public importance and filed
                               SUPREME COURT OF OHIO




two supporting merit briefs.1 And although the state does not disagree with
Belew’s proposition that “[w]hen credibly diagnosed, a trial court must consider
combat-related post-traumatic stress disorder and other service-related disabilities
as mitigation when imposing sentence on a military veteran,” it argues that the
trial court here did properly consider those factors when sentencing him.
        {¶ 3} I believe that we should render an opinion on how posttraumatic
stress disorder (“PTSD”) must be considered by a court when it sentences a
military veteran. And just as important, we should clarify the standard that an
appellate court must use in reviewing a sentence of this type. It is my position
that only a full opinion by this court will clarify both the appellate court’s
standard of review and the trial court’s need to support the record for a felony
sentence.
                                   Case Background
        {¶ 4} On April 10, 2011, Belew fired at least four shots at police officers
who were responding to a domestic-disturbance call in Oregon, Ohio. Belew’s
shots struck an arriving police car twice, and he did not respond to commands to
cease fire until he was wounded by shots fired by the officers. He was arrested
and received hospital care.
        {¶ 5} Belew was indicted on April 20, 2011, for two counts of attempted
aggravated murder of a law-enforcement officer and two counts of felonious
assault, which were first-degree felonies under R.C. 2903.11(D)(1) because the
shots were fired at peace officers. Each count contained specifications that he
both displayed, brandished, indicated possession of, or used a firearm (R.C.
2941.145) and discharged his firearm at peace officers (R.C. 2941.1412). He



1
 One brief was filed by Ohio Suicide Prevention Foundation, Disability Rights Ohio, National
Disability Rights Network, National Alliance on Mental Illness of Ohio, and Ohio Empowerment
Coalition, Inc. The other brief was filed by the Arms Forces.




                                             2
                               January Term, 2014




entered pleas of not guilty and not guilty by reason of insanity (“NGRI”) to all
charges and specifications.
       {¶ 6} As a result of his NGRI plea, Belew was evaluated by two
psychologists, who provided reports to the court concluding that he did not
qualify for the insanity defense. One of the psychologists diagnosed him with
alcohol dependence and persistent major depression and PTSD as a result of his
military service in Iraq. That psychologist believed that Belew was hoping to be
killed by police on the day of the shooting.       The other psychologist found
evidence of possible malingering or a personality disorder.
       {¶ 7} After plea negotiations, Belew changed his plea to guilty and the
state dismissed certain counts and specifications. He was sentenced to 27 years in
prison: two consecutive ten-year terms for each count of felonious assault to be
served consecutively to two concurrent seven-year terms for the firearm
specifications. He appealed his sentence to the Sixth District Court of Appeals,
which affirmed the trial court’s order, holding that the trial court appropriately
weighed statutory factors in imposing his sentence.           We then accepted a
discretionary appeal.
       {¶ 8} In his appeal before this court, Belew contends that the sentencing
judge did not understand PTSD and did not give appropriate weight to PTSD as a
mitigating factor. Belew argues that his actions were tied to his PTSD because
his heightened responses, including irritability and anger, and his exacerbated
alcoholism caused him to react in a manner he would not have otherwise. He
characterizes his 27-year aggregate sentence as an abuse of the court’s discretion
as well as being contrary to law.
       {¶ 9} I believe that this case provides us with an opportunity to review
statutory requirements for the consideration of mitigating evidence and the
imposition of consecutive sentences, as well as the standard of review to be used
by the courts of appeals.



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                             SUPREME COURT OF OHIO




                                   Legal Analysis
The Appellate Standard of Review
       {¶ 10} Ohio’s felony-sentencing scheme allows judges to exercise
discretion within statutory bounds. The sentencing court is required to follow
statutory direction in choosing a prison term, and it is no longer enough that a
sentence falls within the permitted range. Regarding appellate review, after we
struck down portions of the sentencing statutes in light of federal law in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, a plurality of this
court set forth a two-step approach for courts of appeals to use: (1) whether the
trial court adhered to all applicable rules and statutes in imposing the sentence and
(2) whether a sentence within the permissible statutory range constitutes an abuse
of discretion. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 26. But as noted by the Kalish dissent, R.C. 2953.08(G)(2) had expressly
rejected abuse of discretion as the standard for appellate review and Foster had
not severed that portion of the statute. See id. at ¶ 66 (Lanzinger, J., dissenting).
       {¶ 11} After the United States Supreme Court, in Oregon v. Ice, 555 U.S.
160, 163, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), upheld the ability of trial court
judges to make findings of fact before imposing consecutive sentences, the
General Assembly modified R.C. 2953.08(G), which governs appellate review of
sentences, as part of 2011 Am.Sub.H.B. No. 86. Effective September 30, 2011,
R.C. 2953.08(G) reads:


