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What's Up in the 8th

Here's this week's Helpful Tip for Criminals:  let's say you're popped for shooting at a bunch of the people in a car.  They told the police the shooter was someone they knew as "Dooney."  When you take the stand, should you tell the jury that you've got a cousin called "Dooney," and that's who everybody really means?  Not a bad strategy normally, but it becomes a lot harder sell if you've got the name "Dooney" tattooed on your neck.  Then again, criminals tend to make poor life decisions, and, as last week's decision in State v. Smith and a case I highlighted last year show, that extends to decisions about body ink.

Smith's only complaint about his trial is the outcome:  he argues manifest weight, as do the defendants in two other decisions.  While there's case law stating that on such issues the appellate court "sits as a thirteenth juror" and weighs credibility, just two weeks ago the 8th District emphasized what a "difficult burden" this was, since "use of the word 'manifest' means that the trier of fact's decision must be plainly or obviously contrary to all of the evidence."  This week, the court states, "Verily, I say unto you that it is easier for a camel to pass through the eye of a needle."  Okay, that's from the Bible, but you get my drift; in one of the other decisions, the court say that only in "isolated rare cases in which the testimony of a witness is so garbled and internally contradictory, or so opposed to established scientific fact" should a reviewing court discount a witness' testimony in determining manifest weight.

HB 86, the new sentencing law, figures prominently in two decisions.  The concept of delayed gratification is a difficult one for many people to grasp.  People like Joshua Steinfurth; had he waited a mere six months to steal a $600 smartphone from a Verizon store, that offense would have been a 1st-degree misdemeanor instead of a 5th-degree felony.  All was not lost, though; since he was sentenced after HB 86 went into effect, he got the benefit of a 1st-degree misdemeanor sentence:  RC 1.58(B) provides that "if the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended"  But as Robert Browning observed, "a man's reach should exceed his grasp, or what's a meta for?" and so Steinfurth goes for the whole ball of wax, contending that not only does he get the reduced sentence, but he's entitled to have the offense classified as a misdemeanor as well.

There's an argument here, which I discussed back in February, that since the statute distinguishes between "penalty" and "punishment," there has to be a distinction, and that the proper one is that "punishment" relates to the sentence which can be imposed, while "penalty" involves the classification of the offense.  It's not clear that Steinfurth made this precise argument, but it's pretty clear that it wouldn't have done him any good if he had; in State v. Steinfurth, the court finds that "R.C. 1.58 makes no mention of a criminal defendant receiving the benefit of a lesser or reduced offense itself," so Steinfurth gets a felony.

The court takes another shot in State v. Blackwell at what HB 86 requires in order for a judge to impose consecutive sentences.  Last week I took a look at the decisions on consecutive sentencing so far and posed the question of whether a trial judge could get away with merely reciting the words of the statute which require findings to be made.  Blackwell poses the reverse question:  if the judge says other stuff, but doesn't expressly make the findings required, is it enough?  The court decides it is.  That's probably the right result -- it's hard to quarrel with the contention that Blackwell deserved consecutive time, and reversal and remand would have led to nothing more than the judge imposing the same sentence, this time ritualistically invoking the talismanic phrases -- but it's probably better practice to make the findings on the record and then give some explanation of why those findings were made.

Speaking of sentencing, I had an oral argument in a case last week on that subject, and one of the judges spent a fair amount of the time decrying the current state of Ohio's sentencing laws in general, and SB 2 in particular.  So I wasn't surprised when he used his dissent from the en banc decision last week in State v. Nash to vent his spleen on that subject.  Just last week, I told you about State v. Cox, in which the 8th District had hewed to its previous holdings that a judge who sentences a defendant to community control sanctions must place him under the supervision of the probation department.  As I explained then, this was the prosecution's attempt to stem the proclivity of certain judges here to give "time served" sentences on minor drug possession offenses.

My good buddy John Martin, head of the county PD's appellate division, had contended in Nash (artist's rendition of oral argument at right) that this was wrong:  if there are no conditions of sanctions for the probation department to monitor, there's no requirement to have the probation department supervise him.  The panel bought it, but sua sponte convened an en banc panel, thereby permitting the entire court to rule on the matter and allowing me to fill my quota of foreign phrases.  Only three judges dissented, with Judge Sean Gallagher's opening with the observation that "the mere fact that an appellate court would have to interpret whether supervision is required when a community control sanction is imposed is yet another blemish on the legacy of sentencing reform brought on by S.B. 2," and closing with the a "call for the legislature to revisit the undefinable language of S.B. 2 and finally either fix it once and for all or assign it to the ash heap of history."

I'm betting that the legislature takes Option C.


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