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Just make the damned findings

David Blalog got lucky.  Not with the trial judge.  He'd robbed two people at ATM's on separate dates, and the judge happened to have presided over a case a couple of decades ago where someone was murdered at an ATM.  The judge spent some time talking about that, and about how people rely on ATM's for banking transactions.  The judge then imposed six years on one count and eight on the other, and said, "Given your age, I will make those consecutive."

I handled the appeal, and thought I had a sure winner; age isn't listed as one of the three factors under RC 2929.14(C)(4) for imposing consecutive sentences.  Sure enough, on Christmas Eve Santa delivered a reversal and remand to Balog.  A bit closer than I would have liked, though.  The judge had pointed out Balog's criminal record, so that satisfied one of the factors, and the panel found that the judge's statements about ATM use "could arguably be interpreted as a finding that consecutive sentences are necessary to protect the public from future crime."  But there was nary a word about the third factor, whether consecutive sentences are disproportionate, and nothing that could reasonably be construed as such, so back it went.

Josue Vasquez wasn't nearly as lucky.

He too was charged for separate instances of criminal conduct, in this case burglary and robbery in the one, felonious assault in the other.  Despite the fact that these were apparently Vazquez's first cases, the judge imposed consecutive sentences totaling 12 years, finding that the harm was so great that it justified consecutive sentences, and that they were necessary to protect the public.

What about disproportionality?  Nary a word about that here, either.  No matter.  According to Judge Sean Gallagher, the author of the unanimous opinion affirming the sentence,

Taken together, these findings reflect the court's reasoning and its implicit finding that consecutive sentences were not "disproportionate" to the seriousness of the offender's conduct and to the danger the offender poses to the public, even in the absence of the court expressly using the term "disproportionate."

This is a shortened version of Gallagher's dissent three months back in State v. Santiago, where he argued that "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." 

There's some merit to that argument, but I've got a couple of problems with it.  First, you can apply that to other findings:  if the judge decides that consecutive sentences are necessary to punish the offender and protect the public, he's "implicitly" found that consecutive sentences aren't disproportionate to the seriousness of the offender's conduct or the danger he poses to the public.  Or the other way around.  In fact, since all of the findings focus on the seriousness of the conduct and the danger the offender poses to the public, you can make a decent argument that any one finding "implicitly" means the other two were found.

Second, Vazquez (and to a lesser extent Blalog) mark another waypoint in the court's headlong retreat from its en banc decision last year in State v. Nia, which held that the 8th would require strict adherence to the findings.  The reason given for Nia's abandonment is the Supreme Court's subsequent decision in State v. Bonnell, and its holding that "a word-for-word recitation of the language of the statute [on consecutive sentences] is not required."  But that had been the law before Bonnell; courts routinely held that no "talismanic" language was necessary to make the findings.  In reading the 8th's post-Bonnell decisions, one would be forgiven for forgetting that in Bonnell, the court vacated his sentence because the judge had failed to make the finding of - you guessed it - disproportionality.

It's hard to get too worked up over this.  Vazquez's crimes were particularly nasty - one was a home invasion where he pistol-whipped the victim - and the lack of prior adult criminal record was probably due to the fact that, at the tender age of 20, he hadn't had sufficient time to accumulate one.

But one of the most important jobs of an appellate court is to provide guidance to the lower courts, and there clarity and simplicity are virtues.  During my oral argument in Blalog, one of the judges conceded that Nia had at least reduced the number of appeals on consecutive sentences.  That's to be expected:  if you tell the judges that cases are going to come back if they don't make the specific findings, judges are more likely to make the specific findings.  If you don't - and right now, there's no question the 8th doesn't - they're not.


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