Yesterday I discussed State v. Parker, the 2nd District's recent decision modifying the sentence of schoolteacher convicted of having sex with one of his students from fifteen years in prison to five. There was another angle to the case, and I wanted to follow up on that, because it involves something many lawyers aren't familiar with: the sentencing package doctrine.
The big case on the doctrine is State v. Saxon. Saxon had pled guilty to a third degree felony and a fourth degree felony, and the judge gave him four years on each, running them concurrently. A problem: the maximum penalty for a fourth degree felony is only 18 months. Can't get much more "contrary to law" than that. But instead of simply vacating that and remanding the case for resentencing on that charge, the 8th District vacated the entire sentence, even though Saxon hadn't raised any issue with the other one.
That was consistent with the sentencing package doctrine, which was explained in a later 8th District case, State v. Webb:
The underlying theory is that, in imposing a sentence in a multi-count conviction, the trial court typically looks to the bottom line, or the total number of years. Thus, when part of a sentence is vacated, the entire sentencing package doctrine becomes 'unbundled,' and the trial judge is, therefore, entitled to resentence a defendant on all counts to effectuate its previous intent.
While the sentencing package doctrine is accepted practice in the Federal courts, the Ohio Supreme Court in Saxon held to the contrary, basing its reasoning on the difference between sentencing in the Federal system and sentencing under the Ohio statutes. Under the Federal sentencing guidelines, multiple counts are grouped together in various ways, and a sentencing level is then determined for the group. Ohio law, on the other hand, specifies a separate sentence for each offense; the judge can't impose an omnibus sentence for the entire group of offenses.
That doesn't mean judges don't do it, of course, and even Saxon seemed to implicitly recognize that, but also provided the means for doing so: "Only after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively." If you're a judge with a case involving two counts of rape and you think the guy should do eight years, give him eight on each one and run them concurrently. If you think he should do twelve, give him six on each and run them consecutively. Or eight and four. Or ten and two. One from Column A, one from Column B.
Prohibiting application of the sentence packaging doctrine to appellate review makes sense: there really wasn't any justification in vacating both sentences in Saxon, especially since he didn't complain about one of them. But what's the application of Saxon to trial courts? Saxon seems fairly specific on that point: "the sentencing court may not employ the doctrine when sentencing a defendant."
Which brings us back to Parker. He'd argued that the trial judge had in fact employed the sentencing package doctrine, and the 2nd District agreed:
the trial court's own statements at sentencing demonstrate that it was motivated by a desire to achieve a particular purpose, insure that this victim would not wait on Parker to complete his sentence so they could have a future together, and to that end the court sought to impose a particular overall and more lengthy sentence to cover the group of offenses to satisfy the purposes and principles of sentencing. In so doing,the trial court applied the sentencing package doctrine, and therefore erred. Any doubt in that regard is resolved by the fact that the court imposed three different terms for the same offenses, involving much the same conduct. The reason for doing that was to achieve the result that Saxon forbids.
I'm not so sure about that. While there's certainly language in Saxon which prohibits a trial court from employing the sentencing packaging doctrine, a closer reading of the opinion indicates that the reason for that isn't a policy preference, but the fact that it's impossible to do under Ohio law. As mentioned, when a Federal judge imposes a sentence, even for multiple offenses, there's only one sentence. Congress specifically permitted that result. There's nothing in Ohio law which permits a judge to impose only one sentence for multiple offenses; she's got to impose a sentence for each one.
But that doesn't mean the judge can't consider the overall sentence; in fact, Saxon would seem to contemplate just that in its reference to the decision of whether to impose sentences consecutively or concurrently. Indeed, from a normative standpoint, why wouldn't you want the judge to do that? The entire purpose of sentencing is to achieve a desired result, whether that's punishment or deterrence or rehabilitation or protection of the public or some combination of those four. How could you do that without considering the total prison sentence you're imposing?
To be sure, the opinion in Parker at this point is colored by the fact that the court previously concluded that the trial court's purpose of imposing the sentence -- to "crush the victim's hope" that she and Parker would ever be reunited -- was an improper consideration. But what if the judge had said that he was imposing a lengthy sentence because he wanted to send a message to other teachers that such conduct would be severely punished? (Which, actually, was one of the reasons he gave.) Or that a judge decides that twelve years is an appropriate penalty because of the defendant's prior record? Under the reasoning in Parker, a statement that the judge had considered the overall sentence to be imposed, especially in light of the fact that he imposed different sentences for the same offenses, would put him on the wrong side of the sentencing packaging doctrine. That's not really a justifiable result, and it's not good law.