In the wake of Bonnell
I was interested to see how the 8th District would handle consecutive sentencing in the wake of the Supreme Court's decision a couple months back in State v. Bonnell. As my legions of faithful readers know, the 8th has been pretty good in demanding strict compliance with the requirement that a judge make the statutory findings under RC 2929.14(C)(4) before imposing consecutive sentences. Bonnell, though, seemed to signal a more lenient approach, concluding that the judge's statement that Bonnell had "shown very little respect for society and the rules of society" was equivalent to the finding that consecutive sentences are necessary to protect the public from future crime and punish the offender.
In the first post-Bonnell decision, the 8th did take a more relaxed view, then spines stiffened the following week in State v. Greene, the panel concluding that the judge's statement "it is not a disproportionate sentence" was sufficient, if "barely" so, for finding that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to danger he poses to the public.
Last week, the court also seemed willing to hold judges' feet to the fire in State v. Brooks, reversing because the judge hadn't made the finding that consecutive sentences weren't disproportionate. Two quick points, then a longer one. It was no big deal; the judge had run a six-month sentence for child endangering consecutive to a ten-year one for attempted murder, so Brooks won't be breaking out the party hats when he gets the decision.
And actually, the court should have found the judge didn't make any of the required findings. At least according to the opinion, the judge never said anything about consecutive sentences; she referred to a prison sentence being "consistent with" the statutes, that Brooks was "not amenable to community control sanctions due to the seriousness of his conduct and its impact on the victim," and that a prison sentence was "reasonably necessary to deter the offender in order to protect the public from futures crimes." Saying that sanctions aren't appropriate because of the seriousness of the conduct isn't the same as saying that the harm is so great that consecutive sentences are warranted, and making findings to support a prison sentence isn't the same as making findings to support consecutive prison sentences.
The more interesting aspect of Brooks, though, is the concurring opinion, which parses Bonnell and concludes that if the judge doesn't make the required findings, the appellate court can modify the sentences so that they are concurrent; in fact, it suggests that the appellate court is required to do so.
I'm not sure I buy into that - more to the point, I don't think the Supreme Court would - but it's not without basis. An appellate court can "increase, reduce, or otherwise modify a sentence... or may vacate the sentence and remand the matter for resentencing" in two circumstances: if it "clearly and convincingly" finds that the sentence is contrary to law, or that the record doesn't support the trial court's findings.
Logically, this would seem to require the appellate court to engage in a two-step analysis. The first would be to determine whether the trial judge made the required findings. If she didn't, then the sentence is contrary to law. If the trial judge did, then the appellate court determines whether the record "clearly and convincingly" shows that the findings aren't supported.
Stewart argues that Bonnell conflates the two, but actually Bonnell never mentions the "contrary to law" prong: it cites only the prong for whether the record supports the findings. That's somewhat understandable, in light of the facts of the case. Bonnell was sentenced to eight years in prison for stealing $117 from several vending machines. The Supreme Court decided that the judge hadn't made the finding regarding disproportionality, which would make consecutive sentences contrary to law. But you could also make a decent argument that sending someone to prison for eight years for what Bonnell did wasn't supported by the record: that even if the judge had made the finding that consecutive sentences were not disproportionate to the seriousness of the offender's conduct or the danger he poses to the public, that finding was wrong. In fact, the opinion hints of that:
But [the trial court] never addressed the proportionality of consecutive sentences to the seriousness of Bonnell's conduct and the danger he posed to the public, which in this case involved an aggregate sentence of 8 years and 5 months in prison for taking $117 in change from vending machines.
The takeaway from all this is that if you're appealing from consecutive sentences, don't concentrate solely on whether the judge made the required findings. No, the judge doesn't have to give reasons for her findings - Bonnell deals a death blow to the idea that she's required to - but the record does have to support them. Yes, you've got to "clearly and convincingly" show that the record doesn't, but I don't see a whole lot of difference between that and an abuse of discretion standard. The point of appellate review of consecutive sentences is to cut off the "extreme" sentences: the twenty-five year prison sentence when everybody else is getting five or six for the same thing.
And keep in mind Stewart's other argument, at least if you're doing appeals in the 8th. I've mentioned before that reversals because the judge didn't make the findings are a waste of time, because it simply goes back to the same judge with a post-it note, "Here's what you have to say to impose consecutive sentences." If the failure to make the findings means that the sentence defaults to concurrent sentences, that's huge.
Notes in passing. Few aspects of Ohio law surpass post-release controls for stupidity, as evidenced by the 8th's decision last week in State v. Williamson. Williamson's case had been reversed earlier because the judge didn't give him the required notification as to the effects of violating post-release controls when it sentenced him to twelve consecutive life terms for rape. (Why PRC was even at issue for a life term is never explained.) On remand, the judge simply put on a nunc pro tunc entry providing the notification. The 8th reverses again, because the judge hadn't given the notification at the sentencing hearing, and a nunc pro tunc entry can only be done to reflect what actually occurred at the hearing. As the opinion puts it, "the trial court could not nunc what it did not first tunc."