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Is HB 86 constitutional?

You've seen defendants with records like Henry's.  A couple of juvy thefts, then a shoplifting and a felony theft as an adult.  Then a couple more thefts, sprinkled with some drug possessions, and some B&E's.  Several short stints in the joint, and then he broke into someone's home while they were there, and the judge dropped the hammer:  five years in prison.  After that, Henry was good.  It was another three years before he did a smash and grab at a gas station after hours, coming away with a dozen cartons of cigarettes, a seemingly small bounty for looking at another year in prison for breaking and entering.

So it doesn't surprise you a whole lot when you can just about see the steam coming out of the judge's ears when you tell her that, under HB 86, the new sentencing law, she has no choice but to give Henry community control sanctions.

A lot of judges don't think that's right, or smart.  Judge Frederick Pepple of the Auglaize County Common Pleas Court goes a bit farther:  in an opinion he authored last month, he found that it's unconstitutional.

The old sentencing law contained what many thought to be a "presumption" for community control sanctions for 4th and 5th degree felonies.  It really wasn't:  there were nine factors -- the defendant had previously served a prison term, he caused physical harm, and others -- and if the judge found those, and determined that a prison sentence was consistent with the purpose and principles of sentencing and the defendant wasn't amenable to sanctions, he had to impose a prison term.  If he didn't make any of those findings, he had to sentence the defendant to sanctions, but only if he found that sanctions were consistent with the purposes and principles of sentencing.  The short version is that the judge, by saying that sanctions were or weren't consistent, could avoid the effect of the findings altogether.

Not so under HB 86.  RC 2929.13(B)(1) specifically provides that a judge has to impose one year of sanctions for a non-violent 4th or 5th degree felony if the defendant was not convicted of a felony or a misdemeanor offense of violence within the past two years, unless the defendant caused harm during the commission of the offense, committed the offense while having a firearm, or committed it while out on bond.  One other provision here gets the Department of Rehabilitation and Corrections involved:  if the judge is thinking about imposing prison anyway, he has to make a request of DRC to provide him with the names, contact information, and details of any CCS program that's available for the defendant.  If the DRC replies, the judge has to place the defendant in the program specified by DRC.  Only if DRC doesn't reply within 45 days can the judge impose a prison sentence.

Pepple finds two problems with this.  The first is a Blakely v. Washington, in which the Supreme Court held that the defendant's 6th Amendment right to jury trial was violated by allowing a trial judge to give a greater sentence as a result of facts found by the judge rather than the jury.  That's what's happening here, Pepple argues:  the law entitles the defendant to sanctions, unless the judge makes a factual finding that the defendant committed another felony or a violent misdemeanor within the past two years, or was on bond, had a weapon, or caused physical harm.

I don't think Pepple is right about the first one; the Supreme Court has been pretty clear that any determinations about a defendant's prior criminal record is not "judicial fact-finding" within the meaning of Blakely.  He's on much more solid ground on the latter three, however, and his analogy to the Supreme Court's decision in Cunningham v. California has merit.  The California law that was the subject in Cunningham provided three levels of penalties for each offense:  a lower, middle, and upper prison term.  The judge had to impose a sentence in the middle term unless he found, by weighing a nonexhaustive list of aggravating and mitigating factors, that one of the other terms was appropriate, and aggravating factors had to be found by a preponderance of the evidence.  The Court held that this violated Blakely. 

But weren't the factors under HB 86 -- possession of a gun, causing physical harm -- some of the same ones under the old law, which did pass constitutional muster?  Yes, but there's a difference.  The key to this is understanding what Blakely holds:  any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, and the "maximum" sentence for Blakely purposes is the maximum which can be imposed based upon the facts found by a jury or contained in the indictment to which the defendant pled.  Under Blakely, the maximum sentence in HB 86 for a 4th or 5th degree felony without a prior felony or violent misdemeanor conviction within the past two years is community control sanctions; in order to impose prison, a judge has to make the findings about the weapon or harm or that the offense was committed on bond.

But there's a catch to that argument.  The one year of CCS might not be the "maximum penalty," because the judge also has the ability to impose a prison sentence if he asks the DRC for a suggested sanction and they don't reply within 45 days; thus, imposition of a prison sentence does not depend solely upon the judge making findings of fact.  Pepple has a problem with this, too, arguing that it violates the doctrine of separation of powers:  if the DRC does reply within 45 days, the judge has to do what they tell him, and that's the executive branch prescribing punishment.  This is basically a repeat of the post-release control debate engendered by SB 2, in which many judges felt that the provisions allowing the DRC to put a defendant back in prison for violating the conditions of his release was impermissible imposition of punishment by the executive branch.  The Supreme Court got around that by creating the fiction that it was really the courts granting the DRC authority to do that at the sentencing hearing.  How it will get around that problem here is less certain.

So where does this leave everything?  In a mess.  The one problem I have with Pepple's opinion is the remedy:  he basically holds the requirements to be unconstitutional, and imposes a prison sentence.  But that wasn't the remedy in Blakely and Cunningham:  in both those cases, the Court held that the defendant was entitled to the "minimum" sentence prescribed by the legislature, i.e., the sentence that could be imposed without making the findings.  For example, in Blakely the sentence was 53 months, but the judge gave Blakely 90 months because the law allowed him to do that if he found the crime was committed with "extreme cruelty."  The Court found the latter was impermissible judicial fact-finding, but on remand that meant Blakely was entitled to the 53 month sentence; the Court didn't say, "you can give him 90 months without making any findings."  That's essentially what Pepple did.

And things get even stickier when you consider what might happen on appeal.  (Whether one will be taken in this case isn't clear; the time for appeal ran yesterday, and the docket doesn't reflect that an appeal was filed.)  The State will be trying to uphold the sentence by arguing that the statute violates the defendant's constitutional rights.  The prosecutor, one part of the executive, will be arguing that another part, the DRC, was given too much power.  The Supreme Court could affirm Pepple's remedy, but only by striking the judicial fact-finding portions and then determining that they can't be severed from the rest of the statute; in other words, they'd have to strike down that whole portion, or otherwise hold that every defendant charged with a non-violent 4th or 5th degree felony had to be given probation unless he had the prior record disqualifying him from that.

Should be interesting.

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