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Punting the ball

As part of the sentencing reforms in 1996, the State legislature mandated that, before a judge could impose consecutive sentences, he had to make certain findings of fact.  Ten years later, in State v. Foster, the Ohio Supreme Court decided that was a violation of the 6th Amendment.  Three years later, in Oregon v. Ice, the US Supreme Court said that it wasn't.

Ice had to be reconciled with Foster sooner or later, and sooner came last week in the form of State v. Hodge.   Although I'd initially been quite optimistic about the outcome, that changed after the oral argument, where Justice Pfeifer lambasted the defense for wanting "one more train wreck" by asking for resentencing in all cases since Foster had been handed down.  I'd worried that "the court might just decide that there have been too many train wrecks recently."

Well, guess what?

The opinion avoids some of the problems that I'd feared.  It doesn't seek to uphold Foster on the basis of the Ohio Constitution, a possibility Pfeifer had posed in oral argument.  (The US Supreme Court's jury trial jurisprudence has become somewhat of a minefield, and the court obviously didn't relish the prospect of replicating that on the State level, and having a separate decisional track on it, no less.)  The court resisted the urging of the State to draw distinctions between the Oregon law upheld in Ice and the Ohio law struck down in Foster; such distinctions "are immaterial in light of the broad reasoning employed in Ice."  And the court makes no effort to distinguish Ice itself from Foster, acknowledging that

Had we the benefit of the United States Supreme Court’s decision in Ice regarding Oregon’s consecutive-sentencing statutes prior to our decision in Foster, we likely would have ruled differently as to the constitutionality, and continued vitality, of our own state’s consecutive-sentencing provisions.

All well and good, but the question then becomes what to do about it.  The defense argument was simple: Ice had implicitly overruled Foster, thus the statutes on consecutive sentencing were "automatically revived" and brought back to life, so that anyone given consecutive sentences after Foster was entitled to re-sentencing at which a judge would have to find certain facts before imposing consecutive sentences again.

That argument depended in large part upon the fact that the consecutive sentencing statutes had never been repealed; in fact, the section that includes them, RC 2929.14, has been amended eleven times since Foster, and the portion regarding consecutive sentencing had never been changed.  The majority declined to read that as an expression of legislative intent that the statutes were to spring back to life if the Ohio Supreme Court changed its mind, but the suspicion that the reasoning is driven by the conclusion, rather than the other way around, is confirmed by the majority's fears of the result of overruling Foster:

A determination that many defendants (perhaps hundreds or even thousands) who have received constitutionally acceptable consecutive sentences would nevertheless be entitled to resentencing would disrupt reasonable and settled expectations of finality.  In addition, ordering resentencing in numerous cases in which consecutive sentences have been imposed in reliance on Foster would place an undue burden on our judicial system. It is a burden that is manifestly not outweighed by a commensurate benefit to defendants, when one considers that the sentence each received in reliance on Foster is not thereby constitutionally deficient.

That last sentence is critical, because it determines where this goes in the judicial arena.  Is there a possibility of getting the US Supreme Court to reverse Hodge

The problem with an appeal to SCOTUS is that Ice held that judicial fact-finding was permissible, not that it was constitutionally required.  That raises a problem.  To get into the Supreme Court, Hodge has to show not merely that the Ohio Supreme Court was wrong in Hodge, but that the decision violated his constitutional rights.  Since he doesn't have a right to judicial fact-finding, it's not clear how he gets the Court to take the case. 

There is an argument to be made, but it's a complicated and tenuous one.  Back in 1980, the Supreme Court decided the case of Hicks v. OklahomaHicks had been convicted a a third felony offense within ten years, and the jury, which handles sentencing in that state, was instructed to impose the mandatory 40-year term required by the habitual offender statute.  The latter statute was declared unconstitutional in another case shortly while Hicks' case was still on appeal, but the appellate court nonetheless affirmed his sentence on the grounds that the jury still could have given him a 40-year sentence for his crime.  The Supreme Court reversed, holding that Hicks had a due process liberty interest in having a jury fix his sentence according to the proper law.  Hodge would be arguing that he had a "due process liberty interest" in having consecutive sentences imposed according to the statutory provisions which the Ohio Supreme Court had wrongly struck down in Foster.

Like I said, it's a rather tenuous argument, and perhaps the best indication of its vitality is the fact that I just spent about three times as much space explaining it here than the defense did in their merits brief in Hodge.  So, while defense and appellate lawyers should still raise the issue, don't get your hopes up.

There is one other avenue of relief, and one which the Hodge court specifically invites:   the General Assembly could simply re-enact the provisions regarding consecutive sentencing, this time including a statement like, "Hey, we really mean it this time," so as to avoid further confusion.  Of course, that depends upon the likelihood that the incoming Republican assembly will decide to forego dealing with other problems -- an $8 billion hole in the budget, a foreclosure crisis, a long-declining economy -- to instead pass a law making it harder for judges to give felons more prison time is.

See above re "don't get your hopes up," and make mine a double.

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