[Cite as State v. Bowers, 2019-Ohio-3207.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

ADAM BOWERS, 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-180317

TRIAL NO. B-1305688 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: August 9, 2019 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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ZAYAS, Presiding Judge. 

{¶1} For the third time, defendant-appellant Adam Bowers appeals his 

sentence for one count of rape of a child under the age of ten. Raising one 

assignment of error, Bowers argues that the indefinite prison term of 25 years to life 

is not authorized by statute, as that sentence requires a conviction for a forcible rape 

of a child, a prior conviction for rape of a child less than 13, or serious physical harm 

to the victim. Because Bowers was not indicted for or convicted of any of the 

aggravating factors, the sentence is contrary to law. To the extent that this court 

previously determined that the trial court’s factual finding of force was permissible, 

we conclude that analysis violates the Sixth Amendment. We sustain the assignment 

of error, and remand the matter for resentencing. 

Factual and Procedural Background 

{¶2} In 2013, Bowers was indicted and convicted by a jury for rape of a 

child under 13 with the additional specification that the child was under ten. See

State v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 38 (“Bowers 

I”). The verdict form signed by the jury included the express finding that the victim 

was under ten. Id. Bowers was not charged with or found guilty of purposefully 

compelling the victim to submit by force or threat of force, a prior conviction for rape 

of a child less than 13, or causing serious physical harm to the victim. 

{¶3} The trial court determined that a sentence of life without parole, as 

authorized by R.C. 2907.02(B), was not an appropriate sentence. Instead, the court 

sentenced Bowers to an indefinite prison term of 25 years to life because the court 

mistakenly believed that that sentence was the mandatory alternative. Id. at 42. The 

court sentenced Bowers pursuant to R.C. 2971.03(A), which “applies only to a person 

who was convicted of or pleaded guilty to a sexually-violent-predator specification 

that was included in the indictment.” Id. at ¶ 41. Because the court erred in 
OHIO FIRST DISTRICT COURT OF APPEALS 

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sentencing Bowers as a sexually-violent predator when he was not indicted for or 

convicted of being a sexually-violent predator, we reversed the sentence and 

remanded the matter to the trial court with instructions to resentence Bowers in 

accordance with R.C. 2907.02(B). Id. at ¶ 41-42. The judgment was affirmed in all 

other respects. Id. at ¶ 43. 

{¶4} At the first resentencing, the trial court again decided not to impose a 

sentence of life without parole. The court imposed a sentence of 25 years to life, 

again mistakenly believing that the court only had that as a sentencing alternative. 

See State v. Bowers, 2018-Ohio-30, 102 N.E3d 1218, ¶ 4 (1st Dist.) (“Bowers II”). In 

reaching this decision, the trial court stated “based on all the evidence that I’ve read, 

and I read the transcript, and I’m going to choose the lesser of the two and keep the 

original sentence that was imposed by Judge Helmick, 25 years to life.” 

{¶5} Again Bowers appealed, arguing that the trial court erred in imposing 

a 25-year-to-life sentence because the proper sentence for raping a child under ten is 

15 years to life under R.C. 2971.03(B)(1)(b). Bowers further contended that he could 

not be sentenced to a 25-year-to-life sentence under R.C. 2971.03(B)(1)(c) because 

he was not convicted of purposely compelling the victim by force or threat of force, 

had not previously been convicted of rape of a child less than 13, and had not caused 

serious physical harm. The state contended that the 25-year-to-life sentence was 

available because force was inherent in the rape of a child under ten. 

{¶6} Neither party alleged or argued that the trial court made or could make 

a factual finding of force, and the record establishes that the trial court did not make 

any such factual findings. Nevertheless, this court sua sponte raised the issue, 

misconstrued the state’s argument, and concluded that the trial court had made the 

factual finding of force, was authorized to make the finding, and a sentence of 25 

years to life was a permissible sentencing option. Id. at ¶ 17. Based on this 
OHIO FIRST DISTRICT COURT OF APPEALS 

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erroneous belief, this court further opined in dicta that the trial court’s finding of 

force did not violate Bowers’s Sixth Amendment right to a trial by jury. Id. at ¶ 16-17. 

{¶7} Ultimately, we vacated the sentence and remanded the cause to the 

trial court “because the trial court erroneously believed 15 years to life was not an 

available sentence.” Bowers II at ¶ 20. 

{¶8} At the second resentencing hearing, the trial court, for the third time, 

determined that a sentence of life without parole was not warranted, and considered 

two sentencing options: 15 years to life and 25 years to life. The trial court imposed a 

sentence of 25 years to life because it concluded that the original sentencing judge 

had given the appropriate sentence. 

