State v. Arnett - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-302.]

THE STATE OF OHIO, APPELLANT, v. ARNETT, APPELLEE.
[Cite as State v. Arnett (2000), 88 Ohio St.3d 208.]
Criminal law -- When sentencing judge acknowledges consulting a religious text
during deliberations and quotes a portion of that text on the record in the
sentencing proceeding, such conduct is not per se impermissible and does
not violate the offender's right to due process, when.
When a sentencing judge acknowledges that he or she has consulted a religious
text during his or her deliberations and quotes a portion of that text on the
record in the sentencing proceeding, such conduct is not per se
impermissible and does not violate the offender's right to due process, when
the judge adheres to the sentencing procedures outlined in the Revised Code
and when the judge's religious references do not impair the fundamental
fairness of the sentencing proceeding.
(No. 99-468 -- Submitted December 14, 1999 -- Decided March 15, 2000.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-980172 and C-
980173.

In November 1997, the Grand Jury of Hamilton County indicted appellee,
James F. Arnett, on ten counts of rape in violation of R.C. 2907.02(A)(1)(b). Each
count of the indictment alleged the rape of the same child, who was under thirteen

years of age at the time of the alleged conduct, and each count carried a
specification that Arnett was a sexually violent predator under R.C. 2950.09(A).
Arnett eventually entered a plea of guilty to all ten counts. When Arnett entered
his pleas, the state agreed to dismiss allegations of force that appeared in Counts I
and II of the indictment and agreed to submit the issue of whether Arnett was a
sexual predator to the judge during sentencing. Counsel for both parties notified
the court that there had been "no discussion or agreement on the appropriate
sentence in this case." The trial court accepted Arnett's pleas, entered a finding of
guilty on all ten counts, and scheduled sentencing for January 1998.

One day before the scheduled sentencing proceeding, the grand jury indicted
Arnett for a single additional count of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(5). This indictment concerned computer disks
containing obscene images.

The following day, the parties appeared before the court as scheduled for
sentencing on the ten rape counts. At that time, the court accepted Arnett's plea of
guilty to the new pandering charge, and proceeded to sentencing on all eleven
counts. Due to the nature of this appeal, we now provide a detailed summary of
the sentencing proceeding.

Defense counsel began the
sentencing hearing by introducing the
2

testimony of a psychologist, who discussed Arnett's experience as a victim of
sexual abuse in his youth, Arnett's difficulties with substance abuse, and other
emotional problems. On direct examination, the psychologist opined that there
was a need to "safeguard the community" and to provide from five to eight years
of "continuing * * * and intensive" treatment. The court permitted the state to
cross-examine the psychologist. On cross-examination, the psychologist agreed
that Arnett had a "very strong appetite" for sexual contact and that these urges
would remain for the rest of Arnett's life. The psychologist also agreed with the
state that the victim had been "severely traumatized in her ability to form healthy
relationships with other people."

Following the psychologist's testimony, defense counsel asked the court if it
had reviewed the letters sent from Arnett's family. The judge indicated that she
had reviewed at least five letters from various individuals, and then permitted
defense counsel to make a statement. Arnett's attorney highlighted his client's
struggle with chemical dependency and urged the court to recommend that Arnett
receive treatment from the Department of Corrections. Arnett's older sister spoke
briefly and described their family's disadvantaged background. The assistant
prosecuting attorney then discussed Arnett's likelihood of recidivism, as well as
3

the harm suffered by his victim, and urged the court to keep Arnett "where he
belongs for the rest of his days."

The sentencing judge reviewed the facts of the case on the record, noting the
age of the victim, the nature of the offense, and the "demonstrated use of abuse in
regards to the child." The court then determined that Arnett was a sexual predator
under R.C. Chapter 2950. Finally, the court permitted Arnett to make a statement.
Arnett said, "I'm very remorseful, very remorseful for what I did. I definitely am
going to seek as much treatment as I can. And I'm never going to do this again
ever. * * * And it was just a silly thing that started and got totally out of control."

Just before pronouncing sentence, the sentencing judge began the
monologue that is the basis of the instant appeal:

"So, Mr. Arnett, I was struck by the idea of who is James Arnett through this
particular case. And I thought about it all last evening as I was trying to determine
in my mind what type of sentence you deserved in this particular case."

