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What's Up in the 8th

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The court gets back to grinding out decisions, and it's not a happy lot; three of them involve child molestation cases.  Defendants win in two cases, one a redo of a decision last November.  And in State v. Douse the defendant teaches us the benefits of delayed gratification:  unlike so many other defendants whose post-release control was screwed up, Douse waits until he's out of prison to raise the issue.  The State argues that the issue is res judicata because Douse could have raised it in an appeal, but that's not the way it works.  Under the Supreme Court's decision in State v. Fischer, if PRC isn't properly imposed, that part of the sentence is void, and can be raised at any time; res judicata doesn't apply.  Most times, the pro se motions to "vacate a void sentence" result only in the defendant being hailed back before the judge to have PRC done the way it's supposed to be.  Not for Douse; Bezak holds that you can't impose PRC on somebody after he's served his prison, so Douse avoids having the APA breathing down his neck for the next five years.

Michael Wise won't have to worry about APA supervision when he gets out, either, because he's not going to.  He began molesting a young boy when the boy was nine, and continued doing it over three years, often videotaping the acts.  His plea to 13 counts of child rape with sexual violent predator specs, plus some assorted other charges, results in a 108-year prison sentence.  In State v. Wise, he contends that the sentence violates the proscription against cruel and unusual punishment, but making an 8th Amendment on sentence proportionality is a lost cause.  The penalty has to be "so greatly disproportionate to the offense as to shock the sense of justice of the community," and what's more, you look only at the individual sentences:  "Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment."  Let's put it this way:  if it's okay to give some guy 25 years for stealing a pizza, as the Supreme Court ruled in 2003 when it upheld California's three strikes law, Wise's argument that he shouldn't spend the rest of his life in prison for repeatedly raping a young boy is a tough sell.

Robert Goins will get out of prison, but not for fourteen years.  He pled guilty to raping his daughter twice, once when she was 14 and again when she was 17, and the judge imposed sentences of 6 and 8 years, and ran them consecutively.  State v. Goins serves mainly to illustrate why the Supreme Court needs to clean up the mess on consecutive sentencing.  The court sets out the three-step analysis required to impose consecutive sentences under RC 2929.14(C)(4):  The court must find that (1) consecutive sentences are necessary to protect the public or punish the offender, (2) that consecutive sentences aren't disproportionate to the offender's conduct and the danger he poses to the public, and (3) that the offender committed the offenses while on bond, probation, or post-release control, that the harm caused by the offenses was so great or unusual that a single prison term doesn't reflect the seriousness of his conduct, or that his criminal history shows that consecutive sentences are necessary to protect the public.  The court notes that the judge doesn't need to use "talismanic words" to make those findings, then quotes at length what the trial court said about "the seriousness of Goins' crimes and the need to protect the public and punish Goins. . . the emotional and physical harm to the victim. . . that Goins' actions consisted of two separate rapes, bridged by a gap of time. . . [and that] a prison sentence is necessary in order to protect the public and not demean the seriousness of the offense."

Are those good reasons for giving Goins consecutive sentences?  Absolutely.  Are those the findings required by the statute?  Not really; what this works out to is the panel trying to shove the square peg of what the judge said into the round hole of the 2929.14(C)(4) language.  If the statute says you have to make the findings, you have to make the findings; having the appellate panel sit there and say, "well, it sorta kinda sounds like what maybe the judge was supposed to say" doesn't cut it.  Or shouldn't.

The defendant in State v. Allen gets one more year than Goins did, but the case presents a plea issue, not a sentencing one.  Some of Allen's offenses occurred prior to the Adam Walsh Act, and some after, and that's important:  since the AWA is punitive, that means a defendant has to be advised about it at the plea.  That's measured by substantial, not strict, compliance, though, and judge did enough to get past that.

The court takes another look-see at State v. Melton, a decision from November.  Melton had been convicted of two counts of discharging a firearm over a highway, and two of felonious assault, and the judge had maxed him out for 29 years after a sentencing hearing which featured her excoriating him for being a totally rotten human being.  As I explained when I discussed the case back then, there was a Pelfrey error:  discharging a firearm over a highway is a first degree felony if it causes serious physical harm -- and Melton did, shooting two people -- but the jury verdict didn't include that specification, resulting in it being a first degree misdemeanor.  As I explained when I wrote about the earlier decision, the Melton court got hung up on the Supreme Court's decision last year in State v. Eafford, where it reversed the 8th District and upheld a conviction for drug possession even though the name of the drug wasn't specified in the verdict form.  I didn't believe the two were irreconcilable, and this time around the court agrees.  One huge change in the opinion, though.  Back in November, the court had found that the trial judge's statements at sentencing manifested such a bias that it ordered the case reassigned on remand.  This time around, the court notes that the Supreme Court has the sole authority to disqualify a common pleas judge, and tells Melton to pursue that angle when the case goes back.


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