HB 86 - What you need to know, Part II
Lewis Katz was my criminal procedure professor in law school, and Burt Griffin was a judge up here that I knew quite well. Both are great guys, and very smart people, too. They both participated in the commission that drafted the sentencing reforms in SB 2 in 1995, and after that was passed, they had a pretty nice gig going, doing seminars on how sentencing worked under the new law, and also writing a comprehensive two-volume manual on the subject. That all came crashing down when the Supreme Court decided State v. Foster in 2006, striking down much of the law.
Well, it may be time for Lew and Burt to get together for another road trip, because HB 86 revived the statutes pertaining to consecutive sentences, and it's a brand new world out there.
The House-passed version of the law made some significant changes from pre-Foster law, but those went by the wayside: the Senate decided to simply re-enact the law as it existed before Foster, doing nothing more than renumbering the provision from (E)(4) to (C)(4) under RC 2929.14.
It is impossible to understate the significance of a limitation on a judge's ability to impose consecutive sentences. I've talked before of how the main job of a criminal lawyer is "damage control": seeking to minimize the harm to his client. No greater harm can befall him than consecutive sentences. For all but a handful of non-homicide offenses, the worst the client's going to do is ten years (eleven under HB 86), if the sentences are imposed concurrently. But if they're imposed consecutively, the sky's the limit, as Marquis Hairston found out in 2007 when the Ohio Supreme Court affirmed his 134-year sentence for a trio of armed house invasions.
On the surface, the statute doesn't seem to offer much protection from that. There are two kinds of findings in sentencing laws, "hard" and "soft" ones. A "hard" one requires a factual finding: the defendant was armed, the victim suffered harm, and the like. "Soft" ones are the opposite: things like concluding that "the consecutive sentence is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." That's the first finding required under the statute.
The judge then has find one of three different factors, but only the first is a "hard" factor: that the defendant was awaiting trial or sentencing in another offense, was on probation, or under post-release control. The second is that "at least two of the multiple offenses were committed as part of one or more courses of conduct," and that the harm caused by the offenses was "so great or unusual that no single prison term. . . adequately reflects the seriousness of the offender's conduct." (This is not only soft, but partially nonsensical; can you imagine how two or more offenses couldn't have been committed as part of one or more courses of conduct? And who cares about how many courses of conduct there were in this setting. If the guy robs three banks on a Friday afternoon, then sells two kilos of coke a month later, does the fact that these were two totally separate courses of conduct have anything to do with whether he should get consecutive sentences?)
The last is that "the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." This is semi-soft: the latter part is obviously very elastic, but there does have to be some basis for it in the offender's history of criminal conduct. (I've got an appeal right now where the judge used that language with a first offender. Ooops.)
So, it could be argued that imposing consecutive sentences is pretty simple. The judge gets on the bench, says the magic words, and off the defendant goes for consecutive time.
Maybe not so simple. There's an excellent pre-Foster 2nd District decision, State v. Grace, which explains why merely mumbling the talismanic phrases about the seriousness of the offender's conduct and the necessity of protecting the public from his future crimes isn't going to cut it. According to Grace, a court must not only state the findings necessary to impose consecutive sentences, but must state its reasons for doing so. The distinction it draws between the two is that "findings" are legal conclusions, while "reasons" are the explanation for the findings:
In order to impose a consecutive sentence, the court first must make the particular findings which that section prescribes. Then, to justify the consecutive sentence it selected, the court must articulate why it made any of the conclusory findings it made, having reference to the policy purposes of felony sentencing in R.C. 2929.11 and the applicable seriousness and recidivism factors in R.C. 2929.12.
While Grace provides an excellent explanation of how consecutive sentencing is supposed to work, that analysis is not confined to the 2nd District; the Supreme Court made a similar distinction in 2003 in State v. Comer, holding that "when imposing consecutive sentences, a trial court is required to make its statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing."
There's one problem with all this. Pre-Foster, and in fact pre-HB 86, RC 2929.19(B) set forth what a court was supposed to do at the sentencing hearing, and one of them was to "make a finding that gives it reasons" for imposing consecutive sentences. HB 86 deleted that language. Fortunately, CrimR 32(A)(4) puts you in the same place; it provides that when imposing sentence in serious offenses, the court shall "state its statutory findings and give reasons supporting those findings, if appropriate." It could be argued that the "if appropriate" language doesn't bind the judge to give reasons, since the requirement to give reasons was taken out 2929.19. I don't buy that; as Grace notes, the whole purpose of the requirement for giving reasons is that without it, there's no opportunity for meaningful judicial review of a sentence.
This goes back to the legislative intent of HB 86, which unquestionably is on sending fewer people to prison, and sending them for less time. Part of that was to make it more difficult to impose prison sentences, and the restoration of the findings/reasons requirement pre-Foster does that. From your perspective, explaining to a judge why the pre-Foster case law is now relevant again, and what he has to do to impose consecutive sentences, is a vital. Most people will take the path of least resistance. If you've got a client with three GSI's, and the judge is thinking of giving him three years and each and running them consecutive, after you explain all the hoops he has to jump through to do that, he might just figure, "The hell with it, I'll just max the guy out at five years and run them concurrent." And if you get that result, you've done a very good job of damage control.