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HB 86 - Sentencing

Last week I took a look at how HB 86, the criminal reform package slated to go into effect in September, affects drug laws.  Today I'm going to look at the much larger effect it has on sentencing.  After all, that was the major purpose of the law:  to reduce the number of people in prison in Ohio.

One way to do that is to release people who are already in there.  In my post on this back in May, I discussed changes to "good time" credits and judicial release.  They're part of the bill as passed.  Another way is to reduce the number of offenses which can send people to prison.  That post also discusses how that's accomplished:  raising the monetary threshhold for financial crime, redefining the crime of escape so that not meeting with your parole officer is now a lower degree felony, changing the standards for treatment in lieu of conviction, and eliminating mandatory prison sentences for most 3rd degree felony drug offenses in favor of presumptions in favor of imprisonment, and eliminating those presumptions for 4th degree felony drug offenses.

What I'm going to focus on today is the changes in Section 2929.11, 2929.13, and 2929.14, which reduce the possibility that someone is going to go to prison at all, especially for a low-level felony.

The first section articulates the purposes and principles of sentencing:  to protect the public from future crime and to punish the offender.  There's now an addition:  that's to be accomplished "using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."  The "unnecessary burden" language used to be included in 2929.13, and was the subject of numerous appeals.  It was shot down every time, most recently in this case, in which the defendant protested that his four-year prison sentence for getting into a gunfight with his father imposed an unnecessary burden, arguing it was unlikely he'd shoot at his father again because his father had since died.  (No, I'm not making that up.)  Given the abuse of discretion standard of review, the argument isn't likely to fare any better on appeal now, but it can be effective at the trial level, especially since it's now part of the sentencing principles, and the court is required to use the "minimum sanctions."

Section 2929.13 gives further encouragement for minimum sentences.  For a 4th or 5th degree felony that's not an offense of violence, the judge has to sentence a defendant to community control sanctions unless the defendant was convicted of a felony or a misdemeanor offense of violence within the past two years, used a firearm or caused physical harm, or committed the offense while out on bond.

That's a lot stronger than the old division (B)(1) of that section, which listed 9 factors to be considered for 4th and 5th degree felonies -- physical harm, deadly weapon, prior prison term, and others -- and provided that if the court didn't find any of those factors, and determined that "a community control sanction is consistent with the purposes and principles of sentencing," it "shall" impose them.  A lot of people took this as a presumption in favor of sanctions in those cases, but it really wasn't:  if the judge wanted to impose a prison sentence, she simply had to say that sanctions weren't consistent with the principles of sentencing.  A judge no longer has that out.  Those enumerated factors I just mentioned still apply to 4th and 5th degree felonies that don't fall within the purview of the New, Improved (B)(1), but if the crime does fall within that, it's not even a presumption in favor of sanctions:  the judge shall impose sanctions.

Section 2929.14 gets some changes, too, although not as many as originally contemplated.  The maximum sentence for a 1st degree felony is stretched to 11 years, and 3rd-degree felony sentences now come in 6-month increments after the minimum one year.  A change from what was passed by the House here, though; while the House bill capped all 3rd degree sentences at three years, the final bill allows a maximum of five years for 3rd degree felony convictions of aggravated vehicular homicide or assault, sexual battery, unlawful sexual conduct with a minor, or gross sexual imposition, and robbery or burglary if the defendant has two or more prior convictions of those offenses, either "plain" or aggravated.

A second big change is in the major drug offender provision.  Like a conviction with a repeat violent offender specification, an MDO spec requires imposition of the maximum prison term; unlike the RVO spec, the court can no longer impose an additional sentence of between one and ten years.

When HB 86 came out of the House, it contained provisions which would have set requirements for imposing more than minimum, maximum, or consecutive sentences.  The Senate bowdlerized that, though, and the only thing which survived was the exact wording of the statute pertaining to consecutive sentences as it was when State v. Foster nullified it; all references to more-than-minimum and maximum sentences were eliminated.

In reviving the statute, though, the court also revived the pre-Foster law on imposing consecutive sentences, and there's some good stuff there.  While inclusion of the talismanic phrase "the court considered the purposes and principles of sentencing" in the journal entry nowadays is sufficient to inoculate just about any sentence from reversal, even when nothing whatsoever is said about it at sentencing, appellate courts were much more stringent in their application of the requirement that consecutive sentences be supported by specific findings.  For example, this 2003 case determined that the findings were insufficient, rejecting the State's argument that the judge's consideration of the recidivism and seriousness factors under 2929.12 (which isn't touched by HB 86) sufficed.  To be sure, there's a good bit of play in the language, which includes phrases like "protect the public from harm," but courts were willing to critically analyze judge's pronouncements on those issues.  In this case, for example, involving sexual abuse of patients by a gynecologist, the judge had found that the harm was greater because the victims had to "bare their souls."  The appellate court found that insufficient, noting that "most criminal cases involve victims testifying as to the circumstances of the offense."

There may be a problem here, though.  The former 2929.19(B) required a judge at sentencing to "make a finding that gives its reasons" for imposing certain sentences, including consecutive sentences.  There are court decisions, like State v. Edmondson, which held that this section went hand-in-hand with the provisions in 2929.14 as to how consecutive sentences were to be imposed:  the latter provided the substance, but 2929.19(B) provided the procedure.  So how does HB 86 change the language in 2929.12(B)?  It doesn't; it simply eliminates it entirely.  Still, if an appellate court held that elimination of that section removed the requirement for a judge to specify the findings and reasoning supporting the imposition of consecutive sentences,  that could also benefit defendants:  that same section also required a judge to do the same if he chose to impose community control sanctions when there was a presumption in favor of imprisonment, and if you're going to hold that he doesn't have to be specific about the former, you've got to hold that he isn't required to be specific about the latter, either.

The 1996 reforms had the clear intent of reducing disparity in sentencing.  The clear intent of HB 86 is to send fewer people to prison, and that intent permeates the entire bill.  Even in situations where the judge retains discretion to do so, that intent has to be the focus for every defense attorney.  All too often, we focus our attention on trials or getting the best deal for our clients, and then walk into a sentencing hearing with no plan other than mumbling the standard homilies about our client's poor judgment and his boundless remorse.  That doesn't cut it any more.  You can easily be prepared to tell a judge why the new sentencing bill makes sending your client to prison for the shortest term, or not sending him to prison at all, is the choice he should make.  You have to be prepared to do that.

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