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What's Up in the 8th

There are so many things you learn reading the 8th District's decisions. State v. Agostofor example, teaches that when The Man gives you fifteen to life for murder, it's going to be fifteen full years before you're going to see the dour expressions of the parole board members; no good time credit. From State v. Lozada we learn that when a court remands a case solely for merger of firearm specifications, the trial court need not advise the defendant at resentencing of post-release control. And State v. Ford instructs that when the denial of two motions to vacate a plea have been affirmed by the appellate court, the chances of a different result in a third appeal from the same motion, with the same arguments, are nil.

Actually, we already knew these things. The defendants in those cases didn't, and thus argued those issues pro se. And will again: when it's going to be fifteen years, full or not, before you see the dour expressions of the parole board members and your options about what else to do are limited, you're likely to spend your time pestering trial and appeals courts with futile motions.

Gary Blackburn may have an opportunity to do that in the future, because he learned something, too.


Namely, the truth of Woody Allen's observation that 90% of life is just showing up. Blackburn pled guilty to two burglaries, and was told by the judge that he was looking at a sentence of two to four years. He pleaded with the judge to give him a couple of weeks to get his affairs in order, and the judge reluctantly agreed. Raise your hand if you know how this movie ends. Sure enough, Blackburn was recaptured six months later, and the judge gave him four years on each charge, and ran them consecutively.

But some temporal context here: Blackburn's sentencing was originally scheduled for May, but because he absconded it didn't take place until December. That was over two months after HB 86 had gone into effect, along with its requirement that judges make certain findings before imposing consecutive sentences. In State v. Blackburn, the panel sends it back, finding that the judge didn't do that. Of course, now the judge will know what to say, and we know how that movie ends, don't we?

Blackburn was one of the two cases on consecutive sentencing last week. In State v. Porter, the judge belatedly realized she hadn't made the findings necessary to impose consecutive sentences, so the next day she reconvened the sentencing hearing and did that. That runs counter to State v. Carlisle, the Supreme Court's decision earlier this year holding that a judge can't modify a sentence once she imposes it, right? Not in this case; the entry doesn't become final until it's journalized, and here the original entry didn't make it to the clerk's office before the judge realized her error.

So did the judge do enough to justify the 25-year sentence she imposed? Pretty much; she said the magic words:

I find that a consecutive sentence is appropriate to ensure that Mr. Porter is appropriately punished and the public is protected also find that the harm was so great or unusual that a single term does not adequately reflect the seriousness of the conduct. Mr. Porter does have a criminal record, so that's also taken into consideration in imposing a consecutive sentence.

That covers the bases, and when combined with the "disturbing nature of the crimes to which Porter pleaded guilty" (child molestation)," it's enough.

Is the 8th working toward some coherent rule of law on consecutive sentencing? Maybe so. Blackburn cautions that the judge need not use "talismanic words to comply with the guidelines and factors for sentencing," but that "it must be clear from the record that the trial court actually made the findings required by statute."

Judges learn things, too, and one of them is it's not always a good idea to take the prosecutor's word for what the possible sentencing range is on a plea. In State v. Jennings, the defendant had pled to a second degree felony, for which, the prosecutor advised the court, the penalty was "two to four years." The trial judge apparently didn't buy this; she told Jennings that "Count 4 is a felony of the second degree. That is punishable by two to five years in the penitentiary." If you're on Jeopardy, tell Alex that you want Ohio criminal sentencing for $400, and he says, "the sentence for a second degree felony," the correct answer is "What is two to eight years?"

Had the judge given Jennings somewhere between two and four, or even five, years, the no-harm/no-foul rule might have been effectively employed: Jennings could hardly argue that he would not have chosen to plead guilty had he known that he could get more time than he actually received. Alas, the judge gave him seven on that count, so it all comes back. One of the difficulties for defendants and their lawyers in making the decision of whether to plead is limited information, that is, knowing precisely what the judge is going to do. It's tempting to think that Jennings now knows the worst he can do is seven years, but that's not true. If a judge gives a defendant more time after a successful appeal, there is a presumption of vindictiveness, but it's only a presumption, and courts have held that where a defendant goes to trial after a successful appeal from a plea and loses, the judge can take into consideration facts she learned during the trial. And those facts rarely put the defendant in a favorable light.

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