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 »

×

A coming Ice Age?

The Supreme Court occasionally ventures out of Columbus to hold arguments in various courthouses around the state.  The venue last week was the Columbiana Courthouse, and Chief Justice Moyer began the proceedings by noting that the court was returning to Columbiana for the first time in 260 years, which was off by only a century; Ohio didn't become a state until 1803.   

The amenities out of the way, the court settled down to hear State v. Hunter, which featured the question of the constitutionality of the repeat violent offender specification.  But several comments during argument about the US Supreme Court's January decision in Oregon v. Ice raised questions about the major ramifications that decision could have on Ohio sentencing law.

 The RVO spec, like its name suggests, allows harsher punishment of people who've previously committed violent crimes:  on top of the maximum sentence, the judge can impose an additional one to ten years if he makes certain findings.

And that's the problem.  Back in 2006, in State v. Foster, the court had held that all the provisions of Ohio law which required judicial factfinding before imposing more-than-minimum, maximum, or consecutive sentences ran afoul of the US Supreme Court decisions in Apprendi and Blakely.  The add-on for RVO specs had the same problem, so they had to go, too.

Well, as they say in the Hertz commercials, not exactly.  Although the court in Foster declared at one point that "any additional penalty [under the spec] would have required judicial factfinding and would have violated Blakely," in another part of the opinion they stated they were simply excising the factfinding requirement from the statute, after which "judicial factfinding is not required before imposition of additional penalties" for RVO specs.  But then, a few months later in State v. Chandler, in a case involving the Major Drug Offender specification, which works almost identically to the RVO spec, the court said that the entire add-on provision had been severed.  But then a year later, in State v. Evans, the court again seemed to suggest that only the factfinding requirements had been excised.

The argument in Hunter last week focused on one aspect of the required judicial factfinding.  Everybody agreed that the two of those facts -- that the defendant had previously been convicted of a crime of violence, and that he'd served a prison term for it -- didn't pose any problems, because Apprendi et al. specifically exclude "the fact of a prior conviction" from the jury trial requirement.  The third fact, though, is that the previous crime involved physical harm, and in Hunter's case the State presented testimony to the judge on that at the RVO hearing. 

How that's going to come out is up in the air, although nobody spent any time discussing why what the court may have done in Foster wasn't an option:  declare that the judge can do the add-ons, without going to the bother of making any factual findings to support it.  The more interesting aspect of the argument was the effect of the Supreme Court's decision in January in Oregon v. IceAs I explained when the decision came down, in Foster the court held that the Ohio's statutes, which required judges to make certain factual findings before imposing consecutive sentences, were unconstitutional under Blakely.  In Ice, the US Supreme Court held that Oregon's statutes, which required judges to make certain factual findings before imposing consecutive sentences, were fully constitutional under Blakely.

Ice got brief mention during the appellant's portion of the oral argument, but the attorney for the State brought it up again during his portion, arguing that Ice clearly permitted judicial fact-finding for the imposition of consecutive sentences, and could therefore support enhanced sentencing for an RVO spec.  Justice Lanzinger, who's previously voiced discomfort with the current state of Ohio's sentencing law, especially the frequency with which Draconian consecutive sentences are being imposed nowadays, seemed to buy into that analogy, asking whether the court should revisit Foster and, in light of Ice, hold that the legislature was right in mandating that judges make certain findings before imposing additional sentences for the RVO and MDO specs.

I don't buy the argument that Ice gives any legitimacy to judicial factfinding for RVO specs.  Ice was limited to the issue of consecutive sentencing, while the RVO add-ons are much closer to the enhanced penalties struck down in Apprendi and Blakely.  But if the court's willing to give Foster another look on Ice's effect on that, it will be hard to avoid Ice's effect on what Ice plainly applies to:  consecutive sentencing.  At some point, the court is going to have to recognize that Ice allows the legislature to require that judges make certain findings before imposing consecutive sentences, and that the revisions to the statute since Foster still include those requirements.  That point may have come nearer last week.

Search

Recent Entries

  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions
  • August 7, 2017
    Two on allied offenses
    A look at the 8th District's latest decisions on allied offenses
  • August 3, 2017
    Thursday Ruminations
    Computerized sentencing, lawyer ads, and songs from the past
  • August 1, 2017
    8th District Roundup
    One thing that doing this blog has taught me is how much the law changes. The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively. The...
  • July 28, 2017
    Friday Roundup
    The better part of discretion
  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture