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"Mandatory probation" revisited

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The clear intent of HB 86 -- that fewer people should go to prison for less time, and be allowed out earlier -- was partially manifested in the "mandatory probation" feature of RC 2929.13(B)(1).  If you were a judge and you were sentencing a defendant on a 4th or 5th degree felony, you couldn't send him to prison, except in certain circumstances.  A lot of trial judges grumbled about that, one even holding that the statute was unconstitutional because the legislative restriction on his sentencing discretion violated the separation of powers doctrine.  (Apparently, the judge hadn't felt similarly violated by the innumerable mandatory prison sentences peppered throughout the criminal code.)  Well, the legislature heard the complaints, because in one week a dramatically different version of "mandatory probation" will take effect.  You can find a copy of the new law here.  Here's what you need to know about it.

First, what it does.  As I've explained before, one of the problems in the statute was the "lookback" period for prior offenses.  One of the requirements for triggering the mandatory probation feature was that "the offender 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."  Did the two-year period apply only to violent misdemeanors, or also to felonies?  The 8th District concluded that it applied to both a few months back; the 6th District decided to the contrary last week.  The new legislation eliminates any amibiguity; the reference to misdemeanors, and the two-year window, is moved to a completely different subsection.  Bottom line:  after next week, there's no question that a felony of any sort at any time disqualifies a defendant from mandated community control sanctions.  (Whether that applies only to people who commit their crimes after next week is something we'll discuss shortly.)

The second, and much more significant, change in the statute is the circumstances under which a judge can sentence the defendant to prison.  There are two key subsections under the current statute.  The first, (B)(1)(a), provides that a defendant must be sentenced to sanctions if he meets two basic qualifications:

  • He hasn't committed a felony or a violent misdemeanor within two years
  • The most serious charge at sentencing is a 4th or 5th degree felony

Subsection (B)(1)(b) then contains three exceptions to that:  the judge can still impose a prison sentence if he finds that

  • The defendant had a gun during the commission of the crime
  •  He caused physical harm
  •  He violated a condition of bond

If the defendant doesn't qualify under (B)(1), (B)(2) kicks in.  It requires the judge to consider a laundry list of other factors:  whether the crime was a sex offense, the defendant had served a prior prison sentence, had committed the offense as part of an organized criminal activity, threatened physical harm with a deadly weapon, violated a position of trust, and a few others.  The factors "guide" the judge's discretion, but they don't control it:  he can still impose a prison sentence, even if he doesn't make any of the findings. 

What the new statute does is bring the (B)(2) factors into (B)(1), giving the judge the discretion, for example, to impose a prison sentence if he finds that the crime involved organized criminal activity.  In short, it substantially expands the group of people who can be sent to prison for a 4th or 5th degree felony.

A number of people have noted that there was a constitutional problem with the mandatory probation feature of 2929.13(B)(1), and the new statute increases that problem.  In Blakely v. Washington and Apprendi v. New Jersey, the Supreme Court held that the "maximum sentence" for an offense was the maximum that could be imposed based upon the findings of fact made by a jury or admitted by the defendant's plea, and that a judge couldn't impose more than that based upon findings that he made.  For example, let's say that the defendant is charged with 5th degree felony drug possession, with a firearm specification.  The State agrees to drop the spec, and the defendant pleads to the drug possession.  The judge ships him, finding that he'd had a gun during the commission of the crime.  That's arguably a Blakely violation:  the defendant didn't plead to an offense involving a gun (the spec was dropped), and there's no jury finding on that. 

Not all of the new factors implicate Blakely.  A prior conviction is not a "finding" under Blakely, and a conviction of a sex offense doesn't present a Blakely issue.  But many of the others do.  One, for example, allows the judge to impose a prison sentence if he determines that the "offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others."  There's just no way that survives a Blakely analysis.  What you've got to do is look at the finding:  if it wasn't a factual finding necessary to the jury's verdict, or wasn't part of whatever the defendant pled to, a judge can't impose a prison sentence based on that finding.

There's another question about the new law:  does it apply to anyone sentenced on or after next Friday, or only to those who commit their crime after that time?  I think there's a good argument that the Ex Post Facto Clause prohibits it from being applied to anyone who committed their crime before the statute takes effect.  The key case here is the Supreme Court's 1987 decision in Miller v. Florida.  At the time Miller committed his crime, his presumptive sentence under the Florida guidelines was 3½ to 4½ years; by the time he was sentenced, that had been raised to 5½ to 7 years.  The Florida Supreme Court affirmed the application of the new guidelines range to Miller, but the Supreme Court reversed, concluding that two elements must be present to trigger the Clause:  the law must be retrospective, "that is, it must apply to events occurring before its enactment"; and second, "it must disadvantage the offender affected by it."  If you've got a client who was entitled to probation under the old law but isn't under the new law, well, being sent to prison when you shouldn't be is about as disadvantaged as you get.

I think the new statute is going to create problems of its own, and I wouldn't be surprised if in a few years the whole concept of "mandatory probation" gets scrapped.  Nice while it lasted...

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