[This opinion has been published in Ohio Official Reports at
86 Ohio St.3d 368.]
THE STATE OF OHIO, APPELLANT, v. WEITBRECHT, APPELLEE.
[Cite as State v. Weitbrecht, 1999-Ohio-113.]
Criminal procedure—Involuntary manslaughter—R.C. 2903.04(B), as applied to a
minor misdemeanor traffic offense which results in a vehicular homicide,
does not violate the Eighth Amendment to the United Constitution or
Section 9, Article I of the Ohio Constitution.
R.C. 2903.04(B), as applied to a minor misdemeanor traffic offense which results
in a vehicular homicide, does not violate the Eighth Amendment to the
United States Constitution or Section 9, Article I of the Ohio Constitution.
(No. 98-2144—Submitted May 26, 1999—Decided September 8, 1999.)
CERTIFIED by the Court of Appeals for Holmes County, No. 97CA588.
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{¶ 1} On July 17, 1997, defendant-appellee, Nancy Weitbrecht, was
indicted on two counts of involuntary manslaughter, in violation of R.C.
2903.04(B), for the deaths of Donald J. Greer and Vera J. Carroll. The involuntary
manslaughter charges arose out of an automobile collision in which the appellee’s
motor vehicle, which was travelling west on State Route 62 in Holmes County,
went left of center in a no-passing zone and struck a vehicle head-on in the
eastbound lane. As a result, two passengers from appellee’s vehicle (Donald Greer
and appellee’s husband, Merlyn P. Weitbrecht) were killed, as well as one
passenger from the eastbound vehicle (Vera Carroll). The bill of particulars alleged
that appellee had violated any of four underlying minor misdemeanor traffic
offenses: operating a motor vehicle without reasonable control (R.C. 4511.202);
failing to operate a motor vehicle on the right half of the roadway (R.C.
SUPREME COURT OF OHIO
4511.25[A]); operating a motor vehicle left of center (R.C. 4511.29); and failing to
obey hazardous zone markings (R.C. 4511.31).
{¶ 2} Appellee filed a motion to dismiss the indictment, arguing that Ohio’s
involuntary manslaughter statute (R.C. 2903.04[B]), when based upon a minor
misdemeanor, violates the Cruel and Unusual Punishment Clauses of both the
United States and Ohio Constitutions.1 The trial court granted appellee’s motion to
dismiss the indictment. The court found a gross disproportionality between the
underlying minor misdemeanor offense and the potential punishment. The court
also found that the offense and the potential penalty were disproportionate when
compared to other similar crimes in Ohio and to crimes in other states.
{¶ 3} The court of appeals affirmed. Finding its decision in conflict with
decisions of the Eleventh Appellate District in State v. Stanford (Sept. 23, 1996),
Trumbull App. No. 95-T-5358, unreported, 1996 WL 537856, and the Twelfth
Appellate District in State v. Garland (1996),
116 Ohio App.3d 461,
688 N.E.2d
557, the court of appeals entered an order certifying a conflict.
{¶ 4} This cause is now before this court upon our determination that a
conflict exists.
__________________
Stephen D. Knowling, Holmes County Assistant Prosecuting Attorney, for
appellant.
Kennedy, Cicconetti & Knowlton and David C. Knowlton, for appellee.
Betty D. Montgomery, Attorney General, and Kimberly L. Charles,
Assistant Attorney General, urging reversal for amicus curiae, state of Ohio.
Harry R. Reinhart, urging affirmance for amicus curiae, Ohio Association
of Criminal Defense Lawyers.
1. Appellee also argued that R.C. 2903.04(B) violates the Equal Protection Clauses of the United
States and Ohio Constitutions, and raised two nonconstitutional issues in her motion to dismiss.
However, none of those issues is before this court.
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January Term, 1999
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FRANCIS E. SWEENEY, SR., J.
{¶ 5} The issue certified for our review is, “Does Ohio’s involuntary
manslaughter statute [R.C. 2903.04(B)] as applied to a minor misdemeanor traffic
offense which results in a vehicular homicide violate the Eighth Amendment to the
United States Constitution and Section 9, Article [I] of the Ohio Constitution?” For
the reasons that follow, we answer the certified question in the negative.
