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En banc on sentencing

A jury decided that Randy and Clarissa Jones killed their twelve-year-old daughter by failing to get her medical treatment.  A judge decided that warranted a 10-year sentence for each of them.  A panel of the 8th District decided that a ten-year sentence was too much.  The 8th District decided to have an en banc hearing on the scope of what an appellate court can do in reviewing a sentence.

Last week's decision in State v. Jones did provide some clarity, but it's not likely to be the last word.

Some backstory here.  RC 2953.08 defines appellate review of sentencing.  There are two pertinent provisions.  The first is subsection (A), which says that an appellate court can reverse, vacate, or modify a sentence if it finds that it's contrary to law.  Then there's subsection (G), which says that in certain cases -- consecutive sentences, cases involving a presumption of imprisonment, and the grant of judicial release for a 1st or 2nd degree felony -- the appellate court can reverse if the record clearly and convincingly fails to support the sentence. 

For years, the courts held that a sentence was contrary to law only if it was outside the limits set by the legislature, or if the judge failed to consider the purposes and principles of sentencing under 2929.11 or the sentencing factors of 2929.12, or if the court failed to observe a sentencing mandate (failing to impose a mandatory fine, for example).

We really didn't need a court of appeals to cover the first; that could be accomplished by computer program written by an eight-year-old.  As for the second, the courts subsequently held that the judge really didn't need to say anything about the two sections; a blurb in the journal entry saying the judge had considered them would be sufficient, and even without the blurb, the judge would be "presumed" to have considered them, and if you can figure out how a defendant would ever overcome that presumption, you're a better man than I, Gunga Din.

Then along came the Supreme Court in State v. Marcum (discussed here) and held that any sentence could be vacated if the record clearly and convincingly failed to support it.

Which brings us to the original decision in Jones.  The panel had initially decided that the record didn't provide sufficient reasons for the sentence, and remanded it back to the trial court to determine that, but then on a motion for reconsideration by the defendants, decided that the record clearly and convincingly didn't support the sentences, and so they were contrary to law.

Which brings us to the en banc decision.  The issue before the court was whether Marcum allowed an appellate court to remand for resentencing "if the record does not support the sentencing court's findings" not only for the cases mentioned above, but for 2929.11 and 2929.12.  Since that's exactly what Marcum held, that should have been easily resolved.

And it was; everybody agreed that it did.  The real question was whether that was part of the analysis under subsection (A) -- whether the sentence was contrary to law -- or whether it came under (G).  Six members of the court found that (G) was the controlling section.  One judge concurred only in judgment, but held that if the record didn't support the trial court's sentence, that made it contrary to law under (A).  The dissent seems to agree that it comes in under (G), but believes the record did not "clearly and convincingly" show that the sentence was unsupported.

There might be something to that last point:  the dissent makes a persuasive case that the judge spent a lot of time analyzing the case at the sentencing hearing, and devotes a fair amount of the opinion to recitation of the facts of the case.  It's hard to read that "the victim was found with over 80 marks, scars, bruises, cuts, deep wounds, and foot blisters at the time of her death," or that "the necrosis (dead tissue) the child was found with was so severe that the treating doctor and  investigating detective were able to note the condition from the odor alone that filled the room," and come away with sympathy for the Jones's over a ten-year prison sentence.

You say to-may-to, I say to-mah-to; it really doesn't make any difference whether an appellate court can review the record under (A) or (G).  What's much more significant, and the issue Jones doesn't address, is how the appellate court reviews that.  As the concurring opinion points out, one of the main purposes of the 1996 sentencing reforms was to ensure some degree of consistency and proportionality in sentencing.  Many decisions from the 8th, though, argue that consistency and proportionality are achieved by applying the 2929.11 and 2929.12 factors to that case.  In short, it doesn't matter what happened in other cases; as long as the judge applied the factors -- and even if he doesn't mention them, we'll presume that he did -- consistency and proportionality have been achieved.  This is a little like saying that I get to decide whether or not I'm fat, regardless of what other people weigh.

Yes, a judge should have a lot of discretion in sentencing.  His determination that the defendant isn't remorseful should be conclusive; he's the one who had the opportunity to observe the defendant.  And if one judge wants to impose a harsher sentence than another judge does, them's the breaks:  there are a myriad of factors that go into fashioning a sentence, and consistency doesn't mean uniformity.

To a point, anyway.  But when two men with the exact same criminal record (none) and background, and the same number and type of child pornography charges, can walk into different courtrooms, and one gets probation while the other gets twenty years in prison, something's wrong.  When a defendant rejects a plea deal for five years in prison, gets convicted after trial and gets 49 years, something's wrong.  Those results don't comport with an objective view that justice has been served.

That's where appellate review of sentencing should come in.  The legislature said that consistency and proportionality are two of the principles of sentencing, and granted the appellate courts the power to review sentences and ensure those goals are met.  Giving the trial courts essentially unfettered discretion to impose a sentence is an abdication of the appellate court's role.

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