Findings for consecutive sentences
It wasn't until the 13:52 mark in the oral argument before
the Ohio Supreme Court in State v.
Bonnell that anybody addressed the real issue in the case, in a question
posed to Bonnell's lawyer by Justice O'Neil:
"Counsel, what you're really advocating here today is meaningful appellate
review" of consecutive sentences. Whether
the court's ultimate decision will be a step toward that is anybody's guess.
The magic number for Bonnell was 44. That was the number of previous arrests or
convictions he'd had, and the judge cited that "atrocious record" as the basis
for his decision that imposition of consecutive sentences was "appropriate." That's all he said, though, and Bonnell
argued on appeal that this didn't meet the requirements of R.C. 2929.14(C)(4), which
requires a judge to make three findings:
that consecutive sentences are necessary to protect the public or punish
the offender, that they're not disproportionate, and that either (1) the
defendant committed the offenses while on post-release control or probation,
(2) the harm caused by the offenses was so great that no single prison term
adequately reflects the seriousness of the conduct, or (3) that the defendant's
criminal history shows that consecutive sentences are necessary to protect the public. The 5th District affirmed the sentence,
finding that the reference to the criminal history satisfied the last requirement,
and that the judge's additional statement that he'd read the pre-sentence
report were sufficient to show that consecutive sentences were appropriate.
That's about as expansive an interpretation of the findings
requirement as you're likely to see; basically, it allows the court of appeals
to dispense with the findings as long as the panel decides consecutive
sentences were proper. I'd be surprised
if the court found that to be sufficient; there really wasn't anything that
could be construed as a finding that consecutive sentences weren't
disproportionate. Beyond that, though,
there are some key questions.
Does the judge have
to just make the findings, or does he have to give reasons for them? The present section is a "meet the new
boss, same as the old boss" sort of thing:
it's identical to the provision found unconstitutional in 2006 by State v. Foster. It was re-enacted in 2011 after the US
Supreme Court found, contrary to Foster,
that there wasn't any constitutional problem with requiring judicial
fact-finding for consecutive sentences.
But there's one key difference:
under the old statute, the judge had to give reasons for the findings,
and under the new statute, he doesn't. I've
argued that Crim.R. 32(A) requires reasons, but as Justice French pointed out,
that's when they're "appropriate." You
can make an argument that they are, but I don't see it going anywhere.
If the judge doesn't
have to give reasons, what does he
have to do? That's the real crux of
the case, and it was highlighted by several questions by Justice O'Donnell: can a judge do no more than just read the
findings from a laminated card? But that's
the obvious dilemma: if you don't
require reasons, then what you're left with is a pro forma incantation, which renders "meaningful appellate review"
impossible.
One way to resolve that problem is to use the two-step
process the court articulated for general sentencing issues a few years ago in State v. Kalish: first, decide whether the sentence is contrary
to law, and second, review it for abuse of discretion. The entire argument in Bonnell was focused on the "contrary to law" issue, and the court could
hold that the first step is to determine whether the judge made the findings;
that's what's "legally" required. Even
if he did, an appellate court could still reverse if it found that the sentence
was excessive under an abuse of discretion standard.
Not the least of Kalish's
problems is that it was a plurality opinion; as the 8th District has noted in
several recent decisions, it's contrary to the statute on appellate review, RC
2953.08, which provides that an appellate court can reverse or modify a
sentence only if it finds that the sentence is contrary to law or that it "clearly
and convincingly finds . . . that the record does not support" the trial court's
findings. Still, I don't think there's much
daylight between abuse of discretion and the "clearly and convincingly"
standard, so it works out to the same thing.
Is this trip really
necessary? That point was made by
one of Chief Justice O'Connor's questions:
after eliciting from defense counsel that a victory for Bonnell would
simply result in the case being remanded for a new sentencing, she asked, "I'm
just interested, what do you expect to happen at resentencing?" After all, taking the minimalist approach to
the statutory requirements, a reversal could constitute little more than a post-it
note explaining exactly what the judge had to say to impose consecutive
sentences. But that just gets you back
to the "meaningful review" question. You
need more than a minimalist approach; the appellate court needs to do more than
just rubberstamp the result so long as the judge read the findings off a card.
But that gets to the question,
What does the appellate court look at? Bonnell's central claim was that the
judge had failed to make the finding regarding disproportionality, but as O'Donnell
asked, disproportionate to what: other
sentences in that county, that district, or the entire state? The 8th District here used to use the
standard of whether a sentence was "outside the mainstream of judicial practice"
in this county, until it realized it had no frame of reference for that. The only sentences that were being appealed
were the long ones, and the result was that the court was affirming 20-year
sentences for child porn because a few judges were doing that, and the court
never saw that the vast majority of sentences being handed out by other judges
were a fraction of that.
Facts do matter in an appeal, even at the Supreme Court
level, and the facts in Bonnell's case may actually help. Although Bonnell would clearly qualify as a
career criminal, it wasn't as a major one:
his three crimes of burglary consisted of breaking into the vending
machines at three hotels, and even O'Donnell seemed discomfited by someone
going to prison for 8½ years for stealing $117 in quarters, especially since Bonnell's
co-defendant got concurrent time for the same offenses. I'm betting on a reversal in Bonnell, and I'm hoping that the court
goes further than just letting judges read off a card.
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