Backtracking on Nia
While a judge has pretty much unfettered discretion as to what prison sentence to impose, he doesn't have unfettered discretion to run them consecutively. At least that's the theory; R.C. 2929.14(C)(4) requires him to make certain findings to do that. The findings are fairly elastic - that consecutive sentences are necessary to protect the public or punish the defender, that they're not disproportionate to the seriousness of the offense and to the danger to the public, and that either the defendant committed the crime while on a judicial sanction, his criminal history shows the need for consecutive sentences, or the harm he committed was so great or unusual that a single sentence wouldn't reflect the seriousness of that conduct.
And the judge doesn't have to give reasons for them. But in the 8th District, he does have to make the findings. The court will hold him to it, requiring strict compliance.
Until last week's decision in State v. Evans.
Antwon Evans was involved in a shooting, and pled to felonious assault with a three-year gun spec, and weapons under disability. The judge ran the sentences consecutively, for a total of eleven years.
The panel has little trouble disposing of most of his claims of error. He argues that the judge didn't tell him about post-release controls at the plea, but the prosecutor did, and besides, Evans can't show that he wouldn't have entered the plea had he been told. Felonious assault and weapons under disability aren't allied offenses, the panel tells us; the possession of the gun came before the use of it, and so they're separate crimes. Evans contends that the judge didn't take into consideration the requirement that he "punish the offender using the minimum sanctions that the court determines accomplish those purposes," but that hasn't gone anywhere before, and never will unless there's a sea shift in appellate review of sentencing in Ohio.
And that brings us to the consecutive sentencing issue. Here's what the judge said to make the required findings:
And I'm [imposing consecutive sentences] because I think the second -- I think the consecutive sentences fits in this case because of the serious criminal violent nature, and that that's needed to sentence you consecutively because of these events and because of your background.
Having a prior weapons with a disability justifies the punishment for a consecutive purpose, and this was needed to protect the public from future crimes. And this will not demean the seriousness of these offenses by putting these on a consecutive basis, so I think I have found the necessary requirements and reasons for the consecutive sentences.
If we try to pound the square pegs of what the judge said into the round holes of the findings requirement, we might conclude that "needed to sentence you consecutively because of these events and because of your background" fulfills the third finding, that the defendant's criminal history shows that consecutive sentences are necessary to protect the public. And "this was needed to protect the public from future crimes" arguably meets the first one, as well. (The discerning reader will note both the overlap and the vagary of the two.) But there doesn't seem to be anything which addresses the second requirement, that consecutive sentences aren't disproportionate to the seriousness of the offense and the danger to the public.
Oh, yes there is, the panel decides:
Next, the trial court satisfied this disproportionate finding by stating 'consecutive sentences fits in this case because of the serious criminal violent nature, and that that's needed to sentence you consecutively because of these events and because of your background.'
A month ago, this decision would have come out the other way. In State v. Nia, the court en banc had adopted the view that strict compliance with the statutory requirement was necessary. What's different? The Supreme Court's decision three weeks ago in State v. Bonnell. As I mentioned in my discussion of the case, the court found that the trial judge hadn't made the disproportionality finding, but didn't exactly hold the judge's feet to the fire with regard to the other findings:
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.
The Bonnell court repeats the tired phrase that a judge need not "give a talismanic incantation of the words of the statute," and the Evans panel repeats that. But what this works out to is the court saying that the judge need do no more than read the findings off a card, and then going on to say that the judge doesn't even have to do that: as long as he says something that an appellate court can decide is remotely similar to the required findings, that's enough.
But you know what? I think it's pointless to get worked up over this. Sure, as I said in my post about Bonnell, if all you're going to do is require the judge to make the findings, at least require him to make the findings. But in the oral argument in Bonnell, the real issue was presented in a question raised by Chief Justice O'Connor to Bonnell's attorney: what do you expect to happen here?
The answer is nothing. If you're not going to require the judge to give reasons for the findings - and that's never going to happen unless the legislature changes the law, so it's never going to happen - all the talk about "strict compliance" is irrelevant: a reversal because the judge didn't make the findings is nothing more than a post-it note telling him what he has to say at the resentencing.
HB 86 was supposed to reduce Ohio's prison population, and making it harder to impose consecutive sentences was part of that. It hasn't worked; the prison population has continued to increase. It's not hard to figure out why.