At this point, the judge commented on the photographs and letters that
several interested parties had submitted to the court on Arnett's behalf. The judge
referred to submissions from the victim's father and mother, statements from the
victim herself, and testimony provided by the defendant's psychologist at the
sentencing hearing. As she discussed these submissions, the judge made
4

several references to the victim's young age. She mentioned the concern that the
victim's father had for his "little girl," and noted that "[a] child should not know"
the sexually graphic details that Arnett introduced her to. The judge told Arnett
that he had "robbed that child of that whole sense of growing up." The judge
concluded the proceedings with the following comments:

"Recently, Mr. Arnett, I had a murder case of an individual who had no
remorse and the sentence was 20 years, and I thought about that in regards to
sentencing you. Because I was looking for a source, what do I turn to, to make, to
make that determination, what sentence you should get. And I thought in regards
to a 20-year sentence, that individual, that victim, who's the victim of that case, at
least is gone to their reward, they're not hurting anymore. But for Rachel, the rest
of her life, unless she takes care of herself, she's hurting.

" * * * And in looking at the final part of my struggle with you, I finally
answered my question late at night when I turned to one additional source to help
me. And basically, looking at Rachel on one hand, looking at the photographs of
you happily as a child, and looking at the photographs of downloading that came
from your computer, I agree they're very sad photographs, they're pure filth, it just
tells me how ill you are.

"And that passage where I had the opportunity to look is Matthew 18:5, 6.
5

`And whoso shall receive one such little child in my name, [sic] receiveth me. But,
[sic] whoso shall offend one of these little ones which believe in me, it were better
for him that a millstone were hanged about his neck, and that [sic] he were
drowned in the depth of the sea.'1

"Pandering obscenity count, one year. Ten counts of rape, five years on
each, running consecutive. Sentence, 51 years.

"Mr. Arnett, I hope God has mercy on you and the hell that you have
created. Thank you."

The proceedings concluded immediately following these comments.

Arnett appealed his sentence and conviction to the Court of Appeals for
Hamilton County, asserting three assignments of error. In his first assignment of
error, Arnett raised two challenges to the sentencing judge's concluding remarks.
First, Arnett argued that the judge's religious beliefs were neither a mandatory nor
a relevant factor for consideration under R.C. 2929.12. Arnett also claimed that
the sentencing judge's religious references violated the First Amendment to the
United States Constitution, as well as Section 7, Article I of the Ohio Constitution.
In his second assignment of error, Arnett argued that the trial court failed to make
the findings required under R.C. 2929.14(E)(3) and 2929.19(B)(2)(c) to impose
consecutive sentences. Finally, Arnett argued that the trial court erred when it
6

accepted his plea without informing him that the maximum penalty for his offenses
included the possible imposition of consecutive sentences.

The court of appeals treated Arnett's first two assignments of error together
and held that a trial judge's religious beliefs are not a factor that may be considered
under the sentencing provisions of the Revised Code. Although the court of
appeals determined that religious comments during sentencing are not per se
impermissible, the court concluded that the sentencing judge's references to the
Book of Matthew indicated that her religion had a "heavy influence," or was a
"determining factor," in the sentence that she imposed. For this reason, the court
of appeals held that the sentencing judge acted outside the sentencing guidelines
and violated Arnett's due process rights.

The court of appeals thus affirmed the trial court's adjudication of guilt
based on the trial court's acceptance of Arnett's pleas, but vacated the sentence and
remanded for resentencing. A dissenting judge on the panel determined that the
trial judge's personal religious views were not the basis of her sentencing decision,
that the quoted biblical passage merely reflected society's interest in protecting
children, and that the judge imposed Arnett's sentence in full compliance with the
Revised Code.

Though Arnett mentioned the First Amendment to the United States
7

Constitution and Section 7, Article I of the Ohio Constitution in his first
assignment of error to the court of appeals, Arnett did not develop an
Establishment Clause argument in his appellate brief, and the court of appeals did
not pass on such an argument. Likewise, though Arnett mentioned these
constitutional provisions in his second proposition of law to this court, Arnett did
not articulate an Establishment Clause challenge to the judge's conduct in his
arguments to this court. We therefore limit our discussion today to those issues
that the parties have preserved and briefed for our review.

The cause is now before this court upon the allowance of a discretionary
appeal.
__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, James Michael
Keeling, Ronald Springman and Philip R. Cummings, Assistant Prosecuting
Attorneys, for appellant.

Charles H. Bartlett, Jr., for appellee.

Mark B. Greenlee, pro se, urging reversal as amicus curiae.

