In March 2012, Damon L. Bevly pled guilty to two counts of gross sexual imposition (“GSI”) – a third-degree felony. At the plea hearing, a detective testified that Bevly had confessed to the offenses. The state also introduced a recording of Bevly’s alleged confession. The state argued that Bevly’s confession constituted corroborating evidence, and thus a mandatory prison sentence that was required under state law.
Bevly argued, among other things, that the law’s requirement of a mandatory prison term when corroborating evidence is introduced is unconstitutional because corroboration bears no rational relationship to the crime’s severity. The state responded that the Ohio legislature had a rational basis to impose a mandatory prison sentence upon the introduction of corroboration.
But the trial court agreed with Bevly, finding no rational basis for the distinction between GSI cases in which there is corroborating evidence and those where there’s none. Bevly was eventually sentenced to three years’ imprisonment and five years of postrelease control.
The state appealed, arguing that its introduction of the confession as corroborating evidence triggered a mandatory prison sentence in accordance with Ohio law. The court of appeals agreed, reversed the judgment of the trial court and held that the legislature was justified in distinguishing between cases with and without corroborating evidence.
After that decision, Bevly brought an appeal before us – the Ohio Supreme Court. The law in question establishes that a GSI violation is a third-degree felony for which there is a presumption that a prison term be imposed. According to the law, the court shall impose a mandatory prison term when there is corroborating evidence other than the victim’s testimony.
The state maintained that the legislature has broad discretion in defining crimes and punishments, and that the corroborating-evidence provision is rationally based upon the legislature’s desire to ensure that evidence other than the victim’s testimony exists before a court would be required to impose a prison sentence.
Bevly argued that we should adopt the trial court’s reasoning and conclude that the law is unconstitutional because there’s no rational basis for distinguishing between cases with corroborating evidence versus those with none. Notably, the trial court found no other Ohio law that enhances a penalty based upon the amount of evidence submitted in the case.
Indeed, in the context of the gross-sexual-imposition law, the existence of corroborating evidence is irrelevant to the stated purposes of felony sentencing – that is, to protect the public from future crime and punishing the offender. Nor is it comparable to the factors that guide the court in imposing the appropriate sentence for other offenses, such as the seriousness of the offender’s conduct (for example, the victim suffered serious physical injury) or the likelihood of recidivism (for example, the accused’s criminal history).
And the existence of corroborating evidence adds nothing to the court’s consideration of the “need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim.”
Further, the presentation of corroborating evidence differs from factors in other state laws that increase the penalty, such as the use of a deadly weapon, the infliction of physical harm, the quantity or type of drugs, or the value of stolen property.
The corroborating evidence provision in this law also differs from other penalty enhancements such as using a firearm while committing an offense, participating in criminal gang activity, or being a repeat violent offender.
Each of those factors allows a sentencing court to gauge the offender’s culpability and likelihood of recidivism based on the offender’s conduct or criminal history. Each also evaluates the severity of the offense based on the impact of the crime on the victim and society.
In contrast, the law in Bevly’s case arbitrarily increases the penalty for GSI committed against a child, based solely on whether the state presented corroborating evidence – such as a witness’s testimony, DNA evidence, or a confession – to establish guilt. But the quantity of evidence or the number of witnesses used to establish guilt is irrelevant to the imposition of punishment.
We therefore concluded that the legislature unconstitutionally created two different sanctions to be imposed on offenders who commit the same crime – differentiated only by the quantity of the evidence presented to prove guilt. This situation is impermissible because it denies due process and equal protection to those convicted of this criminal offense.
The state maintained that there was a rational basis for the corroborating evidence provision in the law. How do we determine if there is a rational basis?
In a case from 1996, our court explained that the rational-basis test provides that “laws passed by virtue of the police power will be upheld if they bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public, and are not arbitrary, discriminatory, capricious or unreasonable.”
In Bevly’s case, the state maintained that the law in question has a rational basis in that it imposes more punishment on an offender when there is more evidence of guilt. But once an accused has been found guilty beyond a reasonable doubt, the quantity of evidence is irrelevant to the sentence.
In addition, this law creates a disincentive to confess to a crime. Although the accused’s confession is – as the state admitted – often “the lone available corroborating evidence” when the victim of GSI is a child, this law enhances punishment for those who confess. Any law that discourages the accused from taking responsibility for the offense could also potentially force a child victim to endure a trial in order for the state to obtain a conviction.
We thus concluded that there is no rational basis for imposing greater punishment on offenders based only on the state’s ability to produce additional, corroborating evidence.
By a six-to-one vote, we reversed the court of appeals’ judgment and sent the case back to the trial court for imposition of its sentence in accordance with our opinion.
Paul Pfeifer is a judge in the Ohio Court of Appeals.
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