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What's Up in the 8th

Several months ago, one 8th District judge used a concurring opinion to beseech the Supreme Court to clarify sentencing law; last week, he uses a dissenting opinion to make the same plea. The fractious nature of the 8th's decision-making adds urgency to the matter; another few weeks of this, and the court's conferences could be punctuated by gunfire.

First up are a pair of decisions which present flip sides of the same coin. For the most part, sentencing in the post-Foster world is a matter of ritual: a judge's mumbling anything about having considered the purposes and principles of sentencing, or including that phrase in the journal entry, will suffice to immunize his decision from appellate review. Not so the presumption for prison for 1st and 2nd degree felonies -- left untouched by Foster -- and HB 86's resuscitation of the presumption for concurrent sentences. Both require the judge make "findings" to overcome those presumptions.

State v. Davis presents the latter situation. Davis pled guilty to burglary in two cases, a B&E in a third, and theft in all three. The judge imposed consecutive sentences totaling ten years, and Davis complains that the judge didn't make the findings required by RC 2929.14(C)(4).

Those findings, like ice cream, come in two forms: soft and hard. The hard ones are that the defendant committed the crime while out on bond, or had a lengthy criminal history. The soft ones are that consecutive sentences are necessary to "protect the public" or "punish the offender," aren't "disproportionate to the seriousness" of the crimes, and that "at least two of the offenses were committed as part of one or more courses of conduct" and that a single prison term wouldn't adequately "reflect the seriousness of the offender's conduct." (The last demonstrates again that our legislature is apparently comprised of those for whom English is a second language; can anyone explain how "two offenses" could not be committed "as part of one or more courses of conduct"?)

The central question is whether a judge can simply mumble the talismanic phrases and impose consecutive sentences, or does he have to go beyond that? Oddly enough, the 8th hasn't squarely confronted that question, because in none of the cases it's reviewed to date has the judge made the findings; instead, the judge has gone on about what a bad guy the defendant is, which the court finds sufficient to satisfy the statute's requirements. And so it is here; Davis committed his first burglary 27 years ago, has several since, end of story, although one member of the panel concurs only in judgment, arguing that the judge should make the required findings.

The defendant in State v. Sherman is convicted in a mortgage fraud scheme, and the State appeals, claiming that the judge didn't make the necessary findings -- that word again -- to overcome the presumption of imprisonment for her RICO conviction. The most significant conclusion in Sherman is that findings alone are sufficient; the judge doesn't have to state reasons for those findings. The basis for this is that while the RC 2929.19 once required the judge to state reasons as well, that requirement was removed in HB 86.

Of course, that means findings for consecutive sentences are no longer required, either. Whether this is a good idea is another story. The clear purpose of HB 86's revival of the pre-Foster consecutive sentencing regime was to limit a judge's ability to impose consecutive sentences. It's one thing to say that a judge's decision to do so will survive review as long as he explains why a defendant merits consecutive sentences, even if he doesn't make the precise findings. It's another thing to say that the appellate court will rubber-stamp the judge's decision, even if he does nothing more than recite the words of the statute. Appellate review of sentencing is meaningless for the most part as it is; exalting form over substance by insulating sentencing decisions from review as long as the judge intones the statutory language defeats the entire purpose of HB 86 insofar as consecutive sentencing is concerned.

So what happens in Davis? The findings required to avoid imposing a prison sentence are just as soft: the judge must apply the seriousness and recidivism factors in RC 2929.12 and conclude that community control sanctions will "adequately punish the offender and protect the public" and "would not demean the seriousness of the offense," because there's a lesser likelihood of recidivism and the crime is less serious. The court holds that while the judge doesn't need to give reasons, he must at least indicate that he applied the 2929.12 factors, decides that the judge didn't do that here, but nonetheless concludes that the record "does not clearly and convincingly show that the findings the trial court made are unsupported," because Sherman had no prior record, fully cooperated with the authorities, wasn't the mastermind of the scheme, and got nothing out of it.

Does this mean that, for consecutive sentences, if the trial court's findings are unsupported by the record -- if the judge merely makes the required findings, without doing a 2929.12 analysis -- the sentence gets tossed? It's a good argument to make, and it's probably the only one we've got.

The issue of allied offenses has bedeviled the court, especially where the case comes up on a plea with a minimal record of the facts surrounding the offenses. That's the situation presented by State v. Barrett, in which a plea to nine counts of child porn resulted in a seven-year sentence. The first issue is that the judge failed to consider whether the offenses were allied, a somewhat odd complaint, given that the same counsel represented Barrett at trial and there submitted an "extensive" sentencing memorandum which never raised the issue. This means it's reviewed only for plain error, but the Supreme Court has held that sentencing a defendant on offenses which should've merged is plain error, and in past cases like this the 8th has remanded the case back to the trial court for determination. Not this time, though; the court concludes that given the absence of facts in the record, it cannot find error, let alone plain error. Did I say the court? Well, no; one judge decides that there's no error, one judge dissents and says that the case should be remanded to determine whether the offenses are allied, and the third judge concurs only in judgment, on the basis that the court has consistently held that separate images in a child porn case are not allied offenses, and so there's nothing to review on here.

Finally, the merry-go-round on "time served" sentences continues. For years, the court had held that judges' imposition of those sentences on low-level felonies was erroneous: the judge had to either impose prison or put the defendant on probation for a community control sentence. Then a month ago in State v. Nash the court in an en banc opinion decided that the defendant didn't need to be put on probation if there was nothing to supervise, and so a "time served" sentence was appropriate. Then two weeks ago the panel in State v. Ogle held that since HB 86 now requires that if a defendant isn't sent to prison, "the court shall sentence the offender to community control sanctions of at least one year's duration," a time served sentence without probation isn't permissible. This week, in State v. Amos, the court, without even mentioning Ogle, decides that a time served sentence is appropriate, but that the judge erred in imposing it without first ordering a pre-sentence report, which is required if a judge imposes a community control sanction sentence, which this was. Or was not. I'll let you know when the court works it out.

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