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What's Up in the 8th

Last week, the 8th District handed down a big en banc decision on consecutive sentencing (discussed here), which I suggested was an effort to forestall any more tedious posts by Your Faithful Correspondent on the subject.  Certainly, a decision joined in by eleven of the twelve judges would settle the issue once and for all. 

Not so much, it turns out.  There are still some things to be worked out.

There are the simple cases.  In State v. Lime, the judge made only one of the necessary findings, so that goes back.  The opinion in State v. Kimmie begins by telling us that in 2012, "Kimmie was charged with several crimes stemming from his involvement in a shoot-out with rival gang members after a back-to-school party," leading us to wonder what the body count was for Homecoming.  The case was sent back once because the judge didn't make the findings for consecutive sentences, but he gets it right this time.  The only odd thing about the case was that the lawyer filed an Anders brief, and this is the first time I've seen the 8th actually go to the trouble of writing an opinion on one of those.

Then there are the trickier cases.  In State v. Grant, the defendant had pled guilty to multiple counts of rape, and the judge imposed consecutive sentences, telling Grant, "you made these victims prisoners in their own world, so you're going to receive, correspondingly, a typical sentence as they did."  The panel decides that this suffices for the finding that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public."

This is a bit of a stretch; that the victims suffered "great or unusual harm" is the third finding.  Still, it's hard to quibble with the result.  Grant was certainly deserving of consecutive sentences, and the judge spent a good bit of time explaining why.  That's the way things should work.

Then there are the oddball cases.  In State v. Earley, the trial court gave Earley consecutive sentences for aggravated vehicular assault and misdemeanor drunk driving.  Earley contended that the offenses were allied, hence, only one sentence could be imposed.  Not so; RC 2929.41(B)(3) allows the judge to order sentences for these offenses to run consecutively, and that trumps RC 2941.25's command that only one sentence can be imposed where the offenses are allied.  Left unanswered:  does that mean the judge has to make the other findings required for imposing consecutive sentences?

Finally, there's some housekeeping to attend to.  In State v. Frost, the defendant's consecutive sentences had been vacated and remanded once before because the judge didn't make the finding that the consecutive sentences weren't disproportionate.  Frost appeals again, claiming that that's the only finding the judge made the second time around.  That's all the judge is required to do, the panel concludes:  since the appellate court had decided the first time that the other two findings had been made, that's the law of the case, and the hearing on remand is limited to making the findng about disproportionality.  And, by the way, the judge doesn't have to reimpose post-release controls, either, as long as he did it the first time. 

There were actually decisions that didn't involve consecutive sentencing, both named State v. JohnsonThe first concerns post-conviction DNA testing, and we'll talk about that tomorrow.  The second was a murder case, with a somewhat involved story line, the essence of which was that the victim, Carlos Coates, had gotten into a spat with one of the people visiting his house, Tamera Coleman, and had slapped her around.  The State contended that she had summoned Johnson, who was like a brother to her, to come to the house.  Johnson did arrive at the scene, and Coates wound up dead, although whether Johnson was the shooter was a matter of some controversy.  The State's case hinged to a substantial degree on the testimony of Coleman's boyfriend that Coleman told him before the shooting that she'd called Johnson and told him to "fuck up" Coleman for hitting her.

That's hearsay, but the panel decides it falls within the co-conspirator exception.  That's a problem, because that requires the statement to be made in the course and in furtherance of the conspiracy.  Coleman's statement met the first qualification, but the courts have generally held that admissions of the crime to the police or other third persons are not in furtherance of the conspiracy.  Trying to conceal the crime obviously furthers it, but telling somebody else you're doing it doesn't do much in the way of concealment.

The case is notable for two other reasons.  First, the court decides it was error for the trial judge to give a flight instruction, which is pretty much a first, but finds it to be harmless, which isn't.  Secondly, the court's recitation of the factual and procedural history of the case clocks in at a Dr. Zhivago-like 26 pages, consuming over half the opinion.  Another attorney and I handled the appeal, and despite the fact that "taciturn" would appear on nobody's list of adjectives describing me, we managed to dispose of that stuff in a breezy nine pages.

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