State v. Sherman

[Cite as State v. Sherman, 2012-Ohio-3958.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97840

STATE OF OHIO
PLAINTIFF-APPELLANT

vs.

DONNA SHERMAN
DEFENDANT-APPELLEE

JUDGMENT:
SENTENCE VACATED;
REMANDED FOR RESENTENCING

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-547960

BEFORE: Celebrezze, J., Stewart, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: August 30, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Michael E. Jackson
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Michael J. Goldberg
The Goldberg Law Firm
323 Lakeside Avenue, West
450 Lakeside Place
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, the state of Ohio, brings this appeal pursuant to R.C.

2953.08(B)(1), taking issue with the sentence appellee, Donna Sherman, received

following a jury trial finding her guilty of engaging in a pattern of corrupt activity

(“RICO”), theft, fraud, and tampering with records. She received community-based

sanctions even though her convictions included both first- and second-degree felonies.

After a thorough review of the record and pertinent law, we reverse the sentence imposed

and remand for resentencing.

I. Factual and Procedural History

{¶2} In 2002, Fred Loewinger orchestrated a scheme to commit mortgage fraud on

a large scale in and around Cleveland, Ohio. He submitted fraudulent mortgage

transactions to Sherman when she was employed by Titles, Etc., a title company owned

and operated by Mitchell Petti. Petti and Sherman were complicit in the scheme and

knowingly participated in and approved fraudulent transactions. The mortgages were

then sold by the bank making the loans, People’s Choice Home Loans (“People’s

Choice”), and securitized.

{¶3} Sherman left Titles, Etc., in 2003 and had no further involvement in the

scheme until she opened her own title company, Sherman Title Agency, (“STA”) in

September 2004. She again acted as the escrow officer for these fraudulent transactions
initiated by Loewinger. Sherman apparently did not receive any remuneration above

standard title fees for her complicity.

{¶4} In the unusually thorough indictment, the state describes the fraud involved to

include loan application fraud, down payment fraud, “double HUD” fraud, kickback

fraud, and money laundering fraud.

{¶5} Under the loan application scheme, Loewinger and others would knowingly

submit false loan applications to People’s Choice to obtain home loans, and Sherman was

complicit in this process. The down payment scheme involved Loewinger, Sherman, and

others making it appear as if buyers had contributed the required down payment to obtain

a home mortgage when, in fact, they had not. Sherman sometimes used Titles, Etc.’s

escrow account to fund these down payment requirements and sent falsified bank checks

to make it appear as though the mortgagors had provided the funds. She later continued

to do this when she started STA, only using Loewinger’s money to fund the down

payment amounts rather than her company’s escrow accounts.

{¶6} Under the “double HUD” scheme, Sherman would develop two different

copies of a federally-mandated closing statement completed for every home mortgage

loan, known as a HUD-1 statement. One HUD-1 statement showed the actual purchase

price of the home, which was shown to the purchaser and seller, while the one submitted

to People’s Choice had a purchase price inflated to the maximum amount approved by the

lender. The extra loan proceeds were then paid to a company Loewinger owned. That

company then made payments to complicit buyers, sellers, and others involved.
 {¶7} Sherman was indicted along with STA on March 9, 2011, on one count of

RICO; two counts of theft by deception — one applicable to Sherman involving

property valued at $1,455,500 and one applicable to STA involving property valued at

$1,166,800; 1 21 counts of telecommunications fraud; 21 counts of tampering with

records; and one count of money laundering.

{¶8} The case proceeded to jury trial on October 18, 2011, and the jury reached its

verdict on October 31, 2011. It found Sherman guilty of 12 counts of tampering with

records, in violation of R.C. 2913.42(A)(2), involving property valued above $5,000 but

below $100,000 (third-degree felonies); nine counts of telecommunications fraud, in

violation of R.C. 2913.05, involving property valued above $5,000 but below $100,000

(third-degree felonies); one count of theft by deception, in violation of R.C.