Abby R. Levine, ACLU Cooperating Attorney, urging affirmance for amicus
curiae American Civil Liberties Union of Ohio Foundation, Inc.
__________________
8

COOK, J. This case asks whether the sentencing judge violated the statutory
requirements of the Revised Code or the constitutional dictates of due process
when she acknowledged referring to the Bible during her deliberations, and then
quoted a biblical passage on the record at the sentencing proceeding. Because we
determine that the trial court complied with the applicable provisions of R.C.
Chapter 2929 and that the judge's reference to the Bible did not impair the
fundamental fairness of the proceedings, we reverse the judgment of the court of
appeals and reinstate the trial court's sentence.

In Part I, below, we demonstrate that this trial judge's particular reference to
the Bible did not offend the sentencing provisions of the Revised Code. Turning to
the Bible during her deliberations merely assisted the judge in weighing a
seriousness factor required for the court's consideration under R.C. 2929.12, and
the Code does not prohibit the trial judge from describing the nature of her
deliberations on the record. In Part II, we examine the guarantees of due process in
the context of a sentencing proceeding, and conclude that the judge's
acknowledged reference to the Bible did not violate Arnett's due process right to a
fundamentally fair sentencing hearing.
I. R.C. Chapter 2929

Arnett entered guilty pleas to ten counts of rape, a first-degree felony, and
9

one count of pandering obscenity involving a minor, a fourth-degree felony. R.C.
2907.02(A)(1)(b); R.C. 2907.321(A)(5). A court imposing penalties for these
felonies must comply with the procedures outlined in R.C. 2929.11 et seq. The
court of appeals noted that these provisions limit a sentencing court's discretion,
and determined that "the religious beliefs of the trial judge are not a statutory
factor that may be considered" during sentencing.
A. R.C. 2929.11

In general, the sentencing judge must adhere to the overriding purposes of
felony sentencing described in R.C. 2929.11. This section provides that a sentence
shall punish the offender and protect the public from future offenses by the
offender and others. R.C. 2929.11(A). It also provides that a court "shall not base
the sentence upon the * * * religion of the offender." (Emphasis added.) R.C.
2929.11(C). Arnett misreads R.C. 2929.11(C) to be a general prohibition on the
"consideration of religious beliefs or * * * dogma" by a sentencing judge. This
section, however, specifically prohibits a sentencing judge from discriminating
against an offender on the basis of the offender's religion. R.C. 2929.11(C). It
does not, therefore, support the court of appeals' decision to vacate Arnett's
sentence.
B. The R.C. 2929.12 Seriousness and
Recidivism Factors
10

R.C. 2929.12(A) requires the sentencing judge to consider the applicable
seriousness and recidivism factors outlined in R.C. 2929.12(B), (C), (D), and (E)
as she exercises her discretion to determine the most effective way to comply with
the purposes and principles of sentencing outlined in R.C. 2929.11. A catchall
provision in R.C. 2929.12(A) also permits the sentencing judge to consider "any
other factors that are relevant to achieving those purposes and principles of
sentencing." R.C. 2929.12(A).

The parties here agree that the sentencing judge properly considered the R.C.
2929.12 seriousness and recidivism factors even though it would seem that the
court need not consider those factors for the rape charges. Rape carries a
mandatory prison term under R.C. 2929.13(F)(2) and the statutory mandate to
assess the factors arises "[u]nless a mandatory prison term is required by division
(F) of section 2929.13 or section 2929.14." (Emphasis added.) R.C. 2929.12(A).2
Nonetheless, the pandering charge merits the judge's consideration of the
applicable seriousness and recidivism factors before imposing Arnett's sentence.
R.C. 2929.13(B)(2)(a); R.C. 2929.13(B)(1)(f).

With this background, we summarize the arguments of the parties before the
court as follows: Arnett contends that the Code prohibits the trial judge's
acknowledged consideration of the Bible, because "religious consideration"
11

does not appear as one of the seriousness or recidivism factors in R.C. 2929.12(B),
(C), (D), or (E), and because, he submits, the R.C. 2929.12(A) catchall provision
would not embrace such considerations. The state, on the other hand, argues that
the Code does not prohibit the judge's acknowledged reference to the Bible during
her deliberations. The state views the judge's reference to the particular biblical
verse at issue as the "functional equivalent" of the judge's consideration of the
seriousness factor in R.C. 2929.12(B)(1), which concerns the age of the victim.

