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 »


Threes strikes laws - the Ohio proposal

Over the next few months, we'll find out if Chevonne Ecclestone and Todd Torok are going to become the Polly Klaas and Richard Allen Davis of Ohio. 

As I discussed last week, Klaas was the little 12-year-old girl whose kidnap, rape, and murder by Davis led to the enactment of California's three strikes law back in 1994.  The paths of Ecclestone and Torok tragically intersected last month in a park in Parma, Ohio.  While the 52-year-old Ecclestone was walking her dog, she was assaulted by Torok, who savagely beat her, bashing her repeatedly in the head with a 15-pound rock.  The police didn't find her until over an hour later.  She died almost three weeks later, never having regained consciousness.

Torok was arrested a few days after the assault, and attention quickly focused on the fact that in his 39 years, he'd managed to accumulate no fewer than 36 arrests, and had served eight different terms of imprisonment.  The last one, a two-year stretch for robbery, had ended just ten days before his assault on Ecclestone. 

State Sen. Tim Grendell wasted no time asserting that his proposed three-strikes bill would have averted the tragedy: 

"He would have been off the streets if this bill was a law," said Grendell, a Chester Township Republican. "He wouldn't have been able to prey on innocent women walking in a park in Parma.

"He is the best example that I have ever seen to have a three-strikes law in Ohio. This guy is beyond being a poster boy. The system simply broke down."

Torok's going to be charged with capital murder, of course, and it would be surprising if his case didn't add impetus to the three strikes bill, which had been languishing in committee.  So it might be a good idea to take a look at the exact proposal, which you can find here

The new law would change RC 2929.14 to add two new subsections, (D)(7) and (D)(8) (you'll find them if you scroll about 1/3 of the way down the page of the cite I just gave you; they're the underlined portions), and the creation of a new "repeat offender" specification, 2929.1421.  The specification would require that a jury find that the defendant has previously been convicted of two or more felonies. 

If it did, 2929.14(D)(7) would kick in, allowing the judge to double the sentence for all felonies.  Under 2929.14(A), a first-degree felony is now punishable by anywhere from three to ten years, in yearly increments; the bill would allow the judge to impose anywhere from six to twenty years, in two-year increments.  The second change, (D)(8), would provide that if the defendant had any prior felony conviction, there is a presumption that he should be given the maximum sentence under paragraph (A).

Perhaps the sole positive aspect of the bill is that it still allows a great deal of judicial discretion.  Under California's three-strikes law, for example, once the strike is proved, the judge's hands are tied:  the defendant gets a 25-to-life sentence.  Here, whether to impose the doubled sentence is left solely to the judge.  The presumption in favor of a maximum sentence for one prior felony is fairly toothless, too; the statute governing appeals of sentences has not been modified to allow an appeal by the prosecution of the judge's failure to abide by that presumption.  (By comparison, the state can appeal if the judge fails to abide by the presumption in favor of imprisonment for first and second degree felonies.)

The concession to judicial discretion is a small consolation, though.  If the post-Foster experience shows anything, it's that if judges are given discretion to impose harsh sentences, they will.  Torok is every judge's nightmare:  walking out in the morning to fetch your morning paper, and finding your name emblazoned on the front page as the guy who gave probation or a soft sentence to someone who just raped a 12-year-old or murdered a family.

With that in mind, Grendell's bill is wildly off target as to the real problem.  Confidence in the sentencing aspect of the justice system is a matter of perception.  There is a widespread perception that judges are too lenient on violent criminals, and that undermines confidence in the system.

But there's also a perception that judges are too harsh on other criminals, especially those convicted of drug offenses; the mandatory minimums enacted in the 1980's and 1990's, which often resulted in people doing longer sentences for those offenses than if they'd committed rape or murder, are a national embarassment.

The proposed Ohio bill does nothing to correct the latter problem, and even aggravates it.  While California's law requires the first two strikes to be violent offenses (although the third need not), the proposed Ohio law makes any felony "strike-eligible."

In addition to possibly imposing harsh sentences that aren't warranted, the bill might add substantially to the overcrowding that's currently affecting Ohio prisons.  The Ohio Legislative Service Commission, in their analysis of the fiscal impact of the bill, notes that of the approximately 28,700 new prison inmates Ohio took in during 2006, 23% had one prior felony conviction, and 39% had at least two.  The Commission estimates that the bill, if fully implemented, could cost an additional $1.5 billion over the next twenty years.  That figure should be taken with a grain of salt, though; the Commission notes that its assumption was that judges would fully maximize the new law's potential, while noting that judges have full discretion not to do so.

What's perhaps oddest about Grendell's bill, though, is that it seeks to come up with a cure when there's already one available.  Back in 2003, Ohio added a change to the law whereby a defendant who's been convicted of one violent felony and is charged with a second can be indicted as a repeat violent offender.  If he's convicted of that specification, not only does the judge have to impose the maximum sentence, but she can also add on one to ten years.

Which brings us to a fact that's been completely left out in the media hullabaloo over Torok:  on his last conviction, for robbery, where he received only a two year sentence, he could have been charged as a repeat violent offender, since he'd had a prior robbery conviction.  In fact, there was a repeat violent offender specification in his indictment; the prosecutor's office plea-bargained it out.  Had it not done so, Torok would have been sitting in prison, entering just the third year of his eight-year term, when Chevonne Ecclestone made her fateful decision to take a walk in the park with her dog.


Recent Entries

  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax