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New laws on gun crimes

I'd mentioned a while back that the county prosecutor's office here had adopted a position that they wouldn't plea bargain on any gun crimes:  no dismissing firearm specs, no reducing weapons offenses.

If they stick to that, figure Ohio's going to have to build some prisons after September 14, courtesy of SB 97.

That's when several new laws take effect.  First up is a modification to RC 2929.14(B)(1), which lays out the penalties for various specifications.  There's a 50% increase in the sentence for specifications, if the defendant's previously been convicted of one.  Here's how it breaks out:

Specification

Old Law

New Law w/ prior

Possessing

1 year

1 ½ years

Brandishing

3 years

4 ½ years

Silencer

6 years

9 years

From car

5 years

7 ½ years

At peace officer

7 years

10 ½ years

 

Keep in mind that any prior firearm spec triggers the increase.  For example, if you've got a client who picked up a one-year spec because he had a gun in the glove compartment of the car the cops found drugs in, if he happens to use a gun in a robbery, he's looking at 54 months additional time, not 36.

And that's not all.  We now have a new statute, RC 2923.132, which creates the classification of "violent career criminal":  someone who's been convicted of two or more "violent felony offenses" within the past eight years.  (And the time he's spent in prison, even on other offenses, doesn't count.) 

What's a violent felony offense?  It's not the same as an "offense of violence" under RC 2901.01(A)(9).  Arson is an offense of violence, but not a violent felony offense.  Domestic violence isn't a violent felony offense, unless it's a third degree felony.  But unlawful sexual misconduct with a minor is a violent felony offense, even though it's not an offense of violence.  Go figures.  

So what happens if you're a "violent career criminal"?  That's a separate offense:  if you "knowingly use" any firearm or dangerous ordnance, it's a first degree felony, and you're looking at a mandatory prison term of between two and eleven years.

A couple of points.  Note that the offense is using a firearm, not merely possessing one.  You could get some argument there, but since numerous other gun statutes make a distinction between the two, it's hard to see how the statute would apply to mere possession of a gun.  At the very least, there's an ambiguity, and the rule of lenity resolves that in favor of the defendant. 

Keep in mind, though, that for many if not most of the "violent felony offenses," a single offense disables you from possessing a weapon.  A weapons under disability offense could be the "use" necessary to trigger the violent criminal statute, if the defendant has any of the other offenses under 2923.132.

The bigger issue is the extent of the overlap between the "violent criminal" statute and the firearm specifications.  For example, let's say your client broke into a house where someone was "likely" to be present, but wasn't, and had sex with a 15-year-old.  That makes him a violent career criminal.  Then let's say he has a prior one-year-spec for a 4th degree felony trafficking charge.  And then he goes out and shoots at somebody from a car, and gets charged with felonious assault.  Under current law, he'd be looking at a minimum 10 years and a maximum 16 years - two to eight for the felonious assault, three for the brandishing spec, and five for the driveby spec.  (The two specs run consecutively.)

How about under the new law?  Try a minimum of 16 and a maximum of 31 years:  two to eight for the felonious assault, twelve for the enhanced firearm specs, and two to eleven for the violent career criminal charge.  (RC 2929.14(K) specifically provides that the penalty for being a violent career criminal runs consecutively to the underlying offense.)  And forget about arguing that the firearm specifications are allied to the underlying offenses.  The Supreme Court put that one to bed with its 2011 decision in State v. Ford, holding that firearms specifications weren't "offenses," they were "sentencing enhancements."

There is some limitation.  Under 2929.14(K), a court can't impose more than one sentence for a violent career criminal offense if the acts are "committed as part of the same act or transaction."  That's the same language that applies to firearm specifications, and the "same act or transaction" is broader than the analysis for allied offenses.

But there's one other thing to keep in mind.  All this is before we even get to the repeat violent offender provision.  There's some overlap with the "violent career criminal" statute, and that could result in the judge adding an additional two to ten years, and, in certain circumstances, having to impose the maximum sentence for the underlying offense, and having to add another two to ten years on top of that.

Five years ago, the legislature passed HB 86, which modified 158 sections of the Ohio Revised Code.  With one exception - increasing the maximum sentence for a first-degree felony from ten years to eleven years - every single one of those changes was designed to send fewer people to prison, and to reduce the sentence of those who were sent.  The motivation was simple:  to save money. 

Now we have this.  And the margins of the vote for passage - 88 to 8 in the state house, and 28 to 5 in the senate - prove the truth of the observation that nobody ever lost an election by being hard on crime.

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