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Sentencing: what's left after Foster?

The 10th District's recent decision in State v. Knopf is notable for a couple of reasons.  The defendant was your standard-issue rummy who'd racked up three prior DWI's, and for this one the judge dropped the hammer, maxing him out at 30 months.  He appealed, claiming that the judge erred in not giving him community control sanctions, since they were presumed penalty for 4th and 5th degree felonies, and for not making the findings necessary to give him more than the minimum prison term, and giving him the maximum.

The first argument has been a prevalent belief among attorneys for years, but it's not true; as the court noted, State v. Foster holds that while there's a preference for community control sanctions for lower level felonies, it's not a presumption in favor of them, and no judicial fact-finding is required in order to impose a prison sentence.  As for the defendant's remaining arguments, the court decided to follow the 9th District's application of Foster:  if the defendant argues that the sentencing scheme was unconstitutional under Blakely and Apprendi, the sentence will be vacated and the case remanded.  But where the defendant only argues that the court failed to make the findings necessary to impose a particular sentence, the court will affirm the sentence. 

The logic is unassailable:  there's no error in failing to follow a statute which has subsequently been held unconsitutional.  (I'd mentioned the 9th District ruling back here.  It appears that the 8th District is still following its policy of reversing all sentences which implicate Foster, as they did in this case just a few weeks back, where the defendant made the identical argument to the ones in Knopf.)  In fact, you can make the argument that sentences shouldn't be vacated at all.  As I'd noted several months back, it doesn't make much sense to send a case back for resentencing because the judge didn't make the necessary findings to give a more-than-minimum or maximum sentence, when he now no longer has to make those findings at all.  And it would certainly put some judicial resources to better use: Shepardizing Foster gives you 580 hits, 83 of them in this District.

The other notable thing about Knopf is that, despite the court's holding that the sentence didn't have to be justified by the statutory findings that Foster tossed, it could still be reviewed on an abuse-of-discretion standard.  There's a tendency to think that with most of the sentencing law thrown out, a judge's sentence can't be overturned as long as it's within the boundaries the legislature provides.  This isn't true, though; even pre-SB 2 law did enumerate various criteria judges were to take into consideration in sentencing, and Foster didn't nullify those criteria.  A judge may have discretion to hand down any sentence within the limits set by the legislature, but his decision can still be reviewed for an abuse of that discretion.

Of course, "abuse of discretion" isn't exactly the most unforgiving standard, but keep in mind that SB 2 contained something new:  a legislative determination that one of the purposes of the entire sentencing scheme is that any particular sentence is "consistent with sentences imposed for similar crimes committed by similar offenders."  The 8th District has reversed cases bases on disproportionality, as this case shows, and in the next few weeks, I'll do another post or two on how to approach this in sentencing.  For now, keep in mind that although Foster took away a lot, it didn't take away everything.

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