¶1 dissenting.
¶2 My mistake. I thought we lived east of the Pecos.
¶3 Because the decision today (1) abandons our legal responsibility to review sentences, (2) misinterprets the law, and (8) allows a shocking travesty of justice, I must dissent. I also note that, because Judge Doan concurs in “judgment only,” the lead opinion has no precedential value.
¶4 Just about a month after his eighteenth birthday, Christopher Mushrush took a handfull of pills and flipped out. He somehow ended up at Oak Hills High School, spraying pepper spray (described by the prosecutor as a “chemical irritant”) around the auditorium, where about four hundred people were attending a talent performance. The room was evacuated, and two people, including Anna Weber, passed out from the spray. Paramedics treated both at the scene. Perhaps worse, Mushrush visited personal violence on a person who tried to apprehend him (by biting him). The school principal, James Williamson, attempted to grab Mushrush, and as Mushrush pulled away, Williamson fell and reinjured one of his knees. Other citizens apprehended Mushrush and held him for the police. Mushrush woke up in jail, beaten, and with no memory of the incident.
¶5 Much more serious consequences could have ensued. Fortunately, they did not. No victims were hospitalized. To Mushrush in his drug-addled state, this may have seemed a prank. But the seriousness of his conduct needed to be impressed upon him. Though he could have received probation subject to drug treatment, such a sentence would perhaps not have received his full attention. Sometimes the “2 x 4” approach is called for. And because he did cause injury, the jail door needed to hit his backside.
¶6 The Sentence
¶7 Mushrush pleaded guilty to all charges, throwing himself upon the “mercy” of the court as to the sentence. There were a number of charges, but he was sentenced on three major ones — inducing panic, assault, and felonious assault.
¶8*114 The most proper sentence would have been for inducing panic. 2 Because Mushrush ruined the evening of four hundred people who were, in the words of the prosecutor, “caused great inconvenience and alarm,” because the biting incident was indicted as part of this charge, and because his actions could have caused a panic, his sentence on the charge of inducing panic could have been four hundred days, or perhaps a year and a half, five hundred forty days, the maximum sentence. Apart from the statutory factors and considerations, this would have been a harsh, but reasonable sentence. Coming out of prison at age twenty, having drug treatment while inside, and having a long time to think about where his life was heading, maybe he could become a productive citizen. The trial court’s finding that this was one of the “worst forms” of inducing panic is supported by the record.
¶9 “Hard on Crime” — Or Hard on the Taxpayers?
¶10 But Mushrush did not get one and a half years. He got ten and a half years. Because he received the maximum sentence for inducing panic, we have to look elsewhere for the genesis of this sentence.
¶11 Mushrush received one additional year for the assault against Williamson, the principal. 3 The normal penalty for assault is up to six months, but because Williamson is a school administrator, the law makes this assault a felony. 4 Mushrush cannot complain that the event aggravated a previous injury — it was his conduct that occasioned the problem. We all have to be responsible for the actual harm caused by our conduct — it is no answer to say that the fall might not have caused the same injury to someone else. While adding a full year to the sentence for this result borders upon excessive, I would not set it aside in this case.
¶12 The next eight years were imposed for the crime against Anna Weber. 5 According to the presentence report, Weber passed out after leaving the building, she believed, from the effects of the spray. It is unclear how long she was out, but she was examined by paramedics at the scene, and they did not take her to the hospital. She reported to the probation department that she has had no further difficulties since the night of the incident. Perhaps the worst part of the incident regarding Weber is that her three children were also present and were *115 understandably frightened at seeing their mother passed out. An eight-year sentence for this event is contrary to law, and to common sense.
¶13 The sentence is out of proportion with the incident and with other crimes. No weapon was involved. No blood flowed. No one went to the hospital. Many people who cause a death get less. 6 Long after this incident is forgotten, Mushrush will be in prison. Mushrush will, as a result of this sentence, rot in prison for three presidential elections, and, rather than having some hope of redemption, will come out a hardened criminal. Has the justice system in Ohio abandoned hope of rehabilitation even for an eighteen-year-old? No matter how long the sentence, absent the death penalty, people return to society. This sentence is not “hard on crime” — it is hard on the taxpayers, who will spend hundreds of thousands of dollars to warehouse a mace-spraying eighteen-year-old kid for more than a decade.
