What's Up in the 8th
I've claimed that the obvious purpose of the sentencing
reforms of HB 86 was to send fewer people to prison for less time, but you
certainly wouldn't know it from last week's spate of decisions from the 8th
District: the six criminal cases of note
involved sentences of 33, 31, and 24 years.
The 31 year sentence, handed down just ten days before HB 86
went into effect, went to Takara Kelley, who ran a red light two years ago and
t-boned another car, killing two people and injuring three children, leaving
one permanently disabled. The black box
taken from the car indicated she was driving 78 mph at the time, three times
the speed limit, and she had a blood/alcohol reading of .18, and also cocaine
and marijuana in her system. The
decision in State
v. Kelley doesn't break any new ground; the major assignment is that
the misdemeanor conviction of DUI should've merged with the aggravated
vehicular homicide, and everybody agrees that it should, so it goes back for
that. There's an assignment of error
that trial counsel was ineffective for failing to raise disproportionality at
sentencing, but that goes nowhere.
A better argument might have been that counsel was
ineffective for not getting the sentencing continued for ten days, because then
it would have triggered HB 86's requirement for findings for imposition of
consecutive sentences. As two other
cases, State
v. Grasso and State
v. Venes reveal, that's still a mine field for trial courts.
Grasso involved a
meth lab which blew up, resulting in Grasso's conviction for meth production
and arson. The only explanation offered
by the judge in running those sentences consecutively was that it was a "very
serious case," that giving concurrent sentences would "demean the seriousness
of the offense," and that "communities need to be protected from explosions. .
. especially where the homes are very close together." Somehow, the appellate panel concludes that
this "amounts to a finding that consecutive sentences are not disproportionate
to the seriousness of Grasso's conduct and the danger he poses to the public." Even assuming that it did -- and it doesn't --
this leaves two other findings completely unmentioned: that consecutive sentences are necessary to
protect the public from future crime or to punish the offender, and that the
harm was so great that a single prison term doesn't adequately reflect the
seriousness of the defendant's conduct.
Consecutive sentencing is given more extensive treatment in Venes.
He'd been sentenced in March 2011 to 24 years in prison for child
porn. The appellate panel finds nothing
disproportionate about the sentence:
Venes had an extensive child pornography collection, "described by
police as unprecedented in their experience," and the included pictures of
babies being anally raped. Venes had
originally been sentenced in March 2011, but the case went back because of a problem
with the plea. The resentencing took
place after HB 86 went into effect, and the court concludes that Venes was
entitled to the benefit of the new law.
Up to now, the court decisions on consecutive sentencing use
the two-step analysis articulated in the plurality opinion in State v. Kalish: the court reviews the sentence to determine
whether it's contrary to law or an abuse of discretion. The Venes
panel dispenses with that, and holds that HB 86 requires a different
analysis for consecutive sentences: such
a sentence can only be overturned if it is "contrary to law," or if the "reviewing
court clearly and convincingly finds that the record does not support the sentencing
court's findings under R.C. 2929.14(C)(4)."
The "contrary to law" requirement involves making the
findings. While "slavish adherence to
the specific wording of the statute" isn't necessary, the court gives notice
that rooting through the record to try to fit this language into that finding
isn't going to cut it:
Regardless of what the trial judge might
say during sentencing regarding the purposes and goals of criminal sentencing, compliance
with R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any findings relating to purposes
and goals of criminal sentencing.
Does this mean that a judge need do no more than say the
magic words? This is where the second
step comes in: the sentence can still be
reversed if the appellate court finds that the record "clearly and convincingly"
doesn't support consecutive sentences.
This is an exceedingly low bar for the trial judge, and frankly I would
have preferred to keep the requirement that judges give reasons in support of
their findings. But that appears to be
going nowhere, and this is the next best thing.
Trial judges do, and should, have a large measure of discretion in their
sentences, and the purpose of appellate review is to rein in the truly
unreasonable sentences. Venes offers about as thoughtful an
approach to doing this as I've seen any appellate court come up with. Still, the concurring opinion has a point,
especially in light of Grasso, noting
that
Finally, the court takes the opportunity to deal with two
recent Supreme Court decisions, and handles them well. State
v. Hicks deals with Hicks' second post-conviction relief petition from his 2003
conviction of murder; he alleges that his attorney failed to tell him of plea
offer of seven years, substantially
less than the 18-to-life sentence he got, relying on the Court decisions last
year in Frye and Lafler. But
a second PCR petition requires a showing that either the defendant was
unavoidably prevented from discovering facts on which he relies, or that the US
Supreme Court has recognized a new Federal right. The appellate panel notes that every Federal
court to have considered the issue has found that Frye/Lafler didn't
create a new right, so those decisions are not retroactive and Hicks is out of
luck.
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