Some sentencing decisions have come down over the past couple weeks that I never got around to discussing, but I will now, because I need to get this out of the way so I can finish up a brief that I’ve been agonizing over for the last two weeks…

The first is State v. King, out of the 10th District.  Simple situation:  defendant appeals his conviction for agg robbery, felonious assault, and kidnapping, with gun specs.  The appellate court affirms the robbery and kidnapping, but reverses the felonious assault for insufficient evidence.  The trial court resentences the defendant, giving him the exact same sentence as when he’d been convicted of everything.  He takes that up on appeal, claiming that the sentence is excessive.  The court doesn’t even reach that issue, holding that since the defendant didn’t appeal the sentence in the remaining convictions in his first appeal, he can’t do it now. 

This is a weird case, and almost certainly not the correct result.  The court relied upon last years Ohio Supreme Court decision in State v. Saxon, but that was a completely different situation:  there, the defendand had pled to two offenses, and had been improperly sentenced on one.  The 8th District vacated both sentences, and the Supreme Court held that wasn’t appropriate, because the defendant hadn’t appealed the other one.  In King, though, the defendant hadn’t appealed any of his sentences — he’d appealed the entire conviction.  The sentencing issue had never been before the court, and it shouldn’t have precluded him from raising it the second time around.

That’s not to suggest that the outcome would have been different if the court had considered it.  As anyone who’s minimally aware of recent case trends in Ohio sentencing laws knows, any sentencing appeal has a Charge-of-the-Light-Brigade whiff to it.  That was brought home by the 8th District’s decision last week in State v. Dowell, in which the defendant appealed an eight-year sentence on a burglary conviction, arguing that the trial court had failed to consider whether the sentence was consistent with sentences imposed on other offenders for similar crimes. 

The 8th District’s handed down some gutsy decisions on proportionality in sentencing, as I’ve mentioned here and here, but not this time, holding that “consistency in sentencing is achieved by weighing the sentencing factors” for seriousness and recidivism under RC 2929.12.  I’m not happy with that decision, but I’ve got to concede that it’s probably correct:  the best way to achieve consistency in sentencing, at least under the present Ohio sentencing scheme, is to have everybody considering the same factors.  In fact, given that there’s no database of sentences or, except in exceedingly rare situations, any other meaningful way to compare one sentence to another, you could make a decent argument that this is the only way to ensure some consistency.  The greater problem I have is with the court’s essential conclusion — basically the same as that of about every other court which has considered the issue – is that the sentence is immune from review so long as the trial judge merely indicates that he’s considered the proper factors.  He doesn’t have to recite them, he doesn’t have to make findings on them; all he has to do is say he considered them.

One of the critical decisions made by the commission formed back in 1995 to revise the sentencing statutes was the rejection of a “matrix”-based sentencing scheme, similar to the Federal Sentencing Guidelines, in which a narrow band of sentences would be prescribed based on the particulars of the crime and the defendant.  Instead, the commission chose to implement a set of guidelines which were intended to guide the judge’s discretion, but not control it.  That decision turned out to be disastrous.  While the reforms were in effect, the net result of sentence reversals, in the vast majority of cases, was the imposition of the same sentence on remand, with the trial judge being careful to intone the talismanic words — “adequately protect the public,” “demean the seriousness of the offense” — that he’d forgotten the first time around.  Now, with the reforms tossed out as unconstitional, it’s even worse.  As one appellate judge suggested during an oral argument I had, the net result of Foster was to abolish judicial review of sentencing.  That’s pretty close to true; you’d have a hard time showing that there are any meaningful restraints on the sentence a trial judge can now impose.

Since Blakely and Booker, a number of states have implemented sentencing statutes similar to the Federal guidelines:  if you do this, and your criminal history is this, then the suggested sentence should be this.  It’s all advisory, of course.  And anyone who’s studied Federal sentencing since Booker knows that this approach is hardly problem-free, either.

But it sure sounds better than what we’ve got now.