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HB 86 - What you need to know

Chapter 1:  The Comma is Your Friend

The comma is a perfectly acceptable form of punctuation.  As far as I know, there's no shortage of them.  But the Ohio legislature's decision not to insert one into 2929.13(B)(1)(a)(i)  could have some significant repercussions.

Hey, look, I feel your pain: anytime I read a paragraph which refers to the sub-sub-sub-section of a legislative provision, my eyes glaze over. But stick with me for a minute.

The importance of 2929.13(B)(1) is that it makes it mandatory for a judge to impose community control sanctions on a defendant charged with 4th or 5th degree felonies in certain situations.  What situations?  First, the crime can't be one of violence.  Second, those have to be the only charges the defendant is being sentenced for; if, for example, part of the package he's being sentenced on includes higher degree felonies, he's out of luck.  But the big one is this:  community control sanctions have to be imposed as long as

The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.

The reason I bolded that one phrase is to highlight the question:  does it apply to just prior violent misdemeanors, or to prior felonies as well?  That's where the comma comes in.  There are a couple of ways this could've been written:

The offender previously has not been convicted of or pleaded guilty to a felony offense[,] or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.

If you put a comma where the brackets are, it's very clear that the two-year period applies only to the violent misdemeanor; a prior felony, regardless of how long ago, would take a defendant out of the requirement.

And if the clause were written,

The offender previously has not been convicted of or pleaded guilty to a felony offense[,] or to an offense of violence that is a misdemeanor[,] and that the offender committed within two years prior to the offense for which sentence is being imposed.

This time, the second comma clearly indicates that the two-year limitation applies to both felonies and violent misdemeanors:  if the defendant has a conviction that's more than two years old, regardless of what it's for, he can't get prison time.

So, what does the comma-less provision mean?  Your guess is as good as mine, but that's a win for the defense, because there's another provision of the Revised Code that comes into play here:  RC 2901.04(A), which provides that "sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."  In other words, ties go to the defendant:  if there's an ambiguity in the statute, it's resolved in his favor.

This is big.  When HB 86 was first enacted, the "mandatory" CCS provision didn't receive a lot of play, because the thinking was that the vast majority of judges would give probation to a first-time offender anyway.  But the lack of a comma here has wide-ranging implications:  basically, if your client's managed to stay out of trouble for two years, he's got a get-out-of-jail card for subsequent felonies.

Ah, but then we get to the fine print.  There are three exceptions to the mandatory CCS:  the judge can give a defendant a prison sentence if the defendant had a firearm, caused physical harm, or violated his bond when he committed the offense.  There's a problem here, though, too,  Under Blakely and Apprendi, the "maximum sentence" that a defendant can receive is the maximum sentence a judge can impose based upon findings made by a jury or admitted by the defendant.  Let's say, for example, that the defendant pleads guilty to aggravated assault under the "physical harm" subsection, or is convicted by a jury.  Well, that's a finding that he committed physical harm, so there's no problem with the judge imposing a prison sentence:  the finding of harm takes it out of the mandatory CCS provision.

But what if a defendant pleads, or is convicted, of the "deadly weapon" provision of aggravated assault?  A firearm is always a deadly weapon, but a deadly weapon isn't necessarily a firearm.  The finding that the defendant committed the offense with a firearm, which is necessary to impose a prison sentence, is "judicial fact-finding" under Blakely, and isn't allowed.  The "maximum sentence" then becomes community control sanctions.

That the new statute requires fact-finding which violates Blakely was the conclusion reached by one Common Pleas judge last November -- Judge Pepple of Auglaize County (opinion here).  The case involved a defendant charged with breaking and entering and safecracking, both 5th degree non-violent felonies.  The defendant had been convicted of prior felonies; in fact, he was on post-release control when he committed the crimes, a fact to which he stipulated.  That didn't play any part in Pepple's decision, as far as can be determined; in fact, the judge apparently agreed that the "two-year" provision applied to felonies as well as violent misdemeanors, and the defendant's priors were beyond that period.  Nonetheless, the defendant was not only given a prison sentence, but consecutive sentences.

How?  Pepple engaged in an extended discussion of Blakely and its progeny, correctly concluding that the statute required judicial fact-finding before allowing a defendant to be sentenced to prison.  What that had to do with the defendant isn't clear; the offenses he committed didn't involve physical harm, a firearm, or him being on bond.  Pepple concluded that the judicial fact-finding was unconstitutional, and therefore that rendered the statute invalid, and he could do what he wanted as far as deciding whether prison was appropriate.

But that's the wrong remedy.  If the portions requiring judicial fact-finding are stricken, what you're left with is a statute that requires every 4th and 5th degree felon who hasn't committed a crime within the past two years to be sentenced to community control sanctions, regardless of what he did, because at that point the exceptions to mandatory CCS have been eliminated.  The only thing you're left with is the portion mandating CCS.

So here's what you need to know about 2929.13(B)(1):  if your client hasn't been convicted of a felony or a misdemeanor within the past two years, he has to be given community control sanctions for a nonviolent 4th or 5th degree felony, unless there's a jury finding or an admission that he caused physical harm, had a firearm, or committed the offense while out on bond.

Tomorrow, I'll take a look-back at the 8th District's decisions over the past year, and on Thursday we'll take a look at what you need to know about consecutive sentencing under HB 86.

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