Robbie Moore had a bad day on May 20, 2004:  she got drunk, wound up going the wrong direction on the Innerbelt, and wiped out a couple on a motorcycle.  She had a worse one a month or so later, when she walked into the arraignment room on two counts of aggravated vehiclular homicide, and drew Kathleen Sutula as a judge.  Any reason why 2004 wouldn’t go down as the worst year of her life was dispelled on September 28, when, after she’d pled guilty to the two counts, Judge Sutula gave her the maximum ten-year sentence on each count, and ran them consecutively.

But Robbie Moore’s karma was about to change:  a year later the court of appeals reversed her sentence.

Actually, it wasn’t good karma — it was good lawyering.  Moore’s attorney, who represented her at both the trial and appellate level, filed a presentence memorandum setting out a number of cases involving first offenders who had killed somebody while driving drunk, not one of whom received the maximum sentence, let alone maximum consecutives.  In fact, the day before Moore was sentenced, another defendant three floors down in the Justice Center received six years in a virtually identical fact pattern:  driving the wrong way, and killing two people.  Moore’s lawyer argued that the sentencing scheme violated RC 2929.11(B)’s requirement that “a sentence… shall be… consistent with sentences imposed for similar crimes committed by similar offenders.”

The court of appeals agreed.  This wasn’t the first time a sentence had been struck down as inconsistent with that for similar crimes.  Back in 2002, the 8th District in State v. Lyons vacated a sentence after concluding that the trial judge hadn’t given any consideration to the issue of consistency. 

But other than Lyons and Moore, it’s tough to find any helpful decisions on this.  The problem, as pointed out in Judge Karpinski’s concurrence in State v. Haamid:  it’s almost impossible for lawyers or judges — aat the trial or appellate level — to obtain the information necessary to determine how consistent a sentence is with what’s been imposed for similar offenses and offenders.  When SB 2 was passed, the contemplation was that a database would be established for criminal sentencing.  Somehow the legislature forgot to appropriate money for it.  Since Ohio no longer faces any other pressing problems, I’m sure the money will be forthcoming any day now, probably coinciding with peace in the Middle East.

Lacking that, you have to get creative, which is what Moore’s lawyer did:  he contacted a Plain Dealer reporter, who compiled a list of newspaper stories on aggravated vehicular homicides in the Cleveland area in the past several years.  (Apparently, the Plain Dealer does have a computerized database.)  That’s not something you’re going to find for your run-of-the-mill drug trafficking case, though.  On the other hand, consistency is a great argument to use in the case of sentencing of codefendants, as the 1st District recognized in State v. Stern, 137 OApp3d 110.

At any rate, consistency is one of the things that survived State v. Foster, and it’s something to be kept in the back of your mind when approaching sentencing.  But, slightly off the topic, any laments about the other things that didn’t survive Foster can be tempered by looking at the history of the Haamid case I cited above.  The judge originally gave Haamid 15 years for trying to run down some police officers with his car.  The 8th District reversed, holding that the judge hadn’t given sufficient findings to impose maximum sentences.  On remand, the judge gave Haamid the same 15 years, and he appealed again.  The court of appeals reversed again, finding this time that although the judge gave sufficient reasons to impose the maximum sentence, she hadn’t given a basis for consecutive sentences.  On the third try, the judge gave the same sentence.  Haamid appealed again, but this time the appellate court decided that the judge got it right.

I think there were some good ideas behind SB 2, but in practice it resulted primarily in a gross waste of judicial resources.  If they ever do get around to constructing that database, one of the things I’d like to find out is in what percentage of reversed cases  the same sentence was imposed.  I’d say the over/under on that was at least 75.