No more presumption of concurrent sentences?
There were a couple of decisions on consecutive sentencing last week. One, State v. Caraballo, was pretty straightforward. The defendant had pled guilty to two counts of rape and two counts of gross sexual imposition. He may or may not have had cases pending in Missouri and in Summit County as well — the record wasn’t clear — but just to be on the safe side the judge gave him three and a half years, and ordered that that sentence be served consecutively to anything he got in Missouri or Summit County.
The 8th District nixed that, citing a number of cases, including one from the Ohio Supreme Court, holding that such “anticipatory sentencing” is impermissible because “it interferes with the discretion of the second trial judge to fashion an appropriate sentence.”
The other case on consecutive sentencing last week was the Ohio Supreme Court decision in State v. Bates. Bates represented the flip side of Caraballo: in Bates, the Miami County trial court imposed a sentence consecutive to one that a Montgomery County court had already imposed. The question was “whether a trial court has the authority, generally, to order a prison sentence imposed by it to be served consecutively to a prison sentence previously imposed by another Ohio court.”
That might have been problematic two and a half years ago. At that time, Ohio’s sentencing laws, specifically RC 2929.41(A), contained a presumption for concurrent sentences, and consecutive sentences couldn’t be imposed unless the judge made certain findings.
Of course, those findings resulted in State v. Foster, which held that judicial fact-finding was prohibited by the US Supreme Court’s decision in Blakely v. Washington. The statute which required factfinding for imposition of consective sentences was held unconstitutional and excised from the statutory scheme as was RC 2929.41(A). The Price court thus had no problem concluding that
the trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently, and we hold that the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio court.
If that were the only result, it would be unexceptional. The problem is not the destination, but the journey the court took to reach it. Basically, as the court viewed it, 2929.41, by creating a presumption of concurrent sentences, was in derogation of the common law rule. And what was the common law rule? The Court quoted the language from a 1963 case, Stewart v. Maxwell:
Inasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict, * * * it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and * * * if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively.
Does that mean by throwing out 2929.41, we go back to the common law rule, and if the judge doesn’t specify whether sentences are concurrent or consecutive, they’re deemed to be consecutive? Let’s put it this way: if I’m representing a defendant that’s being sentenced for multiple crimes, I’m going to do everything I can to make sure the judge includes language that the sentences are to be served concurrently.
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| | Posted by Russ Bensing at 2:42 pm
May 6th, 2008 at 9:08 am
I agree that a reading of Bates would support the conclusion that the common law has returned. But I would think that defense counsel were already making sure that a sentence with concurrent terms are sufficiently documented.
I had hoped that Bates would, at least in dicta, address the issue of standard of review for claimed sentencing errors. As I am sure you are aware, the appellate courts our split as to whether it is abuse of discretion or a showing that the sentence is contrary to law by clear and convincing evidence. I don’t know that it makes any real-world difference (and would be interested in your take), but it would be nice to know what language the courts should plug in before writing affirmed. Just kidding - the appellate courts throughout the state clearly agonize over each and every sentencing decision they write.
May 6th, 2008 at 9:12 am
Unfortunately, I cannot type either. “with concurrent terms is sufficiently documented.” and “appellate courts are split”
Where is my errata sheet?
May 6th, 2008 at 10:42 am
There was a decision out of one court last week — and if my bout of laziness passes, I might be moved to look it up — which essentially adopted both “contrary to law” and “abuse of discretion” as the standard of review for sentencing claims: if the court has abused its discretion in sentencing a defendant, the sentence is contrary to law. So there.
As to what you would think that defense counsel are doing, like my Pappy says, “I would think that I’m the Pope, but that don’t make it so.”