What's Up in the 8th
My cup runneth over.
I come back from vacation to find that the 8th has used the interlude to
do a decision dump: some thirty criminal
cases. The court's timing was obviously
motivated by the belief that I would be so overwhelmed that they might escape my
scathing criticisms for another week.
I'm sure that was it.
I've explained why I feel that sentencing is the most
critical stage of a criminal proceeding, because of its commonality -- that's
the way almost all criminal cases wind up -- and its consequentiality. It's unsurprising, then, that many of the
decisions over the past couple of weeks deal with sentencing. Consecutive sentencing takes center stage, with
the pivotal issue exactly what a judge has to say to comply with the statutory
requirements for imposing consecutive sentences. Judge
Sean Gallagher uses State v. Barnett, which
unsurprisingly affirmed a 17-year sentence for Barnett, who had followed a
61-year-old blind woman to her apartment, forced her inside when she opened the
door, tried to rape her, and choked her into unconsciousness, as a springboard
for a concurrence detailing the growing split in 8th District case law on the
subject. One approach has been to
require the judge to make the findings required by RC 2929.14(C)(4), and the
other has been to divine the required findings by parsing through everything
the judge said. Gallagher comes down on
the side of the latter approach, but a definitive answer awaits a future case.
And cases there will be.
Recent opinions, such as State v. Atkinson, have seen several judges urging
prosecutors to file sentencing memorandums with the hope of enlightening trial
courts on what exactly is required. My
recent experiences indicate that the judges' remonstrations have not found
their way onto the bulletin board in the prosecutor's office. In State v. Chavez, the court is
confronted with a defendant convicted of numerous rape counts involving five of
his six children, for which he was given multiple life sentences, including
life without parole, all to run consecutively.
The claim that the judge didn't make the necessary findings for
consecutive sentences is a pointless one, given the LWOP sentence, and the
court announces that henceforth it will review consecutive sentences only where
the combined sentence is greater than the maximum for any one conviction.
That's logical, but a more troublesome note is found in State v. Kellogg. Kellogg had been indicted for his management
of a mortgage fraud scheme, and argued on appeal that his 14-year sentence for
the 103 counts to which he pled "was unduly harsh and not supported by the
record." The court responds by pointing
out that "appellant did not object to the alleged errors at the time of
sentencing" and thus "has waived all but plain error on appeal." It's certainly arguable that a defense
attorney has to object to the imposition of consecutive sentences to preserve a
claim that the judge didn't make the necessary findings, but Kellogg's
sentencing came before HB 86, so that's not in play. Kellogg's specific problems with the sentence,
according to the court, were that there was no justification for it, that it
was predicated upon "improper considerations" - apparently, exactly how many
homes were involved in Kellogg's scheme, and the nature of the damage he did to
the area - and that the sentences were inconsistent with those his
co-defendants received. None of this is
going anywhere, regardless of the standard of review, but application of the
plain error standard in this area raises some concerns. What exactly was Kellogg supposed to "object"
to? Presumably, his lawyer argued for a
lower sentence, downplaying the extent of Kellogg's role, and pointing to the
sentences received by the co-defendants.
The purpose of the "plain error" rule is to require the defendant to
point to some specific problem with what the judge is doing to allow the judge to
correct it. That seems more easily
applied to evidentiary rulings than to the more amorphous interplay in a
sentencing hearing.
The issue of competency gets a workout in two cases. In State
v. Jirousek, the docket reflects that Jirousek was referred to the court
psychiatric clinic to determine his competency; there's no further reference to
the issue prior to his guilty plea and sentence. There's an Ohio Supreme
Court case which held that failure to hold a competency hearing after referral
may be harmless where the defendant testifies at trial and didn't come across
as a loony, but it doesn't work that way on a plea: where a defendant is
referred for evaluation, the plea will be vacated when the record doesn't
reflect a hearing on competency or stipulation by parties regarding that issue.
As to what constitutes competency, further confirmation that
it requires little more than that the defendant be able to distinguish the
judge from a head of cabbage is provided by State
v. Sims. Sims was diagnosed with
"severe mental illness" of "major depressive disorder, single episode, severe
with psychotic features," and he began shaking so badly during his trial that
the judge noticed it, interrupted the proceedings, and had Sims taken to a holding
cell. Shortly after, deputies observed
him curled up on the floor, crying uncontrollably. But the panel fluffs
off the problems, noting that Sims "provided cogent testimony in his own
defense." Not cogent enough, alas, to
avoid being convicted of felony murder, but, well...
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