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What's Up in the 8th

The 8th District is on pace to handle about 950 cases this year.  A large number of them will deal with sentencing issues; of the seven decisions in criminal cases last week, three were on that subject.  One way of reducing that number is to hold that some sentencing decisions can't be appealed at all, and the court disposed of two of the sentencing cases last week in just that manner.

Let's take the easy one first.  In State v. Sailes, the issue is whether a defendant can be ordered to pay restitution to a third party who's not named as a victim in the indictment.  There are arguments to be made on that, but not when the defendant agrees to pay restitution as part of the plea.  Sentencing appeals are governed by RC 2953.08, and one of its provisions is that a sentence can't be appealed if it's recommended by the parties and imposed by the trial court.  So that takes care of that.

Then there's the other two, State v. Wenmoth and State v. Ortiz-RojasBoth defendants argue, unconvincingly, that their sentences are excessive:  Wenmoth got six years (one via a gun spec) for robbing a person at gunpoint and beating him up to the extent that he needed over $6,000 in dental work, and Ortiz-Rojas got 18 months for a third-degree felony drug trafficking charge that carried a presumption for imprisonment.  And the court affirms in each case.

But they take very different paths.  The panel in Wenmoth follows the decision last year in State v. Marcum, where 

the Ohio Supreme Court held that when a sentence is imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts "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."

I've pushed that argument ever since Marcum came down, but about six weeks ago the court handed down State v. Anderson, in which the lead opinion noted that the provision in 2953.08 regarding whether the record supports the sentence only applies to consecutive sentences, "mandatory probation," or granting judicial release for first and second degree felonies.  Anderson isn't authority for anything, because the other two judges concurred only in the result.

But Ortiz-Rojas is authoritative.  Ortiz-Rojas argues that the sentence is "contrary to law" - another basis for appeal in 2953.08 - because the judge didn't properly account for the mitigating factors.  The panel decides this doesn't in fact provide a basis for appeal:  as long as the judge says she considered the RC 2929.11 and 2929.12 factors, and the sentence is within the statutory guidelines, it's unreviewable.  Another panel, with three different judges, came to the same conclusion a few months back in State v. Cole.

Now, what authority Ortiz-Rojas and Cole have is open to question.  Neither even mentions the passage from Marcum, nor does Anderson.  Eventually it may have to go the en banc route, but right now I see seven votes for the Anderson-Cole-Ortiz-Riaz trilogy.

The defendant in State v. Clark apparently went to the Ray Rice Charm School.  At a party, he drops his phone, and says to a woman he's never met, "Bitch, pick up the phone."  When she passes on the invitation, he punches her in the face, then punches her in the face again for good measure.  This resulted in several broken facial bones for the victim, and a four-year prison sentence for Clark after a bench trial.

Clark argues that he should have been convicted of simple assault.  Simple assault can be committed if a defendant knowingly causes physical harm, or recklessly causes serious physical harm, but breaking bones fits anyone's definition of serious physical harm, and punching someone in the face fits nobody's definition of mere recklessness.  Several years ago, the law in the 8th was that serious physical harm could be shown simply by proof that the victim sought medical treatment.  The court backed away from that in recent years, but it reappears here, for no discernible reason.  This wasn't a close call. 


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