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What's Up in the 8th

One of the key functions of an intermediate appellate court is articulating clear rules of law that can be applied by the participants in the trial court process.  Yes, I know that's the key function of the supreme court, but those courts, on both the state and Federal level, hand down only a handful of decisions a year.  The major work is left to the intermediate courts.

The 8th District tackled a number of those issues last week, clarifying the law in some, missing the opportunity to do so in others.

An opportunity came and went in State v. Johnson, the first case on consecutive sentencing under HB 86, which restored the statutory requirement that judges make findings before imposing consecutive sentences.  One of the issues here is whether a trial court need only make a ritualistic incantation of the statute's language -- a consecutive sentence is "necessary to protect the public from future crime," is "not disproportionate to the seriousness of the offender's conduct," etc. -- or must also state reasons to support his findings.  CrimR 32(A)(4) and pre-Foster law would indicate that a judge does.

The court doesn't address that, but it's hardly to be faulted for not doing so.  Johnson was given 23 months in prison for assaulting two police officers.  The judge told Johnson at the sentencing hearing that "society is better off with you in jail than out of jail," and spent a fair amount of time at sentencing explaining how he arrived at that conclusion, one which seems hard to dispute.  In short, the judge did give reasons for his findings, so the appellate panel had little reason to make a searching inquiry into whether he was legally required to do so.  That inquiry will have to await another case.

If there were any lingering doubts as to what a crapshoot child porn sentencing is, they were surely dispelled by the 8th's decision in State v. SteinStein had been indicted on 102 counts of child pornography, all second-degree felonies, and had pled guilty to 79 of them.  I've written before that lawyers tend to pay too little attention to sentencing, given that around 95% of criminal cases result in one, but the attorneys here could hardly be faulted for that.  Stein had gone into counseling, was attending sex addict meetings (170 of them at last count), was gainfully employed, and had extensive support from his family and friends, many of whom, including his wife, attended the hearing and spoke on his behalf.  His attorneys made an interesting arument on appeal, claiming that the question wasn't whether the resulting ten-year sentence was excessive for a child pornography case, but whether it was excessive for Stein, contending that Stein had "without question differentiated himself from all others by engaging in a regimen of treatment that could not be surpassed."

Sentencing is one area where a trial court unquestionably enjoys a wide range of discretion, and it's hard to argue that the trial court abused his here.  Again, he did not content himself with a mumbling incantation of the "magic words"; he made a record which clearly indicates he'd put a lot of thought into the matter, going so far as to examine each of the seriousness and recidivism factors under RC 2929.12.  On these facts and this record, it's difficult to see how the appellate panel could have done anything besides affirm.

Still, the opinion is not without its troubling aspects, especially on the subject of disproportionate sentencing.  Stein's attorneys had made a record of that in the trial court, submitting a list of 70-some child porn cases in the county, which included the name of the case, the case number, the number of counts, the judge, and the sentence.  As the court did last year in State v. Mahan, the panel shrugs it off on the basis that the list "does not tell any facts about the individual case" and the characteristics of the individual defendant.  That's true, but so what?  If the list had given detailed information as to each of the other cases, you better believe that the panel would have found differences between the cases as a reason for discounting it.  If disproportionate sentencing review means that the only cases which can be compared are those where two offenders and offenses are identical in every respect, the concept is meaningless.

The court does provide some clear guidance for the lower courts in State v. Jones, one of only two wins for defendants this week.  The prosecutors office here will not agree to allow a defendant to enter an Alford plea -- one in which the defendant pleads guilty while maintaining his innocence -- but the concept is nonetheless important to understand.  The judge at Jones' plea hearing asked him whether he was in fact guilty, resulting in the following colloquy:

Defendant: I feel -- I feel I'm not, but -- honestly I feel like I'm not, but I'm just -- I'm scared.

Court: Is your plea consistent with the evidence?

Defendant: I really don't know the evidence, your Honor. I see a lot --how can I say it? I have heard a lot of lies and statements and stuff.

Court: But is your plea consistent with the evidence?

Defendant: Some of it.

A simple rule:  regardless of whether a plea is denominated an Alford plea or not, when a defendant's guilty plea is accompanied by protests of innocence, there has to be a factual basis for the plea.

The court tries to provide some guidance to the prosecutor's office in State v. R.A., an expungement case in which the trial court had dismissed the application without a hearing on the basis that the defendant wasn't a first offender.  Last year, in State v. J.K., the 8th had held that a hearing wasn't necessary if the State raised only an issue of law in opposition.  That ran contrary to a long line of other cases, and in R.A. the court says J.K. was wrong, and reverses and remands for a hearing.

Much more noteworthy is its quotation from its 2007 decision in State v. Boddie, which I discussed back then.  Basically, Boddie had chastised the prosecutor's office for not exercising more discretion in deciding whether to oppose an expungement -- the basis for the opposition in that case was Boddie's alleged subsequent conviction of misdemeanor drug paraphernalia and "open container" -- given the remedial intent of the law.

The advice went unheeded in Boddie; the prosecutors' office here opposes expungement with implacable rigidity wherever any argument can be advanced against it.  (I'm currently involved in one, where the defendant is attempting to expunge her assault conviction from six years ago, having since gotten a bachelor's degree and avoided any further trouble with the law; the prosecutor's office maintains that the State's "public interest" in maintaining records of the conviction overrides her interest in sealing it.)  I won't be in the least surprised if the court's chastisment in R.A. similarly on deaf ears:  while an intermediate court can settle the law for the lower courts to apply, their ability to do that with prosecutors, where discretion is far more easily abused, is more limited.

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