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Divining intent

The 132 members of the Ohio House and Senate kill whole forests in churning out legislation each year, from the mundane, like this bill designating Ohio's Official Prehistoric Monument, to the groundbreaking, like this one, requiring confessions in major cases to be video- and audio-recorded, and establishing rules for identification procedures.  Oftentimes, it falls to the appellate courts to decide what those members really meant when they passed all those bills.  That happened in two cases last week, one from the Ohio Supreme Court, and the other from the 8th District.

Back in 1989, Larry Bess's 12-year-old stepdaughter accused him of sexually abusing her.  He took off right before he was indicted, and was finally captured in 2007 in Georgia, living under an assumed name.  He was brought back to stand trial in Cuyahoga County, at which point his stepson claimed that Bess had also sexually abused him in the 1980's.

Bess was convicted of the charges involving his stepdaughter, but the other case was dismissed by the trial court, and the dismissal affirmed by the 8th District, on the grounds that the statute of limitations had expired.  Central to the argument was 2901.13(G), which at the time provided that the limitations period (at that time six years for rape) wouldn't run "during any time when the accused purposely avoids prosecution."

Prosecution for what?  The trial and appellate court read the provision narrowly:  the tolling was only for the instant prosecution, not for a different crime.  When I'd discussed the 8th District's decision, I'd said I thought the dissent had a better argument, and last week, in State v. Bess, the Supreme Court agreed, by a 4-2 vote.

The majority begins by rolling out the usual canons about statutory construction:  "our paramount concern is the legislative intent," "we read the words and phrases in context and construe them according to the rules of grammar and common usage," and "we may not modify an ambiguous statute."

What becomes clear, though, is that there's not a scintilla of evidence to indicate how the legislature intended the statute to be construed, and the statute's completely ambiguous, because "prosecution" can be deemed to be a single criminal proceeding, as Bess argues and as it's used in some contexts, and can also be deemed "the more general process by which an accused is tried and punished for criminal activity," as the State argues and as it's used in other contexts.  The majority concludes that the statute means the latter definition.  Why?  Because

Importantly, it is the actions of the accused in avoiding prosecution, not the actions of the state in commencing a prosecution, that triggers the tolling of the statute of limitations. Thus, the General Assembly did not intend to limit tolling to only those offenses that authorities knew about at the time the accused absconded while allowing the statute of limitations to run on undiscovered crimes.

There's certainly merit to that argument:  if the defendant kills someone and absconds, there's little sense in saying that whether the statute is tolled depends upon whether the authorities found out about the murder before he fled -- in either case, it's the defendant's actions that prevent prosecution.  But that's not the situation here.  What prevented Bess's prosecution for the crimes against his stepson is that his stepson didn't say anything about them for close to 20 years.

The result is supportable, although it's more convincing where it relies upon Federal case law interpreting the analogous Federal statute of limitations, but the dissenters have a point with the argument that the rule of lenity -- the baseball equivalent of the maxim that ties go to the baserunner -- compels a different result.

The State also comes out the winner in the 8th District's decision in State v. Hardy (I represented Hardy), which arose from an equally unusual factual situation.  Hardy had been convicted of various crimes back in 1994 and sentenced to 8-15 years.  In April of 1997, the trial court shocked him out and put him on probation for five years.  He picked up a new case the next year, and in September of 1998, the judge sentenced him to three years in prison on the new case, but ordered the probation continued.  Hardy got out in 2001, but the next year ran into problems again.  In September of 2002, the court determined that Hardy was a probation violator and sent him back to serve the remainder of his 8-15 year sentence.  

Here's the problem.  Under Ohio law, the maximum period of probation is 5 years; once that's up, the judge loses jurisdiction to determine a person is a violator.  That five years ran in April of 2002, five months before Hardy was violated.  Which brings us to RC 2951.07, which provided,

If the probationer... is confined in any institution for the commission of any offense whatever, the probation period ceases to run until such time as the probationer is brought before the court for its further action.

At first blush, it seems to simply provide that the probationary period is tolled while the probation is imprisoned.  But look at that last clause -- "until the probationer is brought before the court for its further action."  We argued that the tolling period ended in September of 1998 when Hardy was "brought before the court," and the judge simply continued his probation.

The court wasn't buying, finding that "it flies in the face of reason to think that the legislature intended appellant’s period of probation to continue to run concurrent with his prison sentence," and that such an interpretation "leads to an absurd result."  That's not a bad argument.  The problem is that it completely reads out the last clause of the statute.  If the legislature had really intended to toll the probationary period while the probationee was incarcerated, all it had to do was leave that clause out.  There's no reason to put it in there unless it contemplated a situation where the probationary period would be tolled while the probationee was in fact doing time.

In any event, one comes away from Bess and Hardy with the feeling that what the legislature intended sometimes takes a back seat to what judges feel is the right result.  Like thats' news, right?

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