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What's Up in the 8th

I greeted the passage of Ohio's Castle Doctrine in 2008 with some skepticism.  The doctrine creates a presumption that you've acted in self-defense if you use deadly force to repel an intruder in your home.  As I wrote at the time, whether this was worth the fuss was questionable:  "It's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."  

Little has occurred since to dissuade me from that belief.  

My BFF Lexis informs me that in the 7½ years since the act's passage, there have been only 37 appellate cases on the statute.  The vast majority of them involve situations not remotely contemplated by the legislature.  Typical is the 3d District's decision three years ago in State v. Hadley, discussed here.  When a census worker had the temerity to come to Hadley's door, Hadley had beaten him with a baseball bat.  The trial judge rejected Hadley's attempt to invoke the Castle Doctrine, ruling that the census worker wasn't an intruder.  The appellate court found this to be error, concluding that the worker lost his privilege to be on the premises (and a porch counts) once Hadley told him to leave, but that Hadley's response to the unarmed worker was so disproportionate that there couldn't be any valid claim of self-defense. 

That issue of privilege pops up in the 8th District's decision last week in State v. Callahan.  Callahan's nephew comes to the house Callahan shares with other family members, and gets into an argument with Callahan, which Callahan resolves by shooting him.  Callahan seeks sanctuary in the Castle Doctrine, arguing that while the nephew's initial entry onto the property was lawful, he became an intruder when Callahan told him to leave.

That's how the burglary statutes work:  if you're at an acquaintance's house, and he tells you to leave, your privilege to be on the premises is revoked, and if you then commit a crime, you're guilty of burglary as well.  And that's what the Hadley court ruled. 

But the Callahan court comes to a different conclusion.  The burglary statute incorporates trespassing, and that offense is committed if the defendant enters or remains without privilege.  The Castle Doctrine speaks only to the status of the person when they enter the premises, so Callahan's nephew retained the privilege to be there.

Several cases display the morass that is Ohio's sentencing law.  We'll begin with State v. Cole, where Cole and his brother were charged with numerous burglaries, all second-degree felonies.  The brother, who apparently was the mastermind - such as it is - of the operation, pled out and got 21 years.  The judge indicated on the record that she would give Cole a five year sentence on a plea, but that wasn't sufficient incentive; he chose to go to trial, and upon his conviction, the judge gave him 48 years in prison.  No, that's not a misprint.

The panel decides that the judge made the necessary findings to impose consecutive sentences, and as for the individual sentences - maximum of eight years on all but one count, and six on that one - fluffs that off with the 8th's standard observation that as long as the sentence falls within the defined statutory range, it's "a pure exercise of discretion and is "unreviewable." 

There's good reason to question that.  In the Ohio Supreme Court's decision two months ago in State v. Marcum (discussed here), the court seemed to hold that an appellate court could review a sentence to determine whether the defendant could demonstrate that the record "clearly and convincingly" failed to support the sentence.  In fact, the panel in State v. Carrion does precisely that.  Although the court starts out in "unfettered discretion" land, it ultimately conducts an extensive review of the record and finds Carrion's maximum three-year sentence for weapons under disability is appropriate.  Carrion's real problem:  if you've got seventeen prior arrests, the judge might not give you max time, but if he does, regardless of the standard of review, the court of appeals isn't going to do anything about it.

State v. Gay rounds out the trifecta of sentencing decisions.  The brief in Gay was written before Marcum, so Gay raises only the argument that the sentence was contrary to law because the judge didn't consider the RC 2929.11 and 2929.12 factors.  That's a hard way to go:  "consideration" for that purpose is satisfied by nothing more than mentioning the statutes.  Or not even that; there are numerous cases holding that even if the judge doesn't mention them, he will be "presumed" to have done so.  The panel nonetheless reviews the transcript, and essentially holds that the record doesn't "clearly and convincingly" fail to support the sentence.

Five years ago, in State v. Ford, the State argued that a firearm specification didn't merge as an allied offense with the underlying crime, because the specification was not part of the offense, but was a "penalty enhancement." 

But that comes back to bite the State in State v. HammThere's always been an argument that if a defendant is convicted of a firearm specification, the judge has to send him to prison for that, but can give community control sanctions on the underlying offense.  That's what the judge does in Hamm (although it's a gang specification, rather than a firearm spec.)  The State argues that this constitutes an impermissible "split sentence":  you can give prison time and community control sanctions on the same count.  Not so, says the panel, precisely because the specification is an enhancement, not part of the crime, echoing the finding in Ford without mentioning the decision. 

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