{¶ 6} R.C. 2903.04 provides, in relevant part:
“(B) No person shall cause the death of another … as a proximate result
of the offender’s committing or attempting to commit a misdemeanor of the first,
second, third, or fourth degree or a minor misdemeanor.
“(C) Whoever violates this section is guilty of involuntary manslaughter. *
… Violation of division (B) of this section is a felony of the third degree.”
{¶ 7} A third degree felony carries the potential penalty of one to five years
in prison and a fine of up to $10,000. (R.C. 2929.14[A][4]; 2929.18[A][3][c].)
{¶ 8} Appellee successfully argued to the lower courts that the potential
penalty imposed for a violation of R.C. 2903.04(B) is disproportionate to the crime
committed (a minor misdemeanor), and is violative of the constitutional prohibition
against cruel and unusual punishments. We are now asked to decide whether the
lower courts were correct in finding that R.C. 2903.04(B) violates the Eighth
Amendment to the United States Constitution and Section 9, Article I of the Ohio
Constitution. In resolving this issue, we are mindful that legislative enactments are
to be afforded a strong presumption of constitutionality. State v. McDonald (1987),
31 Ohio St.3d 47, 48, 31 OBR 155, 156,
509 N.E.2d 57, 59. Any reasonable doubt
regarding the constitutionality of a statute must be resolved in favor of the
legislature’s power to enact the law.
Id. Thus, the legislation will not be struck
down unless the challenger establishes that it is unconstitutional beyond a
reasonable doubt. State v. Thompkins (1996),
75 Ohio St.3d 558, 560,
664 N.E.2d
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926, 928; Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38-39,
616 N.E.2d 163,
166.
{¶ 9} The Eighth Amendment to the Constitution of the United States
provides: “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” Section 9, Article I of the Ohio
Constitution is couched in identical language. Historically, the Eighth Amendment
has been invoked in extremely rare cases, where it has been necessary to protect
individuals from inhumane punishment such as torture or other barbarous acts.
Robinson v. California (1962), 370 U.S. 660, 676,
82 S.Ct. 1417, 1425,
8 L.Ed.2d
758, 768. Over the years, it has also been used to prohibit punishments that were
found to be disproportionate to the crimes committed. In McDougle v. Maxwell
(1964),
1 Ohio St.2d 68,
30 O.O.2d 38,
203 N.E.2d 334, this court stressed that
Eighth Amendment violations are rare. We stated that “[c]ases in which cruel and
unusual punishments have been found are limited to those involving sanctions
which under the circumstances would be considered shocking to any reasonable
person.”
Id. at 70,
30 O.O.2d at 39,
203 N.E.2d at 336. Furthermore, “the penalty
must be so greatly disproportionate to the offense as to shock the sense of justice
of the community.”
Id. See, also, State v. Chaffin (1972),
30 Ohio St.2d 13,
59
O.O.2d 51,
282 N.E.2d 46, paragraph three of the syllabus.
{¶ 10} The United States Supreme Court has also discussed the concept of
whether the Eighth Amendment requires that sentences be proportionate to the
offenses committed. An Eighth Amendment challenge on these grounds was
initially applied only in cases involving the death penalty or unusual forms of
imprisonment. Enmund v. Florida (1982), 458 U.S. 782,
102 S.Ct. 3368,
73
L.Ed.2d 1140; Weems v. United States (1910),
217 U.S. 349,
30 S.Ct. 544,
54 L.Ed.
793. Then, in Solem v. Helm (1983),
463 U.S. 277, 290,
103 S.Ct. 3001, 3009,
77
L.Ed.2d 637, 649, the court applied the Eighth Amendment to reverse a felony
sentence on proportionality grounds, finding that “a criminal sentence must be
4
January Term, 1999
proportionate to the crime for which the defendant has been convicted.” In so
holding, the Solem court set forth the following tripartite test to review sentences
under the Eighth Amendment:
“First, we look to the gravity of the offense and the harshness of the penalty.
