What's Up in the 8th
A trial judge in Ohio has a wide range of sentencing
options. The low and high of the
sentencing range for a first degree felony varies by a factor of almost
four. Throw consecutive sentencing into
the mix, and one judge can impose a sentence that's a fraction of what the
judge in the next courtroom might impose.
What's the purpose of appellate review of sentencing? One would be to make sure that the judge
didn't screw up: didn't give six years
on a 4th degree felony, properly imposed post-release controls, merged allied
offenses. Another purpose might be to
moderate the sentencing extremes at the upper end. (Unlike in Federal court, an Ohio prosecutor
has no ability to appeal, claiming that a prison sentence is too low.) That two-prong approach was utilized in the
Supreme Court's 2008 decision in State v.
Kalish: the appellate court would
first review the sentence to determine if it was contrary to law, and then for
abuse of discretion.
Kalish always had
its problems, being only a plurality opinion.
But there's a bigger problem: a
number of courts have held,, as the 8th did most recently last week in State v. Doubrava, that Kalish is no longer good law, by virtue
of the language of RC 2953.08(G)(2).
That section, according to the courts, provides that an appellate court
standard of review is not abuse of
discretion; it can only reverse or modify a sentence if it "clearly and
convincingly finds. . . that the record does not support the sentencing court's
findings" or that "the sentence is contrary to law." As the 8th explained in a
decision earlier this year,
It is important to understand that
the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the
negative. It does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead,
it is the court of appeals that must clearly and convincingly find that the
record does not support the court's findings. In other words, the restriction
is on the appellate court, not the trial judge.
It's probably not a big deal; the discussion of the
difference between abuse of discretion and clear and convincing wouldn't be a
lengthy one, and it's not like so many sentences before were being reversed for
abuse of discretion that won't be now.
Still, it's something you need to know.
If you do OVI work, you probably need to know about Middleburg Heights v. Gettings. Gettings'
motion to suppress offered 38 separate reasons for suppressing the field
sobriety tests, but he needed only a couple. The takeaway from Gettings is that it's not sufficient to testify that he gave the
test and what the result was. He also
has to testify about his qualifications as a police officer and his training in
conducting field sobriety testing, how he performed the tests, and that they
were performed in substantial compliance with the NHTSA standards.
This is where things get weird. Normally, a finding that the FST's should be
suppressed would lead to suppression of the breath or blood test, but the court
separately concludes that the other indicators --glassy eyes, slurred speech,
odor of alcohol -- gave the officer probable cause to arrest Gettings. The
court remands the case "for a determination as to whether there was sufficient
evidence, without the field-sobriety-test-results, to support Gettings'
conviction," but considering that he pled no contest, you know where the smart
money is on how that comes out.
State v. Burt offers a number of lessons.
He and his brother, the latter armed with a gun, do a home invasion, but
one of the people in the home is packing, too, and kills Burt's brother, all
this resulting in Burt's conviction and 26-year sentence for felony murder, aggravated
robbery, and aggravated burglary. Burt
first complains that his lawyer didn't engage in plea negotiations, but it
takes two to tango, and the trial judge conducted a Frye hearing at which Burt clearly and unequivocally stated he
wouldn't plead to anything. It might
seem odd that you can be convicted of murder if your accomplice -- your
brother, no less -- is killed by one of the would-be victims, but that's the
way the felony murder rule works: the
death need only be a reasonably foreseeable consequence of the crime, and it's
reasonably foreseeable that when you break into a house, the occupants will
defend themselves.
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