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En banc on sentencing

Randy and Carissa Jones were convicted of involuntary manslaughter and child endangerment for neglecting medical treatment for their 12-year-old daughter.  The judge gave them each 10 years in prison, but last year the 8th District reversed, finding that the record didn't support the sentence.

Heaven Robinson pled no contest to five counts of child endangering, and the judge gave her a four-year sentence.  She appealed, claiming that the record didn't support the sentence.  Last week, the panel affirmed her sentence, ignoring the assignment of error and instead deciding that the sentence wasn't contrary to law:  it was within the limits set by the legislature, and the journal entry said that the judge had "considered all required factors of law," and that's all that was necessary.

This is what might be called an intradistrict conflict, and App.R. 26(A) provides a means of revolving that:  having all the judges review the decision.  And that's exactly what's going to happen:  the 8th is reconsidering Jones en banc.  

RC  2953.08 governs appeals as of right in criminal cases.  After going through a list of what can and cannot be appealed, the statute specifies the scope of review by the appellate court.  It isn't abuse of discretion; the appellate court can increase, reduce, or otherwise modify a sentence only if it finds clearly and convincingly that

(a) The record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b)  The sentence is otherwise contrary to law.

For a long time, the only way you had of challenging a non-consecutive sentence was to show it was contrary to law.  Good luck with that.  As articulated in Robinson, a sentence is contrary to law only if it is outside the limits by the legislature, or that the judge failed to consider the sentencing statutes.  The first doesn't have involve any lifting; making sure that a judge doesn't hand out a four-year sentence on a fourth-degree felony could be accomplished with a computer program written by a nine-year-old.

The latter looks more promising.  Except that the panel doesn't reweigh the factors.  And a judge doesn't have to make findings about them.  He doesn't even have to mention them, if his journal entry says that the court "considered all factors required by law."  And guess what?  He doesn't have to do that.  If he doesn't mention them, it's presumed anyway that he considered them, and it's your burden to overcome that presumption.  One might think that the fact the judge didn't mention them might offer a clue that he didn't consider them, but one would find no takers on the courts for that.

Then last year came the Supreme Court's decision in State v. Marcum.

As I explained at the time, Marcum dealt with a 10-year sentence on a first-degree drug felony.  The certified question was whether the standard for review of sentencing was abuse of discretion, but the statute is pretty clear on what the standard is -- in fact, it expressly says that it's not abuse of discretion, so that was that. 

But here's the part of the opinion that the 8th thinks requires en banc consideration of what Marcum means:

It is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court 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.

One side in the 8th notes correctly that the statutes mentioned in subsection (a) have nothing to do with non-consecutive sentences:  they deal with the findings required for imposing consecutive sentences, overcoming the presumption of imprisonment for high-level felonies, overcoming the presumption of probation for low-level first offenders, and granting judicial release on a high-level felony. 

But Marcum is pretty clear:  it specifically noted that "some sentences do not require the findings that R.C. 2953.08(G) specifically addresses," but in the very next sentence says that it's permissible to apply that subsection to sentences governed by RC 2929.11 and 2929.12.  It's not dicta; whether Marcum's sentence was unsupported by the record was the key issue (after deciding the standard of review). 

So the resolution of the issue presented for en banc consideration is fore-ordained.  To be sure, there's an argument that the court in Marcum didn't intend to do that:  the express purpose, the court said, was to provide "a standard that is ... deferential to the sentencing court," and you can't get more deferential than ignoring what the sentencing court does.  But the issue posed - whether Marcum allows consideration of RC 2929.11 and 2929.12 in determining whether a sentence is clearly and convincingly unsupported by the record - is not subject to dispute, because that's exactly what Marcum says.  If Marcum needs to be clarified, that's the Supreme Court's job, not the 8th's.

That doesn't mean the en banc process is a waste of time.  Sentencing law is a mess, and if the judges of the largest appellate district in the State want to put their heads together and try to clarify it, that would be most helpful.  How they might get around to doing that will be the subject of Wednesday's post.

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