What's Up in the 8th
Did you know it's error for a judge to impose court costs on a defendant
without telling him that his failure to pay the costs may result in him being
ordered to perform community work service? Well, courtesy of 8th District's
decision last week in State
v. Ayers, now you do. So the judge has to do another sentencing
hearing. If the defendant's in prison,
this means setting up a video conference with the prison, but if the defendant
doesn't agree to do it that way, you have to bus him in from Mansfield or Ross
Correctional or Belmont or wherever, appoint him a lawyer, tell him that his failure
to pay court costs may result in him being ordered to perform community work
service, and send him on his way.
Maybe it's just me, but I don't know if an
intelligently-designed criminal justice system would work that way.
It certainly wouldn't work the way it's working for consecutive
sentencing. When the 1996 sentencing
reforms were passed, they included a provision that a judge had to make certain
findings in order to impose consecutive sentences, and give reasons supporting
those findings at the sentencing hearing.
That worked pretty much as intended:
trial judges would have to give some thought to the issue, and appellate
courts would have a record from which to properly review it. Five years after the Supreme Court threw that
out in State v. Foster, in the
mistaken belief that requiring findings was unconstitutional, the legislature
re-enacted the statute, identical to how it was before, with one
exception: the judge no longer had to
give reasons in support of her findings.
The result is stupid.
Again, in an intelligently-designed justice system, an appellate court
would review the imposition of consecutive sentences to determine whether they
were warranted, giving due deference to the judge's broad discretion in
sentencing. Instead, the appellate
courts try to determine whether whatever the judge said is close enough to the "magic
words" required by the statute; as long as she did, that's pretty much the end
of the inquiry.
An example of that exercise is found in State
v. Stowes, where the judge imposed 18 years of consecutive sentences on
an 18-year-old defendant convicted of three armed robberies. The panel decides that the judge's recitation
of Stowes' extensive juvenile record could "arguably" satisfy two of the
statutory requirements: that consecutive
sentences are necessary to protect the public and punish the offender, and that
the offender's criminal history shows that consecutive sentences are necessary to
protect the public from future crime. (And
yes, Virginia, there is a bit of overlap there, no?) Alas and alack, the judge failed to address
the second prong of the statute, which requires a finding that consecutive
sentences are not disproportionate to the seriousness of Stowe's conduct and
the danger he poses to the public.
That's not to fault the court's opinion; the
disproportionality analysis is especially relevant given Stowe's age. But that's the point: instead of engaging in an analysis of whether
an 18-year-old merited that sort of sentence, the court picks through the
record to divine whether the judge said something approximating what she should
have said.
And sometimes the court doesn't even do that, as shown in State
v. Jones. I'm not going to get
excited that Jones got 24 months in consecutive sentences for two drug
convictions. He had fourteen prior felony convictions, and steadfastly
refused to admit that he needed treatment. But the judge made absolutely
no reference to the statute on consecutive sentences, reciting the basic
purposes and principles of sentencing and explaining only why she wasn't giving
community control sanctions. The appellate
court nonetheless finds that this is sufficient to justify the imposition of
consecutive sentences, and also concludes that since the judge stated her
findings in the sentencing journal entry, that does the trick, because a court "speaks
only through its journal and not by oral pronouncement." In another context, this assertion would be
merely troubling; does the court really mean to suggest that a judge need only
state at sentencing that she's imposing consecutive sentences, without making any
findings whatsoever at that point? In
this context, the assertion is simply bewildering: the journal entries don't even mention the
statute, nor is there a word in them about any findings whatsoever.
Chances are pretty good that the Willard family reunions are
going to be more sparsely attended in the future. While
his nephews, aged 16, 13, and 9, are visiting, Christopher Willard decides to
show them his pornography stash. His
brother finds out about this sometime later, and promptly takes the three to
the police station and reports it. The
police get a warrant to search Willard's house and seize his computer, on which
they find child pornography. In State
v. Willard, he argues that his motion to suppress should have been
granted, because there was an eight-month lapse between the time the boys saw
the pornography and the time of the search.
The opinion does a nice job of discussing the concept of staleness and
search warrants. The key is the
likelihood that the evidence will still be there. If it's perishable, or something which can be
consumed, like drugs, the warrant is more likely to be found stale than if it's
something like digital images on a computer.
But what the opinion mainly does is demonstrate the
haphazard nature of child pornography sentencing. Willard pled no contest to 21 counts, and was
given a sentence of five years of community control sanctions. There are 34 judges on the common pleas bench
in this county; I'd guess that Willard would've gotten a decade or more in
prison from about a dozen of them.
Whether that's how an intelligently-designed criminal
justice system should work I leave up to you.
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