“How can a court really determine whether someone is remorseful?”

Justice Stewart, to the Assistant Public Defender

“Where in the statute does it say the judge can consider courtroom behavior at sentencing to impose additional terms related to what the legislature says can punish the crimes of robbery and burglary?”

Justice Donnelly, to the Assistant County Prosecutor

On April 14, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. Manson M. Bryant,  2020-0599. At issue in this case is whether a defendant’s expletive-laden outburst directed at the judge after his sentence was announced constitutes a lawful basis for the judge to increase the defendant’s sentence, or whether it should be solely punishable as contempt of court.

Case Background

In July of 2018, Bryant and an accomplice broke into the trailer of Arturo Gonzalez. Bryant’s accomplice held a gun to Gonzalez’s head, and he and Bryant left with cash, a laptop, a cell phone, and some jewelry. Bryant was indicted by the Lake County Grand Jury on seven counts, including aggravated burglary, kidnapping, abduction, and weapons charges. He was found guilty on all seven counts.

Initially, the trial court sentenced Bryant to an aggregate term of twenty-two years. When the judge announced the sentence, Bryant became angry, let loose a torrent of cusswords at the judge and accused him of racism. The judge, responding directly to Bryant, stated, “When I said that you had a certain amount of remorse, I was mistaken,” and changed the sentences on two of the counts to the maximum sentence, effectively adding six years to Bryant’s sentence. Bryant appealed.

The Appeal

The Eleventh District affirmed Bryant’s sentence in a unanimous decision. The court relied on State v. Thompson and held that because the trial court could construe Bryant’s outburst as reflecting a lack of remorse, increasing Bryant’s sentence was not contrary to law. The court emphasized that the trial court could have held Bryant in direct contempt of court, but that because the judge’s oral pronouncement of Bryant’s sentence was not a final order, it was still within his discretion to increase Bryant’s sentence.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2929.11 (When sentencing an offender for a felony, a court “shall be guided by the overriding purposes of protect[ing] the public from future crime by the offender and others . . . punish[ing] the offender, and . . . promot[ing] the effective rehabilitation of the offender . . .”)

R.C. 2929.12 (At sentencing, among other factors, whether the offender shows genuine remorse for the offense shall be used to consider whether the offender is, or is not, likely to commit future crimes.)

Denovchek v. Bd. of Trumbull Cty. Commrs., 16 Ohio St.3d 14 (1988) (Contempt of court is defined as “disobedience of an order of a court.”)

State v. Eckliffe, 2002-Ohio-7136 (11th Dist.) (The sentencing court is in the best position to determine whether a defendant’s statements indicate a lack of genuine remorse.)

State ex rel. Marshall v. Glavas, 2003-Ohio-857 (Oral pronouncements made by the court are subject to revision before journalization.)

State v. Mathis, 2006-Ohio-855 (A sentencing court has full discretion to impose a prison sentence within the statutory range.)

State v. Webster, 2008-Ohio-1636 (1st Dist.) (Contempt of court is always available to punish a defendant who disrupts proceedings with disrespectful behavior.)

State v. Marcum, 2016-Ohio-1002 (An appellate court may modify a sentence if it determines that the record does not support it by “clear and convincing evidence.”)

State v. Thompson, 2017-Ohio-1001 (11th Dist.) (It was lawful for a trial court to increase the defendant’s sentence by six months after he made a “vulgar, hostile comment” to the prosecutor after the conclusion of the sentencing hearing.)

State v. Johnson, 2019-Ohio-4668 (8th Dist.) (When modifying a sentence, an appellate court should give “substantial, but not unfettered, deference to the trial court’s judgment.”)

