Given that the outcome in the vast majority of criminal
cases is a sentencing -- over 95% of cases are resolved with a plea bargain --
it's not surprising that a lot of appellate cases deal with sentencing
issues. Three decisions on that issue
came out of the 8th last week, plus one on a search issue, and the coda in the Williams case on 404(B) evidence.
The big issue in State
v. Corbettis an old one: what
exactly can the trial court take into consideration in sentencing? Corbett, a sex offender, had left the
emergency mens shelter where he'd been living, and began residing -- let's call
it that -- on some land near the animal shelter. Ordinarily, this change in abode is not
something you'd want to broadcast, but Corbett was obligated to tell the
sheriff about it. The State amended the
charge to include the attempt statute in return for a plea, but the judge gave
him the maximum eighteen months in jail.
Corbett argues that his plea was invalid in that it lacked a factual
basis, since he'd protested his innocence; the law does require a factual basis
for an Alford plea. But, the court notes, Corbett waited to make
his protest until after the court had accepted the plea and set the date for
sentencing.
More troublesome was the judge's reference to a charge of
felonious assault, which had been dismissed two years earlier. The
panel notes that the rule that "consideration of criminal conduct for
which no criminal conviction has resulted may constitute error on the part of
the trial court in some instances."
Well, as long as it's definite.
It's a bit more complex than that, and Corbett fits into a murky area.
Generally, the court can't consider uncharged or acquitted conduct in
sentencing after a jury verdict, but it can consider charges dismissed as part
of a plea bargain, as the 8th held a couple weeks back in State
v. Dari. But the dismissal of
the felonious assault charge happened two years earlier, and wasn't a part of
the plea. Still, the panel affirms the
sentence, finding that the dismissed charge wasn't the "sole" basis for the
plea.
As I mentioned yesterday, the trend in consecutive
sentencing cases is to more stringently enforce the requirement that the judge
in imposing them first make the findings required by RC 2929.14(C)(4). State
v. Cowan provides an additional nugget.
On the surface, it's an easy case:
the panel concludes that "the only finding the trial court made
was that a consecutive sentence was necessary to protect the public,"
and even the State concedes that the trial court didn't make the requisite
findings. But in Paragraph 16, we find
this little gem:
In the instant case, a review of the record reveals that the
trial court did not strictly comply
with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of consecutive
sentences.
That's my emphasis, and it's there for a reason: so that the next time you have a brief on
consecutive sentences, you can include the phrase, "A trial court must 'strictly comply with the requirements of
R.C. 2929.14(C)(4) prior to the re-imposition of consecutive sentences,"
followed by the case cite. That's how
you advance the ball.
You
might also throw in State
v. Schmick, which echoes the same sentiment.Schmick pled to 45 counts
of child pornography, and the trial court imposed a 16-year prison
sentence. The judge spoke at length before
imposing consecutive sentences, and the panel concedes that on previous
occasions, it would have pieced together what the judge said and try to fit it
into the statutory scheme. No more, "the
current trend has been to hold the trial court responsible for more than just 'substantial
compliance' with the requirements." The
court also gives an interesting twist to the argument about whether the judge has
to give reasons in support of its findings:
here, "although the trial court offered 'reasons' for the sentence, they
were not specifically tied to the required findings for consecutive sentences."
Schmick even gives some
hope to the disproportionality argument.
The 8th has consistently held that failure to raise the issue in the
trial court dooms it in the appellate court, so Schmick's trial counsel had
done an excellent job in presenting the trial court with what happened to the
35 other defendants who were part of the roundup Schmick found himself in. Fifteen of them were granted probation, and
only six were sentenced to more than five years in prison, with the maximum
exactly one-half of what Schmick had received.
Just five months ago, the 8th rejected this approach in two separate
cases, concluding that such an analysis was irrelevant because, in essence, each
case is different. As
I'd mentioned at the time, it makes little sense to conclude that the only
valid basis for comparison in a disproportionality analysis is the defendant's
clone; we should be talking about similarly
situated defendants, not identically situated
ones.
There's
no mention of the earlier cases in Schmick,
and in fact the panel turns the tables:
the trial court had relied on a 2009 8th District case, State
v. Phillips, in which the court upheld a 24-year sentence in a child
porn case. But that case, the panel
concludes, was far different: Phillips had
been diagnosed as a pedophile, and had sent pictures of his genitalia to other
minors. Schmick, on the other hand, wasn't
diagnosed as a pedophile and didn't do anything other than download and view
the material, and so, "in addressing proportionality on remand, the trial court
should not rely on Phillips."
Finally,
State v. Williams comes back on
remand. Two years ago, the 8th handed
down an en banc decision clarifying
the "scheme or plan" exception to 404(B) evidence, concluding that evidence
wasn't admissible under that exception unless it went to the issue of the
defendant's identity. (Decision
discussed here.) Despite the fact that the opinion was one of
the better ones coming out of the 8th in recent years, I had misgivings about
how the case would fare in the Supreme Court, and those misgivings proved true
when that court reversed
by a 6-1 vote (discussed here). The Supreme Court initially reinstated
Williams' convictions, then reconsidered and remanded the case for
consideration of Williams' other assignments of error, which had been mooted
out by the reversal of the convictions.
Once bitten, twice shy: after
reciting the facts, the panel rejects
the six remaining assignments of error in a brisk ten pages, and off Williams
goes to do his two decades in prison.
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