                (2) The court hearing an appeal under division (A), (B), or
       (C) of this section shall review the record, including the findings
       underlying the sentence or modification given by the sentencing
       court.
                The appellate court may increase, reduce, or otherwise
       modify a sentence that is appealed under this section or may vacate



                                           4
                               January Term, 2014




       the sentence and remand the matter to the sentencing court for
       resentencing. The appellate court’s standard for review is not
       whether the sentencing court abused its discretion. The appellate
       court may take any action authorized by this division if it clearly
       and convincingly finds either of the following:
              (a) That the record does not support the sentencing court’s
       findings under division (B) or (D) of section 2929.13, division
       (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
       2929.20 of the Revised Code, whichever, if any, is relevant;
              (b) That the sentence is otherwise contrary to law.


(Emphasis added.)
       {¶ 12} R.C. 2953.08(G)(2) repudiates the abuse-of-discretion standard in
favor of appellate review that upholds a sentence unless the court of appeals
clearly and convincingly finds that the record does not support the trial court’s
findings.
The Sentencing Hearing
       {¶ 13} The trial court in this case received the psychological reports and
the presentence-investigation report into evidence.      Psychologist Dr. Wayne
Graves, who testified at the sentencing hearing, opined specifically about the
diagnosis of PTSD, which resulted from Belew’s military service in Iraq, and
about the consequences of PTSD. Defense counsel and the prosecuting attorney
also spoke. Afterwards, the sentencing judge stated:


       I have reviewed the presentence report that has been prepared, I’ve
       reread the report prepared by Dr. Charlene Cassel of the Court
       Diagnostic and Treatment Center, I’ve reread Dr. Wayne Graves’
       report, I have read two letters from the Defendant’s mother, and



                                        5
                     SUPREME COURT OF OHIO




I’ve listened very carefully to the testimony of Dr. Wayne Graves
here today, as well as listened to what Counsel and Defendant has
had to say, and I’ve balanced all of that information in sentencing
this afternoon.


{¶ 14} She then addressed the defendant directly:


Mr. Belew, you claim that you suffer from post-traumatic stress
disorder as a result of being in the military and you provide that as
an excuse for your actions. There is no excuse, Mr. Belew. I have
to—I feel that I’m compelled because of my concerns of why you
entered the military, to weigh that.      And your words to Dr.
Charlene Cassel were, I joined the Marines to see how many
people I could kill. That’s, generally—if I’m not mistaken, people
don’t join the military to see how many people they can kill. You
were continually in trouble and constantly drunk and under the
influence of alcohol and drugs, and you received a bad conduct
discharge after being court martialed for stealing government
property.


{¶ 15} Turning to the offenses, the judge then stated:


These offenses are extremely serious, Mr. Belew, these officers
could have been killed, because you intended to kill them. They
responded to a call of a fight between you and your brother
because you were in possession of a handgun and were extremely
intoxicated. And you don’t remember what happened that night, as
you said, because you were suffering from an alcohol blackout.



                                 6
                               January Term, 2014




       And according to Dr. Charlene Cassel, people who are suffering
       alcohol blackouts do not do things that are uncharacteristic of
       things that they wouldn’t normally do. You shot at Officer Martin
       when he stopped his vehicle, you shot at him several times, and
       when the other two officers came to assist they gave several
       commands to you to stop and put down your weapon, but you
       continued to walk toward them with your gun pointed at them.
       And it was only after you were wounded that you stopped. You
       are lucky to be standing here today, Mr. Belew, because they very
       well could have killed you.


       {¶ 16} The judge next stated: “You do have a minimal criminal history.”
However, she also stated, “because of your actions I believe you are a danger to
this community.”
       {¶ 17} The judge specifically stated that she had considered R.C. 2929.19,
Crim.R. 32, and the statutory factors under R.C. 2929.11 and 2929.12 before
imposing ten-year consecutive prison sentences for the two first-degree felonies
of felonious assault. The concurrent seven-year terms for the gun specifications
were ordered to be served consecutively to the felonious-assault terms, with the
judge finding pursuant to R.C. 2929.14(C)(4) that consecutive sentences were
necessary to protect the public from future crime and were not disproportionate to
the seriousness of Belew’s conduct. She also stated that no single prison term
would reflect the seriousness of his conduct for the offenses committed as part of
a course of conduct. See R.C. 2929.14(C)(4)(b).
Appellant’s Arguments
       {¶ 18} Belew contends that the court did not properly consider PTSD as a
substantial ground to mitigate his conduct and argues that he should have received
no more than the minimum aggregate sentence of ten years (three-year concurrent



