Review of sentencing goes bye-bye
A couple weeks back, I discussed the oral argument before the Supreme Court in State v. Bonnell, which focused on the issue of how to achieve meaningful appellate review of consecutive sentences. Last week, in State v. Thompson, the 8th District came down with a decision which largely forecloses meaningful appellate review of any sentence.
Lonnie Thompson had gotten so good at his racket of counterfeiting payroll checks that by the time the law caught up to him, he'd recruited over 100 people to cash the checks that he was forging. As one might imagine, these weren't upstanding citizens, and when one got caught up in something else, he told the cops about Thompson. Thompson went to trial on 50 counts, the first a 2nd degree felony of engaging corrupt practices, the rest 4th and 5th degree felonies like theft, forgery, and identity fraud. He was convicted of everything, and the judge sentenced him to 32½ years in prison. After disposing of arguments about weight and sufficiency of the evidence, the panel bores in on the focus of Thompson's argument on appeal: that the trial court abused its discretion in imposing a 32½-year sentence. The panel disposes of that argument in four paragraphs.
First, it holds that an appellate court can't review a sentence on an individual count for abuse of discretion; its review is limited to determining whether the sentence fell outside the statutory range. The same applies to a court's review of consecutive sentences. It can only review the sentence to determine whether the trial court made the necessary findings required by RC 2929.14(C)(4); as long as the judge did that, the appellate court has no power to determine whether the trial court abused its discretion in imposing consecutive sentences.
Let's take a time out there, because there's some basis for the court's holding here. Although the Supreme Court held in State v. Kalish that appellate review of a sentence was a two-step process - whether it was contrary to law, and then whether it was an abuse of discretion - Kalish was only a plurality opinion, and runs contrary to the statute on appellate review of sentencing, RC 2953.08. Subsection (G)(2) specifies that "the appellate court's standard of review is not whether the sentencing court abused its discretion."
But I think the panel reads the statute far too narrowly. RC 2953.08(A)(4) allows the defendant to appeal if the sentence is "contrary to law," and that means more than whether the sentence is within the statutory limits. A judge also has to comply with the principles and purposes of sentencing under RC 2929.11, and consider the seriousness and recidivism factors under RC 2929.12. True, appellate review of a judge's determinations here has always been extremely lax, but Thompson reads those requirements out of the statute; the judge can completely ignore those, as long as he doesn't impose a five-year sentence on a 4th degree felony.
Thompson's handling of consecutive sentences is even more problematic. As previous 8th District decisions have recognized, the review of consecutive sentences is not limited to determining whether they are contrary to law; a panel can also reverse if it clearly and convincingly finds that the record does not support the judge's findings. That's a very deferential standard of review, but so is abuse of discretion, and it's hard to see a lot of daylight between the two: you say to-mah-toe, I say to-may-toe. Call it what you want, but it clearly gives the appellate court more to do than simply making sure the judge made the necessary findings.
The opinion next deals with Thompson's argument that his sentence was disproportionate to those of his codefendants, and the panel correctly notes that his co-defendants pled guilty and testified against him, and so were no longer "similar: offenders. But the paragraph before that is very troubling. First, the court states that "the concept of 'proportionality' in felony sentencing arises only in the context of consecutive sentences." To be sure, as the court notes, one of the findings required by RC 2929.14(C)(4) is that consecutive sentences aren't disproportionate to the seriousness of the offender's conduct and to the danger he poses to public. But the concept of proportionality is broader than that: it stems from RC 2929.11(B)'s requirement that a sentence be "consistent with sentences imposed for similar crimes committed by similar offenders." The opinion goes on to say that the disproportionality finding for consecutive sentences "relates solely to the offender's conduct and not to the conduct of any others -- it does not require the court to compare the offender's conduct to that of others." How a judge could decide that a sentence is not disproportionate without comparing it to that of others is unclear. The opinion concludes that since the judge made the finding that the sentences weren't disproportionate, Thompson can't claim that they were.
The net result of Thompson is to essentially immunize the trial judge's sentence from appellate review, so long as the judge made the necessary findings for consecutive sentences, and imposed a sentence within the statutory limits. And lost in the shuffle in all this is that Thompson got a sentence three times more than the maximum sentence for a first degree felony, like rape. People who commit murder are likely to get out of prison before Thompson does. I'm certainly not a fan of check fraud, but it's hard to see how even Thompson's crime spree merits a sentence north of three decades. That the court upheld the sentence was bad enough, but gutting appellate review of sentencing made it that much worse.