What's Up in the 8th
My cup runneth over. I come back from vacation to find that the 8th has used the interlude to do a decision dump: some thirty criminal cases. The court's timing was obviously motivated by the belief that I would be so overwhelmed that they might escape my scathing criticisms for another week.
I'm sure that was it.
I've explained why I feel that sentencing is the most critical stage of a criminal proceeding, because of its commonality -- that's the way almost all criminal cases wind up -- and its consequentiality. It's unsurprising, then, that many of the decisions over the past couple of weeks deal with sentencing. Consecutive sentencing takes center stage, with the pivotal issue exactly what a judge has to say to comply with the statutory requirements for imposing consecutive sentences. Judge Sean Gallagher uses State v. Barnett, which unsurprisingly affirmed a 17-year sentence for Barnett, who had followed a 61-year-old blind woman to her apartment, forced her inside when she opened the door, tried to rape her, and choked her into unconsciousness, as a springboard for a concurrence detailing the growing split in 8th District case law on the subject. One approach has been to require the judge to make the findings required by RC 2929.14(C)(4), and the other has been to divine the required findings by parsing through everything the judge said. Gallagher comes down on the side of the latter approach, but a definitive answer awaits a future case.
And cases there will be. Recent opinions, such as State v. Atkinson, have seen several judges urging prosecutors to file sentencing memorandums with the hope of enlightening trial courts on what exactly is required. My recent experiences indicate that the judges' remonstrations have not found their way onto the bulletin board in the prosecutor's office. In State v. Chavez, the court is confronted with a defendant convicted of numerous rape counts involving five of his six children, for which he was given multiple life sentences, including life without parole, all to run consecutively. The claim that the judge didn't make the necessary findings for consecutive sentences is a pointless one, given the LWOP sentence, and the court announces that henceforth it will review consecutive sentences only where the combined sentence is greater than the maximum for any one conviction.
That's logical, but a more troublesome note is found in State v. Kellogg. Kellogg had been indicted for his management of a mortgage fraud scheme, and argued on appeal that his 14-year sentence for the 103 counts to which he pled "was unduly harsh and not supported by the record." The court responds by pointing out that "appellant did not object to the alleged errors at the time of sentencing" and thus "has waived all but plain error on appeal." It's certainly arguable that a defense attorney has to object to the imposition of consecutive sentences to preserve a claim that the judge didn't make the necessary findings, but Kellogg's sentencing came before HB 86, so that's not in play. Kellogg's specific problems with the sentence, according to the court, were that there was no justification for it, that it was predicated upon "improper considerations" - apparently, exactly how many homes were involved in Kellogg's scheme, and the nature of the damage he did to the area - and that the sentences were inconsistent with those his co-defendants received. None of this is going anywhere, regardless of the standard of review, but application of the plain error standard in this area raises some concerns. What exactly was Kellogg supposed to "object" to? Presumably, his lawyer argued for a lower sentence, downplaying the extent of Kellogg's role, and pointing to the sentences received by the co-defendants. The purpose of the "plain error" rule is to require the defendant to point to some specific problem with what the judge is doing to allow the judge to correct it. That seems more easily applied to evidentiary rulings than to the more amorphous interplay in a sentencing hearing.
The issue of competency gets a workout in two cases. In State v. Jirousek, the docket reflects that Jirousek was referred to the court psychiatric clinic to determine his competency; there's no further reference to the issue prior to his guilty plea and sentence. There's an Ohio Supreme Court case which held that failure to hold a competency hearing after referral may be harmless where the defendant testifies at trial and didn't come across as a loony, but it doesn't work that way on a plea: where a defendant is referred for evaluation, the plea will be vacated when the record doesn't reflect a hearing on competency or stipulation by parties regarding that issue.
As to what constitutes competency, further confirmation that it requires little more than that the defendant be able to distinguish the judge from a head of cabbage is provided by State v. Sims. Sims was diagnosed with "severe mental illness" of "major depressive disorder, single episode, severe with psychotic features," and he began shaking so badly during his trial that the judge noticed it, interrupted the proceedings, and had Sims taken to a holding cell. Shortly after, deputies observed him curled up on the floor, crying uncontrollably. But the panel fluffs off the problems, noting that Sims "provided cogent testimony in his own defense." Not cogent enough, alas, to avoid being convicted of felony murder, but, well...Finally, when an opinion begins, as does State v. Lasalla, with "For two years defendant-appellant, David LaSalla operated a scheme preying on the elderly homeowners in low-income communities," you don't spend a lot of time wondering how it all comes out. The case actually concerned an interesting legal issue. Lasalla had pled guilty to two counts under Ohio's Corrupt Practices Activities Act (Ohio's counterpart to RICO), and three of theft. Conviction of the CPA requires proof of two or more predicate offenses, in this case the thefts, and Lasalla argued that the theft counts should have merged into the CPA counts. There's some basis for the argument: obviously, the thefts and the CPA violations had to occur at the same time, since the latter were derived from the former, and so were committed with the "same act" under the Supreme Court's latest test for allied offenses, State v. Johnson. But that argument has been rejected consistently by Ohio courts, and by Federal courts considering the RICO analogs, and fares no better here.