Baker: The gift that keeps on giving
Hell Hath No Fury, Chapter 214: Back in 1989, James Steuer smacked around his girlfriend, Sandra Griffin. She set him up to be killed, and was convicted of aggravated murder and sentenced to life with parole possible after 30 years.
A couple of years ago, as I discussed back here, the 9th District came up with a hypertechnical reading of what CrimR 32 required a sentencing entry to say. A finding that the defendant had been convicted after a trial wasn't enough; it also had to indicate he'd pled not guilty. A statement that he'd pled guilty wasn't enough, either; it had to indicate that the judge had found him guilty. The Ohio Supreme Court put an end to this in State v. Baker, holding that the entry need recite only that the defendant had pled guilty, or been found guilty by a court or jury, and the sentence, plus the judge's signature and the court clerk's journalization.
And last week, in State v. Griffin the 5th District decided that Baker gave Sandra Griffin a get-out-of-jail card.
The first problem in Griffin's case was a decision by the prosecution that is simply inexplicable: they decided not to pursue the death penalty, but wouldn't drop the specifications, either. That led to the second problem: with the death penalty off the table, the case was tried by a single judge. Griffin argued on appeal that she was still entitled to a three-judge panel, but in 1992 the appellate court rejected that and affirmed her conviction, and that was the end of that.
Until somebody took a look at Griffin's sentencing entry. Since Baker came out, a small cottage industry has emerged in Ohio's prisons of looking up journal entries from five, ten, or twenty years ago to see if they're Baker-compliant. Griffin's wasn't: the judge had done one entry for the verdict, and another for the sentencing. As the 5th District noted, if the two were read together, there'd be no problem. But Baker doesn't permit that: the entry which contains the sentence also has to contain the verdict or guilty plea, and that didn't happen here.
Unlike a pre-July 2006 error in imposing post-release controls, a Baker error doesn't require a resentencing hearing; the court can simply file a Baker-compliant entry. But you can appeal from that entry, which is what Griffin did.
And this is where things get funky. Griffin wasn't merely appealing from the resentencing, but from the trial and verdict back in 1992. Her argument was simple: because the sentencing entry in 1991 wasn't Baker-compliant, it wasn't a final order. A court of appeals has jurisdiction only when there's a final order. Thus, the court of appeals back in 1992 didn't have jurisdiction to hear Griffin's appeal, and so the court's decision was a nullity.
If this sounds familiar, it's the same argument made in PRC resentencings, with a slight twist. The Supreme Court held in State v. Bezak that failure to properly impose PRC at sentencing rendered the judgment void. In several appeals after that, defendants made the argument that if the judgment was void, then any appeal taken from that judgment was void as well. So if the defendant gets convicted in 2000, his conviction is affirmed on appeal in 2001, and in 2008 somebody discovers that the judge didn't properly impose PRC, everything becomes void. And the defendant, after he's resentenced, can appeal from his original conviction, and whatever the appellate court did in his original appeal doesn't count. There's no law of the case, there's no precedent, there's no res judicata; since the appellate court lacked jurisdiction, it's as though the appeal never happened.
There's a case pending in the Ohio Supreme Court, State v. Fischer, on that very issue, and I wrote about it after the oral argument on a few months ago. The lower court, the 9th District, decided in Fischer that the defendant was bound by his earlier appeal. But that's a PRC appeal. In State ex rel. Culgan v. Medina Cty. Common Pleas Court, the Supreme Court held that a defendant was entitled to writs compelling a judge to give him a Baker-compliant sentencing entry, and said,
"[I]f Culgan is correct that appellees' sentencing entry violated Crim.R. 32(C), which would render the entry nonappealable, his claims for writs of mandamus and procedendo would have merit
The 9th District took a look at the emphasized language in and concluded State v. Harmon that an appeal from a judgment entry that didn't comply with Baker was a nullity. (Culghan also rejected the view that Baker was to be applied only prospectively; Culghan's sentencing predated Baker.) The 5th District reluctantly agrees in Griffin, and takes another look at whether Griffin was entitled to a three-judge panel. A decade after Griffin's first appeal, the Supreme Court held that a three-judge panel was necessary in a capital case even where the state agreed not to pursue the death penalty, and that entitles Griffin to a reversal of her conviction.
This brings the problem of finality posed by Baker and Bezak front and center: think there's going to be a problem retrying Griffin twenty years later? How many other inmates and attorneys are checking sentencing entries for Baker compliance? And there's not just the problem of reassembling witnesses and evidence years later. As I said in my post on Fischer, there have been a lot of changes in the legal landscape in the past decade. What if an inmate's conviction in 2002 was based on hearsay testimony that met the standards of Roberts v. Ohio, but would now be testimonial under Crawford v. Washington? What if his conviction was based on a search that was valid under Belton v. New York, but not under Arizona v. Gant? A screwed-up sentencing entry can reopen those issues.
The dissent in Griffin concludes with this observation:
As does the majority and many of my brethren on appellate courts throughout the State, I anxiously await the Ohio Supreme Court's guidance in the Fischer case.
I'll bet. And you can throw in prosecutors and defense attorneys, too.
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