One of the biggest changes in sentencing wrought by HB 86 was the reinstatement of the requirement that judges make findings before imposing consecutive sentences. That's resulted in a flurry of appellate decisions, many of them contradictory, as we discussed a few weeks back. What hasn't gotten nearly as much play is one of the other major changes: the "mandatory probation" provision of RC 2929.13(B)(1), which essentially requires judges to impose community control sanctions, in certain circumstances, on defendants convicted of non-violent fourth and fifth degree felonies. The two most recent cases on the statute, the 8th District's decisions a few weeks back in State v. Taylor and State v. Caraballo, don't really address some of the constitutional issues presented by the statute, but they do indicate some of the problems the statute creates.
Well, Caraballo does, anyway. Taylor is somewhat mystifying. Taylor pled guilty to receiving stolen property, a fifth degree felony, in May of 2011, but didn't show up the next month for his sentencing. He was eventually caught, and in March of 2012 was sentenced to eleven months in prison. The appeal assigned as error that the court abused its discretion by imposing a prison sentence "contrary to. . . HB 86."
There are a number of issues here. First, HB 86 took effect September 30, 2011. Is Taylor entitled to be sentenced under the new law, rather than the law in effect at the time when his sentencing was originally scheduled? Second, did Taylor's failure to appear for sentencing take him out of the "mandatory probation" provisions of the statute? One of the ways the court can impose a prison sentence for a 4th or 5th degree nonviolent felony is if it finds that the defendant "violated a condition of bond," and in several cases (here and here), the courts have held that a defendant's failure to appear for trial exempts him from the mandatory provisions; a failure to appear for sentencing could fall into the same category. Third, the statute provides that a the section applies only to an offender who
previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.
As I explained here, this raises the question of whether the two year window applies only to a misdemeanor offense of violence, or to all felony offenses. That's important in Taylor's case; he had several felony convictions, but the last was in 2005.
So how does the court resolve these issues? It doesn't. In a footnote, it states that since the offense was committed on April 14, 2011, prior to the effective date of HB 86, the new statute doesn't apply. That's absolutely, positively 100% wrong; RC 1.58(B) plainly requires that the sentence be imposed under the new law, regardless of when the offense was committed.
The new section at least gets addressed in Caraballo, but in the context of a plea. Caraballo, a state-tested nursing assistant, pled guilty to seven counts of patient abuse, a fourth degree felony, and at the plea hearing the prosecutor noted that she was "eligible for mandatory probation if in fact requirements are met," but that "the Court may impose a prison term if certain conditions or requirements are met." The court gave the same information, indicating that the penalties included
a possible period of incarceration. You are eligible for mandatory probation, but I don't know what [the court] will do, but you could receive anywhere between six and twelve months -- I should say six and eighteen months on any one of these counts.
A judge can still impose a prison sentence if it makes one of three findings: that the offender had a firearm, caused physical harm, or violated a condition of bond. At the sentencing, the State argued that Caraballo had caused physical harm to the victim, supporting that with a video showing the basis of the charges; the victim's son also testified, and produced a picture of the victim with a contusion on her cheek. The court found that Caraballo had physically harmed the victim, imposed maximum consecutive sentences of 18 months in prison.
But, as the court points out, Caraballowasn'teligible for "mandatory probation." It wasn't necessary for the judge to find that she'd caused physical harm; the statute on patient abuse defines abuse as causing physical harm. That takes it out of RC 2929.13(B)(1) entirely; the statute doesn't apply to "crimes of violence," which are offenses requiring "knowingly causing physical harm." That's what the abuse statute does, so it's a crime of violence.
The majority finds that the comments by the prosecutor and judge about probation being "mandatory" were "inartful at best." That's one word for it; "misleading" might be a more appropriate one, and that's what the dissenting judge concludes, finding that the confusion over the terminology "makes the plea suspect." I'd agree with that. The majority concludes that Caraballo could have understood the "possibility" of a prison sentence, and "that Caraballo cannot demonstrate that she would not have entered her pleas if the word 'mandatory' had not been used by the trial court." Caraballo's certainly an unsympathetic figure -- her victim was a 78-year-old woman with dementia -- but I'm sorry, when you're pleading to a 4th degree felony and the judge tells you that probation is "mandatory" but that there's a possibility of a prison sentence, and you wind up with a prison sentence of more than a decade, that's not the way things should work.
Caraballo raises one further issue about the statute: its constitutionality. As I explained last year, there's a Blakely problem with the statute. Blakely prohibits a judge from imposing more than the "maximum penalty" for an offense, which is defined as the maximum that can be imposed based on findings made by a jury or admitted by the defendant. Caraballo pled to an offense where phsyical harm was an element, so she "admitted" that fact. But what if it didn't, and that was a finding that had to be made by the judge? What if a defendant is charged with a low-level drug offense containing a firearm specification, and the State drops the spec in return for a plea? In that case, the defendant isn't admitting to having a firearm; can the judge make the finding anyway, without running afoul of Blakely? As my post back then discussed, a judge in Auglaize County found the statute unconstitutional on those grounds, and imposed a prison sentence. No appeal was taken from that, though.
The judge also found the statute unconstitutional on grounds that it violated the separation of powers doctrine. If the offense does fall within the "mandatory probation" feature, the judge can only impose a prison sentence if he asks the Department of Rehabilitation and Corrections for an appropriate community control sanction, and it can't find one. According to the judge, that means the executive is really establishing the punishment, and that's a no-no.
The prosecution raised that assertion earlier this year in State v. Henson, but the 5th District declined to decide it because the argument hadn't been raised in the trial court. It reversed the defendant's ten-month sentence, but did rule that the trial court could consider the State's argument on remand. The court did, and the journal entry says something about the statute being unconstitutional, but it's not clear what the court meant. It did impose community control sanctions, but as part of that ordered Henson to serve 90 days in jail, in addition to serving the 10 months in prison that he did before the court of appeals threw that out. That's being appealed, but the constitutionality of the statute isn't in play.
That could change in time. There are arguments out there, for both the defense and prosecution. You just need to know what they are.