At Oral Argument

Arguing Counsel

Max Hersch, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, for Appellant Manson Bryant

Jennifer A. McGee, Assistant Prosecuting Attorney, Lake County, for Appellee State of Ohio

Bryant’s Argument

Mr. Bryant’s outbursts revealed only shock and anger over his sentence. His outbursts came immediately after the trial court announced that the aggregate sentence would be 22 years long. His comments were directed at the trial court alone and they did not contradict his previous statements of remorse. They related to his sentence. He disrupted the proceedings, and it is undisputed that this constituted contempt.  But the trial court erroneously mistook this disrespectful disruption as related to remorse. Therefore, the trial court lacked a lawful basis for increasing Mr. Bryant’s sentence by six years. Considering the meaning of remorse, Mr. Bryant’s statements, and all the surrounding circumstances, the trial court’s sentencing modification here was unlawful.

The statements made by Mr. Bryant during his presentencing allocution did reflect remorse, which the trial court did consider. Mr. Bryant acknowledged that he has made a lifetime of bad decisions and he regretted the harm he had caused to his family.  He also acknowledged that despite his addiction, any change in the future would have to come from him. After the sentence was announced, Mr. Bryant reacted and used profanity, but nothing he said contradicted those previous statements. Instead, what the record shows is that he was reacting to the court’s sentence.

Mr. Bryant is not asking this court to reweigh the degree of remorsefulness. The question is whether the trial court could revoke that finding based on Mr. Bryant’s behavior. It was a legal error for the trial court to find that Mr. Bryant’s outburst had some bearing on remorsefulness. A person can be sincerely remorseful yet still have a negative reaction to the sentence that was imposed. That is particularly understandable where Mr. Bynes, a co-defendant who was more involved in the case, received a twelve-year sentence.

Mr. Bryant is not suggesting that the trial court did something sanctionable or egregious here, but the principle stands that the trial court could have taken a pause or have Mr. Bryant removed from the courtroom and resumed proceedings. But the trial court had an immediate reaction to Mr. Bryant’s behavior which amounted to nothing more than contempt of court and just because the trial court cabined it in the language of a sentencing factor doesn’t make it so. The only interpretation supported by clear and convincing evidence on this record is that Mr. Bryant’s reaction was purely a reaction to his sentence.

State‘s Argument

Ultimately the determination of an appropriate sentence and the appropriate way to weigh the purposes and principles of sentencing comes down to the trial court. The judge is required to consider the statements that are made on the record at the sentencing hearing. It is the state’s position that the judge determined that Mr. Bryant’s courtroom conduct indicated a lack of remorse. The judge directly related the conduct to a specific finding enumerated in the statute.

The statements Mr. Bryant made after receiving his sentence were in direct contrast to the statements he made before it, when he was expressing remorse.  The state would submit that demonstrates a lack of remorse.  It shows a cynical and remorseless contempt for the law. It also shows Mr. Bryant’s inability to control himself in a free society. All of those factors directly relate to a defendant’s likelihood to recidivate once he is released. The sentence in this case was warranted based on the offenses that were committed as well as the offender who committed them. The judge specifically enumerated those findings on the record. And the additional six years the judge added were within the statutory range.

The court of appeals here appropriately made sure the trial court’s finding was clearly and convincingly supported by the record. They looked at the trial court’s finding and the fact that the trial court determined that the outburst was directly related to Mr. Bryant’s lack of remorse. They found that given the circumstances of this case, that finding by the trial judge was reasonable. The court could infer that the outburst was a sign that the previous expression of remorse was insincere. In a case like this where there is obviously a difference of opinion in the characterization of the outburst, the state submits that deference should go to the trial judge who is in the best position to make these types of determinations.

Admittedly, it would not be appropriate to increase a defendant’s sentence because of hurt feelings, but in this case the judge did not say he was increasing the sentence because he was being disrespected. The judge specifically said that he thought the defendant was showing some kind of remorse, but clearly was not, and was increasing his sentence based on a finding that there was no remorse. And in this case that was the only mitigating factor in Mr. Bryant’s sentence.  The judge specifically enumerated that finding and the revision to his finding when he increased the sentence. And in this case, Mr. Bryant was well aware that he was going to be sentenced to prison prior to receiving that sentence.

