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Questions about Johnson

That would ordinarily be good news for Christopher Thomas -- the judge had miscalculated the sentence she'd imposed upon him by a whopping 60 years.  The good news was muted, however, by the fact that this still left him 93 years to serve.  Not for now, though, and if one judge on the panel in State v. Thomas had his way, not ever.  And that judge also has some interesting things to say about the state of allied offense law since State v. Johnson came down a year ago.

Thomas had the bad fortune to have drawn probably the worst judge for sex offense sentencing in Cuyahoga County.  He likely would have earned a prison sentence, although certainly not one so Draconian, in front of the other 33, too:  a middle school teacher, he'd engaged in sexual activity with a 13-year-old student, and persuaded her and and another 14-year-old student to send sexually explicit photographs of themselves to his cell phone, after which he transferred the images to his computer.  That resulted in an indictment for sexual battery and various counts of illegal use of a minor in nudity-oriented material, importuning, and child endangering.  He pled no contest to 37 counts, and received the sentence which would see him regaining his freedom sometime early next century.

The opinion in Thomas doesn't start out well for him.  His argument that his plea should be vacated because the judge didn't tell him the sentences could be imposed consecutively founders because the law clearly provides that a judge doesn't have to do that.  Similarly unavailing is his claim that the judge didn't tell him about the possibility that the offenses could be allied.  There's no law requiring the judge to do that, either, but the court also makes a good point here:  when the defendant alleges the plea should be invalidated because of failure to advise him of a non-constitutional right, he has to show prejudice, that is, that he wouldn't have entered the plea if he'd been properly advised.  Obviously, if the judge had told him that certain of the offenses might be allied and explained that he couldn't be separately sentenced on them, that additional information certainly wouldn't have dissuaded him from entering the plea, it would have made him more likely to do it.  He can't show prejudice.

It wasn't a total whiff on the allied offense issue, though, because the court finds that the charges of using a minor in nudity-oriented material should have merged with the child endangering charges.  There's no real question of that.  Thomas was convicted of the (B)(5) section of child endangering, which prohibits a wide range of activity pertaining to the use of a child in nudity-oriented material, and the court easily concludes that his convictions there were based on the same conduct as those for the obscenity charges.

Thomas had also argued that his sentence was disproportionate, but the court slides by that issue.  At one point the opinion says that the trial court "abused its discretion when it imposed a sentence that totaled ninety-three years for Thomas' convictions in this case," but the majority of the panel later holds that it would be "premature" to consider the issue of whether the sentence is excessive because a resentencing will be necessary.  Judge Sean Gallagher (the 8th District leads the state in judges named Gallagher; Eileen is the other one) would go farther, and hold that the sentence was "so greatly disproportionate to the offense as to shock the sense of justice of the community."

Gallagher would also go further than the majority on the merger issue.  Although there were only 12  pictures at issue, Thomas was indicted on 22 counts of illegal use, the State arguing that Thomas could be separately charged for emailing them to himself, and then saving them on his computer.  Gallagher argues that "the enticement, creation, and retention of the images by Thomas was part and parcel of the same criminal conduct," and so the 22 illegal use charges should merge into 12, one for each of the photographs.  And not even that:  "many of the photographs occurred within a short period of time, were of the same victim, and were taken in the same location, reflecting they were tied to the same criminal animus," and thus Thomas may be entitled to have all the convictions merge into four counts of illegal use.  This might be a stretch; previous decisions have clearly held that a separate "animus" exists for each photograph, and thus permits sentencing on each one.

Gallagher also raises an issue which has gotten little play in other post-Johnson decisions.  As the unnumbered hordes of regular readers of this blog knows, after trying to patch up the problems in allied offense law under State v. Rance, which required an abstract comparison of the elements of the two crimes, the court finally jettisoned Rance in Johnson, holding that the focus was on the defendant's conduct.  Johnson requires a two-part analysis.  The first step is whether the two offenses can be committed by the same conduct, and the second is whether they were, that is, whether the defendant committed them "with a single act and a single state of mind."

Gallagher argues that appellate courts have "struggled with application of the Johnson test," and that results as to the first prong of the test have been "inconsistent."  Gallagher cites no examples for that, and frankly, I haven't seen any.  Gallagher's on a bit firmer ground, however, in suggesting that the second part of the test poses problems.  He notes that "the term 'animus,' as applied to allied offenses, is so amorphous that it defies description," and that "a viable argument can always be made that an offender has a separate purpose for each of his offenses involving the completion of criminal conduct."

Is he right?  Take a look at the facts in Thomas.  One could certainly argue that the act of receiving the illicit pictures on his cellphone was one act, and emailing them to his computer another.  But were these really separate acts, or simply part of the same course of conduct?  And how does one separate the acts of emailing the pictures to his computer, and then saving them on the computer?  What if he emailed them on Tuesday, and then saved them on Friday?  How about if he sat down at his computer, pulled out his cellphone, and emailed the pictures, then instantly downloaded them?  And is there really any justification for finding a separate animus for each picture?  If someone goes into Limewire and enters "preteens" as a search term, is given a list of 20 files, and downloads all 20 with a single click, is there really any justification for subjecting that person to potentially twice as much punishment as the person who does the same thing but downloads only 10 files?

Another potential problem arises because of the distinction the court seemed to make in Johnson between act and animus:  "if the offenses are committed separately, or if the defendant has separate animus for each offense, the offenses will not merge."  This simply builds off of R.C. 2941.25(B), which permits separate sentences if the crimes were committed "separately or with a separate animus."  In a case I wrote about earlier this year, the 4th District concluded that aggravated robbery and felony murder were allied offenses, and remanded it back to the trial court to determine whether the defendant had "(1) committed felony murder and aggravated robbery separately, or (2) whether he committed the crimes with a separate animus."  What's the difference?  I'm trying to think of a way a defendant could commit the two crimes with the same conduct, but with a separate animus.  Arguably, that could happen if the crimes were committed against separate victims -- say, somebody robbing two people at gunpoint.  Other than that, though, I can't see how they'd be different.

Gallagher's probably right that some elucidation of Johnson is in order, but I don't think that's imminent; I haven't seen the kinds of conflicts or weird decisions that would attract the Supreme Court's attention.  (The felony murder/aggravated robbery case might be one; we're still waiting to see if the Supreme Court accepts review.)  There's a pretty good likelihood that we havent' seen the last of Thomas, though.  In arriving at the 93-year sentence, the judge had run the sentences for nudity-oriented material and child endangering concurrently, so I wouldn't be at all surprised to see Thomas back before the 8th District a year from now, making the same claim of disproportionality about the same 93-year sentence.

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