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8th District Roundup

I've frequently commented on how the outcome of a case here in Cuyahoga County can hinge almost entirely on what judge you draw in the arraignment room.  The sentencing range for child pornography cases, for example, runs from probation to a couple decades in prison.

Two cases last week, State v. Jones and State v. Pawlak, show that the outcome of an appeal can hinge almost entirely on what judges you draw for your panel.

The prosecution of the Joneses, husband and wife, resulted from the tragic death of their 12-year-old adopted daughter from a sepsis infection.  The State claimed they neglected her medical treatment, and while there were issues to be argued on that, from the facts in the opinion the jury's verdict of guilty of involuntary manslaughter doesn't seem unfair.  That's a first-degree felony (it was based on a felony two child endangering), and the judge gave them each ten years.  There are a number of appellate issues, but with one exception, they don't go anywhere.

Last year, in State v. Marcum, the Supreme Court handed down a sentencing decision which contained a paragraph which, I believed, held that in non-consecutive sentencing cases, the appellate court could reverse or modify the sentence if it found that the record "clearly and convincingly" fails to support the trial court's findings. 

Since then, various panels have been duking it out over whether Marcum does indeed mean that.  If it does, that's huge; in the past, appellate review of sentencing has consisted of... well, nothing.  The trial court doesn't have to make findings under the seriousness and recidivism factors in RC 2929.12, it just has to mention that it considered them, and if it doesn't, the panel will presume that it did anyway.

Jones comes down clearly on the side of expanded review.  While the trial court said in the entry that it had considered the 2929.11 and 2929.12 factors, that's not good enough here: 

On this record we are unable to discern if whether, by clear and convincing evidence, the record does not support the sentences as the Joneses contend...  We are unable to determine whether imprisoning her parents for ten years advances the two primary purposes of felony sentencing, that is, to protect the public from the Joneses and to punish them using minimum sanctions.

The court doesn't stop there.  It finds that while three of the "more serious" factors under 2929.12 apply, one of the less serious factors - "There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense" - might apply, too, citing the Joneses' cooperation with law enforcement and, somewhat oddly, that they "maintained their innocence and did not seek any leniency from the state (in terms of a plea deal)."  The panel also directs the trial court to "make a finding as to whether any of the 'likely to commit future crimes' factors apply."

I've got mixed feelings about Jones.  It's unquestionably what the law on appellate review of sentencing should be.  Whether it's what the law on appellate review of sentencing is might be more muddled.  Don't be surprised if this one gets en banced, or even winds up Columbus.

Brandon Pawlak accomplishes the dubious feat of turning a simple B&E into a 35-year prison sentence.  Caught prowling around the grounds of a golf club, Pawlak jumped into his truck and fled, the police in hot pursuit.  They put some speed sticks on the highway, shredding Pawlak's tires and causing him to crash into a restaurant, sending thirteen patrons to the hospital.

His defense is based on the theory that a Phantom Driver was actually responsible, Pawlak being a mere passenger.  This finds no support from the numerous witnesses at the scene, and is further undercut by Pawlak himself:  while he has the right to remain silent, he lacks the ability, quickly admitting to the officers at the scene that he was the driver. 

The Joneses and Pawlak had the same judges.  Undoubtedly, Pawlak deserved to do some serious time; four of the victims had injuries so critical they had to be life-flighted to hospitals, and his record was extensive, including a failure to comply conviction from only a few years before.  But 35 years?  His priors were for misdemeanors or non-violent offenses, and I know of several recent cases here where drunk drivers going the wrong way on the freeway killed several people and wound up with sentences half of what Pawlak got.

But while the judge in both cases was the same, the panels were not.  Pawlak gets no love, and will likely spend the rest of his life in prison.

There are sentencing issues, and then there are sentencing issues.  My friend John Martin is handed an appeal in State v. Cummings, where the defendant pled and got the agreed-upon sentence of eighteen years in prison.  A lesser man would have cranked up the old Anders brief and be done with it, but while John may be lesser in stature (by a substantial margin), he is a giant in creativity. 

The trial judge had ordered Cummings to pay court costs.  Despite Cummings' indigency, the argument that the court shouldn't have done it is going nowhere:  the Supreme Court has held that costs can be imposed upon indigent defendants.  In fact, the judge had been somewhat lenient in this regard, deferring collection of the costs until Cummings was freed.

And that gave Martin his opening: 

Cummings argues that the imposition of court costs in this instance violates R.C. 2929.11(A) because it would impose an "unnecessary burden" on the Cuyahoga County Clerk's office to maintain an account of Cummings' costs for 18 years while he remains in prison.

A novel argument, indeed, but the panel finds novelty to be its sole redeeming feature.  It notes that the Cuyahoga County clerk's office has been conducting blood-from-stone experiments for years, and is fully equipped to hound Cummings to the grave, if need be.

Well, the opinion doesn't say that, but it could. 


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