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What's Up in the 8th

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Two years ago, when the Ohio legislature amended the sentencing statutes in an attempt to reduce Ohio's prison population, one of the methods employed was the concept of "mandatory probation":   unless the defendant had a gun, caused harm, or violated the conditions of his bond, offenders with low-level non-violent felonies and no prior felony record couldn't be sent to prison.  The 8th District's decision last week in State v. Cargill could force a major re-examination of that provision.

The statute.   RC 2929.13(B)(1)(a) provides that if a defendant is convicted of a nonviolent felony and meets certain requirements - no prior felony offense or violent misdemeanor, most serious charge is a 4th or 5th degree felony - the court shall sentence him to community control sanctions.  The judge then has the discretion to impose a prison sentence under certain circumstances. 

The facts.  Cargill was charged with failure to comply (the old fleeing and eluding) as a 3rd degree felony, which requires a showing that his flight from the cops had created "a substantial risk of serious physical harm to persons or property."  Cargill had no record, so the State allowed him to plead to the 4th degree flavor of the offense, which provided that he'd committed the crime while "fleeing immediately after the commission of a felony."  (There was no crime, let alone felony, that he was fleeing from, but a lot of plea bargains can be found in the fiction section.)  The judge shipped him for 12 months anyway, noting that Cargill had almost run over a pedestrian.

The issue was whether Cargill's offense was a "nonviolent felony"; if it wasn't, then he wasn't covered by the mandatory probation feature, but if he was, that meant the judge had no alternative but to put him on paper.  RC 2901.01(A)(9)(a) lists the crimes which constitute an "offense of violence," and failure to comply isn't on it.  There's a catchall for an offense which involves physical harm or a risk of serious physical harm, and almost running over a pedestrian would certainly qualify, and that's what the judge had relied on in imposing a prison sentence.  But here's where you run into

The Apprendi/Blakely problem.  Those two SCOTUS decisions prohibit a judge from increasing a defendant's sentence based on findings he makes, as opposed to findings made by a jury or admitted by a defendant's guilty plea.  Here, the judge was the one who made the finding that Cargill's crime was a violent offense.  The maximum sentence Cargill could have gotten without that finding was probation, and since a jury didn't find the additional factor of risk of physical harm, and Cargill didn't admit it, that's the sentence he was entitled to.  (Interestingly, had the plea been to an attempt to commit the 3rd degree felony, the judge could have imposed a prison sentence; that offense specifically involves an element of harm or risk of harm.)  So the Cargill court vacates Cargill's sentence and remands for the imposition of the "maximum sentence" under Apprendi/Blakely:   community control sanctions.

But that's not the half of it.  Back when the mandatory probation feature was enacted, prosecutors and several judges complained that this interfered with "judicial discretion."  (For some reason, offenses requiring mandatory imprisonment didn't similarly raise their ire.)   The whole thing was a little bit too soft-on-crimeish, and so when the legislature noticed they'd written it so "first offender" was basically anyone who'd been convicted of a felony more than two years earlier, they amended the bill to get rid of that, and while they were at it, substantially increased the circumstances under which a judge could impose a prison sentence for a 4th or 5th degree felony.

And as I mentioned when I discussed the amendments, Blakely problems abound.  Some of the circumstances don't raise that issue.  For example, a sex offense takes probation off the table; obviously, the jury verdict or guilty plea settles that question.   But a lot of them do.   My favorite is this one:  the judge has discretion to impose a prison sentence if he finds that "the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others."  Cargill was the first case to address the Blakely problems in the mandatory probation provision, but it won't be the last.

What you need to do.  It's important to understand how this whole thing works.  Again: 

The statute makes probation mandatory unless certain circumstances exist.  That means that probation is the maximum sentence for Apprendi/Blakely purposes, and a prison sentence can be imposed only if the "circumstances" are found by a jury or admitted by the defendant.

So how do you make that determination?  Start by looking at the elements of the crime.  Do they include one of the "circumstances"?  For example, one of the circumstances is that "the offender committed the offense while having a firearm on or about the offender's person or under the offender's control."  Let's say you have a 4th degree felony drug possession case with a 1-year firearm spec, and the prosecutor agrees to pull the spec in return for a plea.  The judge wants to ship your guy because he had a firearm.  No can do; once the spec is pulled, the plea doesn't involve anything about a gun.

There are a number of critical decisions in sentencing:  how long a prison sentence to impose, for example, or whether to run sentences concurrently or consecutively.   If you're representing a client charged with a fourth or fifth degree felony, understanding this stuff may impact what is arguably the biggest decision of all:  it may make the difference between community control sanctions and prison. 

One other thing:  it's a pretty safe bet that the Ohio Supreme Court is going to have the last word in Cargill.

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