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What's Up in the 8th

Sometimes you win an appeal, and sometimes you WIN an appeal.  When you not only get the defendant's conviction and three-year prison sentence reversed, but get the case kicked out altogether, that's a WIN.  

The case against the defendant in State v. Shepherd was simple.  Kenneth Washington went over to Librae Cohen's apartment, responding to her call "suggesting a particular sexual encounter for $400."  Instead, he got robbed:  when he got out on the third floor of the building, someone placed a gun to his head, forced him to lie on the floor, and took his money.  He suspected that Cohen had set him up, her telling him to get off on the third floor when her apartment was on the seventh providing a solid clue to support that theory.  Cohen eventually worked out a plea deal, and testified that the whole thing was planned by Shepherd.

I've often preached about the problems of waiving a jury:  juries, I think, have more of a tendency to believe that while something might have happened, the State didn't prove it beyond a reasonable doubt, and by waiving the jury you give up many possible issues for appeal.  There is one advantage of trying the case to the bench, though:  the judge knows what the penalties are, and if she feels those penalties don't comport with the defendant's conduct, she can find the defendant guilty of a lesser offense which more accurately reflects what he did.

And so it is here.  Shepherd was charged with aggravated robbery with a gun:  that he'd committed a theft offense while brandishing a firearm.  The judge found him not guilty of that, and acquitted him of the firearm specification, but convicted him of the lesser offense of robbery under RC 2911.02(A)(1), which prohibits committing a theft offense while having a deadly weapon on the offender's person or under his control.

There are two steps to determining whether the judge could have considered the lesser offense.  The first was whether it actually is a lesser offense, and we skip that part here, because Shepherd conceded the issue.  The second step of the analysis is a factual one, though:  whether "the evidence is such that the defendant could reasonably have been found not guilty of the greater offense but guilty of the lesser offense." 

And that's where the State runs into trouble.  The only evidence was that Shepherd had held a gun to Washington's head:  there was no interpretation of the evidence which would allow the judge to conclude that that hadn't happened, but that Shepherd nonetheless had a gun.  And, of course, since the conviction of the lesser offense was an implied acquittal of the greater, Shepherd couldn't be retried for aggravated robbery, and since he shouldn't have been convicted of the lesser offense, he couldn't be retried for that, which means the case against him gets dismissed.

Now that's a WIN.

And it was the only one for defendants.  In State v. Welch, I got punked again.  Welch had been convicted after bench trial of 12 counts of child rape, and the judge creatively gave him three years on each, and ran them all consecutively.  The judge was reversed because she didn't make the necessary findings, but she doesn't repeat that mistake this time around.  The panel affirms, getting a good chuckle out of my oh-so-fifteen-minutes-ago argument that judge had to give reasons for findings.

State v. Moore is Moore's fourth go-around on appeal, all stemming from his conviction of aggravated robbery and two counts of kidnapping.  The judge had initially maxed him out on the three, topped off by the three-year firearm spec, but after the 8th in Moore III reversed for consideration of whether the sentence was disproportionate to that of his co-defendant, who got nine years, the judge reduced the sentence from 33 years to 27. 

This produces three opinions, all focused on that disparity.  The lead opinion argues that for disproportionality purposes "the focus is on the offender's conduct, and not how other similarly situated offenders were sentenced."   Frankly, I'm not sure that's possible; how can you tell whether a defendant merits a seven-year sentence for robbery without considering what other defendants, with similar criminal histories who've committed similar crimes, have gotten?   

The opinion's on more solid ground when it notes that the co-defendant pled, while Moore went to trial; as innumerable other cases have held, a pleading co-defendant, especially one who agrees to testify for the State, is not a "similarly situated defendant."   The judge concurring only in judgment agrees with this, noting that she has "no doubt that had the codefendant gone to trial and been found guilty, he would have received a sentence at least as harsh as the sentence given to Moore."  One would hope; still, the fact that Moore received a trial tax of over 300% is somewhat unsettling.

The real crux of the lead opinion, though, is that "consistency in sentencing" is a chimera, and that Ohio law simply does not provide for meaningful appellate review of sentences:  if a judge says he considered the sentencing factors and imposed a sentence within the statutory range, the appellate court is unwilling and unable to go beyond that, because that would involve either de novo review or a determination of whether the trial court abused its discretion, and neither is permitted under Ohio law.  The dissent criticizes that conclusion, and musters some arguments in support of that position, but the sorry fact is that you'll have a hard time finding a case where the appellate court didn't simply rubberstamp the sentence handed down by the judge.

The three opinions in Moore  are detailed and thoughtful, but one can't help feeling that the opinion simply underlines all that is wrong with Ohio sentencing law.

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