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What's Up in the 8th

Sometimes it's bar shooting week in the 8th.  Sometimes it's consecutive sentencing week.  Apparently, last week was Beat Up Your Girlfriend Week.

It did not go well for defendants.

Lawyers know that in these cases judges usually cast a jaundiced eye on pleas by the victim for leniency; such entreaties are part of the battered woman syndrome.   But things get infinitely worse if instead the victim recounts how the defendant has had multiple violations of a protection order and how he's threatened her and the children, and tops it off by detailing the injuries she's suffered, which includes a broken bone around her eye.  The defendant in State v. Stewart was pushing for probation, but the victim's statement took that off the table, the judge proclaiming "community control is out of the question, CBCF is out of the question.  You're going to prison."  And go to prison Stewart does, for 54 months.

He argues on appeal that the trial court didn't properly consider the sentencing factors in RC 2929.11 and 2929.12, and that community control sanctions or a lesser sentence would have "better satisfied" those requirements.  The panel holds that the trial court's weighing of those factors is unreviewable, even for abuse of discretion. 

Stewart got a slap on the wrist in comparison to the defendant in State v. Herring.  He winds up with a sentence just shy of twenty years for breaking into his girlfriend's house, beating her, and stealing her car.

Things took a positive turn for Herring at trial when his girlfriend got on the stand and told the prosecutor that Herring lived with her.  That definitely put a torpedo into the side of the biggest charge, aggravated burglary.

But then the prosecutors talk to the victim, and put together that Herring, using another inmate's phone privileges, got the word to his buddies to put some pressure on the victim to get her to say that Herring lived with her and the children.  The court allowed the witness to take the stand again and testify to that, her story immeasurably buttressed by recorded phone calls from the jail.

The big issue is whether that should've been kept out, on the theory that it was "other acts" evidence generally prohibited by EvidR 404(B).  A clever argument, but courts have always allowed in evidence of intimidation of victims or witnesses, as showing consciousness of guilt, and does so here.

Before trial, Herring was offered a deal to plead to one count of domestic violence and one of grand theft, which would have exposed him to a maximum of three years in prison.  The disparity between that and how things ended is the focus of his last assignment of error.  That's easily disposed of:  in a proportionality analysis, you don't compare the trial result with the plea offer.  It's an appropriate consideration if you're making a trial tax argument -- that the increased sentence was the judge's punishment for Herring's going to trial.  And that's an even more forlorn argument than this one.

There's more sentencing law, too:  the 2929.11 and 2929.12 factors don't work here, either, because the issue here is the consecutive nature of the sentences, and for that the only factors the judge is to consider are the factors for imposing consecutive sentences in RC 2929.14(C)(4).

I think this overstates the case.  To be sure, the judge doesn't have to expound upon those factors; he doesn't when he's imposing single sentences, let alone consecutive.  Yet those factors certainly go into the consideration of whether consecutive sentences are appropriate.  If the crime's less serious than normal, it's hard to square that with a finding that consecutive sentences are necessary to protect the public.

Still, considering that the 2929.12 factors get treated worse than a red-headed stepchild, this particular result is hardly surprising.

It's also not to be regarded as the final word, nor is the opinion in Stewart.  I've talked of the divide on the court between those who strictly construe legislative intent and those who don't, and those two opinions were written by judges clearly residing in the first camp.  That may get resolved, or it may not, and maybe someday there'll be a post here entitled "Ohio's Sentencing Law:  Russ Bensing Explains How It Should Be." 

I'd mentioned yesterday the 8th District's decision in State v. Romanko.  The case had been remanded back once because the judge hadn't made the findings for consecutive sentences, but she did the second time around, and Romanko's lawyer filed an Anders brief, understandably finding no non-frivolous issue. 

What I didn't mention is the opinion in Romanko is twenty pages long.  Five years ago, a case in which the defendant's lawyer filed an Anders brief would be disposed of with a post-card entry.  Now, we have a twenty-page opinion.

To be sure, Romanko filed a pro se brief, and half the opinion is devoted to the issues she raises there.  Still, the court goes into painstaking detail in considering the standards for an Anders brief, as well as the potential issues.  In other words, the court acquits itself of its responsibility of independently reviewing the record and considering all potential claims of error.  Not the easiest way to do things, but it's the right way, and the court deserves credit for doing it.

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