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Max Consec

No, that's not the name of a character in a new Fox series this fall, it's the new fad among some judges:  handing down maximum, consecutive sentences.  The 8th District's decision last week's in State v. Sutton might slow that impulse.

Sadly, the facts in Sutton aren't especially notable:  four guys in one car fire shots at four guys in another car, leaving two of the occupants of the latter vehicle with head wounds, resulting in partial facial paralysis to one and and blindness in one eye to the other. 

Sutton, who was the driver of the car, and his three compatriots were tried on four counts of attempted murder, six counts of felonious assault, two counts of attempted felonious assault, inducing panic, failure to comply, resisting arrest, and a partridge in a pear tree, all with the full bevy of 1-, 3-, and 5-year firearms specifications.  The jury passed on the latter, but convicted Sutton of everything else, and the judge, after merging the felonious assault counts with the attempted murder counts, promptly gave him maximum, consecutive sentences of 46 1/2 years.

Sutton assigned twelve errors on appeal, but the court made short work of those dealing with trial errors, with the exception of one dealing with the conviction of inducing panic:  the verdict form hadn't specified whether it was a felony or a misdemeanor, which meant it was the latter, according to State v. Pelfrey (discussed here). 

It then moved to the meat of the case, the maximum, consecutive sentences.  The trial judge appeared to be on pretty solid ground; just a few months ago (and after briefing and argument in Sutton), the Supreme Court handed down State v. Hairston (discussed here), in which it affirmed maximum, consecutive sentences of 134 years for a 24-year-old defendant who'd committed three home invasions.  The 8th District nonetheless reversed, finding factual distinctions between the defendants in the two cases:  while Hairston had been to prison twice before for the same crimes, Sutton was 18, had no prior record, and had just been accepted at college.

Although the defendant had framed the assignment of error in terms of due process and cruel and unusual punishment, the court didn't go there.  For good reason; 8th Amendment jurisprudence, especially in non-capital sentencing, is pretty much of a mess, and after Hairston, it's hard to see how even the harshest sentence would run afoul of the clause.  Instead, the court relied on the Ohio sentencing laws, noting that "Hairston does not dispense with a proportionality or consistency review," and that

Neither State v. Foster nor Hairston has dispensed with the trial court's obligation to analyze the facts appurtenant to each individual count, nor to analyze whether the law demands certain counts be run consecutively or concurrently.

The money quote is the court's conclusion:

While the [trial] court no longer must make "findings" in support of its analysis, if a reviewing court finds no justification under law within the record for a particular sentence, then that sentence is contrary to law, and should be reversed and remanded for new sentencing. Neither Foster nor Hairston "blesses" maximum consecutive sentences nor insulates them from appellate review.

The opinion's not long on lawyerly analysis, but considering the muddled legal landscape it's hard to see how it could be.  It's fact-specific, so there may be a tendency to discount its significance on that basis. 

I don't think so, though.  Back about six months before Foster, I took a seminar in felony sentencing, done by former Judge Burt Griffin and CWRU Prof. Lewis Katz.  They'd both been members of the Sentencing Reform Commission which drafted the new laws, and they had a nice gig doing seminars and publishing the yearly Ohio Sentencing Manual until Foster put an end to that.  I was never too impressed with the new law; my feeling was it merely codified the sentencing factors that judges had always used, and there was enough play in them to allow the judge to give whatever sentence he wanted to anyway.  But Griffin made a good point:  at least, by putting the statute out there, it forced trial judges to think about what they were going to do.

Sutton accomplishes the same; it clearly serves as a warning that the 8th District, at least, isn't going to rubber-stamp a long sentence unless the trial judge went to the trouble of coming up with a cogent explanation of why he imposed it.  Until the Supreme Court gives more guidance, or the legislature clears up the whole mess by passing a new sentencing statute, that's pretty much the best we can hope for. 

Side Note:  As I mentioned on Monday, this is the last post here for the week.  I'm taking a well-deserved break from blogging (and work) over the next four days.  A well-needed one, too; when I did the Case Update for Monday, I completely missed the sentencing reversal in Sutton, not catching it until I read it over again.  See you on Monday, and I'll be more careful next time.

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