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What's Up in the 8th

If you want to plumb the depths of the absurdity of Ohio's sentencing law, look no further than the 8th District's decision last week in State v. Vinson

Vinson was 18 years old, but the ferocity of his criminal activities belied his tender years.  During a twelve-day period in 2014, he and a codefendant conducted a home invasion, robbed a cell phone store, robbed two food marts in a single day (stomping on the head of one of the customers), shot a man five times, necessitating the victim having one of his eyeballs surgically removed, and robbed a convenience store.

He was caught the next day, and wound up indicted on 49 counts of attempted murder, aggravated burglary, aggravated robbery, kidnapping, felonious assault, with a few counts of vandalism, intimidation, CCW, and weapons under disability thrown in for good measure.  He pled out to 21 counts.

As I've mentioned before, because we have 34 judges on the bench up here, it is possible to "win" or "lose" a case in the arraignment room.  Vinson lost.  He probably would have gotten double digit time in almost any room, and somewhere north of twenty years in at least half of them.

Vinson drew a judge who gave him 99.  Here's the funny part:  after the judge got done pronouncing the sentence, nobody could figure out exactly what it was.  The judge thought it was an even 100, but the State came up with 94, and the defense figured it as a decade less than that.  They had a sidebar where they tried to straighten everything out, but even then the judge told Vinson he'd been sentenced to 95 years, when it was actually 99.

Like that mattered.   

Vinson argued on appeal was that his plea wasn't knowing, intelligent, and voluntary, because the judge didn't tell him she could run the sentences consecutively.  There was enough in the record, though, to let Vinson know there was a possibility of consecutive time, albeit nowhere close to the near-century that he got.  Doesn't matter; according to the Ohio Supreme Court, a judge doesn't have to tell the defendant the sentences can be run consecutively.

Why not?  If a potential sentence for a particular crime is a maximum of eight years, and the judge doesn't tell the defendant that, it's coming back:  failure to inform the defendant of the maximum sentence requires reversal.  But if the defendant's charged with five crimes that carry a maximum eight-year sentence, the judge doesn't have to tell him that he's looking at a potential forty.  I don't see how that makes sense.

Vinson's other major argument is that the sentence constitutes cruel and unusual punishment, which requires him to show that the sentence is "extreme" and "grossly disproportionate to the crime."  But here's the catch there:  the Ohio Supreme Court has held that "it is not the aggregate term of incarceration but, rather, the individual sentences that are relevant for purposes of Eighth Amendment analysis."  In other words, the fact that the judge gave a sentence of 99 years is of no consequence; the only issue is whether 11 years for an aggravated robbery is disproportionate.

That doesn't make any sense, either.  If the defendant had ten fourth-degree felony convictions for drug possession, it certainly wouldn't be disproportionate to give him an 18-month sentence on each, and run them concurrently.  But would a fifteen-year sentence for fourth-degree felony drug possession be disproportionate?  Maybe, maybe not, but it's absurd to suggest that the latter scenario isn't even an issue to be addressed.

Vinson does get relief, of sorts.  To impose consecutive sentences, the judge has to make three findings, and one of them is that consecutive sentences aren't disproportionate to the seriousness of the offender's conduct and the danger he poses to the public.  That's in the conjunctive.  Here, the court made only a finding that consecutive sentences weren't disproportionate to his conduct; it left out the part about the danger he poses to the public.

Why it goes back for that I haven't a clue.  The 8th has held repeatedly since the Supreme Court decided State v. Bonnell that a judge need not use the "talismanic words" of the statute.  In fact, in another case last week, State v. Morris, the judge did no more than say that consecutive sentences weren't disproportionate, without saying anything about the seriousness of the conduct or the danger to the public, and the court decided that was close enough for government work.

At lest you think that this means there could be a good ending for Vinson, don't.  As the concurring opinion points out, the only issue for the judge on remand is whether to make the findings for consecutive sentences or not.  In other words, either the judge gives Vinson 99 years, or she give him 14 (eleven for the offense and three for the gun spec).  Gee, I wonder what's going to happen?

It may be that Vinson deserves to die in prison.  What's distressing is that's the one question the opinion never addresses.

I'm not done yet.  In State v. Lawson, the defendant pleads to aggravated murder, and appeals her 33-to-life sentence.  You can't do that; Ohio law specifically provides that sentence for aggravated murder is not subject to appellate review.  Betcha didn't know that.  Betcha can't come up with a reason why that makes sense, either. 

And we'll conclude today's program with State v. Campbell.  The judge sentences Campbell to life without parole for aggravated murder, and eleven years consecutive to that for aggravated burglary, and eight years on top of that for the repeat violent offender specification.  He appeals the latter two - remember, he can't appeal the sentence on the aggravated murder - but the panel decides it's moot, because he won't have to serve them, because by the time those come into play he'll be dead.

Of course, that sort of begs the question of why they were imposed in the first place.

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