As far as the co-defendant Mr. Bynes is concerned, he was given the benefit of his plea agreement, and did plead to lesser offenses than Mr. Bryant was facing, but the state cannot speak to what its sentencing recommendation was in that case.  The record does reflect that both Mr. Bynes and Mr. Bryant are African American. And the record does indicate that this is the fifth case that Mr. Bryant had before this judge, who was already very familiar with him. That is why the state would submit that the judge was in the best position to make the determinations that he did regarding the appropriate sentence in this case.

What Was on Their Minds

The Outburst

Some of Mr. Bryant’s insults and profanity-laced tirade to the trial court dealt with issues of race, noted Justice Stewart. Is there anything in the record that indicates the race of Mr. Bryant’s co-defendants?

How can the state explain that an outburst in anger as a reaction to the severity of a sentence betrays a lack of remorse 10 minutes earlier in his allocution, asked Justice Donnelly? Given the outburst, isn’t it more probable that it had more to do with the reaction to the severity of the sentence than a betrayal of remorse?

Personal Pique or Lack of Remorse?

What if the trial court had increased this sentence by 6 years simply because the judge was angry and offended, asked Justice Stewart? Would the 6 years be appropriate? How is this reviewable?

How to Determine Remorse

How can a court really determine whether someone is remorseful, asked Justice Stewart? Is there some mechanism by which a court can differentiate remorsefulness from good acting, to the lawyer saying if you say these things, it will get you less time? How do we really know? How would a threat to the judge make it any more or less likely that the defendant is remorseful?

Did Mr. Bryant accept responsibility for the crime, asked Chief Justice O’Connor? What exactly did he say as indicia of remorse for this particular crime?

Justice DeWine quoted what Mr. Bryant said to show remorse during his allocution, and then asked whether it was fair to say that his actions immediately after sentence were directly contradictory to what he had just told the judge.  He added that accepting responsibility is certainly part of remorse and how a judge is going to sentence someone.

The Sentencing Hearing

Let’s put the outburst in context, Justice Donnelly posited.  Didn’t the allocution in which Mr. Bryant expressed remorse for past actions take place before the sentence was imposed?  So, as he awaited his sentence Mr. Bryant was aware that the co-defendant in this case, who arguably is more culpable for the more heinous aspects of the crime that was committed, pled and received a 12-year sentence?  Where in the statute does it say the judge can consider courtroom behavior at sentencing to impose additional terms related to what the legislature says can punish the crimes of robbery and burglary?

I’m looking at what was in the transcript and the judge said he’s been to prison three times in four cases, he’s got nine prior crimes of violence before this case, he’s got 11 instances of probation violations, resisting arrest, obstructing justice, contempt of court and numerous convictions as well as a history of juvenile delinquency, noted Justice Brunner.  Later, she stated that what the judge had done was increase the sentence by three years to a maximum on each of the 2 counts that were being served consecutively. Wouldn’t the statement the judge made in doing that have to go to supporting the maximum sentence under the statute? Is that how the court should be looking at it? Did the judge put enough on the record in giving reasons for the sentence to support the maximum sentence on the two counts, when the judge increased it from 8 to 11 years on each count?  Had Mr. Bryant been before this judge before because of all these repeat offenses?

How is the maximum sentence warranted when the court didn’t give that at first and the state didn’t ask for it, asked Justice Stewart? Where does that additional six years come from? The judge gave 22. There was the outburst, the tirade, and the allegations of racism, and then Mr. Bryant gets six more years.

Bryant’s Expectations

Was Mr. Bryant expecting probation, asked Chief Justice O’Connor? If so, doesn’t that indicate that Mr. Bryant didn’t understand what the whole situation was and what he voiced in showing remorse was his attempt at justifying probation?

Probation wasn’t even on the table, given the mandatory sentence because of the gun specifications, noted Justice Donnelly. So, Mr. Bryant had no expectation of probation. He was just looking for something proportional to what the co-defendant received. Did the state advocate for consecutive sentence on the co-defendant that fled?

