A week ago, the Supreme Court had oral argument in State v. Hodge. Hodge raised the issue of whether the US Supreme Court decision in Oregon v. Ice implicitly overruled the Ohio Supreme Court's decision in State v. Foster with regard to whether it was constitutional for the legislature to mandate that judges make certain findings of fact before imposing consecutive sentences. In Foster the Ohio court said it wasn't; three years later, in Ice, SCOTUS said it was. I wrote a post last week detailing what a disaster the oral argument in Hodge had been and darkly predicting that the court would leave Foster untouched.
Well, relax. It was just the liquor talking.
I went back and watched the argument again (which confirms that I live the kind of life that would make most people stab themselves in the eye with a fork -- who watches a Supreme Court argument twice?) and it wasn't as bad as I first thought. Part of the problem was expectations: I was anticipating much smoother sailing than the defendant in Hodge got. So I'll go back to my original statement some months ago, that there is simply no intellectually honest way of holding, after Ice, that Foster was correctly decided, and assume that the Columbus Seven will come to the same conclusion, however reluctantly.
So today I'm going to contemplate the time apres la deluge: Hodge has been decided, Foster has been overruled with respect to consecutive sentences, and those defendants who have cases pending in the courts in which they'd raised Ice issues are entitled to be resentenced. Like Kenneth Hodge himself, who was sentenced to five consecutive terms for aggravated robbery, plus a gun spec, for engaging in what can only be termed a parody of criminal excess: he and some pals robbed a group of Boy Scouts selling Christmas trees.
That served as a springboard for some questioning by O'Donnell, focused on what might happen if Hodge were to get a resentencing. Noting that Hodge had gotten minimum, albeit consecutive, sentences (three years on each count), O'Donnell postulated that if Hodge got a do-over, the judge had a full range of options: he could give Hodge more time, less time, or the same time. Hodge's attorney agreed.
I'm not so sure that's right.
This gets into the concept of "vindictive sentencing," basically, the idea that somebody shouldn't be penalized simply for exercising his constitutional right to appeal. If, say, a defendant is given a four-year sentence, but the sentence gets vacated because the trial judge forgot to impose post-release controls, the judge shouldn't be able to give a defendant a six-year sentence the second time around.
The doctrine is a good bit complicated than that -- what isn't anymore? -- especially in regard to "void" sentences. In Foster, the court plainly indicated that for any resentencings required by the decision, the court was free to fashion whatever sentence it deemed appropriate; since the old sentence was void, everybody got to pretend it didn't happen, so there was nothing to compare the new sentence to in order to make a claim of vindictiveness. This did happen on occasion -- as I detailed in this post back in 2007 -- but it didn't happen frequently.
Of course, the reason a pre-Foster sentence was void was because it had been imposed through a process which the court concluded was unconstitutional. That's not a problem here; if Foster is overruled by Hodge, then the statutes previously held constitutional come back into effect.
So how does that work on resentencing? Let's look at Hodge's case. He was given three years (the minimum) on each of the five counts, with the counts to run consecutively, plus three years on the gun spec. Can the judge give him consecutive time again? Probably so; while the first and third factors under RC 2929.14(E)(4) involve some aspect of a defendant's prior criminal history, and wouldn't apply to Hodge because he was a first offender, the second ground is quite broad: it allows the judge to impose consecutive sentences if he finds that
At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
That's sufficiently spongy that I don't see a judge's finding on that getting reversed on a frequent basis, to understate the matter.
So Hodge can definitely get the same time. Can he get less? Sure; the judge can decide that proper application of 2929.14(E)(4) doesn't permit consecutive sentences.
But how does he get more time? The only way the judge can do that is by upping the term for each count, and that's not implicated by Hodge. How does a judge conclude, "Since I'm now required to make findings of fact before imposing consecutive sentences, I've looked at those factors and decided that they do warrant the imposition of consecutive time. But I've also decided that I should give you five years, instead of three, on each of the counts." How was that reopened by overruling Foster on consecutive sentences?
You could make the argument that the judge could look at the sentence in its totality, and decide that, say, a maximum, concurrent term (10 plus the 3 for the gun) would be appropriate. But that runs into problems, because Ohio courts have specifically rejected the "sentencing package" doctrine; under Ohio law, each sentence for each count is considered separately, not as an aggregate.
Keep in mind that this doesn't absolutely bar any increase in the sentence; such an increase only creates a presumption of vindictiveness, which can be overcome. If Hodge would go back and try the case, for example, there's no question the court could give him more time on the individual counts, because the trial would allow the judge to have more sentence-relevant information than he had on a plea. And, of course, there's always that "remorse" thing. What's more, if the sentencing is done by a different judge, the presumption disappears completely.
But in my mind, a Hodge resentencing only calls into play the decision regarding whether to impose consecutive sentences. And since they were already imposed the first time around, it's not going to get worse. The defendant's playing with house money.