One of the many, many little quirks in Ohio criminal law is in the gross sexual imposition statute. In cases involving children under 12, the judge has to impose a mandatory prison sentence if he finds the victim's testimony was corroborated by other evidence.
Yesterday, the Columbus Seven suited up for oral argument in State v. Bevly, and when the dust settled, it was pretty clear that little quirk is destined for the dustbin.
Bevly argued that the provision raised two problems. The first was due process: what rational basis was there for treating cases where there was corroborating evidence differently from cases where there wasn't? That's not a bad one -- haven't thought it through, but the logic of doing things that way seems tortuous at best -- but there are a lot of hurdles to overcome with the rational basis test.
The better argument was that this violated the Apprendi/Blakely line of cases, which hold that juries, not judges, are to make the findings of fact which increase a sentence. If the sentence for kidnapping is 4 to 8 years, but it can be 13 years if it was committed with "unusual cruelty," that specification has to be submitted to a jury and found by them.
There's a problem with that argument, though. Under Blakely, the "maximum sentence" is the one which can be imposed solely on the basis of facts found by the jury (other than evidence of a prior conviction) or admitted by the defendant. Here, the maximum sentence Bevly faced was five years; the judge could have imposed that solely upon his plea of guilty.
That's where last year's Supreme Court decision in Alleyne v. U.S. comes into play. As I explained back then, in Alleyne the defendant was charged with using a gun in a crime, which carried a mandatory minimum of five years in prison. But the minimum became seven if the judge found the firearm was "brandished," and that's what the judge did. In a 5-4 decision, the Court held that Apprendi applied to minimum mandatory sentences as well. The money quote:
When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.
It was clear to everybody at the argument yesterday that Alleyne pretty much drove a stake into the mandatory prison provision of the gross sexual imposition statute. There's no way around it. The judge's finding of corroboration means that Bevly has to be sentenced to prison; it's essentially a one-year minimum mandatory.
While there's no question as to the result, it's probably not a big deal. There are a number of Ohio crimes which have a mandatory minimum, but I can't think of any others which require judicial fact-finding. A few years ago, there was a provision which required a judge to make post-release control mandatory if the defendant caused physical harm. Post-release control is a penalty, and making it mandatory based on what a judge found creates the same problem. But that provision has been removed.
There is one other area of law which might be affected by Alleyne: the so-called "mandatory probation" feature ushered in by HB 86, and subsequently gutted by the legislature a year later. We'll talk about that next week.