We agree with the state that the sentencing court's reference to the Book of
Matthew acknowledged her consideration, during her deliberations, of the societal
interest in protecting children. The General Assembly specifically recognized this
societal interest in the form of a seriousness factor for the sentencing court to
consider under R.C. 2929.12(B)(1). This section requires a judge, when
applicable, to consider how the victim's age relates to the seriousness of the
offense. It provides:

"(B) The sentencing court shall consider all of the following that apply
regarding * * * the victim * * * as indicating that the offender's conduct is more
serious than conduct normally constituting the offense:

"(1) The physical or mental injury suffered by the victim of the
offense * * * was exacerbated because of the * * * age of the victim."
12

R.C. 2929.12(B)(1).

The General Assembly thus explicitly instructs sentencing courts to consider
how the age of a victim relates to the relative seriousness of an offense when
imposing a sentence in order to conform to the overriding purposes of felony
sentencing set forth in R.C. 2929.11.

Here, the sentencing judge followed the General Assembly's mandate as
expressed in R.C. 2929.12(B)(1). Arnett pleaded guilty to ten counts of engaging
in various sex acts with a five-year-old girl on a continuing basis and to pandering
obscenity involving a minor. The testimony at the sentencing hearing amply
informed the judge that Arnett's principal victim suffered exacerbated harm due to
her tender years. R.C. 2929.12(B)(1), then, required the sentencing court to
consider whether the victim's age made Arnett's conduct more serious than
conduct normally constituting the offense.

The Code does not specify that the sentencing judge must use specific
language or make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors. R.C. 2929.12.
For this reason, the sentencing judge could have satisfied her duty under R.C.
2929.12 with nothing more than a rote recitation that she had considered the
applicable age factor of R.C. 2929.12(B)(1).3 See State v. Edmonson
13

(1999), 86 Ohio St.3d 324, 326, 715 N.E.2d 131, 134. Arnett's sentencing judge,
however, helpfully supplemented the record by specifically referring to the young
age of the victim and by explaining how the victim's age had exacerbated her
injuries. The judge noted that "a child should not know" the sexually graphic
details that Arnett exposed her to, and told Arnett that he "robbed that child of that
whole sense of growing up and who she is." These remarks confirm that the
sentencing court considered the statutory age factor.

The judge further supplemented the record with the religious remarks at
issue in this case. She acknowledged that she had "turned to one additional
source" to help her during her deliberations, and she quoted the biblical verse to
which she referred. The verse describes the seriousness of offending a "little
child" or "one of these little ones." Matthew 18:5, 6. The court explained how this
biblical verse aided its "struggle" regarding the proper sentence to impose. Due to
the text of this verse, and the judge's stated reason for considering it, we conclude
that her reference to the Bible assisted her in determining the weight that she would
give to a statutory factor--the age of the victim.

This court has held that the individual decisionmaker has the discretion to
determine the weight to assign a particular statutory factor. State v. Fox (1994), 69
Ohio St.3d 183, 193, 631 N.E.2d 124, 132, citing State v. Mills (1992), 62
14

Ohio St.3d 357, 376, 582 N.E.2d 972, 978. A discretionary decision necessitates
the exercise of personal judgement, and we have determined that when making
such judgments, the sentencing court "is not required to divorce itself from all
personal experiences and make [its] decision in a vacuum." State v. Cook (1992),
65 Ohio St.3d 516, 529, 605 N.E.2d 70, 84, citing Barclay v. Florida (1983), 463
U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134. For this reason, we have previously
permitted a judge in a death-penalty case to refer, during sentencing, to a personal
friend of his who was murdered. Id.

This court has also recognized that there are limits to a court's discretion
when the court refers to external sources while weighing a statutory factor. See
State v. Bays (1999), 87 Ohio St.3d 15, 31, 716 N.E.2d 1126, 1143. In Bays, a
court of appeals engaging in a review of a death sentence quoted at length from a
two-year study of two hundred sixty-seven cocaine users. Based on the authors'
hypothesis concerning addiction and recidivism, the court of appeals decided that
the appellant's addiction was not a significant mitigating factor. Id. We
determined that the court of appeals improperly relied on this hypothesis because
the court based its factual conclusions "upon what amounted to an expert opinion,
which should have been subject to adversarial testing." Id., citing Gardner v.
15

Florida (1977), 430 U.S. 349, 360-362, 97 S.Ct. 1197, 1205-1207, 51 L.Ed.2d 393,
403-404.

