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Consistency in sentencing

Back in September, I wrote about the case of Robbie Moore, who killed two people by driving drunk in the wrong lane on I-71 in Cleveland, and was given 10-year maximum, consecutive sentences on each count.  The 8th District reversed, holding that the sentence was inconsistent with those handed down in similar situations.  In fact, the day before Moore's sentence, another defendant who'd killed two people by driving intoxicated and going the wrong way was sentenced to just six years by another Cuyahoga County Common Pleas judge.

Although RC 2929.11(B) mandates that sentences should be "consistent with sentences imposed for similar crimes committed by similar offenders," I mentioned at the time that it's tough to find helpful cases on this question.  After the 9th District's decision a couple weeks back in State v. Ruby, it just got tougher.

Ruby was also a drunk driving vehicular homicide case, in which the defendant was given a 7-year prison sentence.  A year and a half later, the same judge sentenced another defendant in the same type of case to 5 years.  Ruby filed a motion to vacate her plea based on the inconsistent result, the judge granted it, and after a new plea imposed a 4-year sentence.

The court of appeals reversed.  It cited a number of reasons for that, such as res judicata: because the validity of the plea could have been raised on appeal, Ruby's failure to appeal forfeited her right to raise the issue at all.  Of course, the sentence which raised the inconsistency issue wasn't handed down until well after her appeal rights had run, but the court held that a subsequent case couldn't be used to raise the inconsistency issue, because that would "only serve to discourage defendants and their counsel from diligently researching similar sentences and presenting that information at the time of sentencing."

Why anyone would bother to present it at that time either is a mystery, given the remainder of the court's opinion.  The court cited its decision four years earlier in State v. Quine that "two defendants convicted of the same offense with a similar or identical history of recidivism could properly be sentenced to different terms of imprisonment," and reaffirmed its holding that

Defendant cannot establish, either at trial or on appeal, that his sentence is contrary to law because of inconsistency by providing the appropriate court with evidence of other cases that show similarly situated offenders have received different sentences than did he. Thus, the only way for Defendant to demonstrate that his sentence was 'inconsistent,' that is, contrary to law within the meaning of R.C. 2929.11(B), is if he establishes that the trial court failed to properly consider the factors and guidelines contained in R.C. 2929.12, R.C. 2929.13 and R.C. 2929.14.

Those statutes deal, of course, with seriousness and recidivism factors, sentencing factors pertinent to the degree of felony, and the presumptions for imprisonment.

Essentially, what Ruby and Quines do is read out the consistency requirement of 2929.11(B):  as long as the judge considers the factors in the other statutes, the sentence will be conclusively deemed consistent.  A judge could be presented with two virtually identical case patterns and hand down two completely disparate sentences, and it wouldn't matter, so long as he considered the factors in the other statutes. 

To be sure, the opinion says that the judge has to properly consider the factors, but that's somewhat misleading.  The case law doesn't require the trial court to make findings with regard to each factor; he only has to state that he's considered them.  Short of making a factual error -- stating that the defendant has a prior criminal record when he doesn't -- it's virtually impossible to imagine an appellate panel second-guessing a trial court's decision on how he applied the factors.

The Ruby court's essential point is that consistency does not mean uniformity, and that's valid.  The sentencing guidelines were really little more than a codification of factors that judges have been taking into consideration in sentencing for centuries.  The goal of SB 2 was to guide judicial discretion, not to eliminate it altogether by compelling identical sentences for the same crime.  And given the complete lack of sentencing data, it's hard to get too worked up about Ruby, simply because it's so difficult to come up with evidence demonstrating that a particular sentence was grossly disproportionate.

To be sure, eliminating grossly disproportionate sentences was one of the goals of SB 2, and Ruby is a setback in that respect.  Still, you have to wonder whether that goal was ever more than an illusory one, save for the rare cases like Moore.  I remember attending a seminar on sentencing law about six months before Foster came down.  During the last hour, we were given a hypothetical involving a man who'd been charged with four counts of gross sexual imposition involving his 9-year-old niece.  The instructors wanted us to figure out what additional information we'd want to know in order to present the court with appropriate guidance on the sentencing factors.  We quickly concluded that the most important piece of information was the judge:  depending on what name the computer in the arraignment room spit out, your client would wind up with anywhere from probation to 20 years in prison.

Speaking of seminars, I'll be giving one next Thursday, February 15, at the monthly meeting of the Cuyahoga Criminal Defense Lawyers Association.  The meeting's at 6:00 PM, and the seminar's at 6:30, and will last for an hour.  It's on developments in criminal law in Ohio over the past year, and you'll get CLE credit for it if you're a member of the CCDLA.  It's at Damian's on the Square, which used to the Lincoln Inn.  If you need more information, email me.

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