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Did sentencing law just get better?

As the unnumbered legions of my regular readers know, I'm not a big fan of Ohio's sentencing law.  A less nuanced way of saying that is that I think it's stupid, especially where appellate review comes in.

So I'm not surprised by the outcome of Supreme Court's decision yesterday in State v. MarcumMarcum was convicted of setting up a meth lab in the house she shared with her children.  She got ten years, the 4th District upheld that, and the Supreme Court unanimously affirmed.  Dog bites man.  No story here.

But boy, does Marcum open up a loophole.

Here's the backstory.  Once upon a time (1996), in a land far, far away (Columbus), the legislature passed SB 2, a radical restructuring of Ohio's sentencing law.  Not only did it do away with indeterminate sentences (a two-to-ten became a flat five), but it created "guided discretion" in sentencing.  Judges were told the "principles and purposes of sentencing," and given a list of factors to consider - how serious was the crime, how likely was the offender to recidivate - in accomplishing that.  The Big Idea of the law was consistency in sentencing:  no more would you have one judge giving eight years and another two for the same crime upon a similar offender.

The whole thing went to hell pretty quickly.  How's a judge, or anyone else, supposed to figure out how consistent her sentence is with other defendants?  That's easy:  the legislature created an agency to keep a database on sentences handed down by judges throughout the state.

They just never bothered to fund it.

So judges, left without any comparison data, went with their general inclinations.  The appellate courts, left without any comparison data, became increasingly deferential to lower court decisions.  The result is that a defendant who walks into the arraignment room in the Justice Center in Cuyahoga County with a child porn case will draw one of thirty-four judges, and, depending on which judge he draws, will be sentenced to anything between probation and twenty-five years in prison.  And there's not a damn thing the court of appeals will do about it.

That brings us back to Marcum.  The issue was what standard appellate courts should apply in reviewing sentences.  Marcum argued it was abuse of discretion.  The court held instead held that review was governed by RC 2953.08(G)(2):  the appellate court couldn't reverse or modify the sentence unless it found "clearly and convincingly" that the sentence was contrary to law, or that it was unsupported by the record.

So why is this A Thing?  Because there's been a split in the appellate courts between how they review normal sentences and how they review consecutive sentences.  Since HB 86 restored the requirement of findings for imposition of consecutive sentences, virtually every court has moved from the "discretionary" standard to the statutory one; Marcum notes that only the 9th and 10th Districts have yet to jump on board with this.

But non-consecutive sentences are a different matter.  There, a sentence is "contrary to law" only if the judge fails to consider the 2929.11 and 2929.12 factors, so a mere passing reference to those statutes is sufficient.  (And the courts have also held that if the judge doesn't mention that she's considered them, it will be presumed that she did.  If you figure out a way to overcome that presumption, please let me know, because I'm drawing a blank.)

It gets worse, because if the judge has considered them, the resulting sentence is not reviewed for abuse of discretion, it's not reviewed at all.  Typical is the 8th's decision just five months ago in State v. Green, where Green argued that the judge failed to properly consider the 2929.12 factors.  What did the court say?

The decision as to how long a sentence should be - assuming it falls within a defined statutory range - is a pure exercise of discretion.  Apart from any claim that the sentencing judge failed to fulfill a statutorily mandated obligation before imposing sentence, a sentence falling within the statutory range is unreviewable.

Well, not any more.  Here's the money shot from Marcum:

It is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

The opinion then concludes that the 4th District's "review of the record revealed that the facts amply supported the sentence," and that "we agree that the record supports the sentence."  That's completely inconsistent with the holding of Green and other cases that so long as the sentence is within the boundaries fixed by the legislature, it's unreviewable.

Let's not put on the party hats.  Showing that a sentence is "clearly and unconvincingly unsupported by the record" is still a pretty tall undertaking.  (And keep in mind that the burden is on the defendant to show that the sentence isn't supported, not on the court to show that it is.)  Still, up until yesterday, unless a judge gave somebody eight years on a felony three, there was no practical way to attack that sentence.  Now there is.  And that's something.

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