The Supreme Court takes on consecutive sentencing
So what does a trial judge have to do to give a defendant consecutive sentences?
The Supreme Court sought to provide an answer to that question last week in State v. Bonnell, the first time it's addressed consecutive sentencing since the passage of HB 86. That bill, effective in 2011, revived the requirement that in order to overcome Ohio's presumption for concurrent sentences, the judge has to make certain findings.
Bonnell did provide some answers, although you might not be happy with them. (Spoiler alert: I'm not.) I'll start by telling you the basics of the case, then I'll provide some of that penetrating commentary you're paying the big bucks for.
Consecutive sentences: The Basics. I'll spare you the history the court provides as to how we got there, but back in 2011 the legislature passed HB 86, which imposed requirements on how consecutive sentences could be imposed. The judge has to find that consecutive sentences were necessary to protect the public or punish the offender and that they weren't disproportionate to the seriousness of the offense and to the danger he poses to the public, and then has to make one of three further findings: that the offender committed the offense while on bond or under supervision, that the harm was so great that concurrent sentences wouldn't adequately reflect the seriousness of the crime, or that the defendant's criminal history shows that consecutive sentences are necessary to protect the public. (The discerning reader will note the substantial elasticity in those findings.)
What happened to Bonnell? He got caught stealing $117 from the vending machines at five hotels. The judge gave him consecutive sentence totaling 8½ years, citing Bonnell's extensive record, which consisted of some 44 arrests or conviction, and not much else. The 5th District affirmed the sentence, finding that the judge's reference to the criminal history met one requirement, and the fact that the judge read the PSI met the other two.
It reverses, and a damn good thing; the 5th District's decision essentially meant that the judge didn't have to make the findings, as long as the appeals court decided that he could have. The Supreme Court's decision clarifies the law in two areas.
When does the judge have to make the findings? There'd been some debate as to whether the court had to make the findings in the sentencing hearing or in the journal entry. (The judge in Bonnell's case didn't do it in either.) While two justices, French and Kennedy, would have allowed it in either, the majority came down on the side of requiring the judge to do it in both, with one caveat: if the judge neglects to put it in the journal entry, that can be corrected by a nunc pro tunc entry, as long as he said it at the sentencing hearing.
Does the judge have to give reasons for the findings? There are arguments that could be made on this, but not anymore. That's a dead issue. The court firmly rejects the contention that the judge has to do anything more than make the findings.
And this is where my problems with decision begin. O'Donnell, who wrote the opinion in Bonnell, asked in the oral argument whether a judge need no more to satisfy the statute than read the findings from a laminated card. Well, if you're not going to require reasons, that's going to be pretty much what happens.
But my problem with the decision doesn't end there. The other question is if the judge doesn't read it if a card, what exactly does he have to say? The Supreme Court found that the judge's reference to Bonnell's record sufficed for one of the required findings -- that the defendant's criminal history shows that consecutive sentences are necessary to protect the public. (Curiously, several paragraphs later it seems to come to the opposite conclusion.) It then finds that the judge never addressed the second requirement, that consecutive sentences aren't disproportionate to the seriousness of the conduct or the danger the defendant poses to the public.
But here's the troublesome part: The first required finding is that consecutive sentences are necessary to protect the public or to punish the offender, and this is what the court had to say about that:
We can discern from the trial court's statement that Bonnell had "shown very little respect for society and the rules of society" that it found a need to protect the public from future crime or to punish Bonnell.
Really? The two are equivalent?
If you're going to require nothing more of the judge than that he make the findings, at least require him to make the findings.
In oral argument, Justice Neil asked at one point whether the real issue was meaningful review of appellate sentences. Bonnell clarifies the law, but it doesn't come close to resolving the real issue.