What's Up in the 8th
Given that the outcome in the vast majority of criminal cases is a sentencing -- over 95% of cases are resolved with a plea bargain -- it's not surprising that a lot of appellate cases deal with sentencing issues. Three decisions on that issue came out of the 8th last week, plus one on a search issue, and the coda in the Williams case on 404(B) evidence.
The big issue in State v. Corbett is an old one: what exactly can the trial court take into consideration in sentencing? Corbett, a sex offender, had left the emergency mens shelter where he'd been living, and began residing -- let's call it that -- on some land near the animal shelter. Ordinarily, this change in abode is not something you'd want to broadcast, but Corbett was obligated to tell the sheriff about it. The State amended the charge to include the attempt statute in return for a plea, but the judge gave him the maximum eighteen months in jail. Corbett argues that his plea was invalid in that it lacked a factual basis, since he'd protested his innocence; the law does require a factual basis for an Alford plea. But, the court notes, Corbett waited to make his protest until after the court had accepted the plea and set the date for sentencing.
More troublesome was the judge's reference to a charge of felonious assault, which had been dismissed two years earlier. The panel notes that the rule that "consideration of criminal conduct for which no criminal conviction has resulted may constitute error on the part of the trial court in some instances." Well, as long as it's definite. It's a bit more complex than that, and Corbett fits into a murky area. Generally, the court can't consider uncharged or acquitted conduct in sentencing after a jury verdict, but it can consider charges dismissed as part of a plea bargain, as the 8th held a couple weeks back in State v. Dari. But the dismissal of the felonious assault charge happened two years earlier, and wasn't a part of the plea. Still, the panel affirms the sentence, finding that the dismissed charge wasn't the "sole" basis for the plea.
As I mentioned yesterday, the trend in consecutive sentencing cases is to more stringently enforce the requirement that the judge in imposing them first make the findings required by RC 2929.14(C)(4). State v. Cowan provides an additional nugget. On the surface, it's an easy case: the panel concludes that "the only finding the trial court made was that a consecutive sentence was necessary to protect the public," and even the State concedes that the trial court didn't make the requisite findings. But in Paragraph 16, we find this little gem:
In the instant case, a review of the record reveals that the trial court did not strictly comply with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of consecutive sentences.That's my emphasis, and it's there for a reason: so that the next time you have a brief on consecutive sentences, you can include the phrase, "A trial court must 'strictly comply with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of consecutive sentences," followed by the case cite. That's how you advance the ball. You might also throw in State v. Schmick, which echoes the same sentiment. Schmick pled to 45 counts of child pornography, and the trial court imposed a 16-year prison sentence. The judge spoke at length before imposing consecutive sentences, and the panel concedes that on previous occasions, it would have pieced together what the judge said and try to fit it into the statutory scheme. No more, "the current trend has been to hold the trial court responsible for more than just 'substantial compliance' with the requirements." The court also gives an interesting twist to the argument about whether the judge has to give reasons in support of its findings: here, "although the trial court offered 'reasons' for the sentence, they were not specifically tied to the required findings for consecutive sentences." Schmick even gives some hope to the disproportionality argument. The 8th has consistently held that failure to raise the issue in the trial court dooms it in the appellate court, so Schmick's trial counsel had done an excellent job in presenting the trial court with what happened to the 35 other defendants who were part of the roundup Schmick found himself in. Fifteen of them were granted probation, and only six were sentenced to more than five years in prison, with the maximum exactly one-half of what Schmick had received. Just five months ago, the 8th rejected this approach in two separate cases, concluding that such an analysis was irrelevant because, in essence, each case is different. As I'd mentioned at the time, it makes little sense to conclude that the only valid basis for comparison in a disproportionality analysis is the defendant's clone; we should be talking about similarly situated defendants, not identically situated ones. There's no mention of the earlier cases in Schmick, and in fact the panel turns the tables: the trial court had relied on a 2009 8th District case, State v. Phillips, in which the court upheld a 24-year sentence in a child porn case. But that case, the panel concludes, was far different: Phillips had been diagnosed as a pedophile, and had sent pictures of his genitalia to other minors. Schmick, on the other hand, wasn't diagnosed as a pedophile and didn't do anything other than download and view the material, and so, "in addressing proportionality on remand, the trial court should not rely on Phillips." Finally, State v. Williams comes back on remand. Two years ago, the 8th handed down an en banc decision clarifying the "scheme or plan" exception to 404(B) evidence, concluding that evidence wasn't admissible under that exception unless it went to the issue of the defendant's identity. (Decision discussed here.) Despite the fact that the opinion was one of the better ones coming out of the 8th in recent years, I had misgivings about how the case would fare in the Supreme Court, and those misgivings proved true when that court reversed by a 6-1 vote (discussed here). The Supreme Court initially reinstated Williams' convictions, then reconsidered and remanded the case for consideration of Williams' other assignments of error, which had been mooted out by the reversal of the convictions. Once bitten, twice shy: after reciting the facts, the panel rejects the six remaining assignments of error in a brisk ten pages, and off Williams goes to do his two decades in prison.