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What's Up in the 8th

"Mr. Miller, you're here before me for sentencing.  The statutes of Ohio require that I take certain factors into account in imposing your sentence.  I don't know what the statutes say, and I don't care; in fact, I've never bothered to read them.  I asked my wife this morning how much time I should give you, but she wanted to get into this long-winded conversation about what you'd done, and I didn't want to do that, so tell you what, I'll just give you five years and we'll call it a day, okay?"

That's pretty much what it would take a judge to say in order for the 8th District to reverse a sentence.  And if the judge didn't include the part about disregarding the sentencing statutes, it might not get reversed even then.

In State v. Dejarnett, for example, the court reiterates the language that a judge will be presumed to have considered the sentencing statutes, even if he doesn't mention them.  A judge engaging in the hypothetical soliloquy above, of course, is about the only way that presumption would be overcome.  In truth, it's hard to muster much sympathy for Dejarnett, or for the defendant in State v. Gill; the latter had broken his girlfriend's jaw, and the former had terrorized an entire neighborhood.  Or to disagree with the affirmance of their sentences, for that matter.  Any rational scheme of appellate review of sentencing must allow for some exercise of discretion, and there's no indication in either Dejarnett or Gill that the trial judges abused theirs.

State v. Mahan is another matter.  Mahan was sentenced to 16 years in prison for possession of child pornography, and he asserts that the sentence is disproportionate, an argument which lends itself more easily to appellate review.  When a defendant claims that a judge should have differently weighed the various sentencing factors, what's an appellate panel to do?  It's basically being asked to substitute its judgment on those factors for that of the trial judge.  An argument that a sentence is disproportionate, on the other hand, is appropriate for appellate oversight.  The sentencing statutes do not indicate a desire that appellate courts second-guess trial judge's decisions as to what sentencing factors apply, but they do specifically indicate a desire for consistency in sentencing, and whether that consistency has been achieved in a particular case is a proper subject for appellate review.

That's no easy matter.  The courts have held that disproportionality must be raised at sentencing, but Mahan did that:  Mahan had been arrested as part of a child porn sweep, and his attorney had gone to the trouble of finding out how every defendant had been sentenced; the vast majority had gotten anything from probation to four years in prison.  This seems to fit in nicely with what the court has stated on previous occasions, such as in State v. Nimmer earlier this year, that consistency review required determining "whether the sentence is so unusual as to be outside the mainstream of local judicial practice."  Surely, giving 16 years where other judges give at most one-quarter of that is "outside the mainstream."

But no; the Mahan court cites State v. Cooper, where the court last year affirmed a 16-year sentence in a child porn case.  Cooper's characteristics were very similar to Mahan's, the court notes:  both were first offenders, both expressed extreme remorse, both had undertaken counseling and other efforts to address their problems, and both had strong family support.  And since Cooper got a 16-year sentence, there's nothing disproportionate about Mahan getting the same thing.

There was one more similarity between the two cases that the panel doesn't mention:  Cooper and Mahan both had the same trial judge.  Apparently, disproportionality review has been reduced to determining whether a sentence is outside the mainstream of that particular judge's practice.

The court does better work on allied offense jurisprudence.  In State v. Cook, it finds plain error (and one that wasn't assigned on appeal) in the failure to merge kidnapping, aggravated robbery, and theft, and in State v. Sutphin it finds that domestic violence and felonious assault are allied.  But that doesn't conclude the inquiry, the court notes in State v. Waltzer:  the judge must still determine whether the offenses were committed with the same conduct.  Waltzer had gotten into an argument with his wife on the porch of their house, and pushed her down.  When she got up and ran into the house, he followed her, grabbing a knife and a baseball bat, and then cut her and hit her in the head with the bat.  The court holds that "the change in location and the significant increase in the level of violence" was sufficient to allow a trial judge to conclude that separate acts were involved, and preclude merger.

One might argue with that conclusion, especially since there's no indication that the two charges pertained to the separate locations; it's doubtful that a bill of particulars indicated that the domestic violence stemmed from the incident on the porch, while the felonious assault pertained to the incident in the house.  The problem in Waltzer is that it arose in the context of a motion to reopen the appeal:  Waltzer claimed that his appellate counsel was ineffective for not raising the issue.  In that situation, the only question for the court was whether it was likely that Waltzer would have prevailed on the issue had it been raised, which is a slightly different analysis than if the court was actually considering it on appeal.  The case emphasizes the need for defense counsel at the trial stage to clarify exactly what conduct is being alleged.

Some puzzlers.  State v. Miller presents the horror show of a 340-count, 28 co-defendant indictment in a mortgage fraud case.  Miller eventually pled guilty to 28 of the counts, but two of them, counts 9 and 111 for those keeping score at home, got lost in the shuffle:  the judge didn't advise Miller of the nature of those charges and the maximum penalties, and never accepted a plea to them.  Instead of just vacating the pleas to those two counts, the court without further explanation vacates all the pleas and remands the matter.

In State v. Rhodes, the trial judge in the sentencing hearing imposed "$250 in costs," but the journal entry stated the sentence was "$250 fine and costs."  Rhodes appeals that, and while the appeal is pending the judge decides to clean up the record:  without notification to Rhodes or his appellate lawyer, the court holds a hearing and appoints an attorney to represent Rhodes.  The attorney obligingly notes that, from his experience, the judge always imposes a $250 fine plus court costs, so that's surely what she must have meant in this case.  The judge enters a journal entry correcting the transcript of the sentencing hearing to reflect that, and the appellate panel agrees that this must have been what the judge meant.  It does note that "the better practice would have been to notify both Rhodes and his appellate counsel of the scheduled hearing and give them the opportunity to be heard."

Yes, I think it would be the better practice to notify the defendant and his attorney when there's going to be a hearing on his case.  In fact, not only would that be the "better practice," I'm fairly certain that's the law.


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