                                        7
                              SUPREME COURT OF OHIO




sentences for the felonious assaults, served consecutively to the concurrent
mandatory seven-year sentences for the gun specifications).            In essence, by
objecting to the manner in which the court considered his PTSD, Belew is
actually asking for a reweighing of the statutory factors that the trial court already
balanced in determining his sentence. But as long as the trial judge properly
considered all mitigating factors, it was within her discretion to weigh them in any
manner that she saw fit and to assign such weight to each factor as she thought
appropriate. See State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d
88, ¶ 130 (the weight, if any, to assign a given factor is a matter for the discretion
of the individual decisionmaker). Stated another way, this means that appellate
courts are prohibited from substituting their judgment for that of the trial judge.
The Record in This Case
        {¶ 19} The state in this case argues that the trial judge did consider the
PTSD.     The record indicates that Belew’s alcohol abuse and troubles with
authorities started before he enlisted in the Marines after high school.          His
military experience seemed to aggravate his problems.
        {¶ 20} Belew served more than three years in the Marines but was given a
bad-conduct discharge after “joy riding” in a government vehicle while
intoxicated. His psychological evaluations revealed that he began abusing other
substances during his service in Iraq, and when he returned to the United States,
his alcohol use increased significantly. Belew struggled to adjust upon his return
to civilian life, often drinking to the point of passing out or blacking out.
        {¶ 21} Although R.C. 2929.12(F) was not in effect at the time of Belew’s
sentencing, that subsection now covers the issue of PTSD for those who have
served in the military. R.C. 2929.12(F), which became effective on March 22,
2013, is a stand-alone provision and was not placed under subsection (D) (factors
indicating that the offender is likely to commit future crimes) or subsection (E)




                                           8
                               January Term, 2014




(factors indicating that the offender is not likely to commit future crimes). See
2012 Am.Sub.H.B. No. 197. R.C. 2929.12(F) reads:


       The sentencing court shall consider the offender’s military service
       record and whether the offender has an emotional, mental, or
       physical condition that is traceable to the offender’s service in the
       armed forces of the United States and that was a contributing
       factor in the offender’s commission of the offense or offenses.


In other words, the court must consider PTSD and its possible impact, but the
General Assembly has recognized that the mitigating weight to assign to PTSD is
a matter for the sentencing judge.
       {¶ 22} Here, the record shows that the court considered the issue of
Belew’s PTSD. The judgment entry recites that the judge considered the record,
oral statements, victim-impact statement, and presentence report.               R.C.
2929.12(A) now states that a court that imposes a felony sentence


       has discretion to determine the most effective way to comply with
       the purposes and principles of sentencing set forth in section
       2929.11 of the Revised Code. In exercising that discretion, the
       court shall consider the factors set forth in divisions (B) and (C) of
       this section relating to the seriousness of the conduct, the factors
       provided in divisions (D) and (E) of this section relating to the
       likelihood of the offender’s recidivism, and the factors set forth in
       division (F) of this section pertaining to the offender’s service in
       the armed forces of the United States and, in addition, may




                                         9
                              SUPREME COURT OF OHIO




        consider any other factors that are relevant to achieving those
        purposes and principles of sentencing.2


        {¶ 23} Belew did not receive a maximum 34-year sentence for the
offenses and specifications for which he was convicted. The sentencing judge’s
entry stated that the prison terms were ordered to be served consecutively because
consecutive sentences were “necessary to fulfill the purposes of R.C. 2929.11,
and not disproportionate to the seriousness of the offender’s conduct or the danger
the offender poses” and that the “harm caused was great or unusual.” The record
here did not allow the Sixth District Court of Appeals to clearly and convincingly
find that the record does not support the sentencing court’s findings.
                                  Conclusion
        {¶ 24} Although different judges may have weighed the statutory factors
at issue here differently, the relevant statutes did not allow the appellate court to
substitute its own judgment for that of the trial judge. All findings of the trial
judge have record support and the required findings were made. I would therefore
affirm the judgment of the court of appeals. I respectfully dissent from the order
that dismisses this case as improvidently accepted.
        O’CONNOR, C.J., concurs in the foregoing opinion.
                               ____________________
        O’NEILL, J., dissenting.
        {¶ 25} The United States Marine Corps took a marginal recruit from an
abusive family and turned him into a fighting machine. They sent him to Iraq to
defend all of us, and in the process they turned him into a confused alcoholic with
a clear diagnosis of posttraumatic stress disorder (“PTSD”) and possibly a
traumatic brain injury.

