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What's Up in the 8th

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Did you know it's error for a judge to impose court costs on a defendant without telling him that his failure to pay the costs may result in him being ordered to perform community work service?  Well, courtesy of 8th District's decision last week in State v. Ayers, now you do.  So the judge has to do another sentencing hearing.  If the defendant's in prison, this means setting up a video conference with the prison, but if the defendant doesn't agree to do it that way, you have to bus him in from Mansfield or Ross Correctional or Belmont or wherever, appoint him a lawyer, tell him that his failure to pay court costs may result in him being ordered to perform community work service, and send him on his way.

Maybe it's just me, but I don't know if an intelligently-designed criminal justice system would work that way.  

It certainly wouldn't work the way it's working for consecutive sentencing.  When the 1996 sentencing reforms were passed, they included a provision that a judge had to make certain findings in order to impose consecutive sentences, and give reasons supporting those findings at the sentencing hearing.  That worked pretty much as intended:  trial judges would have to give some thought to the issue, and appellate courts would have a record from which to properly review it.  Five years after the Supreme Court threw that out in State v. Foster, in the mistaken belief that requiring findings was unconstitutional, the legislature re-enacted the statute, identical to how it was before, with one exception:  the judge no longer had to give reasons in support of her findings.

The result is stupid.  Again, in an intelligently-designed justice system, an appellate court would review the imposition of consecutive sentences to determine whether they were warranted, giving due deference to the judge's broad discretion in sentencing.  Instead, the appellate courts try to determine whether whatever the judge said is close enough to the "magic words" required by the statute; as long as she did, that's pretty much the end of the inquiry.  

An example of that exercise is found in State v. Stowes, where the judge imposed 18 years of consecutive sentences on an 18-year-old defendant convicted of three armed robberies.  The panel decides that the judge's recitation of Stowes' extensive juvenile record could "arguably" satisfy two of the statutory requirements:  that consecutive sentences are necessary to protect the public and punish the offender, and that the offender's criminal history shows that consecutive sentences are necessary to protect the public from future crime.  (And yes, Virginia, there is a bit of overlap there, no?)  Alas and alack, the judge failed to address the second prong of the statute, which requires a finding that consecutive sentences are not disproportionate to the seriousness of Stowe's conduct and the danger he poses to the public. 

That's not to fault the court's opinion; the disproportionality analysis is especially relevant given Stowe's age.  But that's the point:  instead of engaging in an analysis of whether an 18-year-old merited that sort of sentence, the court picks through the record to divine whether the judge said something approximating what she should have said.

And sometimes the court doesn't even do that, as shown in State v. JonesI'm not going to get excited that Jones got 24 months in consecutive sentences for two drug convictions.  He had fourteen prior felony convictions, and steadfastly refused to admit that he needed treatment.  But the judge made absolutely no reference to the statute on consecutive sentences, reciting the basic purposes and principles of sentencing and explaining only why she wasn't giving community control sanctions.  The appellate court nonetheless finds that this is sufficient to justify the imposition of consecutive sentences, and also concludes that since the judge stated her findings in the sentencing journal entry, that does the trick, because a court "speaks only through its journal and not by oral pronouncement."  In another context, this assertion would be merely troubling; does the court really mean to suggest that a judge need only state at sentencing that she's imposing consecutive sentences, without making any findings whatsoever at that point?  In this context, the assertion is simply bewildering:  the journal entries don't even mention the statute, nor is there a word in them about any findings whatsoever.

Chances are pretty good that the Willard family reunions are going to be more sparsely attended in the future.   While his nephews, aged 16, 13, and 9, are visiting, Christopher Willard decides to show them his pornography stash.  His brother finds out about this sometime later, and promptly takes the three to the police station and reports it.  The police get a warrant to search Willard's house and seize his computer, on which they find child pornography.  In State v. Willard, he argues that his motion to suppress should have been granted, because there was an eight-month lapse between the time the boys saw the pornography and the time of the search.  The opinion does a nice job of discussing the concept of staleness and search warrants.  The key is the likelihood that the evidence will still be there.  If it's perishable, or something which can be consumed, like drugs, the warrant is more likely to be found stale than if it's something like digital images on a computer. 

But what the opinion mainly does is demonstrate the haphazard nature of child pornography sentencing.   Willard pled no contest to 21 counts, and was given a sentence of five years of community control sanctions.  There are 34 judges on the common pleas bench in this county; I'd guess that Willard would've gotten a decade or more in prison from about a dozen of them.

Whether that's how an intelligently-designed criminal justice system should work I leave up to you.

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