We distinguish the judge's reference to the Bible in this case from the error
committed by the court of appeals in Bays. In Bays, the court used a highly
specific scientific study as a "basis for drawing case-specific factual inferences
about the relation between Bays's addiction and his behavior." State v. Bays, 87
Ohio St.3d at 31, 716 N.E.2d at 1143, fn. 5. Here, in contrast, the sentencing judge
referred to a biblical verse containing the same general message explicitly
recognized in R.C. 2929.12(B)(1)--that offenses against children are especially
serious.

The judge's acknowledged reference to the Bible here constituted a
permissible exercise of her discretion. The judge did not add an impermissible
factor to her analysis; rather, she acknowledged an influence upon her
consideration of an explicitly permitted factor. Much like the judge's background,
education, and moral values, the judge's insight from the Bible guided the judge in
weighing the statutorily permissible age factor during her deliberations and aided
her in justifying, in her mind, the lawful sentence she imposed. See State v. Fox;
State v. Cook, supra.
Because R.C. 2929.12(B)
requires
a sentencing judge to consider
16

how a victim's age exacerbates the physical or mental injury suffered, it would be
a significant and censorial step for this court to prohibit judges from accurately
describing the nature of these considerations on the record. As the state's amicus
notes, a per se rule prohibiting all references to religious texts by a sentencing
judge would amount to this court's imposition of a particular and restrictive model
of judicial decisionmaking. Such a model would prohibit references to religious
convictions in the oral or written justifications of judicial decisions, even though
such considerations may unavoidably surface during the judge's private
deliberations.4 The sentencing scheme enacted by the General Assembly does not
adopt such a restrictive model for the sentencing judge. Indeed, as this court
recently noted, some statutes require the sentencing judge to state both the findings
and the reasons for those findings on the record. See State v. Edmonson (1999),
86 Ohio St.3d 324, 326, 715 N.E.2d 131, 134; see, also R.C. 2929.19(B)(2).

Because we find that the judge's acknowledged consideration of the
particular biblical verse in this case constituted a permissible exercise of her
discretion to weigh the R.C. 2929.12(B)(1) factor, we need not determine whether
this specific religious verse, or whether religious texts in general, may qualify as
"any other factor[s] that are relevant" under R.C. 2929.12(A).
II. Due Process and the Sentencing
Proceeding
17

The court of appeals determined that "[b]y factoring in religion" during the
sentencing proceeding, the sentencing court violated Arnett's due process rights.
We agree with the court of appeals that consideration of religious beliefs or
religious texts by a sentencing judge may violate an offender's due process rights
when such considerations constitute the basis for the sentencing decision and
thereby undermine the fundamental fairness of the proceeding. Nevertheless, as
we explain more fully below, the biblical reference here did not result in a
violation of Arnett's right to a fundamentally fair sentencing hearing.
A. Due Process, Sentencing Proceedings, and Fundamental Fairness

The United States Supreme Court has recognized that even a sentence within
the limits of a state's sentencing laws may violate due process if the sentencing
proceedings are fundamentally unfair. Townsend v. Burke (1948), 334 U.S. 736,
741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693; see, also, Gardner v. Florida
(1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393, 402 ("[t]he
defendant has a legitimate interest in the character of the procedure which leads to
the imposition of sentence even if he may have no right to object to a particular
result of the sentencing process"), citing Witherspoon v. Illinois (1968), 391 U.S.
510, 521-523, 88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776, 784-786.
In
Townsend, supra, the
Supreme Court addressed the habeas corpus
18

petition of a prisoner who had pleaded guilty to robbery and burglary but alleged
that the court deprived him of due process during his sentencing proceeding. The
Pennsylvania sentencing judge, just before imposing sentence, addressed the
offender and recounted a list of prior offenses, remarking: "1937, receiving stolen
goods, a saxophone. What did you want with a saxophone? Didn't hope to play in
the prison band then, did you?" Townsend, 334 U.S. at 740, 68 S.Ct. at 1255, 92
L.Ed. at 1693. The Supreme Court determined that "[t]he trial court's
facetiousness casts a somewhat somber reflection on the fairness of the proceeding
when we learn from the record that actually the charge of receiving the stolen
saxophone had been dismissed." Id. The record also revealed other blatant
inaccuracies in the judge's concluding comments. Id. The Supreme Court held
that the petitioner's sentence was "inconsistent with due process," because it
lacked an essential requirement of "fair play," since the court sentenced the
petitioner "on the basis of assumptions concerning his criminal record which were
materially untrue." Id., 334 U.S. at 741, 68 S.Ct. at 1255, 92 L.Ed. at 1693.
The
Townsend court carefully narrowed the scope of the fairness standard
that it applied, saying, "[I]t is not the duration or severity of this sentence that
renders it constitutionally invalid; it is the careless or designed pronouncement of
sentence on a foundation so extensively and materially false, which the prisoner
19

