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154 Ohio App. 3d 450

797 N.E.2d 580

State v. Vlahopoulos

Ohio Court of Appeals

Decided September 25, 2003

Ohio Court of Appeals · decided 2003-09-25

Cited by 27 later decisions — most recently October 2015 · most notably State ex rel. Carnail v. McCormick (2010), State v. Kase (2010)

27 state decisions

Key passage — most relied on by later courts

“Ober is correct that the `sentence shall not impose an unnecessary burden on state or local government resources.' R.C. 2929.13 (A). According to criminal law experts, this resource principle `impacts on the application of the presumptions also contained in this section and upon the exercise of discretion.' Griffin and Katz, Ohio Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction would unduly burden resources when deciding whether a second degree felony offender has overcome the presumption in favor of imprisonment because the resource principle is consistent with the overriding purposes and principles of felony sentencing set forth in R.C. 2929.11 . Id. {¶ 15} "Although resource burdens may be a relevant sentencing criterion, R.C. 2929.13 [A] does not require trial courts to elevate resource conservation above the seriousness and recidivism factors. Imposing a community control sanction on Ober may have saved state and local government funds; however, this factor alone would not usually overcome the presumption in favor of imprisonment.”

quoted by 2 later decisions, including State v. Wolfe, Unpublished Decision (6-10-2004), State v. Hines, 07-Coa-027 (4-9-2008)

“R.C. 2929.13 (A) states that a sentence `shall not impose an unnecessary burden on state or local governmental resources.' Just what constitutes a `burden' on state resources is undefined by the statute, but the plain language suggests that the costs, both economic and societal, should not outweigh the benefit that the people of the state derive from an offender's incarceration. Some have argued that in cases where the multiple life tails might be involved, incarceration of aged offenders who require the kind of nursing care needed by elderly people might place a burden on the state's resources. Of course this is true, but it is only one type of cost associated with incarceration. The court must also consider the benefit to society in assuring that an offender will not be free to reoffend. Many people sleep better at night knowing that certain offenders are incarcerated. They would no doubt consider a lengthy incarceration worth the cost of housing those offenders.”

quoted by 1 later decision, including State v. Wolfe, Unpublished Decision (6-10-2004)

Good law ✅— No negative treatment on recordhow we know

Decided 2003-09-25

View the full empirical analysis of this case →

Sean C. Gallagher, Judge,

¶1 concurring.

¶2 {¶ 7} I concur with the judgment and analysis of the majority but write separately to address the basis of the indefinite sentence that results in appellant’s claim that he received what amounts to a life sentence without parole where the sentence is not authorized by statute.

¶3 {¶ 8} In what can be described as a unique and creative appeal, Vlahopoulos argues that the trial court erred by imposing three consecutive modifiable life sentences and that the sentence created a de facto life sentence without the possibility of parole not authorized by law. Further, Vlahopoulos claims that, due *453 to his age, the sentence imposes an unnecessary burden on state or local governmental resources contrary to R.C. 2929.13(A). The origin of these claims is Vlahopoulos’s successful appeal finding that the trial court failed to comply with the mandatory sentencing obligations of R.C. 2971.03, addressed by this court in State v. Vlahopoulos, Cuyahoga App. No. 80427, 2002-Ohio-3244, 2002 WL 1396862.

¶4 {¶ 9} In that appeal, this court affirmed the imposition of consecutive sentences and found that the overall sentence was not disproportionate to the seriousness of the crimes committed. The case was remanded because Vlahopoulos correctly raised the issue that the original sentence did not provide for an indefinite prison term consisting of a minimum fixed term and a maximum term of life imprisonment as required under R.C. 2971.03(A)(3). 1 On remand, the trial court sentenced appellant to nine years to life on each of three rape counts, and seven years on each of two counts of corrupting another with drugs. The sentences were again ordered to be served consecutively for a total sentence of 41 years to life.

¶5 {¶ 10} Vlahopoulos provides no case law in support of his arguments. It is clear that by setting a definite minimum term along with a maximum term of life imprisonment, the trial court followed the- instructions given by this court and complied with the mandate of R.C. 2971.03(A)(3). Thus, the trial court properly imposed an indefinite prison term.

¶6 {¶ 11} I agree with the majority that this sentence does not amount, in a legal context, to a term of life without parole. While it is indeed probable that Vlahopoulos, due to his age, will not be released in his natural lifetime, the indefinite term imposed is statutorily mandated and does not legally eliminate, however remote, the possibility of parole. The legislature declined to carve out a specific exception for older offenders to the imposition of indefinite terms under R.C. 2971.03(A)(3), and we likewise decline to do so here.

¶7 {¶ 12} The overriding purposes of felony sentencing are clearly “to protect the public from future crime by the offender and … to punish the offender. …” R.C. 2929.11(A). Under the facts of this case, those purposes were met, and the requirement of an indefinite term under R.C. 2971.03(A)(3) was properly imposed. A statutorily mandated sentence can never be an unnecessary burden on state or local government resources.

1

¶8 . R.C. 2971.03 governs sentencing of sexually violent offenders. Subsection (A)(3) provides that "if the offense is an offense other than aggravated murder, murder, or an offense for which a term of life imprisonment may be imposed, [the court] shall impose an indefinite prison term consisting of a minimum term fixed by the court from among the range of terms available as a definite term for the offense, but not less than two years, and a maximum term of life imprisonment."

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