Law and Analysis 

{¶9} On appeal, Bowers argues the sentence of 25 years to life is not 

authorized because Bowers was not charged with or convicted of purposely 

compelling his victim to submit by force or threat of force, had not previously been 

convicted of rape of a child less than 13, and had not caused serious physical harm. 

We agree. 

{¶10} R.C. 2971.03(B)(1) states, in relevant part: 

[I]f a person is convicted of or pleads guilty to a violation of division 

(A)(1)(b) of section 2907.02 of the Revised Code committed on or after 

January 2, 2007, * * * and if the court does not impose a sentence of 

life without parole when authorized pursuant to division (B) of section 

2907.02 of the Revised Code, the court shall impose upon the person 

an indefinite prison term consisting of one of the following: 

(a) Except as otherwise required in division (B)(1)(b) or (c) of this 

section, a minimum term of ten years and a maximum term of life 

imprisonment. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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(b) If the victim was less than ten years of age, a minimum term of 

fifteen years and a maximum of life imprisonment.

(c) If the offender purposely compels the victim to submit by force or 

threat of force, or if the offender previously has been convicted of or 

pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the 

Revised Code or to violating an existing or former law of this state, 

another state, or the United States that is substantially similar to 

division (A)(1)(b) of that section, or if the offender during or 

immediately after the commission of the offense caused serious 

physical harm to the victim, a minimum term of twenty-five years and 

a maximum of life imprisonment. 

R.C. 2971.03 (B)(1)(a), (b) and (c). 

{¶11} Once the court determines that a sentence of life without parole is not 

appropriate, R.C. 2971.03(B)(1) governs the sentence. The statutory minimum 

sentence for a violation of R.C. 2907.02(A)(1)(b) is ten years. R.C. 2971.03 (B)(1)(a). 

If the offender was charged with and convicted of raping a child who was less than 

ten years old, the statutory minimum sentence is 15 years. R.C. 2971.03 (B)(1)(b). If 

the offender had a prior conviction for rape of a child, purposely compelled the 

victim by force or threat of force, or caused serious physical harm to the victim, then 

the statutory minimum is 25 years. R.C. 2971.03 (B)(1)(c). 

{¶12} The trial court correctly concluded that R.C. 2971.03(B)(1) applied to 

Bowers because he was convicted of violating R.C. 2907.02(A)(1)(b), the offense was 

committed after January 2, 2007, and the court did not impose a sentence of life 

without parole. 

{¶13} However, as previously noted, the form submitted to the jury did not 

require the jury to determine whether Bowers purposefully compelled the victim to 

submit by force or threat of force, had a prior rape conviction, or caused serious 
OHIO FIRST DISTRICT COURT OF APPEALS 

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physical harm. Because the jury did not find any of these elements, Bowers could not 

be sentenced to 25 years to life pursuant to R.C. 2971.03(B)(1)(c). Instead, under 

R.C. 2971.03(B)(1)(b), after declining to impose life without parole, the court was 

required to impose a sentence of 15 years to life because Bowers was charged with 

and convicted of the specification that the victim was under the age of ten. See State 

v. Tschudy, 9th Dist. Summit No. 24053, 2008-Ohio-4073, ¶ 6 (concluding that 

when the trial court does not impose a sentence of life without parole for a violation 

of R.C. 2907.02(A)(1)(b), “the trial court was then mandated to impose an indefinite 

term of fifteen years to life imprisonment.”); State v. Statzer, 2016-Ohio-7434, 72 

N.E.3d 1202, ¶ 30 (12th Dist.) (explaining that the sentencing options for a 

conviction under R.C. 2907.02(A)(1)(b) where the victim is under ten years of age 

are “an indefinite term of 15 years to life in prison, pursuant to R.C. 2971.03(B)(1)(b), 

or life without parole, pursuant to R.C. 2907.02(B)”). 

{¶14} Because the jury found Bowers guilty of raping a child under the age of 

ten, the sentence supported by the verdict was a sentence of life without parole or an 

indefinite sentence of 15 years to life. See id. 

{¶15} The state contends that the law of the case doctrine applies to allow the 

trial court to impose a sentence of 25 years to life because this court concluded that 

that sentence was an available option in Bowers II. However, that conclusion was 

based on the erroneous determination that the trial court had made a factual finding 

of force, and its sua sponte analysis that the court’s finding was constitutionally 

permissible. Bowers II, 2018-Ohio-30, 102 N.E3d 1218 at ¶ 11, 17. As previously 

noted, that analysis went beyond the facts presented to the court. 

{¶16} “Expressions in court’s opinions which go beyond the facts before the 

court” is considered dicta and not binding in subsequent cases. (Citations omitted.) 