had no opportunity to correct * * *, that renders the proceedings lacking in due
process." Id.
Since
Townsend, several federal circuit courts have recognized that
reviewing courts may vacate sentences as violative of due process when the
sentencing judge's comments reveal that the court imposed or enhanced the
offender's sentence because of improper considerations such as the offender's race
or national origin, United States v. Borrero-Isaza (C.A.9, 1989), 887 F.2d 1349,
false or unreliable information, United States v. Safirstein (C.A.9, 1987), 827 F.2d
1380, or parochialism, United States v. Diamond (C.A.4, 1977), 561 F.2d 557, 559.
B. Fundamental Fairness and Religious Comments: United States v. Bakker

In the principal case discussed by the parties here, the Fourth Circuit Court
of Appeals applied the rules described above in the specific context of religious
comments by a sentencing judge. United States v. Bakker (C.A.4, 1991), 925 F.2d
728, 740, citing Gardner, Borrero-Isaza, and Safirstein, supra. The Bakker court
recognized that even though a sentencing judge represents "the embodiment of
public condemnation and social outrage" and a judge "can lecture a defendant as a
lesson to that defendant and as a deterrent to others," fundamental notions of due
process act as a constraint on the trial court's discretion in the sentencing
proceeding. Bakker, 925 F.2d at 740.
20

In
Bakker, which concerned the sentencing of a well-known televangelist
after convictions for mail and wire fraud, the district judge made the following
statement on the record about the offender: "He had no thought whatever about his
victims and those of us that do have a religion are ridiculed as being saps from
money-grubbing preachers or priests." Id. The Fourth Circuit vacated the
sentence, holding that courts "cannot sanction sentencing procedures that create the
perception of the bench as a pulpit from which judges announce their personal
sense of religiosity and simultaneously punish defendants for offending it. * * *
Regrettably, we are left with the apprehension that the imposition of a lengthy
prison term here may have reflected the fact that the court's own sense of religious
propriety had somehow been betrayed." (Emphasis added.) Id., 925 F.2d at 740-
741.
The
Bakker court emphasized that it vacated the sentence only because the
district judge's "personal religious principles" were "the basis" of the sentencing
decision. (Emphasis added.) Id., 925 F.2d at 741. By contrast, here the judge's
disclosed religious principle mirrored a sentencing factor in the Ohio Revised
Code. Moreover, the biblical passage could not be said to be the primary premise
for the judge's sentencing decision, as she considered various statutorily
21

sanctioned bases. Bakker, therefore, does not support the court of appeals'
decision to vacate Arnett's sentence.
1. The Limits of Bakker
The
Bakker court underscored its "genuine reluctance" to vacate the
sentence and repeatedly stressed the limits of its decision. Id., 925 F.2d at 741.
The court noted, "Our Constitution, of course, does not require a person to
surrender his or her religious beliefs upon the assumption of judicial office." Id. at
740. The court also recognized that judges occasionally misspeak, and that "every
ill-advised word will not be the basis for reversible error." Id. at 741. The Bakker
court vacated the sentence only because the judge's "intemperate" comments
revealed that an "explicit intrusion of personal religious principles" was "the
basis" of the sentencing decision. (Emphasis added.) Id.

Recognizing the limits stressed by the Bakker court, federal courts
interpreting Bakker have refused to vacate sentences unless the trial judge's
religious remarks create an appearance of sentencing based on improperly
considered, highly personal beliefs. In a recent example, the Fourth Circuit
affirmed a sentence even though the sentencing court commented on the fact that
the defendant considered using his church to pass classified documents to a South
Korean military attaché, and declared this behavior to be "horrible hypocrisy."
22

United States v. Kim (Jan. 14, 1999), C.A.4 No. 97-4606, unreported, 1999 WL
12924, disposition reported at 172 F.3d 45. Though Kim argued that Bakker
prohibited the judge's remarks, the Fourth Circuit found no constitutional violation
in the judge's comment, which the judge made after deciding not to depart from
the federal guidelines. Id. at *1.

Likewise, the Seventh Circuit affirmed a sentence that an offender
challenged on due process grounds when the sentencing judge spoke of "personal
considerations that [the offender] brings to me." United States v. Autullo (July 12,
1995), C.A.7 No. 95-1020, unreported, 1995 WL 417577, disposition reported at
62 F.3d 1419. Though the offender in Autullo attempted to analogize the judge's
comments to those disallowed in Bakker, based on the judge's use of the phrase
"personal considerations," the Autullo court determined that the sentencing judge's
comments "did not demonstrate personal animus but were an expression of outrage
at the great harm and tragic results that Autullo's crimes had on the youth of the
community." Id. at *3.