Lack of Finality Until Journalization

From a legal standpoint how can this court change the trial court’s imposition of an additional six years when the trial court can change a sentence any time before journalizing it, or making it final, asked Justice Stewart? How do we reconcile the law that gives the trial court the ability to do that?

What Ifs

What if the judge said as a result of this outburst that you just displayed in my courtroom, I’m going to add six more years to your sentence.  And that’s all. Would that be a lawful sentence, asked Justice Donnelly?

Appellate Review

How can a reviewing court ever determine whether a sentence is being imposed based on improper or inappropriate factors, asked Justice Stewart?  What does a reviewing court weigh, particularly if the trial court’s statement, “I find that you obviously don’t have any remorse” doesn’t have any relationship to the comments?  Are we to allow the discretion of trial court judges to just be unabated?  How do we review whether there’s inappropriate factors or just human nature being personally offended, when the statutes don’t allow that?

How it Looks from the Bleachers

To Professor Emerita Bettman

This definitely looks like a split decision, with Justices Donnelly, Stewart and Brunner favoring the defense, Justice DeWine favoring the state, the Chief leaning toward the state but less emphatically, and Justices Fischer and Kennedy silent, probably leaning toward the state.

The justices favoring the defense seemed to buy the argument that based on realistic factors or not, Bryant’s outburst was a reaction to his sentence, especially given the fact that his co-defendant only got 12 years, and not to a lack of remorse, and that the added time was improperly based on this outburst, which should have been addressed with contempt of court. Justice Donnelly addressed this view when he asked how the state could explain how an outburst in anger as a reaction to the severity of a sentence betrays a lack of remorse 10 minutes earlier.  I didn’t think the state ever gave an adequate reply.

 Justice DeWine clearly thought Bryant’s outburst cancelled any remorse and that the sentence was proper. The Chief seemed skeptical about remorse as well, but not as emphatically as Justice DeWine. 

To Student Contributor Liam McMillin

When watching oral arguments, I usually draw a little table in my notes to keep track of how I think the justices will ultimately decide on the case before them, based on their questions. For this case, five of the seven seemed abundantly clear to me: Justices Brunner, Stewart, and Donnelly will side with Bryant, and the Chief and Justice DeWine will go with the State. Justices Kennedy and Fischer spoke barely at all, but given their previous decisions, I would predict that they both would side with the State, and thus upholding Bryant’s extended sentence.

On behalf of Bryant, Max Hersch did a fine job. Although I still maintain that standing for a Zoom proceeding looks sillier than it is effective, his argument was clear, and he responded well to questions. Primarily, Hersch argued that when the judge changed Bryant’s sentence to the maximum based on the outburst, he was not basing his decision on the appropriate factors. Justice Brunner especially seemed to agree with this reasoning. She asked the assistant prosecutor whether increasing the sentence to the maximum was tied to reasons for the maximum. Namely, was the modification made based on appropriate information or determinations?

For the State, Jennifer McGee spoke only a word or two before being interrupted by Justice Brunner (asking the question above). In a sense, McGee is in a tough spot because she is tasked with justifying a judge’s decision, not a prosecutor’s or a colleague’s. Her arguments stayed generally broad, arguing essentially that the outburst was just one of many factors that the judge used to make the sentencing determination, and thus the sentence should be valid. Her statements at times seemed to contradict themselves, especially in her argument that the sentence modification was based on other factors, but also that the outburst was rightfully considered.

As I mentioned, I think the Court will side with the State, but I think this would fly in the face of common sense. The best argument for the State is that the sentence had not been journalized yet and was still open when Bryant made his outburst. The judge then used the outburst to reconsider the earlier finding of remorse. This is, after all, what the trial judge said when making the modification. But I think that a criminal defendant can still feel remorse for the crime he committed and feel that a sentence is unfair, both feelings coexisting but also separate. This, of course, is difficult to parse out, but the whole notion of remorsefulness as a sentencing factor is already squishy.