A year or so ago, I had an oral argument in the 8th District on a sentencing issue, specifically, what the post-Foster standards for sentencing were. In the middle of my argument, one of the judges on the panel interjected, "Wasn't the real effect of Foster to abolish appellate review of sentences?"
Last week, in State v. Yuravak, a different panel of the 8th took a stab at the question, and answered it in the negative. The defendant had been convicted of a drug offense, and the trial court had imposed the mandatory drivers suspension, in this case deciding on the maximum period of five years. The defendant had appealed, arguing that the trial court's decision to defer imposition of that suspension until after the defendant had completed his prison time was an abuse of discretion.
Wrong, said the court: the standard isn't abuse of discretion, it's whether the sentence is contrary to law. The 10th District came to the same conclusion last week. On the other hand, you've got a raft of decisions -- including some from the 8th and 10th Districts -- that hold that abuse of discretion is indeed the standard. And you've got the 11th District's decision a month ago in State v. Hubaker, which says that abuse of discretion is the appropriate standard for most cases, but contrary to law can be used in some, and cases like State v. Nayar, the 7th District decision late last year which essentially held that a "hybrid" standard of review -- using both abuse of discretion and contrary to law -- was appropriate.
I'd parse these cases for some deeper meaning, but it all has a "how-many-angels-can-fit-on-the-head-of-a-pin" feel to it. You can call it abuse of discretion, you can call it contrary to law, you can call it Zelda, and it still boils down to the same thing: a trial judge in Ohio has unfettered power to impose a sentence, as long as it's within the statutory limits, and as long as he doesn't say something like, "I've always felt that colored people should be given longer prison sentences than white folk." On the record, anyway.
Back in 1995, when the Ohio Sentencing Commission was discussing different proposals for sentencing reform, it decided not to adopt a matrix system, similar to the Federal Sentencing Guidelines. At the time, I thought that was a good idea. I often felt that the Federal sentencing scheme would have made a great board game: you and your opponents start out with your pieces (battleship? hat? shoe?) and move around the board, picking up levels for "role in the offense" and dropping them for "acceptance of responsibility," and then you spin the wheel for criminal history level and Voila! You wind up at level 28, and off you go for 121-134 months, but that's less than anybody else, so you win...
District judges complained like crazy about how the Guidelines completely circumscribed their ability to hand out sentences which made some sense. And rightfully so. You don't want a situation where wildly disparate sentences are handed down for the same conduct, and the perception becomes that the ultimate outcome of the case is wholly dependent on what judge you draw in the arraignment room. But you don't want cookie-cutter sentences, either, where the only exercise of judicial discretion becomes whether to choose the top or the bottom of a 154-166 month sentencing range.
But I've begun to do a lot more Federal sentencing work, and you know what? After Booker, Rita, Gall, and Kimbrough, sentencing discretion has been largely restored. It's guided discretion, to be sure; the court still has to calculate the guidelines and come up with some explanation for why it deviated from them, if it chose to do so. The standard for appellate review is deferential, but not obsequious.
The result is that every week I read Federal sentencing decisions in which judges have carefully and articulately explained their reasons for choosing a particular sentence, and if they have not done so, they get reversed. The large majority of sentences are within the Guidelines range, but that's understandable: the Guidelines themselves are the result of a careful study of sentencing over the years, and they're a logical starting point for what the sentence should be. But if the defendant's is truly egregious and warrants more time, or the defendant's character and rehabilitation show that he warrants less time, the judge can do that.
The idea behind the Ohio sentencing reforms in 1995 was also "guided judicial discretion": there was a sentencing range, and all kinds of factors which judges were supposed to take into consideration in fashioning a particular sentence. The guidance provided for minimum, maximum, and consecutive sentences went out the window in Foster, and the decisions since then have eviscerated what was left. Although the seriousness and recidivism factors are still there, they're window dressing: although the judge is supposed to consider them, he doesn't have to make any findings with regard to them, and in fact there are decisions out there which say that he doesn't even have to mention them -- it will be presumed from a silent record that he did.
It's obviously too much to expect for Ohio to establish a matrix-like grid for sentencing. Frankly, it's probably too much to expect them to do anything. But if the concept of guided discretion, which was the heart of the 1995 reforms, is to be rescued, requiring more than just a ritualistic incantation that the court has considered the seriousness and recidivism factors under RC 2929.12 -- or, even worse, pretending that the court has done so when there's nothing to indicate that it has -- might be a place to start. Those kinds of findings would not fall within the Apprendi/Blakely analysis, would force the trial judges to engage in some sort of reasoning process when arriving at a sentence, and would allow for meaningful appellate review.
Hey, we can dream, can't we?