2913.02(A)(3), involving property valued above $750,000 but less than $1,500,000 (a

second-degree felony); one count of additional money laundering prohibitions, in

violation of R.C. 1315.55 (a third degree felony); and one count of RICO, in violation of

R.C. 2923.32 (a first degree-felony).

{¶9} On January 6, 2012, a sentencing hearing was held where Sherman argued

that she was not the orchestrator of these crimes and that the state presented no evidence

that she received a share in the criminal proceeds above standard industry fees for title

work. The state presented sentences received by defendants who committed similar

The second count of theft by deception applicable to STA was later
1

dismissed.
crimes, including that of Petti and Loewinger, and the sentence imposed in an unrelated

case against Clarissa Foster. Loewinger had received a six-year prison term, and Petti

received community-based sanctions, including 20 weekends in the county jail.

{¶10} Foster’s convictions were similar to Sherman’s, except Foster did not have a

RICO conviction. Foster was convicted of second- and third-degree felonies similar to

Sherman. Foster received a seven-year prison term for her role in a mortgage fraud

scheme where her participation was similar to Sherman’s. Foster’s background was also

similar to Sherman’s — being of similar age with no prior convictions. The state used

this case to argue that Sherman should receive a prison sentence of at least five years to

fall under Loewinger’s sentence, but far above that imposed in Petti’s case.

{¶11} The trial court took this under advisement and sentenced Sherman to five

years of community control as well as six months in the county jail. The court also fined

her the maximum amount of $20,000, ordered costs, and ordered her to complete 100

hours of community service during each year of community control. The court also

imposed the maximum institutional fine of $25,000 on STA. The state appeals,

assigning one error:

I. The trial court abused its discretion in failing to impose a prison term for
appellee’s convictions, which carried presumptions in favor of prison terms
pursuant to R.C. 2929.13, when the trial court failed to make the required
findings and appellee failed to overcome the presumption in favor of prison.

II. Law and Analysis

A. Discretion in Sentencing

i. Standard of Review
 {¶12} The state begins its brief by setting forth the applicable standard of review,

citing to the Ohio Supreme Court’s plurality opinion in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124. There, the court set forth the appropriate standard

of review for felony sentencing following its opinion in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, which severed judicial fact-finding requirements of S.B.

2. That decision left trial courts with a wide berth in crafting sentences as long as they

were within the statutory guidelines. According to Kalish, a reviewing court engages in

a two-step process where it should first examine the sentence to see if it is clearly

contrary to law and, if not, go on to determine whether the sentence constitutes an abuse

of the trial court’s discretion. Id. at ¶ 4.

{¶13} It is questionable whether this framework is applicable to the present case.

The Ohio Supreme Court recognized that Foster left unchanged R.C. 2953.08 as it relates

to the state’s appeal from a downward departure from a presumption of prison for a

felony of the first or second degree. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,

846 N.E.2d 1, ¶ 23. R.C. 2953.08(G)(2) explicitly sets forth the applicable standard of

review:

The court hearing an appeal [from, among other things, the state
challenging a downward departure pursuant to R.C. 2929.13(D)(2)] * * *
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.

* * * 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 * * * (D) of section 2929.13, * * *;

(b) That the sentence is otherwise contrary to law.

{¶14} Further, even if Mathis had not offered guidance on this issue, this section

has been revived by Am.Sub.H.B. 86 (“H.B. 86”), effective September 30, 2011. This

provision is substantially similar to the same section enacted under S.B. 2 in 1996. Case

law dealing with review of a downward departure from a presumptive felony sentence

pre-Foster is applicable.

{¶15} This court has previously found the “statute’s requirement of a ‘clear and

convincing’ finding of error below to be consonant with the presumption of regularity

which adheres to all judicial proceedings.” State v. Assad, 8th Dist. Nos. 72648 and

72649, 1998 WL 308109, *4 (June 11, 1998), citing Coleman v. McGettrick, 2 Ohio St.2d

177, 180, 207 N.E.2d 552 (1965).

