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HB 86 and consecutive sentencing - Part II

Yesterday, we talked about what the law on consecutive sentencing is. Today, I'll discuss where we might want to take it. I'm starting with two presumptions:

  • Sentencing is the most important function of the criminal justice system
  • Whether to run sentences consecutively is the most important decision in the sentencing process

The first presumption is indisuptable. Of the felony cases in Ohio last year that were disposed of by either plea or trial, 96.6% of them ended up in a plea. The vast, vast majority of cases result in a sentencing. The most important function of the criminal justice system is not to decide whether someone's guilty or innocent, but to decide what to do with them -- essentially, whether to send them to prison and, if so, for how long.  

The second presumption is probably arguable; you could make the case that the most important decision in the sentencing process is whether to send someone to prison or put him on probation. Even if that's at the top, consecutive sentencing runs a close second. There's limited damage a judge can do to your client on one conviction. He can't go above the maximum, after all. But the "max and stack" approach can produce some serious numbers, as the defendant in State v. Hairston found out a few years back when the Supreme Court affirmed his 134-year sentence for three home invasions, Lanzinger noting uncomfortably in concurrence that the court was approving ""noncapital life sentences. . . in situations where no one is killed or seriously injured."

I'm going to introduce a third presumption: there has to be a meaningful appellate review of the decision to impose consecutive sentences. That's not really a presumption, that's a given: there's no sense in having appellate review if it consists of simply rubberstamping whatever the trial judge did.

That gets into the standard to be used in reviewing the trial decision, which is laid down by State v. Kalish: the sentence is first reviewed to determine whether it's contrary to law, and then for abuse of discretion. Virtually all the cases on consecutive sentencing stop after the first step: if the judge didn't say what the statute requires him to say, it's contrary to law, if he did, that's enough. I'd argue that even if the judge did say what was required, the sentence can still be reviewed for abuse of discretion. There's a great deal of deference that should be given a judge's sentencing decision. A judge is in a position to determine if a defendant's remorse is real or feigned, to observe the harm suffered by the victims. But if the judge's sentence is flat-out unreasonable, then that's an abuse of discretion.

The obvious conclusion from all this is that the more a judge says in explaining why he's giving someone consecutive sentences, the better. The more he says, the more likely it is that he actually put some thought into it, and given the importance of the decision that's what we want to have happen. And it helps the appellate court in their review.

Interestingly, that's exactly what we had before Foster. Back in 2003 the Supreme Court held in State v. Comer that a judge not only had to make the findings, but that RC 2929.19(B)(2)(c) required him to give reasons for them as well. (Notwithstanding the statutory basis for the ruling, Comer contains some very nice language about the rational underpinnings for that.) But HB 86 repealed that section, and so the courts have consistently held that a judge need no longer give reasons in support of his findings.

I think that's wrong, for several reasons. First, it leads inexorably to the conclusion that a judge need do no more than recite the statutory language verbatim, and that's inconsistent with what we're trying to accomplish: having judges give thought to the decision, and providing meaningful appellate review. And it's logically inconsistent with the legislative purpose of HB 86. It makes no sense to make it harder to impose consecutive sentences by requiring a judge to make certain findings, and at the same time make it easier to impose consecutive sentences by allowing the judge to do so in completely perfunctory fashion.

Second, it reads too much into the repeal. There were actually five subsections of RC 2929.19(B)(2), which required judges to make findings and give reasons in certain situations. Three of them -- imposing a prison sentence instead of probation, and two others dealing with maximum sentences -- are no longer relevant. The fourth was for overcoming the presumption of imprisonment for first and second degree felonies. Is it really credible to believe that the legislature specifically intended that a judge could give probation to a first-degree felon by doing nothing more than muttering the statutory findings? What's much more likely is that the legislature took a hatchet to something it should have used a scalpel on.

Finally, it completely ignores CrimR 32(A)(4), which says that "at the time of imposing sentence, the court shall. . . in serious offenses, state its statutory findings and give reasons supporting those findings, if appropriate." That specific language was put in by amendment in 2004 to explicitly comply with the Supreme Court's decision in Comer. It doesn't say "give reasons if required by law," it says, "if appropriate." It's appropriate here. What's more, we're talking about sentencing procedure, not substantive sentencing rights, and the rules, not the statutes, govern matters of procedure. This is an argument that hasn't been made -- none of the 63 appellate decisions on consecutive sentences since HB 86 came down even mention it. (I've got appeals in four districts where I've made that argument, but there've been no decisions yet.) It's an argument that needs to be made.

So what does the judge need to say? The findings are the most important. Sure, you don't have to use "talismanic" words, but you've got to use words which indicate that you did make the findings. You can't have the appellate court sifting through the tea leaves and concluding that since the defendant had three prior convictions, the judge must have concluded that he found that "the offender's criminal history shows that consecutive sentences are necessary to protect the public from future crime." HB 86 contains a presumption in favor of concurrent sentences. If the judge can't even articulate what the findings are, it's hard to conclude that he's overcome that presumption.

But just reading the words doesn't overcome that presumption; the judge has to say something more than that. Get past the legal verbiage: what the statute really means is that consecutive sentences should be reserved for certain situations, namely: where the defendant's done something particularly bad (in the context of the crime he's committed), or when he's got a particularly bad record. If I'm the judge, you're going to do serious time if you pistol-whip a 65-year-old woman at a bus stop to get her purse. If you also beat up her 68-year-old husband, you're going to do more. If I'm the judge, and they catch you breaking into three people's houses, if I look at your record and see you've done this five times before, you're going to do more time; one of my jobs is to protect the people in my community from having their homes broken into, and keeping you in prison improves the odds doing that. But if you're charged with robbing two people and neither of them got hurt, or of burglary and the only other thing you've got is a drug possession, then no, you're not going to get consecutive from me, and you shouldn't be getting it from anyone else.

And that's basically the purpose of the second stage, appellate review. Keep in mind that the judge has already made the findings; he has to do that. From here on, the job of the appellate court is just to make sure he put a little bit of thought into it, and managed to formulate a semi-cogent explanation for why he felt consecutive sentences were necessary. If the guy deserves it, that's not at all hard to do. If it is hard to do, then the guy probably didn't deserve it, and that's where the appellate court cleans things up.

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