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 »

×

Resentencing woes

Resentencing is pretty much a fact of life for judges any more.  There are still cases coming back for Foster resentencings, and then there are all those cases where defendants have to be resentenced because of the failure to properly advise them of post-release controls.  A decision by the 8th District last week raises a serious question about how those should be done.

The case is State v. Cook, and the facts are pretty straighforward.  Back in 2004, Cook had been convicted of rape, and sentenced to seven years in prison.  One problem:  the trial judge didn't give him the opportunity for allocution -- allowing the defendant to speak before sentencing.  So the case was reversed a year later, and sent back for resentencing.

At the resentencing, Cook apologized to the victim and her family, and his lawyers advised the judge of the progress Cook had made in the three-plus years he'd spent in prison.  One problem:  the judge who originally sentenced Cook had gone on to bigger and better things -- a seat on the 8th District, as a matter of fact.  According to the opinion in the latest version of Cook,

The judge said that although it appears Cook was attempting to turn his life around, the judge did not know anything about the case and was reluctant to change Cook's original sentence.

The court pointed to an 11th District decision which had reversed a trial court who automatically imposed the same sentence on remands, noted that Cook was entitled to a de novo sentencing, and concluded that he didn't get one:

A review of the record in Cook's case reveals that the trial court would not change Cook's original sentence regardless of what was presented at the hearing.

So play this out for a minute.  Let's say the sentencing court didn't properly impose post-release controls.  That means the sentence is void, and under all the court decisions, the defendant has to be given a new sentencing hearing.  As I've mentioned before -- here, here, and here -- there's no shortage of cases where's that's done at the very last minute:  within a day or two of the defendant's release from prison.  Some courts have simply imposed PRC, but the appellate courts have consistently held that's not sufficient:  you have to have a new sentencing hearing.  So the court simply recites that it's imposing the same sentence, and tacks on PRC.

Under Cook, it's arguable that this isn't sufficient:  a de novo sentence means that a trial court has to do the same things it does at a regular sentencing, namely, consider the sentencing factors under RC 2929.11 and 2929.12.  To be sure, "consider" is all he has to do; he doesn't have to make any findings about them, and some districts have held that even if the judge doesn't say anything about them, it will be "presumed" that he considered them, unless there's evidence that he didn't.  (What kind of evidence could there be?  "I think the sentencing statutes are so much chin music, so I'm giving you seven years because that's what my wife said I should give you.")

But if you're doing an appeal from one of these resentencings, in most districts you've got a shot at an argument that the judge didn't really do anything except rubber-stamp the sentence that had been imposed before.  And of course, if your client's lucky enough to be appealing from a resentencing which gets vacated after he gets out of prison, he doesn't have to do PRC, under State v. Bezak, discussed here

And if you're a judge doing a resentencing, maybe you need to do a little more than rubberstamping, too.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case