There are four judges on the 4th District Court of Appeals. That means there are only four possible combinations of judges for any particular panel. The 9th District has five judges, providing ten different possible combinations. The 8th District has 12, which means there are 220 different panels you can wind up with. That can lead to problems; back in 2005, for example, two different panels of the 8th District came down with two diametrically opposed results in two separate decisions on the same day.
Michael Sutton and James Dzelajlija found out last week that they would've been better off in the 4th or 9th Districts.
Back in 2007, Sutton was convicted of numerous counts of attempted murder, felonious assault, and various other charges, resulting in a 46½-year sentence. Sutton appealed, assigning twelve errors, and struck paydirt with three (I'd blogged about the case here): the verdict form didn't state the aggravating factor for inducing panic, and thus should have been a misdemeanor, and the attempted murder and felonious assault charges should have merged. The biggie, though, was the court's determination that the sentence was disproportionate. It remanded the case back for merger of the various offenses and for resentencing.
When Sutton appealed to the Supreme Court, the State cross-appealed on the allied offense issue. The Supreme Court accepted the latter appeal, and ultimately remanded the case back to the 8th for reconsideration in light of State v. Johnson, the 2010 decision altering the law regarding merger. In Sutton II, the court came to the same conclusion it had before, finding the offenses were allied, and remanded the case back to the trial court for resentencing. The trial court held a de novo resentencing, and this time imposed a 41-year sentence. The difference was the elimination of the felony sentence on the inducing panic charge, and that on two of the attempted murders, the court imposed a sentence of eight years rather than the maximum ten.
And so we come to last week's decision in Sutton III, in which the court again considers the length of the sentence. Would it uphold a sentence that was only 10% less than the one that Sutton I had found disproportionate? After all, that court had found the earlier sentence unjustified because Sutton was only 18 when he committed, the crime, he had no prior criminal record, and he had been the driver, not the shooter. None of those facts had changed in the interim.
But one thing did change: the panel members. In fact, two of the three judges who'd heard Sutton I had retired. Things looked grim for Sutton from the outset, when the court indicated it was not bound by the earlier court's findings. That's arguably justifiable; this was a de novo resentencing, there was some difference between the sentences, and the trial court went to much greater lengths in explaining its reasoning for imposing the sentence it did. And, in truth, the opinion in Sutton I was hardly a model of legal clarity; it was a classic example of results-oriented decision-making.
But the opinion in Sutton III, which did uphold the sentence, presents problems of its own. First is this:
A consistent sentence is not achieved from a case-by-case comparison, but by the trial court's proper application of the statutory sentencing guidelines. A sentencing court is not required to make a comparison of the current case to previous cases, but is required to appropriately apply the statutory sentencing guidelines in order to maintain consistency.
Keep in mind, of course, that appellate review of whether the trial judge has "appropriately applied the statutory sentencing guidelines" is obsequiously deferential: if the judge says he considered the factors, that's sufficient, and even if he doesn't say that, the court will presume he did. Using this reasoning, a judge could give one co-defendant a minimum sentence and the other a maximum consecutive sentence, even if the two were identically situated in terms of culpability, criminal history, and the like, and the appellate court would never even get to the point of comparing the two sentences; the only issue would be whether the judge had said the right things in sentencing the defendant who was appealing.
Equally troublesome is the court's mixing the concepts of cruel and unusual punishment with disproportionality. To be sure, there is an Eighth Amendment component to disproportionality, but they're not synonymous: disproportionality is also based on RC 2929.11(B)'s command that a sentence be "consistent with sentences imposed for similar crimes committed by similar offenders." The court relies heavily on the Supreme Court's decision in State v. Hairston, upholding a 134-year sentence, but in that case the court acknowledged that the "sole issue" was the Eighth Amendment; the statute wasn't even raised. What's more, cruel and unusual punishment doesn't apply to consecutive sentences, only to the length of a particular individual sentence. (And it doesn't really apply then; the US Supreme Court upheld 25-to-life sentences under California's 3-strikes law for stealing $100 worth of golf clubs.)
While Sutton III doesn't do much to advance disproportionality jurisprudence, that problem might be somewhat obviated by HB 86, which restores the requirement that judges make findings of fact before imposing consecutive sentences. That's where you get the really outlandish sentences, so we'll see where that goes.
Last week's decision in State v. Dzelajlija gives an even better example of how varying panels can create problems, and the tortuous path that appellate litigation can take. Back in 2006, Dzelajlija was sentenced to seven years in prison for a robbery conviction, and in Dzelajlija I the case was reversed for evidentiary errors. Back it went, and Dzelajlija rolled snake eyes again. Since his first conviction and appeal, though, the Supreme Court had come down with State v. Colon, holding that an indictment which failed to include the mens rea element of the offense was defective. In Son of State v. Dzelajlija, the 8th found just such a defect in his indictment, vacated the convictions, and remanded the case again.
So what happens at Dzejajlija's third trial? There isn't one. First, it took over a year for the file to make its way back to the judge and for Dzelajlija to be transported from prison to Cuyahoga County. (He was serving time in another case, and there was an appeal in that one, too, but don't get me started.) In the interim, the Supreme Court had handed down State v. Horner, which reversed State v. Colon; Dzejajlija's indictment was no longer invalid. The court reinstated the same sentence, and back up it went. And last December, the court in Police Academy VI -- er, State v. Dzelajlija III -- decided that the trial judge got it right: since there was an intervening decision by a higher court, he was not obligated to abide by the 8th District's ruling. Well, almost right: it turns out that in his second appeal, Dzelajlija had also raised a manifest weight argument, which the court had held was moot when it reversed because of the indictment problem. It's not moot any more, of course, so that issue now has to be settled.
But by whom? Again, the panel which heard the second appeal was different from the one which heard the third one; how do you get the panel in the second case back in play? The State tried to do so by filing a motion to reopen the second appeal under AppR 26(B), but that went nowhere: the rule allows only a defendant to apply for reopening, based on ineffective assistance of appellate counsel.
But wait, there's more! Things took a decidedly funky turn last week when the court in the third appeal handed down another decision on reconsideration, holding that the trial court erred in applying Horner, rather than Colon. Why? Because the State didn't appeal Dzelajlija, so it became final at that point, and thus there wasn't a pending case at the time Horner came down. Two pages later, the court concludes that because "the prior appeal of this matter did not address the manifest weight argument raised by defendant. . . this challenge has not been resolved and the conviction has not become final." So despite the fact that the conviction wasn't final, there wasn't a pending case, and there's still an issue of manifest weight floating out there, but nobody knows how or if it can be addressed.
Is this a great country or what?