… Second, it may be helpful to compare the sentences imposed on other
criminals in the same jurisdiction. If more serious crimes are subject to the same
penalty, or to less serious penalties, that is some indication that the punishment at
issue may be excessive. … Third, courts may find it useful to compare the
sentences imposed for commission of the same crime in other jurisdictions.” Id. at
290-291,
103 S.Ct. at 3010,
77 L.Ed.2d at 649-650.
{¶ 11} More recently, in Harmelin v. Michigan (1991), 501 U.S. 957,
111
S.Ct. 2680,
115 L.Ed.2d 836, the United States Supreme Court revisited the issue
of proportionality as it relates to the Eighth Amendment. In Harmelin, the court
was asked to decide whether a mandatory term of life imprisonment without
possibility of parole for possession of six hundred seventy-two grams of cocaine
violated the prohibition against cruel and unusual punishments. In finding no
constitutional violation, the lead opinion rejected earlier statements made in Solem
v. Helm and stated that the Eighth Amendment contains no proportionality
guarantee. However, this statement failed to garner a majority. The three Justices
who concurred in part would refine the Solem decision to an analysis of “gross
disproportionality” between sentence and crime. As stated by Justice Kennedy in
his opinion concurring in part, “The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme
sentences that are ‘grossly disproportionate’ to the crime.”
Id. at 1001,
111 S.Ct.
at 2705,
115 L.Ed.2d at 869.
{¶ 12} With these principles in mind, we now turn to the case at hand.
Appellant contends that R.C. 2903.04(B), as applied to a minor misdemeanor traffic
offense, does not constitute cruel and unusual punishment because its potential
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penalty for causing the death of another is not disproportionate to the offense
committed and does not shock the community’s sense of justice. Appellant relies
on State v. Stanford (Sept. 23, 1996), Trumbull App. No. 95-T-5358, unreported,
1996 WL 537856, and State v. Garland (1996),
116 Ohio App.3d 461,
688 N.E.2d
557, to support its position. The Stanford decision is of little value in helping us
resolve this issue because the court was without a sufficient basis to review the
issue. However, the Garland court did fully consider the issue. In Garland, the
defendant was convicted of involuntary manslaughter with the underlying minor
misdemeanor of failure to stop at a stop sign and was sentenced to a term of five to
ten years. The court held that “[t]he sentence imposed by the trial court falls within
the range of punishments contained within the sentencing statute for this offense.
There is no evidence to suggest that appellant’s sentence would shock the
conscience of the community. … Accordingly, the punishment imposed cannot
be deemed cruel and unusual.”
Id. at 466,
688 N.E.2d at 561.
{¶ 13} In contrast, appellee argues that the court of appeals’ decision was
correct and urges us to follow the appellate decisions of State v. Campbell (1997),
117 Ohio App.3d 762,
691 N.E.2d 711, and State v. Shy (June 30, 1997), Pike App.
No. 96 CA 587, unreported,
1997 WL 381782, which used the tripartite test set
forth in Solem to find that R.C. 2903.04(B) violates the Cruel and Unusual
Punishment Clauses of the United States and Ohio Constitutions. In these
decisions, the courts found that the potential punishment for committing a minor
misdemeanor traffic offense is grossly disproportionate to the crime. Furthermore,
the courts found that the potential sentence under R.C. 2903.04(B) was excessive
when compared to similar related Ohio crimes that require a greater degree of
culpability (such as negligent homicide, vehicular homicide, and aggravated
vehicular homicide), and when compared with other jurisdictions. These decisions
also relied, in part, on dictum from our decision in State v. Collins (1993),
67 Ohio
St.3d 115, 117,
616 N.E.2d 224, 225, which questioned the policy behind applying
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January Term, 1999
the involuntary manslaughter statute to include minor misdemeanors as predicate
offenses.
{¶ 14} At the outset, we reject appellee’s reliance on the Collins decision.
In Collins, we interpreted the statutory language of former R.C. 2903.04(B), which
stated that it applied to “misdemeanors.” Under the principles of statutory
construction, and in reviewing various sections of R.C. Title 29 that differentiate
between misdemeanors and minor misdemeanors, we found that the statute as
written did not include minor misdemeanors. Thus, we held that offenses classified
as minor misdemeanors could not serve as a predicate offense for a charge of
involuntary manslaughter.2 Since the General Assembly has amended R.C. 2903.04
so that Ohio’s involuntary manslaughter statute now encompasses minor
misdemeanors as predicate offenses, the current version of R.C. 2903.04 differs
from that which we interpreted in Collins. Thus, our decision in Collins has no
bearing on our decision today.
