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"Mandatory probation" and Blakely/Apprendi

Nautica Freeman needs some new friends.  She accompanied three of them, all juveniles, to a house party to confront another girl, who was "having sex with [A.O's] boyfriend.  The four went into a bedroom and found the girl in flagrante delicto with the aforementioned boyfriend, whereupon A.O. delivered punched her out.

Freeman was charged with first degree burglary and assault, but the good news is that the State dropped it all the way down to 4th degree burglary, and dismissed the assault.  That was the extent of the good news:  the judge shipped her for twelve months.

The 8th District reversed, finding that Freeman was eligible for the "mandatory probation" feature of RC 2929.13(B)(1)(a).  And that merits a closer look.

What's "mandatory probation."  The legislature included that provision in HB 86, forbidding a judge to impose a prison sentence in certain circumstances.  A defendant had to be given community control sanctions if he was being sentenced only on a fourth or fifth degree felony that isn't an offense of violence, and he hadn't had a prior conviction for a felony offense or a misdemeanor offense of violence.  The judge retained discretion to impose a prison sentenced nonetheless if the defendant had a firearm, caused physical harm to another, or had been out on bond. 

Judges squawked like the dickens, and so the next year the legislature amended the statute:  it added eight additional conditions, contained in the (B)(1)(b) subsection, which granted the judge the to impose a prison sentence.

What does Freeman hold?  RC 2901.01(A)(9) defines a "crime of violence" under Ohio law.  The section includes numerous offenses, and fourth degree burglary isn't listed.  There's a catchall phrase, though:  an offense which is "committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons."  That's what the judge hung his hat on:  on the basis of what happened, the burglary did involve harm to a person.

The panel noted two problems with that, one being that the burglary was complete upon the entry to the house, before anyone had been harmed.  The bigger problem was the Apprendi/ Blakely line of cases.

Say what?  Blakely and Apprendi are two US Supreme Court decisions which prohibit judicial fact-finding in sentencing.  Apprendi was sentenced to a greater term because the judge found he'd acted with a racial animus; Blakely got a longer one because the judge found his crime was committed with "deliberate cruelty."  The Court reversed both, holding that the maximum sentence the defendant could be given was one based on facts found by a jury or admitted by the defendant.  (A couple of caveats:  prior convictions can always be used, and judges can make findings to impose consecutive sentences.)

How does this apply to Freeman?  The charge Freeman pled to didn't include an element of causing harm, and he didn't stipulate that he had, so a finding that the crime was one of violence depended on the judge's making it.  And that he can't do.  Essentially, the "maximum" sentence the judge could impose without making findings was community control sanctions, so that's the sentence he had to impose.

What about the additional provisions of the statute?  Glad you asked.  As I mentioned, the statute now includes eleven separate provisions granting the judge the "discretion" to impose a prison sentence if he makes certain findings.

I think that creates a Blakely problem, notwithstanding the discretionary language.  Under 2929.13(B)(1), the maximum sentence a judge can impose is community control sanctions, unless he finds certain other facts.  Calling that "discretionary" doesn't change anything.  Basically, the judges in Apprendi and Blakely had the "discretion" to impose additional prison time if they found the defendant had acted with a racial animus or with "deliberate cruelty"; the fact that the judge had the discretion to make those findings didn't save the sentences.  Same thing here:  if the judge's factual finding allows the judge to go above the "maximum sentence" and impose prison time, that's judicial fact-finding, and it's barred by the Apprendi/Blakely line. 

That doesn't mean all eleven provisions go out.  Keep in mind that you have to look at the elements of the charge that the defendant pled to or was convicted of.  One of the provisions is that the defendant caused physical harm; another is that the defendant attempted to cause harm.  A plea to aggravated assault falls within that, since one of the elements is causing or attempting to cause physical harm.  Sex offenses is included in another provision, and that's easy enough to figure out.

But some of the others present huge problems.  One allows a judge to impose a prison sentence if he finds that the crime was committed "for hire or as part of an organized criminal activity."  Another permits a prison sentence if the defendant's "professional reputation ... was likely to influence the future conduct of others."  Factfind much?

This doesn't come up often; it's cropped up in only a handful of decisions, and Freeman's one of the few to raise the Apprendi/Blakely issue.  The dearth of case law is probably due to the fact that few judges are going to impose a prison sentence on a first-time offender for a low-level felony, regardless of whether he has the "discretion" to do so. 

But it can come up, and I'll tell you the ideal case for it.  Let's say you have a client with a 4th degree felony drug trafficking charge and a firearm spec.  The State agrees to drop the spec, your client pleads, and the judge sentences him to prison on the basis that he "committed the offense while having a firearm on or about the offender's person or under the offender's control."  Well, he may have, but he didn't plead to that:  possession of a firearm isn't an element of a drug crime, and the State dropped the spec.

Go for it.

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