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We don't need no stinking report

On August 30, 2012, the 8th District released its decision in State v. Richmond, holding that a judge was required to obtain a presentence report before placing a felony defendant on community control sanctions.

On August 30, 2012, the 8th District released its decision in State v. Amos, holding that a judge was not required to obtain a presentence report before placing a felony defendant on community control sanctions.

Last week, the Ohio Supreme Court decided that the Amos court was right in holding that the judge shouldn't have to get a report, but the Richmond panel was right in concluding that the judge was required to get one.

After the dueling panels in the 8th released the two decisions, the State in both cases filed for an en banc hearing.  That was denied, which the Supreme Court finds inexplicable, probably because it is.  After all, that's what the en banc procedure is for:  to resolve splits within the district.  The court finds it "truly troubling" that, by failing to hold the hearing, "the Eighth District has sent a message of chaos and confusion to all common pleas court judges in Cuyahoga County."  (Frankly, I'd noticed that the common pleas judges up here were a bit more chaotic and confused than normal, so I'm sure this will help settle them down.)

The court quickly shifts its fire to the legislature, finding that the hodge-podge that is Ohio's sentencing law is "so complicated that discerning the legislature's purpose in enacting any individual statute now approaches futility."  One section, for example, allows a court to "consider the appropriateness of imposing" a fine "as the sole sanction for the offense."  But another section says that a defendant convicted of a fourth or fifth degree felony "shall" be sentenced to a community control sanction of at least a year.  Armed with stats on what a presentence investigation costs ($800) and how long it takes to prepare (a month), the court rightly concludes that it's pretty close to bone-stupid to require a judge to order a presentence report when she's decided that one isn't necessary, a process, the court observes, "borders on the irrational."  Foregoing its "pursuit of a logical understanding of the sentencing scheme, the court "reluctantly" agrees that that what the law mandates.

The court's right.  That's what the clear language of the statute requires.  Only the legislature can remedy it. 

And not only in this respect.  it's becoming increasingly clear that HB 86 isn't accomplishing its basic objective of reducing the cost of incarcerating people.  Making judges do things they don't need to do is only a part of that.  HB 86 originally included a provision for "mandatory probation":  a defendant convicted of a fourth or fifth degree felony had to be given community control sanctions in most cases.  That was gutted a year later, with the "mandatory" provision retained with the proviso that the judge had the "discretion" to impose a prison sentence in a wide variety of circumstances.

And yesterday, we discussed the situation with consecutive sentencing.  SB 2, the big attempt at sentencing reform in 1996, had created requirements for judges for imposition of consecutive sentences:  the judge had to make certain findings, and give reasons for those findings.  That was thrown out by State v. Foster in 2006, because the court concluded that judicial fact-finding was unconstitutional in light of the US Supreme Court's Apprendi/Blakely line of cases.  A few years later, SCOTUS held that there wasn't anything wrong with judicial fact-finding for imposition of consecutive sentences, so the legislature obligingly revived the findings requirement in HB 86.  But at the same time it removed the provision requiring that a judge give reasons for the findings, theoretically (and often in practice) permitting a judge to impose consecutive sentences by doing nothing more than reading the findings off a card.  There's no way an appellate court can engage in any kind of meaningful review of consecutive sentences when it can only look at whether the judge made the findings, and not why.  But that's what the court held last week in State v. Bonnell.

So I guess we'll just have to sit back and wait for the legislature to clear this up.

Bring something to read.  It'll be a while.


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