{¶ 15} We also reject the reasoning employed by those courts, which found
that R.C. 2903.04(B) violates the prohibition against cruel and unusual
punishments. Although the potential maximum penalty of five years’
imprisonment may be somewhat severe, it is not tantamount to cruel and unusual
punishment. Unfortunately, lives were lost as a result of the traffic accident. Where
human lives are lost, the gravity of the crime is serious and is not lessened by the
fact that the underlying crime consists of a minor misdemeanor. Furthermore, we
note that the trial court has the option of imposing a less stringent punishment than
actual incarceration.3 For instance, an offender can be sentenced to a term of
probation (R.C. 2929.15 to R.C. 2929.17) or, if incarcerated, can file an application
2. Former R.C. 2903.04(B) provided that “[n]o person shall cause the death of another as a
proximate result of the offender’s committing or attempting to commit a misdemeanor.” 134 Ohio
Laws, Part II, 1866, 1901.
3. Although appellee has not been sentenced, or even been found guilty, we find that the potential
maximum sentence is not grossly disproportionate to the underlying crimes.
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for judicial release after six months (R.C. 2929.20[A]; [B][2]). Under these
circumstances, we cannot say that the potential penalty for violating R.C.
2903.04(B) is “so greatly disproportionate to the offense as to shock the sense of
justice of the community.” McDougle v. Maxwell, 1 Ohio St.2d at 70,
30 O.O.2d
at 39,
203 N.E.2d at 336; cf. Harmelin v. Michigan,
501 U.S. at 995,
111 S.Ct. at
2701-2702,
115 L.Ed.2d at 865, where the court held that severe, mandatory
penalties may be cruel, but they are not unusual in the constitutional sense, and do
not violate the Eighth Amendment.4
{¶ 16} In reaching this decision, we are cognizant of the fact that reviewing
courts should grant substantial deference to the broad authority that legislatures
possess in determining the types and limits of punishments for crimes. Solem, 463
U.S. at 290,
103 S.Ct. at 3009,
77 L.Ed.2d at 649; Harmelin,
501 U.S. at 998-999,
111 S.Ct. at 2703-2704,
115 L.Ed.2d at 867 (Kennedy, J., concurring). We find
that the General Assembly acted within its discretion in setting forth the penalties
it did when the commission of minor misdemeanors results in the deaths of
individuals.
{¶ 17} Accordingly, we hold that R.C. 2903.04(B), as applied to a minor
misdemeanor traffic offense which results in a vehicular homicide, does not violate
the Eighth Amendment to the United States Constitution or Section 9, Article I of
the Ohio Constitution.
{¶ 18} The judgment of the court of appeals is reversed, and the cause is
remanded to the trial court.
4. The court of appeals compared the potential sentence in this case with similar Ohio crimes and
with those of other jurisdictions. However, we decline to make these comparisons. Instead, we
agree with Justice Kennedy’s concurrence in Harmelin v. Michigan, 501 U.S. at 1005,
111 S.Ct. at
2707,
115 L.Ed.2d at 871, in which he stated that a comparative analysis within the state where the
crime was committed and between jurisdictions (the second and third prongs in Solem) is
“appropriate only in the rare case in which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality.”
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January Term, 1999
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, COOK and LUNDBERG STRATTON, JJ.,
concur.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶ 19} Dispassionate dissection of a legal conundrum is often required to
achieve the correct result in matters that come before this court. In those instances,
the facts of the case are secondary to the legal analysis. Here, where we are
considering whether the sentence at issue would “shock the sense of justice of the
community,” the facts must stand at the center of our consideration. The facts in
this case tell the whole story.
{¶ 20} While driving on Highway 62 on April 27, 1997, Nancy Weitbrecht
apparently suffered a cardiac event, lost consciousness, crossed left of center, and
collided with the Carroll vehicle. She lost her husband and a friend in the accident,
and must live with the fact that she also caused the death of Vera Carroll. The state
stipulated that there was no evidence of criminal recklessness or criminal
negligence on her part. Nancy Weitbrecht now faces a potential five-year prison
term. It would be hard to conjure up a situation more shocking to the community’s
sense of justice, or a more inappropriate exercise of prosecutorial discretion. I
accordingly dissent.
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