Yesterday, I gave my by-now tedious lament on the state of Ohio's sentencing law, posing a challenge to the numberless legions of my readers to "come up with a scenario in which an appellate panel would reverse a sentence."
Well, lo and behold, one of them took me up on it, sending me the a copy of the 2nd District's decision in State v. Parker, which featured just that result.
The case featured two high school sweethearts, with the problematic factor being that Parker was a teacher, not a student. Two dalliances with a 16-year-old student resulted in four counts of sexual battery. Parker pled guilty to all the charges, and was sentenced to five years on the first two charges, three on the third, and two on the fourth, to run consecutively for a total of fifteen years. The 2nd District decides that sentence is too severe, and the result is that Parker will walk out of prison in no more than five years.
So let's pop the hood on this sucker and see how it happened.
Parker's central argument followed the Kalish analysis, contending that the sentence was both contrary to law and an abuse of discretion. The first wasn't going anywhere, of course. The law requires the judge to consider the principles and purposes of sentencing in RC 2929.11 and the seriousness and recidivism factors of RC 2929.12, but that's really so much chin music, given that the appellate courts will "presume" that the trial judge considered that even if she never mentions a word about it. Essentially, absent an aberrant comment by the judge like the one I posed yesterday, the only way the sentence is going to be held to be contrary to law is if it's outside the range of sentences provided by the legislature. You can't give a guy 10 years on a fourth degree felony. Well, gee, that's a help.
So the Parker court focused its attention on the abuse of discretion aspect. The court here provides a quote that should find its way into every appellate brief discussing the standard:
"Abuse of discretion" has been defined as an attitude that is unreasonable, arbitrary or unconscionable. It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision.
It's not great, but it beats the "perversity of will" language in some other decisions, which would virtually require the trial judge to have been foaming at the mouth when he made his ruling in order to qualify under that standard.
So how does the court arrive at the conclusion that the 15 years Parker got was an abuse of discretion? Not, as one might think, by deciding it was disproportionate. To be sure, Parker's attorney made a valiant effort in that respect, presenting results of Internet research showing that
in thirty cases similar to this one across Ohio since 2007, the average sentence length is 2.7 years, with only two cases involving sentences that exceed five years. One, an eight year sentence, involved sixteen counts of sexual battery. The other one, a nine year sentence, involved three separate victims.
It all went for naught, however, because none of that had been presented to the trial court, so, the appellate panel says, it can't be considered here.
But here's a point for appellate attorneys. It didn't go for naught. Judges are just like jurors in one respect: just because they are told not to consider certain information doesn't mean that they won't. If an appellate court thinks, for whatever reason, that your guy got a raw deal, it can't do anything but help. Parker's lawyer could have easily figured, "well, I can't get anything in because it wasn't raised below," but instead spent the time scouring the web for cases. He knew he'd lose that battle, but it would help him win the war.
So if Parker didn't win on proportionality, how did he win? Because the 2nd District, unlike most other districts, doesn't believe that SB2 was buried by State v. Foster. While the provisions on consecutive sentencing may have been severed, the principles behind it remain: "Both the Ohio Supreme Court and this court have stated that consecutive sentences should be reserved for the worst offenses and offenders. This case simply does not involve the worst form of the offense or the worst offender." Parker did not fit that category: he had no prior record, completely confessed to his crimes and cut off all involvement with the victim, and turned in his teacher's license, the latter act "making his recidivism unlikely."
Also notable is the court's willingness to consider rehabilitation as a goal. Despite the fact that the statute requires that, rehabilitation has fallen into disfavor over the past 30 years. Not to the court:
The principles and purposes of felony sentencing in R.C. 2929.11 nevertheless require the trial court in imposing its sentence to also consider, among other things, rehabilitating the offender. . . By sentencing this thirty-six year old first time offender to fifteen years in prison, the trial court failed to reasonably consider the concept of rehabilitation.
There are some problems with the court's analysis, especially with regard to its statement that consecutive sentences should be reserved for the "worst offenders." The Supreme Court case cited by the court in support of that is State v. Comer, which predates Foster and was effectively overruled by that decision. What's more, the "worst form of the offense" language was a statutory requirement for imposing maximum sentences, not consecutive ones.
What probably drove the result in Parker is probably not what the judge did, but what the judge said. The prosecutor disclosed at sentencing that not only did the victim not desire any punishment for Parker, but that she was in love with him and was convinced that the two would wait out any prison sentence, and then "be together again" when Parker was released. To protect the victim from the further emotional harm that these delusionary beliefs would generate, the prosecutor urged the judge to impose a sentence which would "crush the victim's hope." And that's exactly what the judge did:
The prosecutor is exactly right; I don't want there to be any glimmer of hope after today that somebody is going to wait for somebody. I want there to be finality today. I want it to be over with. I want the harm to stop.
The court concluded that this was "not a proper consideration or legitimate basis" for the "lengthy sentence."
Perhaps most surprising about the decision is that the court doesn't merely remand the case for resentencing, but instead modifies the sentences to provide for them to be served concurrently, instead of consecutively.
In one of Parker's emails to the victim, he'd told her, "By the way, you know I can go to prison if we have sex. But damn, it would be worth it." For his sake, let's hope so.