In a case where the judge's specific comments were more similar to those
presently before us, a Rhode Island district court denied a habeas corpus petition
when the sentencing judge referred to a biblical verse by stating that "no man
should take more than he is willing to give." Gordon v. Vose (D.R.I. 1995),
23

879 F.Supp. 179. The Gordon court determined that the sentencing judge
expressed no personal religious bias of the type Bakker prohibited, but that the
judge simply stated a generally accepted proposition that if one commits a serious
crime, he or she must expect to receive a severe punishment. Id. at 185.

Several state supreme courts, though they cite Bakker with approval, have
declined to vacate sentences where the judge's religious comments merely
acknowledge generally accepted principles, as opposed to highly personal religious
beliefs that become the basis for the sentence imposed. See, e.g., Poe v. State
(1996), 341 Md. 523, 533, 671 A.2d 501, 505 (upholding sentence when
sentencing judge said, "I still believe in good old-fashioned law and order, the
Bible, and a lot of things that people say I shouldn't believe anymore" prior to
sentencing); Gordon v. State (R.I. 1994), 639 A.2d 56, 56-57 (upholding sentence
when sentencing judge referred to Bible by saying that "no man takes more than
he's willing to give"); People v. Halm (1993), 81 N.Y.2d 819, 595 N.Y.S.2d 380,
611 N.E.2d 281 (upholding sentence for sodomy when sentencing judge referred to
"Biblical times" and expressed his opinion about the seriousness of the crime).

Taken together, these federal and state decisions support our conclusion that
Bakker in no way supports a per se rule prohibiting all religious references by a
sentencing judge. Rather, Bakker represents the exceptional case where a
24

judge's religious comments implicate the fundamental fairness of a sentencing
proceeding by revealing that the judge's personal religious views were the primary
basis for the sentencing decision.
2. Applying Bakker to the Present Case

We agree with the state that Bakker is distinguishable from the present case.
The sentencing judge's comments in Bakker revealed that he had been personally
offended, as a religious person, by the offender's frauds. When he said "those of
us who do have a religion are ridiculed as being saps from money-grubbing
preachers or priests," the sentencing judge in effect inserted himself as a party to
the case--aligning himself with the plaintiffs whom the televangelist defrauded.
As the court in Gordon v. Vose noted, the sentencing judge in Bakker was
"expressing a personal religious preference and then sentencing petitioner for
violating it." (Emphasis added.) 879 F.Supp. at 185.

Here, on the other hand, Arnett's sentencing judge cited a religious text
merely to acknowledge one of several reasons--"one additional source"--for
assigning significant weight to a legitimate statutory sentencing factor. The
particular passage she cited mirrored the Revised Code's seriousness factor
regarding the victim's young age. R.C. 2929.12(B)(1). Much like the comments
allowed in United States v. Autullo, and Gordon v. Vose, supra, the text of the
25

biblical verse that the judge cited here reflects the general proposition that offenses
against young victims are especially serious--a principle that the General
Assembly explicitly recognized in R.C. 2929.12(B)(1).

Arnett contends that the sentencing judge in this case "considered the
heinousness of the crime as expressed in her own religious teachings as the most
essential factor in determining the length of the sentence to be served." (Emphasis
added.) We disagree. If the sentencing judge had so relied on the biblical passage
she referred to, which, when taken literally, recommends death by drowning for
those who injure children, the judge presumably would have imposed a sentence
much closer to the statutory maximum than the sentence she actually imposed. See
R.C. 2929.14(A).

The court of appeals determined that a constitutional violation occurred here
under Bakker because, in its view, the Book of Matthew functioned as a
"tiebreaker" for a sentencing judge torn between a more lenient or a more harsh
sentence. State v. Arnett (Feb. 5, 1999), Hamilton App. Nos. C-980172 and C-
980173, unreported, at 5, 1999 WL 65632. Though a fair reading of the record
supports the court of appeals' conclusion that the judge's reference to the Book of
Matthew assisted her in finally resolving her deliberative struggle, Bakker merely
prohibits a judge's personal religious principles from being "the basis of a
26

sentencing decision." (Emphasis added.) Bakker, 925 F.2d at 741. Here, the
record discloses many factors that cumulatively formed the basis of the court's
sentence, including the testimony and letters provided to the court on behalf of
Arnett and the victim, the psychologist's testimony regarding the harm suffered by
the victim, and the nature of the multiple offenses. The Bible was but one factor,
among many, that supported this judge's legally unremarkable decision to assign
significant weight to the seriousness of Arnett's offenses against young victims.
III. Conclusion

