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What's Up in the 8th

I've argued before that the Supreme Court's recent decision in State v. Marcum heralds a new approach in sentencing:  an appellate court can reverse a sentence if it finds that the record clearly and convincingly doesn't support it.  That's been the standard for appeals of consecutive sentences, but Marcum involved non-consecutive sentences.  That contrasts with the 8th District's cases, which until recently have consistently held that as long as the sentence falls within the statutory range, it's a "pure exercise of discretion" and is "unreviewable."  It's a bit muddled; while the panels in State v. Carrion and State v. Gay have looked at the record, the quote above is from State v. Cole, which was decided the same day as the other two.

Does the 8th's decision last week in State v. Anderson clear that up?

Anderson is really a review of an Anders brief, in which counsel did not contest the imposition of maximum sentences.  The lead opinion decides this issue is frivolous, and that an argument about the weight the judge gave the various factors would be, too.  The reason Anderson doesn't clarify anything is because the other two judges concurred only in the result.  It's still worth taking a look at, because it shows that the confusion in appellate review of sentences is due in some part to the statute granting appellate review, RC 2953.08

Division (A) grants a defendant a right to appeal a sentence in numerous situations, one being where a maximum sentence is imposed, another where the sentence is contrary to law.  The lead opinion in Anderson looks only to the latter, and one is tempted to suggest that the author simply overlooked the former.  But not necessarily so.  Division (G) says what the appellate court must find before it can reverse, vacate, or modify the sentence:  the defendant must "clearly and convincingly" demonstrate that the sentence is "contrary to law," or that the record "does not support the court's findings."

But that latter provision is limited to the court's findings on consecutive sentences, "mandatory probation," or granting judicial release for first and second degree felonies; it's not a carte blanche to review any findings the judge makes under RC 2929.11 and 2929.12.  In fact, the law is pretty clear that the judge doesn't need to make findings under those sections; a statement in the journal entry that he considered them will suffice.

So it's entirely possible that the lead opinion is right, and I'm making too much of Marcum; the Supreme Court's decision doesn't flatly say that the application of the 2929.11 and 2929.12 factors can be reviewed by the appellate court, it simply says that the record didn't clearly and convincingly demonstrate that the sentence was unwarranted.  I'd like to think that I'm right, because if the judge's consideration of those factors is walled off, then there's no meaningful appellate review of sentences.  I like to think that I'm right about a lot of things, though, and that doesn't mean it's necessarily so.

A couple of appellate issues come up in two other decisions.  In State v. Vaughn, the defendant seems to have developed a precocious talent for crime, unfortunately unaccompanied by any talent for evading apprehension:  by the tender age of 17, he stands convicted of having committed a string of armed robberies.  Citing his juvenile record, which included two counts of delinquency for committing armed robberies - note the emerging pattern - the judge sentences him to 26 years in prison.

Not in the journal entry, though:  that imposes a sentence of 45½ years.  The State agrees that's wrong, and so the court ships it back to correct the journal entry.

But not to 26 years.  Vaughn had pled out to two counts of aggravated robbery with three-year firearm specifications, and under RC 2929.14(B)(1)(g), those sentences were to run consecutively.  The judge ran them concurrently, the State objected, the judge told them they could appeal if they didn't like it, but no appeal or cross-appeal was taken.

The appellate panel nonetheless ordered the judge to impose them consecutively, and I think that's wrong.  To be sure, concurrent sentences were "contrary to law," but there are a whole bunch of things courts do that are contrary to law, and if you don't appeal them, it's too bad.  Let's flip it:  let's say the State appealed, but Vaughn didn't, and didn't cross-appeal.  Do you think the panel still could have considered whether the judge made the necessary findings for consecutive sentences?  I don't.  Maybe I'm wrong about that, too, though.

Finally, we come to State v. Thomas, an appeal from the denial of a petition for post-conviction relief.  Under the statute, the trial court is required to make findings of fact and conclusions of law if he denies the petition.  The judge here didn't, and so the appeal is stayed and the case remanded so the judge can make the necessary findings and conclusions.

Well, no it's not:  the court dismisses the appeal for lack of a final appealable order, citing two 30-year-old Supreme Court decisions, State v. Mapson and State ex rel. Ferrell v. Clark

Those decisions aren't that supportive of the panel's decision, though.  Ferrell didn't appeal the denial of the petition; instead, he filed a mandamus action to compel the judge to make the findings and conclusions, and the Supreme Court held that he was entitled to one.   Mapson simply held that the time for appeal didn't run until the findings and conclusions were made.

That's not to say the panel got it wrong; the court in Ferrell had to find that he had no adequate remedy at law, which meant that without the findings and conclusions, he didn't have a final order to appeal from.  Still, if the judge doesn't impose sentences on all the counts, or doesn't impose an amount of restitution, that's not a final appealable order, either, but the courts routinely remand the case back for correction of that before proceeding with the appeal.  That would seem to be a more judicially economic way of handling these things than having Thomas file a mandamus to force the judge to make the findings and conclusions, and then appealing.

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