{¶16} The Assad court went on to note:

In order for this court to modify or vacate the lower court’s sentence under
R.C. 2953.08(G)(1)(c), we must clearly and convincingly find either that the
court did not follow the procedures set forth in 2929.13(D) or that those
procedures were followed but that there was an insufficient basis for
overriding the presumption in favor of a prison term.

Id. at *6. Therefore, we presume the sentence imposed by the trial court is correct absent

evidence that it is clearly and convincingly contrary to law. “Clear and convincing

evidence is more than a mere preponderance of the evidence; it is that evidence ‘which

will provide in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.’” State v. Edwards, 8th Dist. No. 82327, 2003-Ohio-5503, ¶
32, quoting State v. Garcia, 126 Ohio App.3d 485, 710 N.E.2d 783 (12th Dist.1998),

citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122, 568 N.E.2d 1222

(1991).

ii. Community Sanctions in Lieu of Prison

{¶17} First- and second-degree felony convictions carry with them a presumption

in favor of prison. R.C. 2929.13(D)(1) states, “for a felony of the first or second degree,

* * * it is presumed that a prison term is necessary in order to comply with the purposes

and principles of sentencing under section 2929.11 of the Revised Code.” However, in

certain situations, a trial court may depart from that presumption. R.C. 2929.13(D)(2)

outlines those situations and offers guidance to the sentencing court:

[T]he sentencing court may impose a community control sanction or a
combination of community control sanctions instead of a prison term on an
offender for a felony of the first or second degree * * * for which a
presumption in favor of a prison term is specified as being applicable if it
makes both of the following findings:

(a) A community control sanction or a combination of community control
sanctions would adequately punish the offender and protect the public from
future crime, because the applicable factors under section 2929.12 of the
Revised Code indicating a lesser likelihood of recidivism outweigh the
applicable factors under that section indicating a greater likelihood of
recidivism.

(b) A community control sanction or a combination of community control
sanctions would not demean the seriousness of the offense, because one or
more factors under section 2929.12 of the Revised Code that indicate that
the offender’s conduct was less serious than conduct normally constituting
the offense are applicable, and they outweigh the applicable factors under
that section that indicate that the offender’s conduct was more serious than
conduct normally constituting the offense.

(Emphasis added.)
 {¶18} Sherman is eligible for community control in lieu of prison. R.C.

2929.13(D) provides a list of offenses where a downward departure from the presumption

of prison is inapplicable. A RICO conviction is included in that list, but only when the

offense or offenses constituting the basis of the corrupt activity charge include a

first-degree felony. R.C. 2929.13(F)(10). Here, Sherman’s underlying convictions are

second- and third-degree felonies. No other provision of R.C. 2929.13 prohibits

community sanctions in this case.

{¶19} In order to overcome the presumption of prison, the trial court must make

two affirmative findings. State v. Heath, 170 Ohio App.3d 366, 2007-Ohio-536, 867

N.E.2d 453, ¶ 27 (8th Dist.). It must apply the factors set forth in R.C. 2929.12 and find

that community control would adequately punish the offender and protect the public from

future offenses, and would not demean the seriousness of the offenses committed. Id.;

R.C. 2929.13(D)(2).

{¶20} Here, the trial court addressed the required findings needed to overcome the

presumption of prison. The court, during sentencing, stated:

[R.C.] 2929.13 offers guidance by degree of felony for courts. There’s a
presumption, of course, of prison for counts 1 and 2 of this indictment.
The other counts do not have a presumption of prison.

I am not going to impose a prison sentence. I find that pursuant to [R.C.]
2929.13(D)(2), that community control, instead of a prison sentence, would
adequately punish Ms. Sherman and protect the public. A properly
fashioned community control sanction does not demean the seriousness of
this [sic] offenses. Ms. Sherman’s conduct here was serious, but she was
not the orchestrator of the scheme.
 {¶21} R.C. 2929.11 lists the overriding purposes of felony sentencing to be “to

protect the public from future crime by the offender and others and to punish the offender

using the minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources.”