For the foregoing reasons, we hold that when a sentencing judge
acknowledges that he or she has consulted a religious text during his or her
deliberations and quotes a portion of that text on the record in the sentencing
proceeding, such conduct is not per se impermissible and does not violate the
offender's right to due process, when the judge adheres to the sentencing
procedures outlined in the Revised Code and when the judge's religious references
do not impair the fundamental fairness of the sentencing proceeding.

Like the court in Bakker, we emphasize the limits of our holding today. We
agree with the Bakker court's recognition of the fundamental constraints of due
process in a sentencing proceeding. We also agree that a sentencing judge's
religious comments may violate an offender's due process rights when they
27

reveal an "explicit intrusion of personal religious principles as the basis of a
sentencing decision." Bakker, supra, 925 F.2d at 741. We determine, however,
that no such constitutional violation occurred in this case.

We note that comments by a sentencing judge may implicate this state's
ethical rules concerning impartiality and bias. One such rule provides that "[a]
judge shall perform judicial duties without bias or prejudice. A judge shall not, in
the performance of judicial duties, by words or conduct manifest bias or prejudice,
including but not limited to bias or prejudice based upon * * * religion * * * ."
(Emphasis added.) Canon 3(B)(5) of the Code of Judicial Conduct. We highlight
this rule as a cautionary reminder; we do not imply that an ethical violation
occurred in this case.

The Eighth District Court of Appeals referred to these ethical considerations
when it determined that another sentencing judge's comments, though they did not
affect the outcome of the case, went "well beyond the permissible limits of
rhetorical hyperbole." State v. Conner (June 27, 1996), Cuyahoga App. No.
65385, unreported, at 11, 1996 WL 355287. In its analysis of these comments, the
Conner court included a quotation from Benjamin N. Cardozo, which--though not
a part of our holding--bears repeating here, lest our decision today be misread as a
license for sentencing judges to preach from the bench:
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" `The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his
own ideal of beauty or goodness. * * * He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated to "the
primordial necessity of order in the social life." Wide enough in all conscience is
the field of discretion that remains.' " (Footnote omitted.) Id., quoting Benjamin
N. Cardozo, The Nature of the Judicial Process (1991), at 141.

For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
FOOTNOTES:

1.
As the court of appeals noted, the biblical passage as it appears in the
transcript from the sentencing proceeding contains slight differences from the
Bible, King James version. The notation "sic" marks two commas not in the
original and the omission of italics from the word "that."
2.
See
State v. Licardi (Feb. 4, 1999), Cuyahoga App. No. 72171,
unreported, 1999 WL 61003; State v. Coyle (Oct. 13, 1997), Clermont App. No.
CA97-02-014, unreported, 1997 WL 632836. Under the reasoning in Licardi
29

and Coyle, the sentencing judge in this case would not have been required to
consider the R.C. 2929.12 seriousness and recidivism factors when imposing
sentence for Arnett's ten rape convictions, which carry mandatory prison terms
under R.C. 2929.13(F)(2). But, see, Ohio Criminal Sentencing Commission,
Quick Reference Guide (Oct. 1996), at 1; Griffin & Katz, Ohio Felony Sentencing
Law (1998) 286, Section T 1.11.

3.
Just prior to adjudicating Arnett a sexual predator, the sentencing
judge made one such rote recitation when she noted on the record that she was
"considering the age of the victim of the sexually oriented offense."

4.
The brief of Mark Greenlee, amicus curiae in support of the state,
discusses four possible models of judicial decisionmaking. The "separatist" model
would prohibit any reliance upon religious convictions both during a judge's
internal deliberations and in the oral or written justifications for the judge's
decisions. Under a "publicist" model, which might exist in a society ruled
exclusively by religious laws, a judge would always justify his or her decisions
with religious considerations, even if the judge did not actually rely on such
considerations during his or her deliberations. Under the "privatist" model, a judge
might include religious considerations during the deliberative stage, but could not
make oral or written religious references in the justification stage.
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Finally, under the "wholist" model, a judge could rely on religious convictions, at
least to some extent, in both the deliberation and justification stages.
31