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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. GettingsGettings' 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.

The troublesome aspect of the case is the court's resolution of the question of allied offenses.  The opinion here begins by correctly noting that the Supreme Court's 2010 decision in State v. Johnson requires an analysis of the defendant's conduct, rather than a simple comparison of the elements of the crimes.  The court then essentially goes ahead and compares the elements of the crimes.  It relies heavily on its decision last year in State v. Driggins, which involved the same offenses in the same fact situation, although it was a victim, not the accomplice, who was killed.  As I mentioned when I discussed Driggins, that case relied heavily on pre-Johnson cases.  In fact, both Driggins and Burt cite the same 8th District case, which came out almost a year before Johnson, which concluded that "felony murder and aggravated robbery are not allied offenses because one requires the death of a person and the other does not."  But that's a comparison of the elements, not an analysis of conduct.  One could just as easily say that felony murder and child endangering and are not allied offenses because one requires the death of a person and the other does not, yet the specific holding of Johnson is that they were in that case, because they were committed by the same conduct.  The only reason the defendant is charged with felony murder is that a death was proximately caused by some underlying crime.  If the death results from the underlying crime, they're committed by the same "act or conduct" under Johnson, and should merge.

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