A new look at sentencing?
In my Case Update on Monday, I'd mentioned in passing the 2nd District's decision in State v. Watkins. Since Watkins is arguably the most interesting sentencing opinion since the Supreme Court gutted Ohio's sentencing laws four years ago in State v. Foster, I figured that it deserved a more extended look.
Watkins had gone out with some friends, one of which, Katelyn Kuntz, mentioned that she was going to be buying a car the next day with money she'd received as a graduation gift. Essentially, Watkins set up Kuntz for the robbery, which was committed by three friends of his. (Watkins was along for the whole time, although pretending to be held hostage by the other three.) The group forced Kuntz at gunpoint to drive around, demanding money from her, and finally had her park the car, get out, and strip to prove that she wasn't hiding anything. After that, they let her drive away, telling her that she had to return in ten minutes with $5,000 or Watkins would be killed.
Well, guess what? Kuntz called the police instead, and the short version is that things went to hell in a hurry after that. The other three turned on Watkins, pinning him as the guy who'd set the whole thing up. Watkins pulled the Sgt. Schultz "I know nothing" routine, but the jury wasn't buying, convicting him of everything except the gun specifations. The judge gave him maximum sentences on both -- ten years on the aggravated robbery and eight on the kidnapping -- and ran them consecutively.
The appellate court spends more time than it really needs to rejecting Watkins' manifest weight and sufficiency arguments, then turns its attention to the sentencing issues. Watkins argued first that the sentence was "contrary to law" because the trial judge failed to mention at the sentencing hearing the purposes and principles of sentencing under RC 2929.11 or the seriousness and recidivism factors under RC 2929.12. The court does the usual routine about how the judge needs to "consider" that but doesn't need to make specific findings to show he's considered them. What's more, the judge had included reference to the statutes in the journal entry, and so that's the end of that.
Or the beginning, it turns out. Watkins' penultimate assignment of error (a final one, ineffective assistance of counsel, went nowhere) was that the judge abused his discretion in giving him maximum consecutive sentences. That seems an equally futile argument; as the court notes, "innumerable Ohio cases" have stated that an abuse of discretion "means more than an error of law or judgment." Innumerable? According to LEXIS, the phrase appears 1,287 times in 8th District cases alone.
And it's wrong; as Watkins notes, this standard
incorrectly implies that a trial court may commit an error of law without abusing its discretion. To the contrary, "[n]o court - not a trial court, not an appellate court, nor even a supreme court - has the authority, within its discretion, to commit an error of law."
Of course, the correct standard -- that the decision is "grossly unsound, unreasonable, illegal, or unsupported by the evidence" -- seems equally daunting. But that's where the fun begins.
The appellate courts since Foster have acted as though the 1996 sentencing reforms were never enacted; all that babble about the preference for minimum or concurrent sentences was swept away, and replaced by unfettered discretion to impose whatever sentence the trial judge felt appropriate. But that's not true, either, Watkins notes:
Although Foster has freed the trial court from most requirements to make statutory findings, the legislative policy remains: "[A] first prison term should be the minimum sentence within the range absent reason to impose a greater sentence." When a trial court imposes more than a minimum sentence for a first-time offender, support for the sentence should appear in the record in order to facilitate the appellate court's review.
Here, it doesn't. Watkins was a first offender, and the only support for the imposition of a more than minimum sentence was the judge's statement, "I did sit through two days of trial. I've heard all the facts and understand all the circumstances of the case. I have considered those facts and circumstances." Not enough, says the appellate panel, especially since the other defendants were all just as culpable as Watkins, they all had prior records, and they all received more lenient sentences.
We conclude that the evidence in this record supports the trial court's implicit conclusion that the imposition of a minimum sentence upon Watkins would demean the seriousness of his criminal conduct. But we also conclude that the facts in the record in this case do not justify maximum, consecutive sentences for a first-time offender, and that the trial court abused its discretion by imposing maximum, consecutive sentences.
What is perhaps most surprising about the outcome in Watkins is that this is a close call. We can easily imagine the victim's terror as she was driven around at gunpoint, eventually forced into an alley and told to strip; many a similar venture has ended much more badly for the victim. Had she articulated that in her testimony, one can see a trial judge using that, Watkins' role in orchestrating the offense, and his unwillingness to accept responsibility for it, to justify the maximum sentence possible, notwithstanding Watkins' lack of a prior record.
That's not to suggest that the appellate court was wrong. It correctly focused on the process, not the result. The fact is that the sentencing reforms reflected a policy; that part of the mechanism for implementing that policy -- judicial factfinding -- has been cast aside is no reason to disregard the policy itself.
Perhaps the biggest casualty of Foster was meaningful appellate review of sentences. Watkins sheds new light on the appropriate standard of review, and gives clearer understanding to what the appellate courts should be looking for, and what trial judges should be doing. We'll see how it turns out, but Watkins is without question the most significant development in sentencing law since Foster.