¶14 The Crime Doesn’t Fit the Punishment — It Doesn’t Even Fit the Crime.
¶15 The sentence is contrary to law for two reasons. First, the crime Mushrush actually committed was not even felonious assault, although he pleaded guilty to that offense. Felonious assault requires that the offender cause “serious physical harm” to the victim. 7 Felonious assault is thus contrasted with assault, which prohibits mayhem of a lesser nature. While the discomfort to Weber was certainly physical harm, it does not fall into any of the definitional categories for “serious physical harm,” which are:
“(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
“(b) Any physical harm that carries a substantial risk of death;
*116 “(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
“(d) Any physical harm that involves some permanent disfigurement, or that involves some temporary, serious disfigurement;
“(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain.” 8
¶16 No argument can be seriously advanced that the harm to Weber, unfortunate though it was, fits any of the above categories. The case cited by the lead opinion 9 concerned a physical choking, and is, in any event, wrongly decided. We should not follow that court into error. Greater degrees of crime are there for a reason. When we elevate lesser crimes to greater crimes by judicial fiat, we frustrate the intent of the law.
¶17 As a matter of law, then, Mushrush was not guilty of the offense of felonious assault, but guilty of assault, and could have received only six months’ incarceration, not eight years. We can not reverse his conviction for the greater offense, though, because he pleaded guilty. But we can examine this issue in considering his first assignment of error — the involuntariness of his plea. 10 In State v. Fish, we held that one consideration in a motion to set aside a plea is “whether the accused was perhaps not guilty or had a complete defense to the charge or charges.” 11 And we could reverse the denial of Mushrush’s motion to withdraw his plea. Or we could consider the issue with regard to the sentencing. I would do the latter, as set out below.
¶18 Bad, But Not the Worst
¶19 The sentence is facially contrary to law because it is the maximum sentence for felonious assault. Even were the crime to be shoehorned into a definition it does not fit, Mushrush is only eligible for the maximum sentence if he committed the “worst form” of the offense. 12
¶20*117 Apart from the problem of how one can commit the worst form of the offense when one did not even commit the offense itself, the offense here is clearly not the “worst form” of felonious assault. As can be seen from the above definitions, the worst form would entail very serious harm indeed. Beating someone with a baseball bat resulting in lengthy hospitalization and permanent brain damage would surely be worse. A stabbing with permanent scars or a shooting that almost results in death would qualify as felonious assault. The list could go on and on, but does not include the assault on Weber. The lead opinion’s muddled attempt at justification — it says that the court can consider the offense that is the worst form of itself to make another offense the worst form of itself — that the court may not just add, but multiply sentences — is a shocking insult to the sentencing guidelines, not to mention logic or common sense. The finding of “worst form” is so clearly not supported by the record that the error is beyond cavil.
¶21 A Retreat from Duty
¶22 This court has an affirmative duty to review sentences, to determine, in this case, whether the record supports the trial court’s characterization of the “worst form” of the offense. 13 Our standard of review is whether the sentence is contrary to law, and whether it is supported by the record. 14 “Since the enactment of Senate Bill 2, an appellate court no longer reviews sentences under an abuse-of-discretion standard.” 15 Under present law, this court has a duty to review sentences. The legislature has devised a procedure, difficult though it may be in application, that we must follow. We must scrutinize every appealed sentence for compliance with the admittedly difficult legal standards mandated by the legislature. We may not relish our duty, but we must not shirk it. The job of this court is to review sentences for compliance with the guidelines. And we have done so in other cases. For example, in State v. Sheppard, 16 an excellent opinion by Judge Sundermann of this court, we reduced a sentence because it was not justified by the record. It may not be possible, or desirable, to proportionalize sentences exactly — we must leave that to the sound decisions of *118 the trial judges. As long as they are sound. A broad range of cases may constitute the “worst form.” But this court should know an aberration when we see it. If the sentence in this case is not an aberration, then S.B. No. 2 is meaningless, and our sentence review is a sham.
¶23 If we compare other felonious-assault cases decided after the change in the sentencing law, myriad cases could be found in which a defendant charged with felonious assault caused much more harm and received a lesser sentence — just a few are set out below. 17 But a comparison should not be necessary to demonstrate that this sentence is contrary to law. We may not be able to define what is not the “worst form” of an offense, but we must know it when we see it. What we may not do is pretend to be blind.
¶24*119 Error Consecutive to Error
¶25 After sentencing Mushrush to maximum time on the felonious-assault count, the court further punished him by sentencing him to serve his felonious-assault and assault sentences consecutively to his inducing-panic sentences. By doing so, the court only compounded its errors.
¶26 To impose consecutive sentences, a court needs to find that “consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” 18 In attempting to satisfy this requirement, the court strained to make findings to justify its conclusion. It determined that the “harm in this case was great and unusual” and that “people could have been crushed.” But we must take the legislature’s words at their meaning — the law does not say “almost caused” or “might have caused.” The reality was that no victims were hospitalized, and nobody was crushed. And just as Mushrush cannot complain about the harm he actually caused to Williamson, he should not have to answer for harm he “might have,” but did not, cause. In view of the maximum time given for felonious assault (already a disproportionate sentence), consecutive sentences were disproportionate to the seriousness of Mushrush’s conduct and to the danger that he posed to the public.
¶27 Certainly, Mushrush deserves to be severely punished for the harm that he caused. But certainly the legislature did not intend for Mushrush to be punished as he was punished here. The trial court’s decision to impose consecutive sentences was contrary to law and not supported by the record.
¶28 What Justice Requires
¶29 The legislature has entrusted the appellate courts of this state with the duty to review aberrant sentences. This case is a prime example of the necessity for that review. The sentence is contrary to law for so many reasons as to defy further elaboration.
¶30 Therefore, to conform the sentence to the law, I would (1) affirm the sentence on counts two, four and five of the indictment, and (2) reduce the sentence on count three to two years, to be served concurrently with counts two and four. Mushrush would serve two and one half years in prison — a harsh but not unconscionable sentence.
¶34 . Count three of the indictment. The biting and the other instance of causing unconsciousness were indicted as separate counts of inducing panic, and were thus addressed in the sentences imposed for counts four and five of the indictment.
¶35 . For sentences of persons guilty of homicide who received less than Mushrush, see, e.g., State v. Parker (Jan. 19, 1999), Warren App. No. CA98-04-025, unreported, 1999 WL 17732 (seven years’ incarceration); State v. Waire (Jan. 15, 1999), Hamilton App. No. C-980005, unreported, 1999 WL 12734 (ten years); State v. Rogers (Jan. 8, 1999), Hamilton App. No. C-970855, unreported, 1999 WL 6340 (nine years); State v. Rodgers (Jan. 7, 1999), Columbiana App. No. 98-CO-25, unreported, 1999 WL 35298 (indefinite term of two to ten years); State v. McDaniel (Nov. 30, 1998), Delaware App. No. 98CA-A-07-035, unreported, 1999 WL 3907 (four years); State v. Webb (Nov. 19, 1998), Cuyahoga App. No. 73974, unreported, 1998 WL 811326(five years' community control, plus two consecutive six-month jail sentences, but case remanded for resentencing); State v. Karnes (Nov. 13, 1998), Montgomery App. No. CA 17082, unreported, 1998 WL 785357 (ten years); State v. Carter (Nov. 12, 1998), Cuyahoga App. No. 73728, unreported, 1998 WL 787404 (indefinite term of three to ten years); State v. Piergiovanni (Oct. 20, 1998), Mahoning App. No. 97 C.A. 14, unreported, 1998 WL 775010 (indefinite term of five to ten years); State v. Hamm (Mar. 17, 1998), Richland App. No. 97 CA 20, unreported (eight years).
¶38 . State v. Czajka (1995), 101 Ohio App.3d 564, 656 N.E.2d 9.
¶39 . State v. Fish (1995), 104 Ohio App.3d 236, 661 N.E.2d 788.
