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What's Up in the 8th

A constant source of amazement for me is the difference between Federal and state court sentencings.  Federal sentencings used to be pro forma affairs -- a matter of calculating the defendant's "offense level" (what he did), cross-referencing his criminal history (who he was), and plugging it into the Sentencing Guidelines, which would spit out the sentencing range, usually a span of about ten months, which would fix the bounds of the court's discretion.  Since the Supreme Court made the Guidelines advisory four years ago in Booker v. US, it's much more complicated:  the court starts with the guidelines, then considers a host of other factors in determining a sentence that is "sufficient, but not more than necessary" to achieve the various goals of sentencing.  A sentencing can easily take an hour or more, and then a court of appeals will review it to determine whether it's "procedurally" and "substantively" reasonable.

In Ohio state courts, the trial judge's chief goal is simply not to screw things up.

Case in point:  last week's decision in State v. MoonBaggage handlers at the airport discovered an envelope with 50 photos of child porn in Moon's luggage, and police got a warrant for his computer and went out to seize it two days later.  In the interim, however, Moon had gotten out on bail, and there was no computer to be found.  Moon had helpfully left severals disks containing child porn lying around the house, and that resulted in his ultimate plea to 4 counts of pandering, 45 of illegal use of a minor in nudity-oriented material, and 2 counts of possessing criminal tools. 

Moon argued on appeal that his 20-year sentence was too severe, and the appeals court works up much more than a sweat than it needs to in disposing of that argument.  As it points out, had the judge wanted to, she could have given a 300-year sentence, and given that the standard here is abuse of discretion, there's more than enough to get over the tiny bump in the road that that poses.  But Moon is nonetheless entitled to a resentencing, because the judge screwed up post-release controls.

And how did she do that?  Did she forget to mention them entirely?  Did she fail to inform Moon what would happen if he violated PRC?  No.  She informed him that PRC was for a mandatory five-year period, which is true for 49 of the counts Moon pled guilty to, but she did not inform him that the PRC for the two criminal tools convictions was only for a discretionary 3-year period.  To be sure, you'd have a hard time imagining more of a no-harm, no foul mistake:  the 3-year period, if it were imposed, would be served at the same time as the mandatory 5-year period.  But the law requires that a judge impose the proper term on each count, and that's all there is to it.

Then again, some screwups are permissible.  In State v. Barker, the judge gives the defendant prison time and $1000 fine.  The law on this is that the judge has to consider whether the defendant has the ability to pay.  Not find that she actually has the ability to pay, mind you; the record just has to show that she considered it.  This is another difference between state and Federal law.  The Federal courts don't play make-believe:  if a judge doesn't say something, it didn't happen.  Not so for Ohio sentencings.  Supposedly, a judge has to consider the purposes and principles of sentencing, and the seriousness and recidivism factors, but that requires nothing more than citing the statute numbers.  Actually, it doesn't even require that; there's case which holds that even if the judge mentions nothing about the statutes, the appellate court will "presume" that the judge considered them.  Here, the judge ordered a pre-sentence report and said in the journal entries that it "considered all factors as required by law," and that's all it takes.

This culminates in State v. Porter, in which the court had concluded last year in State v. Porter I (should that be designated as a prequel?) that the two counts of felonious assault should have merged, and remanded it for resentencing.  The trial court imposed the same seven-year sentence, and now appeals arguing that his counsel was ineffective for not saying anything at the resentencing hearing.  The court concludes that there's no basis for believing that anything defense counsel could have said would have altered the outcome.  Given the virtually unfettered discretion trial judes have in sentencing, and the virtual absence of any meaningful appellate review of sentencing decisions, one might easily claim that's true of any sentencing.

Some non-sentencing cases of import.  In State v. Jackson, the defendant points a gun at the victim, and enigmatically proclaims, "What's up with this?  This is what I mean."  Nobody gets hurt, Jackson is arrested shortly thereafter with the gun, which is unloaded.  Simply pointing a loaded gun at somebody isn't felonious assault, but it becomes one when accompanied by overt acts, such as threats.  Even when the gun's unloaded, the court says, deciding that it could decipher "this is what I mean" better than I can.  And State v. Biazzo provides a handy tip on uncounseled prior convictions.  Biazzo is charged with driving while drunk, and has six priors for the same thing.  He moves to suppress three of them, though, on grounds they weren't counseled.  The law on this is simple:  once the defendant establishes, by affidavit or otherwise, that the prior conviction was uncounseled, the burden shifts to the state to prove that either the defendant had counsel or validly waived it.  Biazzo chooses "or otherwise," decides to testify about the priors, and succeeds mainly in demonstrating the link between excessive alcohol consumption and memory loss:  his testimony about the prior proceedings presents a series of "I don't remembers"  and "I don't recalls."  This, the court decides, isn't enough to shift the burden, let alone to prove that the prior convictions were uncounseled.

As you might guess, I get a lot of fan mail for this blog, much of it along the lines of, "Gosh, Russ, do you read every single case every week?"  At the risk of creating disillusion among my countless faithful readers akin to them finding out that there wasn't a Santa Claus, the answer is, "What, you think I'm nuts?"  Case in point is State v. McGrathOh, I tried, yes I did.  Even seeing that it was a pro se appeal, I skimmed through the first 15 pages the opinion devotes to relating the facts, the central one being that McGrath, on trial for menacing by stalking, had called his girlfriend from the county jail no fewer than 9,758 times in the course of a year.  And then I got to "Defendant now appeals raising 17 assignments of error for our review," saw that there were still 21 pages to go, and bailed.  If it comes out on video, I'll be sure to let you know what happened.

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