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What's Up in the 8th

Let's play Guess the Sentence.  Defendant A has a particularly nasty stash of child porn:  4,400 images and 55 videos, some including "children as young as babies being vaginally raped, anally raped, being forced to engage in fellatio, cunnilingus and being forced to engage in bestiality."  Defendant B has four cases involving seven separate armed robberies, with an attempted murder count thrown in for good measure, all with three-year gun specs, and some with five-year "drive-by" specs.

Who got 16 years and who got 24?

Okay, that was an easy one:  the guy with the child porn, of course.  Defendant A - aka William Venes - proves that if at first you don't succeed, try, try again, and you still won't succeed.  Venes' first 24-year sentence was vacated because of a problem with his plea, but he pled again and the judge gave him the same double dozen.  But HB 86 had gone into effect by the time of the second sentencing, so that went back, too, because the judge didn't make the necessary findings for consecutive sentences.  In State v. Venes, the 8th rejects his latest effort to avoid spending all but a year of the next quarter century in Casa Kasich, finding that all he's arguing is that his sentence is disproportionate to that of other child porn users, and we know it's not.  Oh, it was to the defendants in State v. Dodson (four years) and State v. Labadidi (seven years), but never mind.

The latter two cases work on some of the fine points of consecutive sentencing.   One of the required findings is that the sentence "is not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public"; the judge in Dodson said that "consecutive sentences are not disproportionate to the seriousness of your conduct and the danger that you caused to the public."  That semantic distinction is not an insignificant one:  the first focuses on future dangerousness, the latter to past dangerousness.  Good enough for government work, though, the panel concludes. 

Labadidi also focuses on that requirement, but here the judge's verb choice was correct.  Labadidi nonetheless argues disproportionality, using the time-worn, and inevitably unsuccessful, tactic of pointing to other cases where defendants got lesser sentences.  (I'm guessing that Venes didn't make the cut.)  The court holds that this "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."  The court's said that before, and I didn't understand it then, and I don't understand it now.  It's like saying that you must decide whether Roseanne Barr's weight is disproportionate only by comparing her weight to Roseanne Barr's.

But let's go back to Mosley.  The judge had discussed at length the seriousness and recidivism factors, but here's all she said about consecutive sentences:

With regard to the length of the prison term, the general rule being that consecutive concurrent terms are appropriate, I cannot find that concurrent terms are appropriate enough in this situation. There are four case numbers.  It's eight separate incidents that are condensed into four case numbers.

So we have multiple case numbers representing and within those case numbers multiple incidents totaling eight separate crimes with multiple victims. I do find that that harm with that amount of cases and that amount of victims is so great or unusual, that a single term would not adequately reflect the seriousness of the conduct. I also believe that his criminal history shows that consecutive terms are needed to protect the public.

The first two requirements are that consecutive sentences are necessary to protect the public from future crime or to punish the offender, and the disproportionality one quoted above.  The judge said absolutely nothing about those.  The court nonetheless affirms.  I don't understand that, either.  I know that the way consecutive sentencing has worked out is dumb, and that even when a judge gets reversed for not saying the magic words, it's just a post-it note telling the judge what to say at resentencing.  But if appellate review is nothing more than making sure the judge says the magic words, you can at least make sure the judge says the damn words.

To the ever-lengthening list of Things I Don't Understand, add In re G.H.  G.H. was a passenger in a car the police stopped because of a registration sticker problem.  The cops - actually, campus police - got a report from dispatch saying car was stolen, so they took out the passengers, patted down G.H., and found a gun.  Turns out the car wasn't stolen; the stolen auto screen pops up on the cop's computer if there's a partial VIN match, but if you scroll down to bottom of page, it will show full VIN match and tell you if it was actually stolen. 

So the only basis the cops really have for the stop is the registration sticker, and that's not going to support dragging the kid out of the car and patting him down.   But the panel decides that the officer's determination that car was stolen was made in "good faith," and thus under Leon isn't subject to the exclusionary rule. 

Except, of course, Leon deals with the officer's good-faith belief in the validity of a search warrant, and doesn't apply to warrantless searches.

Until now, anyway.


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