Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Foster and resentencing: More time?

We're still getting Foster remands, and even when that's run its course, courts will still be getting cases sent back for resentencing, and so the question emerges:  if the case is remanded for resentencing, can the trial court give the defendant more time?

That was the issue last week in State v. Baker.  Baker had gotten a three-year sentence for escape in 2005, but the case came back because of Foster, whereupon the trial court sent him packing again, this time for a four-year stretch.  The 3rd District affirmed.

Their treatment of the issue, and how it's governed by both state and Federal cases, is troublesome.  After all, the issue is a constitutional one:  back in 1969, the Supreme Court held in North Carolina v. Pearce that due process barred a trial court's imposition of a harsher sentence on remand unless it could affirmatively demonstrate that objective information showed the defendant's conduct after the original sentence merited a stiffer one. 

The 3rd District relied heavily upon a case they'd had just a few months back on the same question, where a judge gave a defendant 15 months in a resentence on a drug case, after having given him only 12 the first time around.  In the earlier case, they'd reversed, finding that the judge hadn't indicated any basis for the increased sentence.  In Baker, the judge during the second sentencing found that the defendant "lacked remorse" and that that "the public is at risk from his anti-social actions and needs protection."  As far as the appellate court was concerned, that was enough of a finding to justify the higher sentence.

That seems to be a serious misreading of the case law.  The court took note that the Supreme Court had refined Pearce in Wasman v. US and Alabama v. Smith:

In Wasman, the Supreme Court clarified its Pearce holding by making it clear that enhanced sentences on remand were not prohibited unless the enhancement was motivated by actual vindictiveness against the constitutionally guaranteed rights. The Supreme Court further clarified the Pearce decision in Alabama v. Smith, explaining that, unless there was a "reasonable likelihood" that the increased sentence was the product of actual vindictiveness, the burden was on the defendant to show actual vindictiveness.

That's not quite right.  The court didn't "make it clear" in Wasman that "actual vindictiveness against the constitutionally guaranteed rights" was required; that portion of the opinion found support of only four judges.  The judgment was unanimous, though, because the reason for the higher sentence was that the defendant, in the time between the first and second sentences, had been convicted of another offense, and rest of the judges agreed that if any conduct after the first sentence warranted a stiffer sentence on remand, it was the defendant going out and committing another crime.

Alabama v. Smith is a little more favorable to the court's decision in Baker because there, as in Baker, there was no "subsequent conduct":  the higher sentence was based upon factors that existed at the time the original sentence was meted out.  There was one huge difference, though:  in Smith, the first sentence was based on a guilty plea; after reversal, the defendant went to trial and was convicted.  The Supreme Court concluded, quite obviously, that the trial court had much more information about the crime after the trial than it did on a plea (and in fact, that's exactly what the trial court put in the record).

In Baker, though, there's nothing to indicate that the trial court had any more information about the defendant's "remorse" or "anti-social tendencies" the second time it sentenced him than it did on the first.  The higher sentence, then, wasn't based on subsequent conduct by the defendant, or even on new information about the defendant's prior conduct.  It was simply based upon a re-evaluation by the trial judge of the same information it had at the time of the first sentencing.  Given the highly subjective nature of sentencing criteria, allowing a judge to recast the same information in a new way on resentencing pretty much renders a nullity Pearce's presumption that a greater sentence on remand is vindictive.

There's another problem with Foster remands, though.  Before Foster was decided, a judge had to make certain findings before imposing more-than-minimum, maximum, or consecutive sentences.  Now she doesn't have to.  Does that mean a judge can say on a Foster remand, "The first time I sentenced you, I was pretty much required to give you the minimum sentence because you hadn't been to prison before.  I am no longer required to give you the minimum sentence, so I'm not going to"?  Keep in mind that Pearce doesn't flatly prohibit a longer second sentence, it simply creates a presumption that a longer sentence is based on vindictiveness.  That presumption can be overcome, and a change in the law of the type that Foster created could well overcome it. 

But, as I said, that only applies to more-than-minimum, maximum, and consecutive sentence.  If both sentences fall within the middle range, I think a judge has got to go a good bit farther to justify a higher sentence the second time around than just saying, "You know, reading this presentence report again, I realize you're more of a bad guy than I thought."

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions