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What's Up in the 8th

It's pretty embarrassing when you show up for the first day of trial in your rape case, and you get arrested for another rape you allegedly committed after this one.

That began Christian Price's journey through the justice system, and that journey ended last week with the 8th District's decision in State v. Price, or, as it will be forevermore cited, Price IV. 

But what a ride.

Let's go back to the beginning.  Price is convicted of the first rape, and while the appeal of the first one is pending, he gets convicted of the second one.  Based on his earlier conviction, the judge finds him to be a sexual predator, and sentences him to ten to life.  He appeals that, too.

At which point Price I comes down from the 8th, reversing his conviction for the first rape because of trial error.

So then we come to Price IIThe 8th District doesn't have much trouble affirming the conviction, but what about the sentence?  Shouldn't that be vacated, too, since the judge expressly based the sexual predator finding on the first, now-reversed, conviction?  The 8th decides to punt, saying that Price can file a post-conviction motion on that issue.  Picking the legal nits, this is judicial activism at its height:  "Yes, you can file this petition, despite the fact that the statute doesn't permit it."  Translation:  "Let's see what happens in the retrial of your first case before we work ourselves into a lather over this."

Retrial had.  Price wins.  The State agrees that Price is entitled to a new trial on the SVP spec on the second case, he gets one, the judge finds him not guilty of the spec and sentences him to seven years.

He appeals that, arguing that the judge said mean things about him.  The 8th rejects that in Price III, but decides that since the judge didn't say anything about the sentencing factors in RC 2929.11 and 2929.12, at either the hearing or the sentencing, the sentence was contrary to law. 

So it goes back, she gives him the same seven years, he appeals again, and the 8th affirms, finally closing the book on the case.  Oh, and a personal aside:  I was the lawyer who won the first appeal, and lost the second trial.

But Price III has some definite value.  Remember the part about reversing because the judge didn't reference the statutes?  The 8th, and most other courts, have always held that even if the judge doesn't say anything about the sentencing statutes, it will be presumed that she did.  But now we have a decision that says if the judge doesn't mention them, the case goes back.  The ironic part is that I can absolutely guarantee that this is the one trial judge on the bench who did consider the statutes, even if she didn't say it.

And as a bonus, the court clearly adopts the position that any felony sentence can be reviewed to determine whether it's clearly and convincingly unsupported by the record.  The 8th has been skirting around the issue, with other panels taking the position that examination of the record doesn't come into play unless it's something like reviewing the imposition of consecutive sentences.  I was thinking this would wind up en banced, but I'm guessing neither side believes it has the votes. 

I've bemoaned the loss of clarity in allied offense law since the Supreme Court's decisions in State v. Ruff and State v. Earley over the past two years.  The simplicity of State v. Johnson's test - were the offenses committed with the same conduct? - has given way to mumbled about an amorphous test about "harms."  In State v. Smith, the court does a decent job of making sense of all that.

It doesn't really have to.  Smith drove drunk, ran a red light at twice the speed limit, and t-boned the victim's car, putting her in a coma for a month.

The plea was to two counts of aggravated vehicular assault, one for driving drunk (a third degree felony) and the other for driving recklessly (a fourth).  The judge maxed him on both and ordered them run consecutively.  The Smith court concludes that when a statute sets forth alternate means of committing the offense, the legislature intended punishment to be imposed only for one.

This is where I get worried, though, that Ruff and Earley are nudging us back toward State v. Rance, where the elements were compared in the abstract, without reference to the facts.  To be sure, multiple alternative convictions were permissible under Rance, like the 1st District decision upholding sentencing for eight counts of aggravated vehicular homicides for killing four people, over Judge Painter's withering dissent that four people were killed by the defendant's conduct, and "nowhere this side of Oz can that amount to eight counts of homicide."

The 8th didn't do that, but apparently the only thing that prevented it was that the alternative means were within a single statute.  What if they weren't?  What if the State had charged Smith with felonious assault, too?  You could make the same argument the State made in Ruff, where the defendant had killed someone while driving drunk:  a penalty for both aggravated vehicular homicide and OVI was permissible because the legislature wanted to punish separate harms.  So maybe crashing into someone and hurting them is different from crashing into them and hurting them real bad, and deserves to be separately punished.

Yeah, it's a stretch, and it's got problems.  But you just had the prosecutor's office insist that it was two separate offenses to crash into a car, one because you were driving drunk and the other because you were driving recklessly, although that's probably because you were driving drunk, but... oh, never mind.

I have great respect for the people over there, but this wouldn't be the dumbest argument they've ever made.  And they know all about dumb arguments, because they spend a lot of time reading mine.


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