What's Up in the 8th - Sentencing
There's an old saying that money isn't worth your life, and Marcell Bell should've heeded it. He was sitting in his car when Tonio Hudson approached him, shoved a gun in his face, and demanded money. Bell refused, and Hudson repeated the demand. Bell refused again, and Hudson again demanded it, punctuating his request by shooting out the rear passenger window. Bell was unbowed, refusing one final time, and so Hudson shot him twice in the face. Bell died later that night.
Hudson raised a bevy of issues in the appeal from his conviction. The 8th District rejected all of them, but agreed that the two murder convictions (one for felony murder and one for aggravated murder) should have merged, so it sent the case back for resentencing. The judge imposed the same sentence she had originally -- 28 years to life -- and so Hudson appealed again, this time arguing that a 28-to-life sentence for a first time offender was disproportionate.
There were a number of reasons to reject that argument, as the court did last week in State v. Hudson, the main one being that one guesses Hudson's lack of a prior criminal record has less to do with his innate good nature than that he simply hadn't had much time to acquire one: he was just two months past his 18th birthday when he murdered Bell. Hudson bore the burden of persuasion on this, and the court correctly held him to that, noting that "Hudson has failed to demonstrate how his sentence violated Ohio's sentencing statutes" and that "nothing in the record suggests that the trial court's decision was unreasonable, arbitrary, or unconscionable." The range of penalties for aggravated murder are relatively limited: it's 20, 25, or 30 years. The judge picked the middle one, end of story.
Still, some portions of the Hudson opinion demonstrate the futility of seeking appellate review of sentencing at this point.
The opinion begins, as all of them on this subject do any more, with a citation to the two-part framework for reviewing sentences enunciated in State v. Kalish. The first step there is determining whether the sentence was "contrary to law," the second to determining whether the sentence represents an abuse of discretion.
The opinion spends little time with either. The "contrary to law" argument was based on disproportionality, and RC 2929.11(B) requires that "a sentence imposed for a felony shall be * * * consistent with sentences imposed for similar crimes committed by similar offenders." In the past two years, the 8th has articulated a new way of addressing that issue: whether the sentence is "outside the mainstream of local judicial practice." That approach has its problems, as I outlined here, but the court's treatment of it is more worrisome:
Hudson was convicted of aggravated murder in violation R.C. 2903.01, which provides that he could be imprisoned for an indefinite term of twenty years to life.Therefore, a sentence of 28 years to life is within the statutory range allowed by law. Since Hudson was sentenced within the statutory range and has failed to demonstrate how his sentence violated Ohio's sentencing statutes, we do not find that it was contrary to law.
The language regarding Hudson's "failure to demonstrate" does speak to his failure to carry his burden of persuasion, but the opinion could be read for the proposition that any sentence within the boundaries set by the legislature is "within the mainstream." The likelihood of that interpretation is increased by the fact that the court never addresses the issue as being one of disproportionality; in fact, it quotes the (A) section of 2929.11, and doesn't even mention (B).
The opinion gives even shorter shrift to Kalish's second step, determining whether the sentence was an abuse of discretion. The court's entire analysis of that is comprised of the following paragraph:
We find nothing in the record to suggest that the trial court's decision was unreasonable, arbitrary, or unconscionable. A review of the record indicates that the trial court also expressly stated, at the original sentencing hearing, that it had considered all factor of the law and found that prison was consistent with the purposes and principles of R.C. 2929.11. Also, at Hudson's resentencing, the trial court restated that it had considered all factors of the law and found that prison was consistent with the purposes and principles of R.C. 2929.11.
The first sentence could be read as referring to Hudson's failure to carry his burden of persuasion, but the remainder again suggests that as long as the judge refers to the sentencing statutes -- and the 8th and other courts have held that even where the judge doesn't mention the statutes, it will be "presumed" that she considered them -- the sentence is immune from review.
To be sure, this isn't a ground-breaking development. In fact, what would be ground-breaking would be for the 8th, or just anybody else, to reverse a sentence.
The problem is that while this approach is somewhat understandable in light of current law, the passage of HB 86 makes it a new ballgame. State v. Foster is widely believed as having given trial courts unfettered discretion in imposing sentences; whether that is a correct perception or not, appellate courts rushed to embrace it, rendering appellate review of sentences essentially pointless exercises. But HB 86 represents a clear legislative intent of having courts impose the minimum sentence necessary to achieve the basic purposes of sentencing -- deterrence, protection of the public, punishment, and rehabilitation. That purpose can only be achieved through meaningful appellate review of sentences. And meaningful review isn't accomplished by doing no more than ensuring that a judge mentions the sentencing statutes and doesn't give someone five years in prison on a fourth degree felony.
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