{¶22} R.C. 2929.12 then sets forth non-exhaustive factors the court should

consider. In determining the seriousness of the offense, R.C. 2929.12(B) instructs the

court to examine the following factors applicable to this case:

(1) The physical or mental injury suffered by the victim of the offense due
to the conduct of the offender was exacerbated because of the physical or
mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or
economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the community,
and the offense related to that office or position.

(4) The offender’s occupation, elected office, or profession obliged the
offender to prevent the offense or bring others committing it to justice.

(5) The offender’s professional reputation or occupation, elected office, or
profession was used to facilitate the offense or is likely to influence the
future conduct of others.

(6) The offender’s relationship with the victim facilitated the offense.

(7) The offender committed the offense for hire or as a part of an organized
criminal activity.

{¶23} And in mitigation, R.C. 2929.12(C) directs the court to consider:

(1) The victim induced or facilitated the offense.

***
 (3) In committing the offense, the offender did not cause or expect to cause
physical harm to any person or property.

(4) There are substantial grounds to mitigate the offender’s conduct,
although the grounds are not enough to constitute a defense.

{¶24} In determining whether a defendant is likely to commit future crimes, as it

relates to this case, R.C. 2929.12(D) directs the trial court to consider:

***

(4) The offender has demonstrated a pattern of drug or alcohol abuse that is
related to the offense, and the offender refuses to acknowledge that the
offender has demonstrated that pattern, or the offender refuses treatment for
the drug or alcohol abuse.

(5) The offender shows no genuine remorse for the offense.

{¶25} And in mitigation, R.C. 2929.12(E) directs the court to consider:

(1) Prior to committing the offense, the offender had not been adjudicated a
delinquent child.

(2) Prior to committing the offense, the offender had not been convicted of
or pleaded guilty to a criminal offense.

(3) Prior to committing the offense, the offender had led a law-abiding life
for a significant number of years.

(4) The offense was committed under circumstances not likely to recur.

(5) The offender shows genuine remorse for the offense.

{¶26} The trial court’s terse statement regarding the downward departure leaves

much to be desired. It did not address a single factor contained within R.C. 2929.12.

{¶27} However, the trial court is not required to state on the record the reasons

supporting its findings to depart from the presumption of prison. With H.B. 86, the
legislature amended R.C. 2929.19 to delete sections requiring the trial court to give

reasons when departing from the presumption of prison. R.C. 2929.19(B)(2) previously

stated:

[T]he court shall impose a sentence and shall make a finding that gives its
reasons for selecting the sentence imposed in any of the following
circumstances:

***

(b) If it does not impose a prison term for a felony of the first or second
degree * * *, its reasons for not imposing the prison term and for
overriding the presumption, based upon the overriding purposes and
principles of felony sentencing set forth in section 2929.11 of the Revised
Code, and the basis of the findings it made under divisions (D)(1) and (2) of
section 2929.13 of the Revised Code.

{¶28} The removal of this provision means the court must make the required

findings under R.C. 2929.13(D)(2), but does not need to give reasons supporting those

findings. But, the court must at least indicate that it applied the factors in R.C. 2929.12,

as required by R.C. 2929.13(D)(2). Here, the trial court did not do that.

{¶29} However, the record here does not clearly and convincingly show that the

findings the trial court made are unsupported. At sentencing, Sherman argued that she

was not the mastermind of this scheme and did not share in the illicit proceeds of the

enterprise. She received only the standard fees associated with title work in the industry.

Also, she had no prior criminal convictions or juvenile adjudications. She cooperated

with local and federal investigators, giving honest and forthright interviews with

authorities. She showed remorse, although she failed to acknowledge or address a

positive drug test for marijuana. Her license to conduct business as a title agent issued
by the state of Ohio was terminated. This, she argued, meant that she was no longer in a

position to engage in the kind of activity that lead to her convictions. Sherman also

addressed the harm to the victim. She argued during sentencing that no harm occurred

to People’s Choice because it was an internet bank set up to engage in these kinds of

transactions, was complicit in the scheme, and suffered no damages in making

questionable loans because it immediately packaged and sold those loans to others.