State v. Mason, 2016-Ohio-8400, 111 N.E.3d 432, ¶ 32 (3d Dist.). “Dicta is not 

authoritative, and, by definition, cannot be the binding law of the case.” Gissiner v. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Cincinnati, 1st Dist. Hamilton No. C-070536, 2008-Ohio-3161, ¶ 15, quoting 

Episcopal School of Cincinnati v. Levin, 117 Ohio St.3d 412, 2008-Ohio-939, 884 

N.E.2d 561, ¶ 27. Consequently, this court’s conclusion that the court’s factual 

finding of force was constitutionally permissible was dicta and not controlling law. 

See id. 

{¶17} To the extent that Bowers II opined that a trial court could make a 

finding of force, we reject that analysis as inconsistent with binding Supreme Court 

precedent. As the United States Supreme Court has explained, any “[f]acts that 

increase the mandatory minimum sentence are therefore elements and must be 

submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United 

States, 570 U.S. 99, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013). The jury found 

Bowers guilty beyond a reasonable doubt of rape of a child under the age of ten. The 

minimum sentencing range based upon the facts as found by the jury is 15 years to 

life. A factual finding of force by the trial court would raise the minimum sentence to 

25 years to life in violation of the Sixth Amendment. See id. Earlier this year, the 

United States Supreme Court emphasized that “[a]s this Court has repeatedly 

explained, any ‘increase in a defendant’s authorized punishment contingent on the 

finding of a fact’ requires a jury and proof beyond a reasonable doubt * * * .” United 

States v. Haymond, __ U.S. __, 139 S.Ct. 2369, 2379, __ L.Ed.2d __ (2019), 

quoting Ring v. Arizona, 536 U. S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). 

{¶18} The Bowers II suggestion that a trial court may engage in judicial 

factfinding to increase the mandatory minimum sentence is inconsistent with 

Alleyne and Haymond and, is, accordingly, overruled. 

Conclusion 

{¶19} We sustain the assignment of error, reverse the sentence and remand 

the matter to the trial court to resentence Bowers in accordance with R.C. 

2907.02(B) and 2971.03(B)(1)(b). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Judgment reversed and cause remanded. 

CROUSE, J., concurs. 

BERGERON, J., concurs separately. 

Bergeron, J., concurring separately.

{¶20} I respectfully concur separately to explain why I believe we must 

overrule a recent precedent from this court. That is a step that we should rarely take, 

and only when several factors point decisively in favor of overruling. 

{¶21} Here, we have a perfect storm of factors that militate in favor of 

overruling: (1) our prior panel made a critical error in its determination of the 

record, which set this case down the wrong path to begin with; (2) we are dealing 

with significant constitutional protections; and (3) our prior decision stood at odds 

with recent United States Supreme Court precedent, as ratified by the Court in an 

intervening decision. 

{¶22} First, at this point, it is undisputed that neither the jury nor the trial 

court ever made a determination that Mr. Bowers acted with force in the commission 

of his crime. Nevertheless, our jumping-off point in Bowers II was the premise that 

the trial court had so found. Bowers II at ¶ 17 (“[T]he judicial finding of ‘force’ under 

R.C. 2971.03(B)(1)(c) altered neither the mandatory minimum or available 

maximum sentence.”). Because we erred in our assessment of the factual record in 

Bowers II, we are not bound by that determination in this appeal, notwithstanding 

the state’s claim that law of the case constrains us. Law of the case only applies to 

legal holdings, rather than factual determinations. Washington Mut. Bank v. 

Wallace, 2014-Ohio-5317, 24 N.E.3d 779, ¶ 21 (12th Dist.) (“Since the law of the case 

applies only to legal questions, our statements regarding factual observations in 

Wallace I do not represent the law of the case.”); Orville Prods., Inc. v. MPI, Inc., 8th 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Dist. Cuyahoga No. 65184, 1994 WL 258631, *3 (June 9, 1994) (“[T]he doctrine of 

law of the case pertains to legal questions, not factual questions.”); Evans v. Evans, 

1st Dist. Hamilton No. C-950628, 1996 WL 312477, *2 (June 12, 1996) (noting that a 

“factual determination” was not “a legal conclusion and it certainly did not become 

‘the law of the case’ ”). 

{¶23} Thus, I would not characterize what we previously decided in Bowers 

II as “dicta,” but rather would say that we committed an error regarding the record 

(which no one seriously disputes), and that, as a result, we are at liberty to consider 

the legal analysis anew because it was constructed on a false premise. 

{¶24} Even acknowledging our prior error, I might have still (reluctantly) 

acquiesced in the prior result were it not for the constitutional magnitude of the right 

at stake and the precise direction that we have received from the United States 

Supreme Court, which we are obliged to follow on issues of federal constitutional 

law. 

