The U.S. Supreme Court's 2014 term is over, so what are we going to talk about? Why, the 2015 term, of course. The Court's docket is almost half-full now, with 35 cases, eleven of them criminal, having been accepted for review. Four concern sentencing issues, including two on capital punishment. One tests Florida's procedure, which allows a jury to make a non-binding, and non-unanimous, recommendation of death, after which the judge makes his own determination of which aggravating factors apply, and whether they outweigh the mitigating factors. Back in 2001, in Ring v. Arizona, the Court struck down an Arizona law which allowed the judge to determine whether the defendant was the actual killer, which would make him eligible for death, and also weigh the factors. I'm not seeing a whole lot of daylight between that and the Florida scheme.
The other interesting thing of note is that five of the eleven grants come in appeals from state cases. Normally, state court decisions wind up being reviewed in appeals from habeas proceedings, but that has a distorting effect because of the highly deferential treatment of the state court decision required by the habeas statutes. It may be that the Court has decided that's a problem it doesn't encounter on direct review.
The Ohio Supreme Court didn't come out with anything last week (or the week before that), so what are we going to talk about? Not upcoming oral arguments; none are scheduled until the first week in September. The court did decide whether or not to take in a bunch of cases last week, and in every instance, at least for criminal ones, the answer was "not," so that's not exactly fertile ground for discussion, either.
Except in one respect: one of the cases turned down was State v. Jackson, the 8th District's decision last November holding that defendants convicted of crimes committed before the criminal justice reforms in 1996 were entitled to be sentenced under HB 86. That applied to a bunch of cold case rapes, and its effects were huge. Defendants had been sentenced to "indeterminate" time under the pre-1996 law, which was a minimum of 5 to 10 years, and a maximum of 25. Jackson held that defendants had to be sentenced under HB 86, which meant a sentence of 3 to 11 years. The effect was augmented by the fact that the parole board essentially stopped releasing people on parole until they'd done the maximum time.
The 8th has followed that with another ten decisions or so saying the same thing, and the State has appealed each one. Oddly enough, at least as far as I can determine, no other district has ruled on the issue. I'm guessing that the Supreme Court will wait until a conflict develops before it agrees to hear the issue.
In the courts of appeals...
How do you wind up with a maximum 180-day jail sentence for stealing a textbook from the university bookstore? By telling the judge he's full of shit when he finds you guilty after a bench trial, then launching into a rant in which you use the word "fuck" and combinations thereof in all of its grammatical constructions - noun, verb, gerund, whatever. The issue in State v. Brown is whether the judge afforded Brown her right of allocution. The 1st District says that requires the judge to address the defendant personally and ask whether she wishes to make any statement in mitigation of punishment. Although the quoted portion of the transcript seems to be missing that invitation, it may have been lost in the rain of M-F's. And guaranteed, if you M-F the judge, you're going to get zero sympathy in the court of appeals.
The defendant in State v. Boukissen is convicted of minor misdemeanor marijuana possession, which isn't so bad, except there's a penalty beyond the $150 fine: a six month license suspension. He comes up with an interesting grammatical argument as to why the license suspension for drug offenses shouldn't apply to minor misdemeanors, but the 6th District shoots him down, engaging in a lengthy analysis of the. (It also cites one case which rejected the argument that a license suspension for a minor misdemeanor was cruel and unusual punishment. Bit of a stretch, that.) The good news, if there is any, is that the decisions also cites a 1999 8th District case in which the court vacated a plea because the defendant wasn't told about the license suspension.
Back in February, I discussed an 8th District case in which the panel found that the judge erred in imposing consecutive sentences for misdemeanors without making any of the findings required by RC 2929.14(C)(4). The problem? As I mentioned, that statute only pertains to felony sentencing. Whether a court can impose consecutive sentences for misdemeanors is before the Supreme Court, but if the judge can, she doesn't have to make the findings.
The same thing occurred last week in Brooklyn v. Murray, where the panel vacates a guilty plea to misdemeanor falsification because the judge failed to advise the defendant of her right against self-incrimination. The issue hadn't been raised by Murray, possibly because her lawyer knew that CrimR 11(C) only requires the court to advise a defendant accused of a felony of her constitutional rights. Interestingly, the State conceded in both cases.
So what happens now? In State v. Britton, the defendant pleads no contest, the court finds him guilty, but after sentencing a month later, puts on an entry stating that "after careful consideration of the facts presented at the sentencing hearing, the Court finds the Defendant not guilty. Defendant is ordered discharged." The 9th District agrees that the judge had no authority to sua sponte vacate the plea. So it goes back for sentencing, right? No; the panel decides that since the judge didn't have the authority, the entry was void, and the appellate court has no jurisdiction over a void entry, so the appeal by the State is dismissed.