{¶30} This court has previously upheld a community-based sentence in a

second-degree felony case where the trial court made conclusory statements about the

presumption in favor of prison and found that the appellee had overcome that

presumption. State v. Scovil, 127 Ohio App.3d 505, 713 N.E.2d 452 (8th Dist.1998).

In fact, the trial court addressed these factors and the presumption in the journal entry

with only a single statement that the required findings were made. Id. at 510.

{¶31} In the present case, the record does not clearly and convincingly

demonstrate that the trial court’s findings that community control would adequately

punish Sherman and that such a sentence does not demean the seriousness of the offense

were incorrect.

iii. Sentencing Disparity

{¶32} The state also presented evidence that a similarly situated criminal

defendant, Foster, received a seven-year prison sentence. R.C. 2929.11(B) directs that

the trial court impose a sentence “consistent with sentences imposed for similar crimes

committed by similar offenders.” However, sentencing in Ohio is not accomplished
according to a tightly controlled grid system similar to federal sentencing guidelines.

State v. Dawson, 8th Dist. No. 86417, 2006-Ohio-1083, ¶ 31. Rather, an appellate court

must examine the record, not to decide whether the trial court “imposed a sentence that is

in lockstep with others, but whether the sentence is so unusual as to be outside the

mainstream of local judicial practice. Although the offense[s] may be similar,

distinguishing factors may justify dissimilar treatment.” State v. Hites, 3d Dist. No.

6-11-07, 2012-Ohio-1892, ¶ 15, quoting Dawson at ¶ 31.

{¶33} The state offered evidence of the sentence imposed in Foster’s case, a

purportedly analogous situation, and discounted the sentence imposed in codefendant

Petti’s case because Petti was convicted of participating in the loan origination process

for three homes (with a total value of approximately $200,000), not 21 homes (with a

total estimated value of $1,400,000) like Sherman.

{¶34} This court recently rejected an argument similar to the state’s that was raised

by an individual who received a ten-year prison sentence after being convicted of various

child pornography offenses. State v. Stein, 8th Dist. No. 97395, 2012-Ohio-2502.

There, Stein’s attorney offered comparisons to 70 people convicted in similar cases and

the resulting sentences. Id. at ¶ 24-25. This court rejected the argument based on the

lack of comparative characteristics included in the documentation provided by Stein.

Stein offered only the journal entries setting forth the sentences in those other cases, not

background information.
 {¶35} Here, we have more detailed information about Foster and how her

background, criminal activity, and culpability mirror Sherman’s. Based on the state’s

argument, the cases are so similar that the trial court should have addressed them when

meting out a sentence so disproportionate to that imposed in Foster’s case.

{¶36} While every case is different, and consistent sentences can usually be

achieved from the proper application of R.C. 2929.12 and the purposes and principles of

sentencing, the trial court’s application of those factors to this criminal defendant is

lacking in the record. In fact, the trial court stated it was “mindful of the requirements of

[R.C.] 2929.11(A)[,]” but never mentioned the proportionality requirement of R.C.

2929.11(B). The journal entry in this case merely states that the “Court considered all

required factors of the law.” The state raised the proportionality issue during the

sentencing hearing and presented specific cases for comparison. Although no specific

findings need to be made regarding proportionality, State v. Wilson, 129 Ohio St.3d 214,

2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, the trial court failed to address this issue at all.

{¶37} In an analogous situation, this court reversed the sentence. State v. Lyons,

8th Dist. No. 80220, 2002-Ohio-3424, ¶ 30-34. This case has been limited and criticized

due to the lack of a meaningful way for a trial court to compare sentences, but that

problem does not present itself here. The parties supplied that information to the trial

court. Further, some cases limiting Lyons relied on the trial court’s statement that it

specifically considered proportionality in crafting its sentence. E.g., State v. Medina,

8th Dist. No. 83261, 2004-Ohio-2863, ¶ 23. Here, we do not have such a statement.
 {¶38} This court has nothing to rely on but a large sentencing disparity between

apparently similarly situated defendants in the record before it. Left with this, the

sentence must be reversed. This court is also not in a position to amend the sentence

where the record before us does not include a trial transcript and other pertinent

information that the trial court would use to craft a sentence. Therefore, we must remand

the case to the trial court for resentencing.