¶42 . R.C. 2953.08(G)(1)(a); State v. Hart (Nov. 5, 1998), Cuyahoga App. No. 74589, unreported, 1998 WL 775022.
¶44 . State v. Napier (Aug. 28, 1998), Hamilton App. No. C-970383, unreported, 1998 WL 542715; see, also, State v. Sheppard (1997), 124 Ohio App.3d 66, 67-68, 705 N.E.2d 411, 412 ("[w]e first note that we no longer review sentencing under an abuse-of-discretion standard”).
¶46 . For cases of felonious assault where the sentence was shorter than Mushrush’s sentence, see, e.g., State v. Palmer (Apr. 23, 1999), Hamilton App. No. C-980437, unreported, 1999 WL 235618 (repeatedly stabbing with a butcher knife: four years' incarceration); State v. Day (Oct. 23, 1998), Hamilton App. No. C-971079, unreported, 1998 WL 735375 (concurrent sentences of two years' incarceration for two counts of felonious assault, but case remanded for resentencing); State v. Campbell (Dec. 19, 1997), Hamilton App. No. C-970125, unreported, 1997 WL 778994 (assault in connection with a burglary: three years’ incarceration on a felonious-assault count); State v. Gales (1999), 131 Ohio App.3d 56, 721 N.E.2d 497 (shooting victim in head: concurrent sentences of four years’ incarceration for two counts of felonious assault); Appellee v. Appellant \sic\ (Apr. 14, 1999), Medina App. No. 2831-M, unreported (beating victim by slamming head into car: one year incarceration); State v. Bair (Apr. 8, 1999), Cuyahoga App. No. 72281, unreported, 1999 WL 195659 (repeatedly striking victim in back of head: seven years' incarceration); State v. Mullins (Dec. 31, 1998), Lucas App. No. L-98-1059, unreported, 1998 WL 904926 (striking victim’s face and body to facilitate a robbery: seven years’ incarceration); State v. Wagle (Dec. 31, 1998), Lucas App. No. L-98-1127, unreported, 1998 WL 904952 (repeatedly hitting victim with baseball bat and kicking her before kidnapping her: five years’ incarceration on a felonious-assault count); State v. Drake (Dec. 17, 1998), Franklin App. No. 98AP-448, unreported, 1998 WL 890169 (placing gun to victim’s head and knocking her down: three years' incarceration on a felonious-assault count, but case remanded for resentencing); State v. Keeton (Dec. 11, 1998), Clark App. No. 98 CA 13, unreported, 1998 WL 852943 (striking victim three times with a support stand for a bumper jack: five years' incarceration); State v. Brooks (Aug. 18, 1998), Franklin App. No. 97APA11-1543, unreported, 1998 WL 514111 (beating victim with a car door: five years’ incarceration, but case remanded for resentencing); State v. Lytle (July 31, 1998), Montgomery App. No. 97 CA 100, unreported, 1998 WL 429845 (striking victim, causing a fracture of the left cheek, tripod bone, and orbital floor: three years' incarceration); State v. Jaap (June 24, 1998), Summit App. No. 18711, unreported, 1998 WL 332948 (attacking victim with a shovel during a “road rage” incident, causing a broken shoulder and severe lacerations to victim’s head: three years’ incarceration); State v. Davis (June 18, 1998), Cuyahoga App. No. 72820, unreported, 1998 WL 323611 (assault with a golf club, causing "multiple contusion status post assault”: two years’ incarceration, but case remanded for resentencing); State v. Blondheim (May 27, 1998), Summit App. No. 18594, unreported, 1998 WL 281917 (shaking baby, causing "retinal hemorrhages” and brain swelling: five years' incarceration on a felonious-assault count); State v. Wilson (Apr. 17, 1998), Lucas App. No. L-97-1197, unreported, 1998 WL 196283 (beating wife, causing a broken nose and contusions to her head, face, extremities, and left shoulder: five years' incarceration); State v. Longmire (Mar. 27, 1998), *119 Portage App. No. 97-P-0032, unreported, 1998 WL 156895 (striking victim with wine bottle, causing serious damage to victim's jaw: five years’ incarceration).