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Self-incrimination and sentencing

It's been a bitterly contested trial, and you're not happy with the jury's verdict.  But your unhappiness pales in comparison to your client's, and now it's time for sentencing.  He asks you what he should say.

Before you answer that question, you might want to take a look at the 8th District's decision in State v. Hodges.

Hodges got involved in a drug deal that went sour, and Hodges was the one with the gun.  He pled out to murder with a firearm spec, plus a weapons under disability count.  The judge gave him two years on the latter, to run consecutively to the 18-to-life on the murder.

That's where the fun starts.  Last year, the 8th reversed because the judge hadn't made the necessary findings for consecutive sentences.  You'll be surprised to know that the judge imposed consecutive sentences on the remand, and equally surprised to learn that Hodges appealed that, and makes the same argument.

As I explained yesterday, the 8th District is in full retreat from its stand earlier this summer that judges must strictly comply with the findings requirement for imposing consecutive sentences, essentially holding that anything hinting at what a bad guy the defendant is can be the functional equivalent of whatever particular finding the judge forgot to read off the card.  We're spared a similar narrative in Hodges, because the opinion doesn't quote anything the judge said, it simply says that he made the necessary findings, and calls it a day.

Well, not quite.  Hodges also complains that because he remained silent at the resentencing, the judge found that showed a lack of remorse on his part, and relied on that to impose consecutive sentences.

We all know that a defendant retains the right against self-incrimination at sentencing.  The Supremes said as much fifteen years ago in Mitchell v. USBut, as the Hodges panel points out, it's a little more complicated.

In Mitchell, the defendant had pled guilty to cocaine conspiracy, reserving the right to contest at sentencing the drug amount attributable to her conduct.  At that hearing, several of her co-conspirators testified as to the amounts distributed by Mitchell.  She herself did not testify, but her attorney argued that the only reliable evidence showed she distributed a total of two ounces.  The judge didn't buy it, finding that she had sold more than 5 kilograms, putting her over the mandatory minimum sentence of ten years.  The judge indicated that one of the things persuading him to credit the co-defendants' testimony was Mitchell "not testifying to the contrary."  The Supreme Court reversed:

The normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted.  We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime.

That last portion is emphasized for a reason:  Mitchell does not confer blanket protection for a defendant's silence at sentencing.  The Court noted that "whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility is a separate question," and expressed no view on it. 

The view that Hodges expresses on that issue is muddled.  The opinion notes that Ohio courts "have consistently held that a defendant's silence at sentencing may not be used against him in fashioning a sentence," but then observes that lack of remorse is a sentencing factor.

Thus, even where a defendant does not speak at sentencing, the court's statement that the defendant demonstrated a lack of remorse and an unwillingness to take responsibility, does not demonstrate that a court's sentencing decision is based upon the silence but shows only that the court was considering the statutory sentencing factors.

So, that means that a defendant's silence at sentencing can be taken as an indication of lack of remorse?  Well, maybe not.  Although Hodges didn't speak at his resentencing, he did at his original sentencing, claiming that the gun accidentally discharged, a story that left the judge singularly unimpressed; he found that Hodges' "lack of remorse is palpable."  At the resentencing, the judge incorporated by reference what had happened at the earlier hearing.

Although the court could not hold Hodges' silence at resentencing against him, it was not required to pretend that Hodges had not previously spoken on the matter. Hodges was under no obligation to speak and was well within his rights to remain silent. However, by doing so the trial court was free to conclude, based on his prior statements, that he lacked remorse.

Again, that's my emphasis, and it's key.  Hodges does suggest at one point that the judge may take that into account in finding a lack of remorse, but that's dicta.  The holding of the case was that Hodges wasn't penalized for his silence at the resentencing, he was penalized for what he said at the original sentencing.

That leads to a key point on the question I posed at the top:  it makes no sense for a defendant to say anything in this situation.  His professions of innocence aren't going to change the verdict, and admissions of guilt remorse, while perhaps influencing the judge's sentence, aren't going to play well on appeal.  Better to have the lawyer indicate that instead of allocating, the defendant is going to exercise his privilege against self-incrimination.

PS:  Last post for the week.  Finally made it through the 1754 page transcript on an agg murder case, and now I have to go write the damned brief.

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