Preserving Blakely errors
Yesterday's Ohio Supreme Court decision in State v. Payne, on the surface, couldn't be any simpler, but the ramifications of the decision are much more significant: it represents a radical modification of the holding in State v. Foster.
Back in 2004, Payne had pled guilty to a bevy of felonies, and had received an aggregate sentence of 35 years. Shortly before his plea, the US Supreme Court had handed down Blakely v. Washington, which held that courts couldn't impose a longer sentence based on facts found by the judge.
Payne appealed to the 10th District, arguing that's exactly what happened in his case: the judge had to make certain findings in order to give him consecutive sentences, and Blakely prohibited that. While the appeal was pending, the Ohio Supreme Court handed down State v. Foster, which essentially agreed with Payne. The court of appeals in Payne's case, however, decided that he wasn't entitled to a resentencing under Foster because he hadn't objected to his sentence in the trial court. The majority of Ohio's appellate districts -- everybody except the 10th, as a matter of fact -- had held that the failure to object didn't preclude an appeal, but yesterday in Payne the Supreme Court said they were wrong.
How the Court got there is what's interesting. Since Payne hadn't objected, the case had to be analyzed under the "plain error" standard, and the Court quickly cut to the chase:
Foster represents a Pyrrhic victory for Payne and other defendants affected by its holding. Although defendants were successful in arguing the unconstitutionality of the sections of the statutes that required judicial findings for the imposition of higher than minimum sanctions, we did not adopt their proposed remedy of mandatory minimum sentences. . . Payne, therefore, has failed to establish that he was prejudiced by the judicial fact-finding requirements. If Payne were to be resentenced, nothing in the record would hinder the trial court from considering the same factors it previously had been required to consider and imposing the same sentence or even a more stringent one.
The emphasis in the last sentence is mine; we'll get back to it in a minute.
The next hurdle for the Court, though, was the language in Foster itself: as Payne pointed out, Foster held that since the sentencing statutes at issue -- the ones allowing more than minimum, maximum, or consecutive sentences -- were void, defendants subjected to those sentences had to be resentenced. But if the sentence was void, it wouldn't matter if Payne had objected to it in the trial court or not; it was a nullity (that's what void means), and he was entitled to a do-over.
Several judges and other commentators, including yours truly (here), have noted the problems with holding that a sentence is void, as opposed to merely voidable; Justice Lantzinger voiced the same concerns in State v. Bezak, a case on post-release controls this past summer, which I discussed here. The majority in Payne concludes, without ever getting around to admitting it, that the Foster court was wrong: the sentences are voidable, not void. (In fact, while Payne was a 4-3 decision, at least six members of the Court are on board with the revised wording. Pfeiffer dissented without opinion. Lanzinger concurred just for the purpose of congratulating the majority on figuring out the difference between void and voidable, and while Cupp and Moyer dissented on the grounds that they believed that Foster had specifically held that defendants in all pending cases were entitled to be resentenced, they also concurred in the void/voidable portion of the opinion.
But let's go back for a second to the part of the opinion I emphasized, where the Court says that a judge on resentencing can impose an even harsher sentence. There's a constitutional issue here: the US Supreme Court has held that if a trial judge imposes a harsher sentence after a defendant successfully appeals, that may be a violation of the defendant's rights. (I discussed that in a series of posts, which you can find here.) If the original sentence was void, that argument might not apply: in that case, there essentially is no "first sentence" to compare anything to. But if the first sentence was merely voidable, then a constitutional analysis is appropriate.
What's it all mean? The actual impact of the decision is almost insignificant: It's been 18 months since Foster was handed down, and there simply can't be that many cases out there awaiting resentencing any more. The much bigger impact of Payne is that it goes a long way toward cleaning up the problems the Court created in not distinguishing between void and voidable sentences. Its work in that regard is hardly done, however; Bezak is still out there, and that decision holds that if the judge fails to properly advise a defendant of post-release controls at sentencing, the sentence is void. That holding, needless to say, presents the same set of problems that Foster did in that respect, and I'd be surprised if the Supreme Court doesn't readdress, and correct, that issue within the next year.
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