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Three is more than twelve

Got a call from a bailiff yesterday.  "Judge wants to assign you an appeal." 

I scribble down the name and case number.  "This on a trial or a plea?" 

"Plea.  Judge says if there's an issue, it'll be consecutive sentences."

Oh, good.  Time to dust off an Anders brief I filed a few years back and update it.  This judge is particularly thorough, and if he's sufficiently aware that consecutive sentences would be an issue, it's pretty damned likely that he'd make the necessary findings to impose them.

Then again, whether that's even necessary in the 8th District any more is an open question.

Last week I wrote about the decision in State v. Jackson, which held that to win a dismissal for pre-indictment delay, the proof that the delay prejudiced the defendant must be "specific, particularized, and non-speculative," a position flatly rejected by the court's en banc decision this summer in State v. JonesBut Jackson is a two-fer:  it also gives short shrift to the 8th's en banc decision last year in State v. Nia, which had held that the district would require "strict compliance" with the requirement that judges make the required findings before imposing consecutive sentences.

In Jackson, not so much.  Jackson's claim was that the judge didn't make the required finding that consecutive sentences were not disproportionate to the seriousness of the offender's conduct and to the danger he poses to the public.  The panel decided that it could "discern" this finding "from the court's statement that Jackson committed two rapes in the span of four to five weeks and that he was 'obviously a sick person, both emotionally and mentally.'"

Jackson wasn't the only decision essentially overruling Nia.  In State v. Diaz, the court decided that the disproportionality finding could be inferred from a number of statements the judge made, including the judge's telling Diaz "you have a problem. It's apparent from reading your victim's letter that you are sadistic and some kind of controlling monster and there's one place for you, and that place is a place that you shall go for as long as I can send you."

The backtracking on Nia began shortly after the Supreme Court's decision in State v. Bonnell, which the 8th District decided announced a more "relaxed" standard in evaluating whether the judge made the findings.  There's some basis for that appraisal; the Bonnell court had concluded 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.

It's been back and forth since then.  On the one hand, we have cases like last month's decision in State v. Stephens, where the panel found the judge's statement that "I don't believe this is disproportionate to the sentence imposed for similar conduct" was insufficient for the disproportionality finding.  But then you get cases like Diaz and Jackson, and there's even been an argument advanced in dissent that the "great harm" finding subsumes the disproportionality finding:  "If no single term adequately reflects the seriousness of the offender's conduct, then, logically, the consecutive service of prison sentences is not disproportionate to the offender's conduct."  Logical or not, it seems to me that if the legislature thought the two findings were synonymous, they wouldn't have included both of them. 

Now, to a certain extent, this is all stupid.  Jackson raped two women, a month apart, and giving him ten years on each and running them consecutively doesn't "shock the conscience," which is what this is all really about:  what we're trying to do here is eliminate the grossly excessive sentences.

But getting back to the legislature, it's also a matter of statutory interpretation.  The legislature said that if a judge wants to impose consecutive sentences, she has to make certain findings, and it specified what those findings are.  It didn't say, "or something close."  It didn't say, "if you make this finding, then we'll assume you made the other finding as well."  It didn't say, "if the court of appeals determines that the judge could've made the findings, that's good enough."  Under the law, the judge has to make the findings.

Adopting this position would have one very beneficial effect:  if judges knew that if they didn't make the findings, they'd have to haul the guy back from prison to do a resentencing, it may be a substantial incentive to make the findings in the first place.  And then the appellate judges wouldn't have to sift through the goat entrails, trying to figure out whether what the judge said was within shouting distance of what she should have said.


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