Year in Review - Sentencing
2008 may have been the year that the Ohio Supreme Court realized that sentencing had become completely screwed up since its decision two years before in State v. Foster. Sadly, 2008 was not the year that anything much was done about it.
The court got the ball rolling in State v. Hairston, involving a 134-year sentence handed down for 3 home invasions. As I pointed out in my post after the oral argument in the case in January, maximum consecutive sentences have become all the rage since Foster, so no one was surprised when the court affirmed Hairston's sentence several months later. What was surprising was the concurrence, authored by Justice Lanzinger and joined in by Chief Justice Moyer and Justice Pfeifer, noting uncomfortably that the result was approval of judges handing down "noncapital life sentences. . . in situations where no one is killed or seriously injured." Lanzinger concluded her opinion with a plea for "the General Assembly act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster." Let me know how that works out.
The problem was exacerbated by confusion among appellate judges as to what they were even permitted to do in reviewing a sentence. Some decisions, such as this one from the 8th District (discussed here), seemed to suggest that a judge had unfettered discretion to sentence within the statutory limits, while another case from the 8th (discussed here) reversed a maximum consecutive sentence, concluding that "if a reviewing court finds no justification under law within the record for a particular sentence, then that sentence is contrary to law."
The Supreme Court tried to clear up the confusion late last year in State v. Kalish (discussed here), holding that a sentence was to be reviewed first to determine whether it was contrary to law (did the judge consider the sentencing statutes, properly impose post-release controls, and give a sentence within the statutory limits?), then to determine whether the particular sentence was an abuse of discretion. This latter requirement offered at least the possibility that a reviewing court could strike down a sentence as overly severe, but given the recent history of sentencing and the reality of the abuse of discretion standard, it looks like, for good or ill, Lanzinger's plea offers the only real hope of change.
The Supreme Court did go some distance in clarifying the situation with regard to one aspect of sentencing, post-release controls. Over the past couple of years, I've blogged about the potential problems of the court's ruling in State v. Bezak, that the failure to properly impose post-release controls rendered the sentence not merely voidable, but void. The court seemed to take a step toward rolling back Bezak in 2007 in State v. Payne; while Foster had held that sentences handed down under the statutes found unconstitutional in that decision were void, the court reversed course in Payne and held them to be merely voidable. In anticipation of the same thing happening with PRC, the 8th District sorta kinda overruled Bezak in State v. Casalicchio, holding that failure to impose PRC rendered the sentence voidable, only to see the Supreme Court come down not a week later in State v. Simpkins and specifically reject that result, reaffirming Bezak's holding that improper application of PRC made the sentence void. (Both decisions discussed here.)
The Supreme Court also clarified one other area of confusion with regard to post-release controls: In State v. Sarkozy (discussed here), the court held that the failure to advise a defendant of PRC during a plea allows the defendant to vacate the plea upon a motion to withdraw or an appeal.
The next chapter in all this will come sometime in the next few months. In December, the Supreme Court heard oral argument in a trio of cases concerning the amendments to RC 2929.191 and 2967.28, which allow for the automatic imposition of PRC; the question is whether this runs afoul of the court's prior decisions holding that imposition of PRC by the executive (through the Adult Parole Authority), rather than by the courts, is a violation of the doctrine of separation of powers.
The lingering effects of Foster, and the confusion over PRC, means that resentencings are not going to be an uncommon occurrence in the trial courts. The 8th District's decision in State v. Cook (discussed here), points out some of the problems with that: if a sentence is void, that means the defendant is entitled to an entirely new sentencing hearing, which theoretically means more than just rubber-stamping the prior sentence; a defendant could potentially argue that he's entitled to a lesser sentence because, say, of the things he's done to rehabilitate himself since the original sentence was handed down. Whether that's a two-edged sword -- whether the trial court can give the defendant more time -- is still up in the air. There's some case law which suggests that might be prohibited on grounds that it's punishment for a defendant exercising his right to appeal, but it's not clear that this analysis would apply to a void sentence. In fact, this issue isn't any clearer than it was when I wrote this post about it almost two years ago.
And all that's just state sentencing. I won't even get into Federal sentencing, which underwent even more radical change as a result of a pair of US Supreme Court decisions, Gall v. US and Kimbrough v. US, which came down in December of 2007. If you do Federal work, you may want to read my post about Gall here, and my post about Kimbrough here.