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What's Up in the 8th

Which of the following verdicts should be reversed on appeal as being inconsistent:

  • A.  The defendant is charged with kidnapping and felonious assault, with the kidnapping being to "facilitate a felony," and is acquitted of the felonious assault but convicted of the kidnapping.
  • B.  The defendant is charged with aggravated robbery with a deadly weapon and a firearm specification, and is convicted of the aggravated robbery but acquitted of the firearm specification.
  • C.  The defendant is charged with rape and kidnapping with a sexual motivation specification, and is acquitted of the rape but convicted of the kidnapping.

As the defendants in State v. Price and State v. Lowe learned to their sorrow last week, the answer is "None of the above."  

The reason for that goes way back to Justice Holmes 1932 opinion in the Supreme Court case of Dunn v. US, which upheld inconsistent verdicts on the theory that they were just an exercise of the jury's right to exercise lenity and come up with a compromise verdict.

And it's not clear that the verdicts in Price and Lowe were truly inconsistent.  Lowe had gotten into a tiff with his ex-girlfriend, grabbed her by the shirt and took off in his car, dragging her about three blocks before she fell off.  As the court notes, facilitating a felony doesn't require conviction of one. 

Price presented a legally similar, if factually different, situation.  Price had engaged in a series of text messages with a girl he'd met at the drive-thru at McDonald's (talk about "meeting cute"), and finally persuaded her to drop by his apartment on her way to work, where the two had sex.  She claimed it was nonconsensual; the jury acquitted him of the rape but convicted him of the kidnapping.  The court finds that the kidnapping statute "punishes certain removal or restraint done with a certain purpose and the eventual success or failure of the goal is irrelevant."  That's true, and one can certainly imagine a situation where one kidnaps a person for purposes of engaging in sex, but doesn't accomplish that goal; in that event, a kidnapping conviction is appropriate.  That doesn't really apply to Price's situation, where the sex act unquestionably took place, but take that up with Holmes and Dunn.

There's an interesting twist in Price.  He'd been convicted of an earlier rape - in fact, he'd been arrested for this rape when he showed up for trial on his first rape, and when that happens, it's a sure sign that perhaps one's attitude toward women needs an adjustment - and the judge used the earlier conviction to find him a sexual predator on this one, and gave him a 10-to-life sentence.  While this appeal was pending, though, the conviction in the first case was reversed, and Price argues that the SVP sentence is no longer valid.  For questionable reasons, the court decides that this issue would be better addressed after the retrial in the first case:  if he is acquitted of that one, he can seek to vacate the sentence in the second one by way of a post-conviction relief petition.  Of course, that petition would be filed well after the 180-day time limit, and RC 2953.23 imposes very strict limits on untimely petitions.  The Price court says that "principles of untimeliness should not bar further review," but it's not clear how -or if - that overrides the clear words of the statute.

Speaking of clear words of the statute, State v. Wilson features another go-around the requirement in   RC 2929.14(C)(4) that a judge make certain findings before imposing consecutive sentences.  We all know by now that the trial judge need not use the "talismanic words" of the statute.  (In fact, as somebody pointed out to me, the phrase "the judge need not use the talismanic words" has become talismanic in appellate opinions.)  But in some districts, the court will look at the record to determine whether the facts could've supported consecutive sentences; in other words, could these facts have allowed the judge to make the necessary findings?  Not in the 8th; findings won't be inferred from the record.  That doesn't do Wilson any good; the judge's "discussion of the relevant facts at the sentencing hearing may be construed as findings," and that's what happens to Wilson.

That's not objectionable, but the opinion ventures into more troubling territory in its rejection of Wilson's argument that judge didn't make finding that consecutive sentences weren't "disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."  The court says the judge did make that finding, but then goes on to claim that Wilson waived the argument because he didn't raise the issue of disproportionality at sentencing.  To be sure, there's plenty of case law that if you're going to argue that a sentence was disproportionate, you have to raise that issue with the trial court and present them with some evidence of it in order to preserve the issue on appeal, at which point the appellate court will ignore anyway.  But that doesn't mean you waive the argument that the judge didn't make the finding on disproportionality necessary to impose consecutive sentences.   There's a clear difference between arguing that a sentence was disproportionate, and arguing that the judge didn't make the finding of disproportionality necessary to impose consecutive sentences. 

Also of note is the concurring opinion, which points out that a lot of this could be solved if prosecutors would start filing sentencing memorandums outlining the findings a judge could make in order to impose consecutive sentences. 

As if.

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