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Too much time?

Robert Bonness thought he'd hit paydirt.  He saw an anonymous internet posting from someone claiming to be the father of a 12-year-old girl who could do things "that might interest that special person."  Bonness responded, and the two exchanged increasingly graphic emails over several months, with Bonness seeking reassurance that the girl would be a willing participant, even actually speaking to her at one point.  Bonness arranged to meet father and daughter at a hotel room, and at the designated time, drove there with an assortment of condoms, lubricants, and vibrators.

And he was careful; a retired cop -- he used his badge number as part of his email address -- he was familiar with police surveillance techniques, and he drove through the parking lot a couple of times to make sure that he wasn't being set up.  He apparently wasn't familiar enough with surveillance techniques, because there was no father or 12-year-old girl, just plenty of police.  (No, I don't know how the police found a detective who could mimic a 12-year-old on the phone, but they did.)  Bonness broke down when arrested, and confessed to having child porn on a computer at home.  He did, 94 files of them, including one which showed "a child being digitally and anally penetrated, forced to perform oral sex, defecated upon, handcuffed, and restrained in a dog kennel."

He pled guilty to attempted rape and eight counts of pandering sexually-oriented material involving a minor, all second-degree felonies.  The judge maxed him on the attempted rape, gave him five years on each of the pandering charges, and ran them all consecutively; combined with a couple other charges, the total tab came to 52½ years.

Last week, in State v. Bonness, the 8th District decided that was excessive.

After reciting the facts, the opinion in Bonness provides a legal history lesson:  from the 1996 sentencing reform's preference for minimum concurrent sentences for first offenders, to the demise of that on constitutional grounds in State v. Foster, to the US Supreme Court's decision resurrecting judicial fact-finding for consecutive sentences in Oregon v. Ice, to the Ohio Supreme Court's refusal in State v. Hodge to restore that fact-finding, instead leaving it up to the legislature.  Which the legislature did in HB 86, and here's the first problem with Bonness:

One of the "overriding" purposes of felony sentencing is "to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."

That is the language of RC 2929.11, as amended by HB 86 to include that part about the "unnecessary burden on state or local government resources.  The problem?  Bonness was sentenced in March of 2011, six months before HB 86's effective date.

 The opinion then proceeds to Bonness' arguments, the first of which is that the judge abused his discretion by imposing the maximum sentence on the attempted rape count.  Some interesting stuff here:  the court notes that the trial judge stated that he considered the relevant statutory factors, and usually that's enough; in fact, the Supreme Court has held that even if the judge doesn't state that he considered the statutes, the appellate courts should presume that he did.  But, the Bonness panel notes,

a rote statement that the statutory factors have been considered should not be examined in a vacuum -- it must be considered in the context of facts brought out during sentencing as applied to the relevant sentencing factors.

So maybe a rote statement isn't enough to avoid review.

Still, that gets Bonness nowhere with his argument that his first offender status and his cooperation with the police should have resulted in the imposition of less than the maximum sentence on the attempted rape:  the trial judge "rationally could have found that the cooperation of a defendant who was caught in the act of committing a crime was entitled to little, if any, weight."

Much more troublesome, the panel finds, is the consecutive sentences on the pandering charges.  Bonness' main argument here is that the sentence was "disproportionate to his conduct and inconsistent with those given similar offenders."  Disproportionality has been one of the most troubling aspects of judicial review of sentencing.  In the early going after Foster, the 8th adopted a "we'll know it when we see it" standard, reversing a few sentences without articulating any real standards.  Then it held for a while that proportionality was achieved by the judge's applying the seriousness and recidivism factors under RC 2929.12.  This resulted in reading proportionality out of the equation:  if all the judge had to do was say he'd considered those factors -- and if he didn't say it, we'd presume that he did -- you never even got to the point of comparing other sentences for similar crimes.

Most recently, the court has latched onto the idea that it will review sentences to determine whether they are in the "mainstream" of judicial practice.  That has its own problems; as I've pointed out before, the sentences which get appealed are the lengthy ones, and if those are all the appellate court sees, it's going to get a warped idea of what the "mainstream" is.  The panel acknowledges this, but still concludes that "the most recent cases from this district have affirmed lengthy sentences for posssession of child pornography, but none that were as remotely lengthy as the sentence given to appellant."

That's true, but part of the problem here is the court's cabining of the child porn sentences from the attempted rape.  There's a tremendous dispute in the legal community about the severity of sentences for possession of child porn, but that dispute is largely driven by the question of whether people who possess child porn act out on it.  I addressed these arguments in a post a year ago (coincidentally, written after I'd watched Bonness' sentencing hearing), but whatever the merits of those arguments, they're unavailing to Bonness:  he certainly can't claim that he was a mere possessor.

Does that mean he deserved 53 years?  Maybe, maybe not.  Maybe he deserved only 30.  Or 20, or 10.  The problem is that Bonness doesn't really provide an answer to the question of when a sentence is excessive, other than that it was in this case.

That's not to fault the opinion; the court can hardly be expeted to articulate standards when the law itself provides none.  The passage of HB 86 reintroduced the requirement of findings and reasons to support the imposition of consecutive sentences, and that may go a long way toward solving the problem.  We'll see.

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