III. Conclusion

{¶39} The trial court’s finding that Sherman had overcome the presumption of

prison is not clearly erroneous, but the court failed to offer any proportionality analysis

when the argument was properly presented. Had the court set forth specific findings for

its departure from the presumption of prison, the consistency argument may have been

resolved. However, its failure to do so and the large discrepancy in sentences between

similarly situated defendants requires this court to vacate Sherman’s sentence and remand

for resentencing.

{¶40} The sentence of the trial court is vacated, and this cause is remanded to the

lower court for resentencing in accordance with law and this decision.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
MELODY J. STEWART, P.J., CONCURS (WITH SEPARATE OPINION
ATTACHED)

MELODY J. STEWART, P.J., CONCURRING:

{¶41} I concur in the decision reached in this case, but I would be remiss if I did

not take this opportunity to call attention to the role that implicit associations might play

in sentencing disparities like the one demonstrated in this case.

{¶42} A trial court has many factors to consider and an array of concerns to

address when sentencing a criminal defendant. One of those concerns is that a sentence

be imposed in conformity with the overriding purposes of felony sentencing. See R.C.

2929.11.

{¶43} A requirement of R.C. 2929.11(B) is that a sentence be imposed “consistent

with sentences imposed for similar crimes committed by similar offenders.” This is not

to say that a trial court must sentence an offender identically to one who is similarly

situated. However, as noted in State v. Moore, 8th Dist. No. 85451, 2005-Ohio-4699, “it

is the trial court’s responsibility to insure consistency among the sentences it imposes.”

Id. at ¶ 26, citing State v. Lyons, 8th Dist. No. 80220, 2002-Ohio-3424, and State v. Stern,

137 Ohio App.3d 110, 738 N.E.2d 76 (1st Dist.2000) (McMonagle, J., concurring in part,

dissenting in part). As the majority opinion makes clear, there is no indication in the

record that the trial court considered this proportionality requirement. The trial court’s
failure to do so leads one to ask: why such a disparity between the sentences of Sherman

and Foster?

{¶44} One of the purposes of having sentencing guidelines is to help reduce

excessive disparities in sentencing while maintaining the trial court’s flexibility to impose

a sentence based on the individual circumstances of each case. But sentencing is a

multifaceted process and disparities can arise for a variety of reasons. First and

foremost, the trial court has wide discretion when imposing a sentence. The court is

required to consider the purposes of sentencing and the factors set forth in R.C. 2929.11

and 2929.12, impose a sentence permitted within the guidelines, and comply with any

other statutory requirements. Additionally, there are other case factors that impact the

trial court’s sentencing decision, like the nature of a plea entered to charges, whether

there is a recommended sentence proposed to the court, and the effectiveness of counsel.

As a practical matter, the court is comprised of many judges with different backgrounds,

temperaments, and judicial philosophies. In the court of common pleas, there are over

240 judges throughout the state who preside over criminal cases: 34 of those judges sit

in Cuyahoga County. On any given day, similarly situated defendants convicted of the

same or similar crimes can have sentences imposed, the sanctions of which differ

significantly. Notwithstanding the ways in which the above-noted reasons may

contribute to sentence disparities, it is important to understand also how implicit bias

contributes to such disparities.
 {¶45} Implicit bias, unlike intentional bias, is unconscious. It is the product of

our upbringing and our environment. Implicit bias is also not to be confused with what

is commonly known as judicial bias; the latter being described as “hostile feelings, ill

will, or favoritism toward a litigant or his attorney, resulting in the formation of an

anticipated judgment * * *.” State v. LaMar, 95 Ohio St.3d 181, 186, 2002-Ohio-2128,

767 N.E.2d 166, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E. 191

(1956), paragraph four of the syllabus. Likewise, a sentence influenced by implicit bias

is unlike a sentence imposed in contravention of R.C. 2929.11(C) that expressly prohibits

a court from imposing a sentence based “upon the race, ethnic background, gender, or

religion of the offender.” A sentence “based upon” one or more factors necessarily

assumes a conscious and deliberate consideration of those factors when meting out

punishment for an offender. Implicit bias operates without such awareness.

