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Sentencing: Clarifying the standard of review

I'm finally redeeming my promise to discuss the two criminal cases that the Ohio Supreme Court decided last week.  Well, at least one of them; I'm going to kick the discussion of the Supreme Court case on the hearsay rule into next week.

The opinion in State v. Kalish begins, "The issue before us today is yet another remnant from our decision in State v. Foster," the 2006 decision which tossed out huge chunks of the 1996 sentencing reforms.  Those reforms had included RC 2953.08, which spelled out in some detail the mechanism for appealing a sentence.  The effect of Foster, of course, was to give trial courts virtually unbridled discretion in sentencing.   As I pointed out a while back, since then the appellate courts have been struggling to figure out where 2953.08 fits into the post-Foster world, in terms of what what standard to apply in reviewing those sentences.  Some have called the standard "clearly contrary to law" and others have called it "abuse of discretion." 

You could have called it Zelda, because the net result was the same:  affirmance of the sentence in slightly over 99% of the cases.  Nonetheless, the Supreme Court decided to step in and sort this all out.  In somewhat of a judicial novelty, instead of splitting the baby, it created twins:  both standards are to be applied.  First, the sentence is to be reviewed to determine whether it's contrary to law, such as, for example, if it exceeds the sentence authorized by statute.  After that, it's reviewed for abuse of discretion.

My original take on Kalish was that it didn't mean much, but on second thought, it might create an opening for more stringent review of sentences, albeit a narrow one.  Most appellate courts, regardless of whether they've employed the "contrary to law" or "abuse of discretion" standard, have focused solely on whether the trial judge considered the statutory mandates, i.e., the purposes and principles of sentencing under 2929.11, and the seriousness and recidivism factors under 2929.12.  If the judge considered them, or said that it did, that was the end of the story.  (In fact, some courts have applied a presumption that a trial judge considered those statutes in the absence of any evidence that he didn't.)  You could make a valid argument that compliance with those statutory directives now falls into the "contrary to law" analysis.

So if you move the issue of compliance with the statutes out of the "abuse of discretion" analysis, what does that analysis apply to?  Arguably, the sentence itself.  The hornbook law is that an abuse of discretion "implies that the court's attitude is unreasonable, arbitrary, or unconscionable."  The Kalish opinion repeats that, and then lists the reason that Kalish's sentence didn't qualify:  despite it being her first offense (she was convicted of aggravated vehicular homicide while driving drunk), she'd been out on bond for another DUI offense when she committed this one.

In short, what you can do after Kalish is argue that abuse of discretion applies not merely to whether the trial court has considered the statutory factors, but to the sentence that it fashioned from those factors.  It's not much, but prior to Kalish you had a lot of appellate courts being completely unwilling to even consider the sentence which was imposed, as long as the trial court didn't expressly say something like, "I haven't bothered considering the sentencing statutes, because I consider them so much chin music." 

Indeed, what Kalish arguably does is create something similar to the way sentences are reviewed in the Federal system:  the appellate court first reviews the district judge's decision for "procedural reasonableness" -- i.e., whether the judge considered the things he's supposed to consider in fashioning a sentence -- and then reviews for "substantive reasonableness":  whether the resulting sentence was a reasonable one.

How this will all play out is anybody's guess.  Notably missing from any of the opinions in Kalish is something along the lines of Justice Lanzinger's concurring opinion in State v. Hairston, which contained a plea for "the General Assembly to act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster," a hope also expressed by GH in his comments to Monday's post.  Frankly, I'm not scanning the horizon for the appearance of that particular cavalry; I think a valid argument can be made that the seven most hope-crushing words in the English language are, "Maybe the Ohio legislature will fix this."


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