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HB 86 and consecutive sentencing - Part I

HB 86, effective last September, provided the most sweeping sentencing reforms since SB 2 back in 1996. We've now had a little over a year for cases on the new law to percolate through the appellate process, and with one exception, there's not much activity. One of the big potential issues was the retroactivity of the new law, but that hasn't engendered much controversy, and is likely to engender even less in the future, for the obvious reason that the number of cases which fall on both sides of the effective date -- crime committed before September 30, 2011, sentencing after -- will decline. The provision making it virtually mandatory for a judge to give probation to a first offender convicted of a 4th or 5th degree felony initially raised some controversy, with one judge declaring it unconstitutional, but that hasn't gone anywhere on appeal.

The one exception, though, has been in consecutive sentencing, and the appellate courts have been all over the map on that. Today we'll take a look at where they are, and tomorrow we'll take a look where they should be.

First a refresher: HB 86 included a provision, RC 2929.14(C)(4), which was a word-for-word rewrite of the consecutive sentencing provision struck down in 2006 by State v. Foster. It reinstates the requirement that before a judge can impose consecutive sentences, she must first find that they're "necessary to protect the public from future crime or to punish the offender" and that they're "not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." The judge then has to make one of three additional findings: that the offender was on bond, probation, or post-release control, that the conduct was "so great or unusual" that a single prison term doesn't adequately reflect the seriousness of the conduct, or that the offender's criminal history shows that consecutive sentences are necessary to protect the public from future crime.

The obvious first question is whether a judge has to do anything more than read the statutory findings verbatim at the sentencing hearing. I've got a case in the 9th right now on that very question, and it could be coming down at any time, but there's no other case law out there on that precise point. The closest is State v. Alexander, a 1st District decision where the judge had filled out a sentencing-finding worksheet, checking off the boxes for the appropriate findings. The court found that unlike the pre-Foster statute, the new one no longer required a judge to give reasons to support the findings, a subject we'll discuss more thoroughly tomorrow. Alexander could be read as requiring the judge to do no more than recite the findings and call it a day.

That's probably an overbroad reading of the case, though, because the court didn't stop there: it goes on to note that "the record of Alexander's misdeeds amply supports the trial court's findings," and spends a paragraph talking about them: Alexander, the manager of a group home for elderly and disabled adults, had diverted tens of thousands of dollars for her own use.

And then there's the flip side of Alexander: what if the judge doesn't make the verbatim findings? The panel notes that a "trial court is not required to use 'talismanic words' to comply" with the requirements, a phrase that has cropped up so often in recent opinions on consecutive sentencing that one appellate lawyer commented to me that it's become talismanic in itself. It's well and good that the statutory requirements aren't reduced to a simple ritualistic incantation of the "magic words," but if judge need not make the actual findings, what does the judge need to say?

Some courts have taken a soft approach to this, adopting Alexander's view that "a reviewing court may vacate consecutive sentences only if it clearly and convincingly finds either that the record does not support the trial court's [statutory] sentencing findings or that the sentence is otherwise contrary to law." Under this approach, the reviewing court reviews the record and deciding whether consecutive sentences can possibly be supported. That's the legal way of phrasing it; as a practical matter, it winds up with the reviewing court deciding whether it would have imposed consecutive sentences. Typical is State v. Bonnell, where the 5th District affirmed the defendant's consecutive sentences, although the trial judge apparently did little more than note Bonnell's "atrocious" record, which consisted of no fewer than 44 convictions or arrests as an adult, the panel concluding that "such findings when coupled with the trial court's acknowledgement that it has read and considered the PSI are sufficient to satisfy the factual findings requirement." What the PSI had to do with anything isn't clear; in many cases, it's not made part of the record unless the defendant specifically requests that, and there's nothing in the opinion to indicate that was done here. In short, the defendant had a bad -- well, "atrocious" -- record, and that was enough to render all the other statutory requirements irrelevant.

Other courts have been more stringent in their application of the requirements. Typical here is the 8th's decision in State v. Blackburn. Blackburn pled guilty to two burglary cases, and when he didn't show up for sentencing, the judge gave him four years on each and stacked them. The appellate court found that the judge's recitation of Blackburn's criminal history could equate to the finding that consecutive sentences were necessary to protect the public, but the judge failed to make the finding that consecutive sentences weren't disproportionate to the seriousness of the offense. Similarly, the 8th came to the same conclusion last week in State v. Redd, involving consecutive sentences for two counts of child endangering. The court found that the judge's statement that she was imposing consecutive sentences because "these are two separate incidents resulting in injuries to this child" might be sufficient to constitute a finding that the harm from the multiple offenses was so great that a single prison term wouldn't adequately reflect the seriousness of the offender's conduct, but that still left the other findings unaccounted for.

More interesting was Redd's rejection of the State's argument that the court should "infer" from the record that the court made the other required findings. This was the Alexander approach: the appellate court reviews the record to see if it can pull together enough facts to justify consecutive sentences. But the court's rejection of that approach is tempered by the fact that the court very apparently didn't find the record justified consecutive sentences. Redd had no prior criminal record, and the opinion spends a fair amount of time detailing the PSI's finding that Redd had a low risk of recidivism, that he'd fully complied with the conditions of his court-supervised release program for nearly a year while the case was pending, his employment, and so forth, pointedly concluding that "the trial court will be hard pressed to make the required findings to impose consecutive sentences at the new sentencing hearing." It may be that Redd is too fact-specific to provide much precedential value. And it's not like the 8th has been vigorous in rejecting the "let's see if it fits" approach; just two months ago in State v. Petkovic it affirmed seven consecutive 10-to-life sentences in a child rape not because the trial court made the necessary findings, but because... well, because the defendant deserved it.

So how do we craft a consistent rule of law out of all this? That's what we'll talk about tomorrow.


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