{¶46} Implicit bias has been characterized as:

a psychological process in which a person’s non-conscious racial beliefs * *
* and attitudes * * * affect her or his behaviors, perceptions and judgments
in ways that she or he are largely unaware of and typically, unable to
control. These implicit biases can have behavioral effects even when they
conflict with an individual’s consciously and genuinely held thoughts and
feelings. People of all races show evidence of implicit bias against
nonwhites. (Emphasis added; internal citations omitted.)

Richardson, Race & Immigration Symposium: Cognitive Bias, Police Character, and the

Fourth Amendment, 44 Ariz. St. L.J. 267, 271-272 (2012). See also Greenwald &

Hamilton, Implicit Bias: Scientific Foundations, 94 Cal. L.Rev. 945 (2006).

Stereotype formation is the foundation of implicit bias. Research on
stereotype formation and maintenance confirms that stereotypes are instilled
 at an early age and come from cultural and societal beliefs * * *.
[P]sychologists have found that stereotypes arise when a person is as young
as three years old and are usually learned from parents, peers, and the
media. As people grow older, their stereotypes become implicit and
remain mostly unchanged even as they develop nonprejudiced explicit
views. “Stereotypes about ethnic groups appear as a part of the social
heritage of society * * *. [And] no person can grow up in a society without
having learned the stereotypes assigned to the major ethnic groups.”
(Internal citations omitted.)

Levinson, Forgotten Racial Equality: Implicit Bias Decisionmaking, and

Misremembering, 57 Duke L.J. 345, 363, fn. 22 (2007), quoting Page, Batson’s

Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L.Rev.

155, 203 (2005).

{¶47} Various commentators have discussed the impact of implicit bias on our

criminal justice system. It often affects who gets prosecuted, what charges are brought,

jury selection, effectiveness of counsel, and sentencing. See, e.g., Kang & Lane, Seeing

Through Colorblindness: Implicit Bias and the Law, 58 UCLA L.Rev. 465 (2010).

{¶48} In one study of trial court judges’ decision making, the author discussed

how implicit bias may operate in sentencing, examining whether unconscious or hidden

bias may lead to harsher criminal penalties for certain offenders, despite the judges’

professional commitment to sentence proportionality. See Rachlinski, et. al, Does

Unconscious Racial Bias Affect Trial Judges, 84 Notre Dame L.Rev. 1195 (2009).

Using mock cases and the Implicit Association Test (IAT) as a measure, the study

examined the interaction of the judges’ IAT preferences and their judgments in the mock

cases, finding that implicit bias did affect their decision making. The study noted also
that, in some instances, when judges were made aware of their preferences and biases,

they were able to alter them.

{¶49} In the case at bar, it may very well be that under the circumstances, the trial

court would have sentenced Sherman exactly as it did, regardless of her race, ethnicity,

gender, or other personal characteristics. And it may be that the court in Foster’s case

would have imposed the same, more severe sentence, regardless of Foster’s race,

ethnicity, etc. 2 However, the disparity in sentencing of these individuals who are so

similarly situated, save race or ethnicity, at least requires consideration of what impact

unconscious preferences or biases may have played in the disparity.

{¶50} Because there is no “cure” for completely ridding ourselves of these hidden

influences, an appreciation for their existence and an awareness of how they impact

decision making will go a long way in helping to improve our justice system. Continuing

education, discussions, and research will aid these endeavors.

2 These statements are made without regard to the ethnicity or gender of the trial court judges
in the respective cases. Although studies show that individuals are more prone to make decisions
that are preferential when in-group and biased when out-group, everyone’s decision making is
influenced by implicit associations. Implicit bias is being discussed here as a social justice issue, not
an individual one.