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.