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The presumption for imprisonment

I'm going to put off the weekly update until tomorrow, because there are a couple of recent decisions I want to discuss.

Of the 63 criminal cases decided by the Ohio courts of appeals last week, exactly one-third had some sort of sentencing issue.  One case of significance was State v. Angulo, where the defendant had been given intervention in lieu of conviction for a drug possession charge, and subsequently picked up a 1st degree felony drug trafficking case.  The trial court revoked her probationary status on the first case, then maxed her out on that one and the drug trafficking case as well, and ran them consecutively.

The defendant may well have deserved that; I have no idea what her background was, or what other factors might have played into this.  Then again, neither did the court of appeals, because it simply held -- on an Anders brief, no less -- that the only issue on appeal was whether the sentence was within the range provided by the legislature.  As I've pointed out before, here and here, that isn't true; even before SB 2, a sentence could be reviewed for abuse of discretion, and Foster didn't change that, nor eliminate the requirement that the court consider the purpose of sentencing under 2929.11 and the factors in 2929.12, 2929.13, and 2929.14. 

Of more interest is the 8th District's decision last week in State v. Heath, where the trial court had given community control sanctions to a defendant convicted of hiring a hit-man to kill her husband.  (As in almost all such cases anymore, the "hit-man" was actually secretly working for the police.)  The state argued that the evidence before the court on sentencing did not overcome the statutory presumption in favor of imprisonment for a 1st or 2nd degree felony.

The court begins by acknowledging one of the anomalous results of Foster:  while a trial court no longer has to make findings to give a defendant more time (more than minimum, maximum, or consecutive sentences), it does have to make findings to give a defendant less time, that is, to overcome the presumption for prison time.  Under 2929.13(D), a trial court has to determine that sanctions would adequately punish the offender and protect the public, and would not demean the seriousness of the offense.  The question of adequacy of punishment is to be determined by application of the recidivism factors uner 2929.12(B) and (C), and whether sanctions would demean the offense is to be determined by application of the seriousness factors under 2929.12(D) and (E). 

I'm not going to go into the court's meticulous recitation of how it applied the various factors; you can read it for yourself, and Judge Gallagher even gives consideration to some of the more esoterically philosophical questions about crime and punishment.  I'm not terribly troubled by the result, either; in light of the evidence recounted by the court, it's not difficult to come to the conclusion that giving probation to someone who obviously went to some lengths to kill her husband is a stretch, especially since the portrayal of her as an abused spouse might have been less than factual.

The difficulty I have with the decision, though, is how it arrives at its result, especially on the critical issue of the standard of review.  There's no question that the judge has to make findings as to why she didn't impose a prison sentence; but how far can the appellate court go in determining the validity of those findings?  The opinion begins by correctly noting that

We review the trial court's findings pursuant to R.C. 2953.08(G)(2). Under [that statute], an appellate court may increase, reduce or otherwise modify a sentence, or may vacate the sentence and remand the matter for resentencing if it clearly and convincingly finds either that the record does not support the sentencing court's findings under R.C. 2929.13(D) or that the sentence is otherwise contrary to law.

In other words, the burden is on the state to show that the sentence is wrong, by clear and convincing evidence.  Further on in the opinion, though, we find this:

The trial court's reasons and findings with respect to protecting the public and the recidivism factors are supported by clear and convincing evidence in the record.

Suddenly it's the defendant's burden to show that the factors are supported by clear and convincing evidence.  That's not so much of a problem, because at least the court decides that that burden was met on the recidivism issue.  But finally the court concludes that the sentence must be vacated because

a community control sentence would demean the seriousness of the offense in this case, and the record lacks clear and convincing evidence to overcome the presumption for prison.

Now, all this might seem like nitpicking, but there's a world of difference between saying that the appellate court can't reverse unless it finds by clear and convincing evidence that the sentencing court was wrong, and saying that it can reverse if it finds that the sentencing court can't show by clear and convincing evidence that it was right.  And given what I said up top -- that findings now are relevant only to give the defendant less time -- shifting the burden from the state to the defendant on this has major ramifications.

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