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What's Up in the 8th

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After a thorough investigation, I can tell you that the rumor that the 8th District judges gather before each conference, hold hands, and sing "Kumbaya" is unfounded.  Sure, you wouldn't know it from last week's spate of decisions:  seventeen of them, and not a single dissent.  Not even a "concurring in judgment only," which is judicial shorthand for "I agree with the result, but everything you said except 'judgment affirmed' is just shy of coherence."   Every single decision, unanimous, even the civil cases.   You could almost feel the love in the room. 

Well, not for criminal defendants.  The dozen cases there feature the following "wins" for defendants:  in State v. Knox, the court affirms Knox's 5th degree felony conviction for possession, but finds that the convictions for drug trafficking - which had merged anyway - were against the manifest weight of the evidence, and in State v. Brown, in which the court vacates one of Brown's two 5th degree felony theft convictions for insufficient evidence, leaving intact his 12-to-life sentence for rape.

Well, since you guys and gals are getting along so famously, might I respectfully suggest another opportunity for mingling?  How about you do an en banc on consecutive sentencing?  Because you really, really need to do something about that.

Last week, in State v. Venes, Judge Rocco used a concurring opinion to bemoan the state of the 8th's jurisprudence on that subject.  He noted that the court couldn't even agree on whether the Supreme Court's plurality decision in State v. Kalish was the appropriate framework for reviewing the question, then lamented that if "this court cannot agree on the standard of appellate review, how much harder must it be for trial courts to know which precedent to follow when it comes to imposing sentence." 

The major problem, though, is not the standard of review, it's the revival in the sentencing reforms enacted two years ago of the requirement that judges make findings of fact before imposing consecutive sentences.   The judge has to find that (1) a consecutive sentence is necessary to protect the public or to punish the offender and that (2) they're not disproportionate to the seriousness of the offender's conduct and to the danger to the public.  Then the judge has to make one of three further findings:  that the offender was on bond or some other type of sanction (post-release control, probation) when he committed the offense, that his criminal history demonstrates that consecutive sentences are necessary to protect the public, or that the harm caused by the offenses was so great that a single sentence wouldn't adequately reflect the seriousness of the conduct.

Now, there are a lot of questions that can arise from this.  Does the judge have to use the precise words of the statute?  What if that's all he says; does he have to give reasons as to why he made those findings?  Does he have to say it at sentencing, or can he just stick it in the journal entry?  But here's a question that shouldn't arise:  whether the judge has to make the findings.  The statute says he does.  Maybe not in the precise words, but an appellate court shouldn't have to sift through the goat entrails to discern where the judge made the findings.

Shouldn't have to, but the 8th on numerous occasions has expressed a willingness to do just that.  Or, more precisely, to discard the requirement of findings altogether, as they did two weeks ago in State v. Grasso, and as they did last week in State v. Alexander

Not that Alexander didn't deserve them.  By my count, he had 15 prior felony cases in Cuyahoga County.  In fact, that's what the judge relied on, citing Alexander's "extensive" criminal history, his "very, very poor adjustment to probation" (Alexander was on probation to that very same judge at the time he committed the charged offenses), and that he showed no remorse.  An easy call, as far as the judge (and the appellate panel) was concerned:

Due to the defendant's extensive history of narcotics trafficking, finding that these crimes were committed while this defendant was under sanction to this court, and given that this defendant does have an extensive criminal history of similar offenses * * * consecutive sentences are appropriate.

An easy one, perhaps, but the discerning reader will note no language remotely resembling any of the required findings, other than criminal history.  No problem, says the panel:

The trial court made the appropriate findings as to proportionality when it stated that it was imposing consecutive sentences based on Alexander's extensive criminal history, noting that many of his past  crimes were similar in nature and involved drug trafficking.

But even if you can twist "you've got a bad record" into "consecutive sentences wouldn't be disproportionate," you still have the requirement that the judge find that consecutive sentences are necessary to protect the public or punish the offender.  Of course, you can apply the same reasoning:  a bad record means that you need to be punished, or the public protected.

As Venes points out, though, in Ohio concurrent sentences are the rule; consecutive sentences are the exception.  A defendant shouldn't get consecutive sentences just because he has a bad record, or just because the crime is particularly bad.  That's a big start, to be sure.   But if the legislature had intended that a bad record is enough to warrant consecutive sentences, it wouldn't have bothered to require the other findings.

This isn't to fault the panel in Alexander; you can, and they do, point to a number of cases from the 8th which have done the same thing.  And part of it might be prompted by the thought that it really doesn't matter.  I don't think anyone believes that if Alexander had been reversed and remanded, the judge would've said, "You know, now that I think about it, I really can't make the findings necessary to give you consecutive sentences."

The problem is, though, that if appellate review becomes a question not of whether the judge made the necessary findings, but of whether the panel thinks the guy deserves consecutive sentences, the whole analysis becomes mushy; you no longer have any framework in which to decide whether consecutive sentences should be imposed.  Holding trial judges' feet to the fire and requiring them to make the findings will make them at least consider the scheme the legislature has sought to create, and will have one other salutary effect:  it will reduce the number of appeals of consecutive sentences.  That'll give me one less thing to write about, but I'll try to accept that gracefully.

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