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What's Up in the 8th

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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.

State v. Cruz deals with a more recent decision, Bailey v. US (discussed here).  The cops had arranged an undercover buy of drugs from Cruz, but saw him drive off as they approached to execute the warrant.  They stopped him a few miles later, and he made an incriminating statement.  The opinion finds that the stop violated Bailey, which held that a search warrant didn't give the police the right to detain someone who wasn't on the premises.  Two judges concur only in judgment, with one correctly arguing that the pending drug deal gave police the right to make an investigative stop of Cruz' car under Terry v. Ohio, an issue that wasn't addressed in Bailey.

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