2
  The phrase within R.C. 2929.12(A) referring to R.C. 2929.12(F) was added after Belew was
sentenced. See 2012 Am.Sub.H.B. No. 197.




                                           10
                               January Term, 2014




       {¶ 26} Once home, and still on active duty, he became a misfit alcoholic
who was, essentially, no longer of any use to the Marine Corps. He was often
drunk, did not obey orders, and most significantly, received no treatment
whatsoever for the PTSD that he had sustained in the fog of war.
       {¶ 27} Not too surprisingly, on one drunken day while on active duty, he
and a friend “borrowed” a Humvee and went on a joyride. They were quickly
apprehended by the officer of the day, and from that point forward, it was clear
that the Marines no longer needed the product they had created.
       {¶ 28} He was demoted and given a bad-conduct discharge for the
Humvee incident. Significantly, his less-than-honorable discharge deprived him
of the medical assistance from the federal Department of Veterans Affairs that he
so desperately needed.
       {¶ 29} As a civilian he simply did not fit in, and, still suffering from
untreated and undiagnosed PTSD, his antisocial behavior predictably escalated.
       {¶ 30} We are here today because of the tragic events that led to his
conviction. It is without question, and well supported in the record, that this
troubled throwaway from society wanted to commit suicide by cop. There is no
other explanation for why an individual would open fire on two approaching,
well-trained, well-armed police officers. He failed. Rather than dying, Belew
received a nonfatal bullet to the chest—and not one of the officers was struck. He
took responsibility for his actions and pled guilty to several offenses but received
an aggregate sentence of 27 years in prison that was far harsher than it should
have been.
       {¶ 31} Incredibly, the trial court and the court of appeals have locked onto
the phrase “no excuse.” The trial court stated, “Mr. Belew, you claim that you
suffer from post-traumatic stress disorder as a result of being in the military and
you provide that as an excuse for your actions. There is no excuse, Mr. Belew.”




                                        11
                             SUPREME COURT OF OHIO




       {¶ 32} I would respectfully suggest that one trial court judge, three
appellate court judges, and the majority of this court simply do not get it. PTSD
is not an excuse. It is an explanation.
       {¶ 33} Mr. Belew’s disability was not an “excuse.”           He was and is
suffering from a well known and definable disease, which was diagnosed by Dr.
Wayne Graves, whose testimony was admitted into evidence without objection
and presented in the sentencing hearing.
       {¶ 34} After the date of the trial court’s sentencing of Belew in this case,
the General Assembly enacted the following language: “The sentencing court
shall consider the offender’s military service record and whether the offender has
an emotional, mental, or physical condition that is traceable to the offender’s
service in the armed forces of the United States.” R.C. 2929.12(F).
       {¶ 35} This case is clearly the poster child for implementation of the new
statute, and today this court has the rare opportunity to lead with clarity. The
record is before us. There is more at stake here than garden-variety excuses for
criminal culpability. Belew was a marginal Marine recruit; he developed PTSD
while on active duty; and he was turned out of the service with a bad-conduct
discharge and little or no capacity to function safely in society. Tragically, he is
not the only member of the armed forces to arrive at this juncture. He has been
diagnosed with PTSD as a result of his time in the Marine Corps—a condition
that remains untreated. It is inexcusable that he cannot access federal benefits for
his PTSD. We can and should do better. I would reverse the judgment of the
court of appeals and remand this case to the trial court for a new sentencing
hearing and decision that properly takes into consideration Belew’s military-
service record and his diagnosis of PTSD. Anything else is unreasonable.
                             ____________________
       Julia Bates, Lucas County Prosecuting Attorney, and David Cooper and
Michael D. Bahner, Assistant Prosecuting Attorneys, for appellee.



                                           12
                              January Term, 2014




       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick and
William J. Mooney, Assistant Public Defenders, for appellant.
       Spengler Nathanson, P.L.L., and Laurie J. Pangle, urging reversal for
amicus curiae the Arms Forces.
       McDonald Hopkins, L.L.C., and R. Jeffrey Pollock, urging reversal for
amici curiae Ohio Suicide Prevention Foundation, National Alliance on Mental
Illness of Ohio, and Ohio Empowerment Coalition, Inc.
       Ohio Disability Rights Law and Policy Center, Inc., and Kristen Henry,
urging reversal for amici curiae Disability Rights Ohio and National Disability
Rights Network.
                         _________________________




                                       13
