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What's Up in the 8th

The 8th handed down only about half as many decisions as usual last week, most of their efforts having gone into the en banc decision in State v. Nia, where the court acted with a single purpose:   to get me to stop writing posts about how consecutive sentencing law is such a mess. 

Back in December, the court tackled Nia's latest effort to get out from under the 28-to-life sentence he'd gotten for aggravated murder and attempted murder back in 2005.  It ruled that the judge hadn't made the findings required for consecutive sentences, and sent it back for a de novo resentencing.  The State squawked, claiming that the hearing should be limited to determining whether consecutive sentences should be imposed, and asking for an en banc hearing.   

The court agreed to do that, and last week's decision upholds the State's position.  That's not a small point.  With a de novo hearing, you had the opportunity to argue that the judge should at least shave a couple of years off the sentence.  Now you don't.

The more interesting part of the opinion is that the court on its own (I was going to say "sua sponte," but my allotment of Latin phrases expired with "de novo" and "en banc") decided to resolve the issue of how consecutive sentences should be reviewed.  RC §2929.14(C)(4) requires a trial judge to make three findings before imposing consecutive sentences:

  • that consecutive sentences are necessary to protect the public or punish the offender. 
  • that consecutive sentences aren't disproportionate to the seriousness of the conduct and to the danger to the public. 
  • one of three other findings:  that the crimes were committed while the defendant was on bond, probation, or post-release control; that his criminal history indicates that consecutive sentences are necessary to protect the public from future crime; or that the harm caused by the offenses was so great or unusual that a single prison term wouldn't adequately reflect the seriousness of the crime.

The 8th has taken two approaches to reviewing this.  One, flowing from State v. Venes, holds that regardless of what else the judge says, she has to make the findings required by the statute, albeit not in the exact words.  The other, stemming from State v. Goins, looks at the entire record to see whether the judge "fully engaged in an analysis of [the statute], even though specific findings were not stated on the record." 

Eleven of the twelve judges go with Venes, and it's an easy call.  Anything else has the panel sifting through the tea leaves of what the judge said to cobble together something roughly approximating the necessary findings.  Too often, that boils down to whether the panel thinks consecutive sentences should be imposed, and that's not what appellate review is about.  From a policy standpoint, too, it's preferable:  if you let judges know that they're going to have to do it over if they don't make the findings, there's a much better chance that you won't be getting as many appeals because the judge didn't make the findings.

And the court gives every indication of requiring strict compliance with the statute.  The court concluded that the judge didn't make one of the final three findings, specifically, that the harm was so great or unusual that no single prison term adequately reflects the seriousness of the crime.  The could decides that what the judge did say -- "this is not simply a case of murder but the attempted murder as well are such that I do not believe that concurrent sentences are appropriate" - wasn't sufficient; "the trial court stated what could be interpreted as the rationale for a subsection (b) finding, but stopped short of specifically stating the finding."  That's pretty tough.

But all this ignores the basic question:   is just comparing what the judge said to what's in the statute "meaningful appellate review"?   A concurring opinion, joined in by four judges, argues this puts all the focus on the findings:

the statute does not require the judge to place his or her analysis in reaching the findings on the record so that the people involved in the case may hear it. Bare findings, without analysis, provide no insight into the court's reasoning for either the parties, the public, or a reviewing court. 

Of course, that "analysis" isn't required.  While the pre-Foster statute required the judge to give reasons in support of the findings, the legislature in its infinite wisdom decided to delete that requirement when it re-enacted the statute. 

All is not lost, though.  An appellant can make two claims in an appeal from a sentencing:  that the sentence is "contrary to law," or that he can "clearly and convincingly" show that the record doesn't support the imposition of consecutive sentences.  The latter one is an uphill climb, but at least in the 8th, I think you're going to find a sympathetic panel if the judge hasn't done anything more than make the findings.

Nia makes sentencing law a bit clearer.  Whether it makes it better will take a little while to sort out.  Another concurring opinion took the incremental approach, more in desperation than in design:

The trial court's rationale for the chosen sentence, i.e., an explanation of its reasons for making the required "findings," is in my judgment of greater import for purposes of appellate review than are the statutory findings themselves. But, because it has been a long, hard slog to the point where the trial court actually makes the required findings, perhaps we should let the matter rest here for a while.

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