What's Up in the 8th
After a thorough investigation, I can tell you that the
rumor that the 8th District judges gather before each conference, hold hands,
and sing "Kumbaya" is unfounded. Sure,
you wouldn't know it from last week's spate of decisions: seventeen of them, and not a single
dissent. Not even a "concurring in
judgment only," which is judicial shorthand for "I agree with the result, but
everything you said except 'judgment affirmed' is just shy of coherence." Every
single decision, unanimous, even the civil cases. You could
almost feel the love in the room.
Well, not for criminal defendants. The dozen cases there feature the following "wins"
for defendants: in State
v. Knox, the court affirms Knox's 5th degree felony conviction for possession,
but finds that the convictions for drug trafficking - which had merged anyway -
were against the manifest weight of the evidence, and in State
v. Brown, in which the court vacates one of Brown's two 5th degree
felony theft convictions for insufficient evidence, leaving intact his
12-to-life sentence for rape.
Well, since you guys and gals are getting along so famously,
might I respectfully suggest another opportunity for mingling? How about you do an en banc on consecutive sentencing?
Because you really, really need
to do something about that.
Last week, in State
v. Venes, Judge Rocco used a concurring opinion to bemoan the state of
the 8th's jurisprudence on that subject. He noted that the court couldn't even agree on
whether the Supreme Court's plurality decision in State v. Kalish was the appropriate framework for reviewing the
question, then lamented that if "this court cannot agree on the standard of
appellate review, how much harder must it be for trial courts to know which
precedent to follow when it comes to imposing sentence."
The major problem, though, is not the standard of review, it's
the revival in the sentencing reforms enacted two years ago of the requirement
that judges make findings of fact before imposing consecutive sentences. The judge has to find that (1) a consecutive
sentence is necessary to protect the public or to punish the offender and that (2)
they're not disproportionate to the seriousness of the offender's conduct and
to the danger to the public. Then the
judge has to make one of three further findings: that the offender was on bond or some other
type of sanction (post-release control, probation) when he committed the
offense, that his criminal history demonstrates that consecutive sentences are necessary
to protect the public, or that the harm caused by the offenses was so great
that a single sentence wouldn't adequately reflect the seriousness of the conduct.
Now, there are a lot of questions that can arise from
this. Does the judge have to use the
precise words of the statute? What if
that's all he says; does he have to give reasons as to why he made those
findings? Does he have to say it at
sentencing, or can he just stick it in the journal entry? But here's a question that shouldn't
arise: whether the judge has to make the
findings. The statute says he does. Maybe not in the precise words, but an
appellate court shouldn't have to sift through the goat entrails to discern
where the judge made the findings.
Shouldn't have to, but the 8th on numerous occasions has
expressed a willingness to do just that.
Or, more precisely, to discard the requirement of findings altogether,
as they did two weeks ago in State
v. Grasso, and as they did last week in State
v. Alexander.
Not that Alexander didn't deserve them. By my count, he had 15 prior felony cases in
Cuyahoga County. In fact, that's what
the judge relied on, citing Alexander's "extensive" criminal history, his "very,
very poor adjustment to probation" (Alexander was on probation to that very
same judge at the time he committed the charged offenses), and that he showed
no remorse. An easy call, as far as the
judge (and the appellate panel) was concerned:
Due to the defendant's extensive
history of narcotics trafficking, finding that these crimes were committed
while this defendant was under sanction to this court, and given that this defendant
does have an extensive criminal history of similar offenses * * * consecutive sentences
are appropriate.
An easy one, perhaps, but the discerning reader will note no
language remotely resembling any of the required findings, other than criminal history. No problem, says the panel:
The trial court made the
appropriate findings as to proportionality when it stated that it was imposing consecutive
sentences based on Alexander's extensive criminal history, noting that many of
his past crimes were similar in nature
and involved drug trafficking.
But even if you can twist "you've got a bad record" into "consecutive
sentences wouldn't be disproportionate," you still have the requirement that
the judge find that consecutive sentences are necessary to protect the public
or punish the offender. Of course, you
can apply the same reasoning: a bad
record means that you need to be punished, or the public protected.
As Venes points
out, though, in Ohio concurrent sentences are the rule; consecutive sentences
are the exception. A defendant shouldn't
get consecutive sentences just because
he has a bad record, or just because
the crime is particularly bad. That's a
big start, to be sure. But if the legislature had intended that a bad
record is enough to warrant consecutive sentences, it wouldn't have bothered to
require the other findings.
This isn't to fault the panel in Alexander; you can, and they do, point to a number of cases from
the 8th which have done the same thing. And
part of it might be prompted by the thought that it really doesn't matter. I don't think anyone believes that if Alexander had been reversed and remanded,
the judge would've said, "You know, now that I think about it, I really can't make
the findings necessary to give you consecutive sentences."
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