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What's Up in the 8th

After my post last week noting the "fractiousness" of the 8th's decision, I got an email from one of the judges assuring me that things were far more harmonious than the spate of dissents and concurring-only-in-judgments might lead one to believe. He informed me that the court in an en banc ruling had narrowly voted down a proposal to begin each session of oral argument with the panel's three judges holding hands and singing "Kumbaya," but did advise me that each voting conference ends with a group hug. I know I feel better. And sure enough, in last week's nine decisions, never is heard a discouraging word; everbody in the choir is singing from the same songbook.

But not necessarily singing the same song. It took a while for HB 86 cases to work their way through the pipeline, but they're doing that now, and one-third of last week's output is taken up with cases on consecutive sentences. So great is the deluge that two of the three bear the same caption. In both State v. Wilson and State v. Wilson, the court decides that while the judge need not make a "talismanic" recitation of the factors in RC 2929.14(C)(4) before imposing consecutive sentences, the judge in State v. Wilson did not make a sufficient record to overcome the failure to make specific findings, while the judge in State v. Wilson did. Oh, and in State v. Lebron, the court decides that this is closer to the situation in State v. Wilson than the one in State v. Wilson.

Hope that clears it up.

On the offchance that it doesn't, let's take a closer look. In Wilson I, the defendant was given sixteen years, ten for aggravated robbery and eight for felonious assault. The justification the judge gave for this was that she wanted to the sentence to be in rough parity with those of his accomplices, and that "this was a very serious offense."

The defendant in Wilson II also gets 16 years of consecutive time, but three are removed by the reversal of his conviction for failure to notify of change of address. That left him with eight for rape and five for sexual battery. The judge noted that "the maximum term of eight years is not sufficient to cover all the crimes committed by this gentlemen" and that maximum consecutive sentences were necessary "given his history and his danger to child victims."

In Lebron, the defendant pled guilty to two counts of menacing by stalking; the judge gave him 14 months on one, 8 on the other, and stacked them. The judge had said that the purpose of sentencng was "protection of the public and punishment of the offender," noted that the defendant had a criminal history (a 17-year-old burglary), recited the nature of the his conduct, and told him that he wasn't "a good candidate for community control."

The court parses the comments by each judge, tries to fit them into the requirements of 2929.14(C)(4), and decides that the judge's comments in Wilson II are sufficient, but those in Wilson I and Lebron are not. This is certainly one way to do it, and frankly, I'm more comfortable with the idea of looking at whether the judge actually said the types of things which fit into the statutory requirements, rather than simply giving a rote recitation of them.

But here's an idea: the statute requires a judge to make certain findings, so he has to make certain findings. Period. We're not going to go sifting through the record and find that "well, here he said something about a sentence for one offense not being enough, and that's sort of like the part about 'a single prison term not adequately reflecting the seriousness of the offender's conduct.'" The judge has to make the findings, because otherwise we really don't know whether he considered all the factors the legislature said he had to. There has to be some explanation beyond that; he can't simply recite the language verbatim and call it a day. Yes, I know that the legislature eliminated the requirement in RC 2929.19(B)(2)(c) that the judge state his reasons for imposing consecutive sentences, but CrimR 32(A)(4) requires a judge to give his reasons for his findings, "if appropriate," and it's appropriate here. The clear intent of the legislature was to make it harder to impose consecutive sentences, and to require judges to make certain findings before doing that. If you don't require them to make the findings, or if you don't require them to do anything more than just recite the language of the statute, you've defeated the legislative purpose. Plus, if your only purpose is to make sure he said the magic words, you've eliminated any possibility of meaningful appellate review.

So that's what the law should be. You're welcome.

Meanwhile, at the plea hearing in State v. King, the judge poses a puzzler: on the 2nd degree felony count of trafficking, is there a mandatory fine? One might think that those who'd crafted the plea bargain would have known the answer, especially since pleas to drug trafficking offenses are not exactly uncommon events. (For future reference, there's a mandatory fine of at least one-half the amount of the statutory fine amount for any 1st, 2nd, or 3rd degree felony drug offense.) They didn't, but they look it up while the plea hearing is going on, and after the judge has accepted the plea, King is informed that there's a mandatory fine of $7,500. Yes, a judge has a duty to advise the defendant of the penalties for an offense, and a fine is a penalty, and you have to inform the defendant of it before you accept the plea. But we're talking about a non-constitutional right, which means that to void the plea the defendant has to show that he wouldn't have entered it if given the correct information. Good luck with that.

Finally, in State v. Hall, the State wins a search case. (I mean "finally" in terms of this post, but I can understand if the reaction to the decision in the prosecutor's office was, "Hey, guys, we finally won a search case!" followed by the donning of party hats and the eating of the celebratory cake.) The cops pulled over car in which Hall was a passenger, and saw him stick something in his boot. When they took him from the car, they observed a bit of a plastic bag sticking out of the top of the boot. They frisked him for weapons, felt a "slight bulge" in the boot, removed the bag, and, to no one's surprise, it contained crack.

There's an argument here -- the cop was obviously trying to find the contraband, rather than looking for a weapon -- but it's not a good one. There are some 8th District cases which have struck down finds based on "plain feel" because the cop said "I wasn't sure it was contraband," but the court correctly notes that the "immediately apparent" requirement for plain feel (and plain view) means only that the officer have probable cause to believe the item is contraband, not that he's sure of it. With a different panel, this would've gone another way, but I can't get too upset about this one.

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