HB 86 - The cases so far
HB 86, Ohio's new sentencing statute, went into effect on September 30, 2011. It's been enough time now for a few cases on it to start trickling out of the pipeline. Let's see what's happened so far.
One of the major concepts introduced by HB 86 was "mandatory probation": if the defendant's being sentenced for a 4th or 5th degree non-violent felony, the judge has to impose community control sanctions if the defendant was not convicted of a felony or a misdemeanor offense of violence within the past two years, unless the defendant caused harm during the commission of the offense, committed the offense while having a firearm, or committed it while out on bond. (As I explained here, there's a question whether the two year look-back period applies only to misdemeanor crimes of violence, or to any felonies as well; in other words, whether a felony more than two years ago would disqualify the defendant.) Back in November, an Auglaize County judge found the "mandatory probation" provision to be unconstitutional (discussion here), and, for whatever reason, that was never appealed. But a few weeks ago, the 5th District came to the opposite conclusion in State v. Henson, holding that the trial court had erred in sentencing Henson, a first offender, to 36 months in prison for two counts of theft and two of forgery.
That might not be the end of the matter, though, even for Henson. The State contended on appeal that the statute was unconstitutional because it "removed judicial discretion." The panel refused to consider that argument because the State hadn't raised the issue in the trial court, but said the trial court could consider it on remand. I'd like to say that I don't see that argument going anywhere; imagine an appellate court's response to the claim that it's unconstitutional to impose a mandatory sentence for rape because it "removes judicial discretion." But you never know.
The other major addition to sentencing law introduced by HB 86 was the revival of the requirement of findings before imposition of consecutive sentences. The results there have been more uneven. In some cases, it's as if no one got the memo. In State v. Howard, for example, the trial judge had imposed a seventy-two-month consecutive sentence, but despite the fact that the sentencing took place over a month after HB 86 went into effect, you'd never know it: the sole assignment of error makes no reference the new statute's consecutive sentencing provisions, and neither does the 3rd District in its decision affirming the sentence.
The real difficulty is deciding exactly what the judge is required to do to impose consecutive sentences. The statute obligates him to make certain findings, which are couched in terms which make them essentially meaningless: for example, the judge has to find 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." Under pre-Foster law, though, the judge couldn't simply recite the language of the statute, he had to give reasons in support of those findings.
The problem with applying the pre-Foster law to HB 86 is highlighted by the 8th District's decision last week in State v. Parrish. It wasn't only the case law that mandated that a judge to give reasons to support his findings; RC 2929.19(B)(2)(e) specifically required that. That provision remained in the statute even after Foster rendered them irrelevant, but for whatever reason, it was removed in HB 86. That's right; at the same time the legislature was restoring the requirement that judges make findings to impose consecutive sentences, it was removing the provision that required judges to give reasons for making those findings.
That's not dispositive in Parrish; in fact, the court mentions it only in a footnote. There's an argument that the same requirement is imposed by CrimR 32(A)(4), which requires a judge at a sentencing hearing to "state its statutory findings and give reasons supporting those findings, if appropriate." Of course, there's the question of whether giving reasons is "appropriate" when the statute requiring them has been eliminated.
In any event, after skirting that question, the Parrish court then cites one of its own pre-Foster cases, State v. Wilson, where it had found that the trial judge had satisfied the requirements of the statute by giving a detailed discussion at the hearing as to why he'd chosen that particular sentence, discussing "the severity of defendant's crimes," going "into lengthy detail of why defendant's crimes reflected a greater dangerousness to the community," noting the defendant's parole revocation in a previous case, and finding that his remorse was "minimal." The Parrish court finds that the judge there did the same thing: "the trial court held a lengthy hearing in which it heard a considerable amount of evidence and made thoughtful and extensive findings."
The trial judge's willingness to engage in that kind of analysis leads to affirmance of the sentence in the 8th District's decision in State v. Bonner, and the 3rd's in State v. Hites. Notably, though, in both cases the courts make no mention of the issue raised but also left unaddressed in Parrish: is the judge required to give reasons specifically supporting the findings it makes to impose consecutive sentences?
I'm not sure that it matters, because I think what the judges did in Bonner, Parrish, and Hites -- and even in Howard -- are the best we can hope for. A few months ago, Justice Kennedy announced for the majority of the Supreme Court in Missouri v. Frye and Lafler v. Cooper that the justice system had become a system of pleas. He's wrong; it's a system of sentencings. Not only do the 95% of the defendants who plead guilty wind up getting sentenced, but the majority of those who go to trial are convicted of something, so they get sentenced, too. The sentencing hearing is by far the most common occurrence in the criminal justice system, and for the vast majority of people who enter it, the most important.
The twin goals of a sentencing system are at odds. We want judges to have the discretion to take into consideration every pertinent characteristic of the offense and the offender, but we also want consistency in sentencing; we don't want the primary factor determining what sentence a defendant gets to be the name of the judge he draws at the arraignment. That's often the case.
And I've basically come around to the view that there's not much you're going to do about that. The only real way to remedy it is to go to a grid-based system like the Federal Sentencing Guidelines, and everybody -- defense attorneys, judges, even prosecutors -- complained that they robbed judges of the discretion necessary to fashion a fair sentence.
So maybe the best we can hope for is that a judge spends the necessary time to think through what an appropriate sentence might be. The present sentencing law, at least as interpreted by the appellate courts, doesn't do that; a judge can come out and say nothing in explanation of why he's imposing a five-year sentence, and the appellate court will "presume" he considered the sentencing statutes. If we get to the point where consecutive sentences are affirmed where the trial court did nothing more than recite the statutory findings, that's a bad place to be. But as long as judges give a detailed explanation of how they arrived at consecutive sentences, even if they don't use the exact terms of the statute, that might be good enough. Maybe the result isn't what you might want, but if you get the process right, that'll happen more often than not.