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A switch in time

Back in 2000, Chaney and Moore decided to rob a Hard Rock Café.  Chaney was the mastermind -- such as it is -- and was the one who had the gun, and he was the one who terrorized the two employees.  One testified that he called one of the robbers the bad guy and the other the nice guy:

What I meant by that, was the bad guy was the guy who had the gun up to my temple. And the nice guy is the guy -- is when I asked him, please don't tape my face, he did not. And he also said that nobody was going to get hurt, and reassured us a little bit.

Chaney was the bad guy, and copped a plea.  He got nine years.  Moore was the nice guy, and went to trial.  He was convicted, and sentenced to thirty-three years.

That's a helluva trial tax.  Last week the 8th District reversed itself and decided he shouldn't have had to pay it.

As might be guessed from the date of the offense, Moore's path through the criminal justice has been a Byzantine, involving two trials and a detour into Federal habeas corpus.  Back in 2012, the court found the trial judge's failure to conduct a "proportionality analysis" required a remand for resentencing, and the judge obliged by reducing the sentence to 27 years.

The court took its first look at that in February, and affirmed in a split decision, with one judge dissenting and another concurring only in judgment.  The lead opinion spent much of its time parsing the difference between proportionality and consistency in sentencing.  Proportionality focuses on the offender's conduct, and comes in two flavors:  8th Amendment review (is it cruel and unusual punishment?) and review under the disproportionate finding for consecutive sentences. 

Good luck with the 8th Amendment argument, particularly in light of the law that, in determining that issue, you look only to the sentences for the individual offenses, not to the overall sentence.  There are arguments to be made pro and con here, but the whole thing is pretty much foreclosed by the Supreme Court's decisions upholding California's three-strikes law:  if you can give someone 25 years for stealing a pizza, Moore's sentence of 27 years for robbing three people doesn't seem out of whack.

Consistency, on the other hand, does focus on the sentences for similarly-situated offenders, but here Moore ran into trouble with both the author of the lead opinion and the concurring judge:  there's abundant case law that a defendant who goes to trial is not "similarly situated" to one who pleads.

So what changed in eight months?  RC 2953.08(G)(2)(a) allows a court to modify or vacate consecutive sentences only if it "clearly and convincingly" finds that the sentence is contrary to law, or that the record doesn't support it.  The contrary to law branch is simple:  did the trial court make the findings required by statute?  (The judge is also supposed to consider the principles and purposes of sentencing, and the seriousness and recidivism factors, and the failure to do so might make the sentence "contrary to law," but good luck with that:  case law holds that the judge merely has to say that he considered those, and even if he doesn't say it, the appellate court will presume that he considered them.)

And that's where all the reversals I've seen of consecutive sentences have come from:  the judge didn't make the required findings.  Of course, since the appellate courts are applying the "relaxed standards" supposedly enunciated in the Supreme Court's decision in State v. Bonnell this summer, that's pretty much going by the wayside, too.

Here, though, the new majority -- the dissenting judge and the one who concurred only in judgment, who's the author of the opinion -- decide that the record "clearly and convincingly" doesn't support imposition of consecutive sentences.   They come to that conclusion by the route you'd pretty much suspect:  they just don't see the fairness in having Moore do a prison sentence three times what the guy who concocted the scheme, had the gun, and terrorized the victims got.

It's possible to make too much out of Moore.  The case is very fact-specific, and there's really not much in the way of hard law:  as I said, two judges decided that Moore's sentence wasn't right, so they fixed it.  (Instead of vacating it and remanding for resentencing, the panel simply modified the sentence:  Moore will do three years on a gun spec, plus eight years on the underlying offenses, for a total of eleven.)  But what Moore does stand for is that you can argue that the record doesn't support consecutive sentences, and you can cite a case where the court came to exactly that conclusion.  That's something you couldn't do two weeks ago.

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