The fallout from State v. Foster, the Supreme Court’s recent decision nullifying Ohio’s sentencing scheme, continues. In State v. Congress, the 8th District vacates a sentence in which the defendant was given more than the minimum sentence. Since the defendant had never served prison time, “the trial court imposed more than the minimum sentence after making findings pursuant to the provisions of R.C. 2929.14(B)…” But since the Supreme Court declared those statutes unconstitutional and “excised [them] from the statutory scheme, . . . defendants that were sentenced under unconstitutional and now void statutory provisions must be re-sentenced.” And in State v. Woods, the court vacates a maximum, consecutive sentence and remands it back for resentencing. 

This is specifically required by Foster, and the legal logic of that position is understandable, at least at first glance – the defendant was sentenced under a statute that has since been declared unconstitutional. The same procedure was followed by the U.S. Supreme Court in United States v. Booker, which nullified the mandatory nature of the Federal sentencing guidelines.

But it’s easy to see how defendants in Federal prosecutions could have been harmed by the sentencing guidelines; there have been no shortage of cases where a U.S. district judge announced he would have given a shorter sentence, but the guidelines didn’t permit it. It’s almost impossible to see that happening under Ohio’s sentencing system. All of the provisions were beneficial to the defendant: he could not be sentenced to more than the minimum, to the maximum, or to consecutive sentences without certain findings being made. Other than mandatory sentences, which were always a part of Ohio law, there was nothing which required a judge to hand down a stiffer sentence than he otherwise would have wanted to impose.

This highlights the real difference between the Federal guidelines and the Ohio sentencing system.  The former was, for the most part, objective:  a defendant stole so much money, had so much coke, had such and such a criminal history, and so forth.  True, there were subjective considerations, like “acceptance of responsibility,” but they played a relatively minor role.  Ohio’s criteria, on the other hand, were almost entirely subjective:  was this the “worst form of the offense,” would a minimum sentence “demean the seriousness of the crime,” etc.

For this reason, Foster’s requirement of resentencing doesn’t make much sense from a practical standpoint: if the trial judge went to the trouble of making what he felt were sufficient findings to warrant imposing more than the minimum sentence, or the maximum sentence, it’s tough to imagine him handing down a shorter sentence if he doesn’t have to make those findings at all. You could make a fairly good argument that this is a clear case where any error in sentencing is harmless beyond a reasonable doubt.

And in that light, you could also make a pretty good argument that defendants can only be harmed by resentencing. Keep in mind that there’s nothing prohibiting the court from imposing a longer sentence than he or she did originally.

Take Mr. Congress, for example: what happens if the trial judge at re-sentencing announces, “Not only did I find a basis for giving you more than the minimum sentence last time around, but I would have given you the maximum, except that the sentencing statutes wouldn’t let me, because this wasn’t the worst form of the offense and all that other happiness I would have had to go through to do that. But I don’t have to go through that any more, so I’m going to do what I wanted to do the first time and max you out.”

I imagine that Mr. Congress’ new trial counsel is going to have an interesting conversation with him. “Well, there’s good news and bad news. The good news is that your sentence was vacated. The bad news is that your sentence was vacated…” Something to think about if your client wants his sentence appealed.