{¶25} That brings me to my second point—the constitutional dimension of 

the right at issue. In Alleyne v. United States, 570 U.S. 99, 103, 133 S.Ct. 2151, 186 

L.Ed.2d 314 (2013), the Supreme Court overruled Harris v. United States, 536 U.S. 

545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), decided only about a decade 

beforehand. In so doing, the court explained that “[t]he force of stare decisis is at its 

nadir in cases concerning procedural rules that implicate fundamental constitutional 

protections.” Alleyne at 116, fn. 5; see id. at 119 (Sotomayor, J., concurring) (noting 

that “the force of stare decisis is reduced” in light of “subsequent developments in 

constitutional law”). In other words, our scrutiny of errors in prior decisions must be 

heightened when dealing with constitutional safeguards, particularly the Sixth 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Amendment. That explains why the Supreme Court would do an about-face and 

overrule one of its own relatively-recent decisions. 

{¶26} And we take our cues—on federal constitutional rights—from the 

Supreme Court. With respect to its Sixth Amendment sentencing jurisprudence, its 

watershed decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000), unleashed a fair amount of disarray in the sentencing arena. 

Apprendi’s progeny did not proceed in a necessarily straight (nor really intuitive) 

path, as the Harris/Alleyne opinions illustrate. That uncertainty left lower courts 

guessing on a number of issues concerning the Sixth Amendment overlay for both 

federal and state sentencing regimes. 

{¶27} With that backdrop, I return to Bowers II for my third point. 

Premised on its erroneous determination that the trial court had made a finding of 

force, our prior decision held that this created no constitutional concerns, but rather 

provided a menu of options to the sentencing judge (15 years to life, 25 to life, and 

life without parole). This vitiates both the design of the statute and constitutional 

doctrine. 

{¶28} Consider, for example, if the jury had convicted Mr. Bowers for using 

force. Indeed, the Ohio Jury Instructions include a specific provision that pertains to 

“force,” which requires additional findings. See Ohio Jury Instructions, CR Section 

507.02(A)(1) (Rev. Jan. 1, 2011) (“If your verdict is guilty, you will separately decide 

beyond a reasonable doubt whether the defendant purposefully compelled [victim] to 

submit by force or threat of force.”). If that had occurred, would we have said that 

the sentencing judge retained discretion to sentence below 25 years to life? No, of 
OHIO FIRST DISTRICT COURT OF APPEALS 

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course not. To suggest that would be to render the jury’s determination simply 

advisory and leave courts unchecked by statutory sentencing mandates. 

{¶29} But Mr. Bowers was not convicted for using force, which means that 

the only way that he could have been sentenced to 25 years to life is if the trial court 

made such a finding. Yet that runs into a constitutional blockade, because the 

Supreme Court has instructed that “any fact that increases the mandatory minimum 

is an ‘element’ that must be submitted to the jury.” Alleyne, 570 U.S. at 103, 133 

S.Ct. 2151, 186 L.Ed.2d 314. Glancing at the statute confirms this, because since Mr. 

Bowers’s victim was less than ten years old, that triggered the applicability of R.C. 

2971.03(B)(1)(b), which provides a “minimum term of fifteen years and a maximum 

of life imprisonment.” Adding force to the equation increases the penalty, to “a 

minimum term of twenty-five years and a maximum of life imprisonment.” R.C. 

2971.03(B)(1)(c). This increase of the minimum penalty from 15 to 25 years 

implicates the Supreme Court’s holding in Alleyne. 

{¶30} Lest any doubt remained, however, the Supreme Court answered that 

in United States v. Haymond, ___U.S.___, 139 S.Ct. 2369, __ L.Ed.2d __ (2019). 

Surveying its prior precedent, the Court confirmed: “As this Court has repeatedly 

explained, any ‘increase in a defendant’s authorized punishment contingent on the 

finding of a fact’ requires a jury and proof beyond a reasonable doubt ‘no matter’ 

what the government chooses to call the exercise.” Id. at 2379, quoting Ring v. 

Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In other words, 

calling it a “sentencing enhancement,” “judicial fact-finding,” or any other name 

does not matter. See id. at 2377. What matters is whether the minimum or 
OHIO FIRST DISTRICT COURT OF APPEALS 

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maximum sentence is being increased and whether the fact necessary for that 

increase has been determined by the jury. 

{¶31} Because the statutory minimum was increased without any finding by 

the jury, this violates the Sixth Amendment as determined by Alleyne and Haymond. 

In light of the clarity of this guidance from the Supreme Court, our prior decision 

must yield. Therefore, I join in the decision to overrule Bowers II.

Please note: 

The court has recorded its own entry on the date of the release of this opinion.