Review of sentencing goes bye-bye
A
couple weeks back, I discussed the oral argument before the Supreme Court
in State v. Bonnell, which focused on
the issue of how to achieve meaningful appellate review of consecutive
sentences. Last week, in State
v. Thompson, the 8th District came down with a decision which largely
forecloses meaningful appellate review of any
sentence.
Lonnie Thompson had gotten so good at his racket of
counterfeiting payroll checks that by the time the law caught up to him, he'd
recruited over 100 people to cash the checks that he was forging. As one might imagine, these weren't
upstanding citizens, and when one got caught up in something else, he told the
cops about Thompson. Thompson went to
trial on 50 counts, the first a 2nd degree felony of engaging corrupt
practices, the rest 4th and 5th degree felonies like theft, forgery, and
identity fraud. He was convicted of
everything, and the judge sentenced him to 32½ years in prison. After disposing of arguments about weight and
sufficiency of the evidence, the panel bores in on the focus of Thompson's
argument on appeal: that the trial court
abused its discretion in imposing a 32½-year sentence. The panel disposes of that argument in four
paragraphs.
First, it holds that an appellate court can't review a
sentence on an individual count for abuse of discretion; its review is limited
to determining whether the sentence fell outside the statutory range. The
same applies to a court's review of consecutive sentences. It can only review the sentence to determine
whether the trial court made the necessary findings required by RC 2929.14(C)(4);
as long as the judge did that, the appellate court has no power to determine
whether the trial court abused its discretion in imposing consecutive
sentences.
Let's take a time out there, because there's some basis for
the court's holding here. Although the
Supreme Court held in State v. Kalish that
appellate review of a sentence was a two-step process - whether it was contrary
to law, and then whether it was an abuse of discretion - Kalish was only a plurality opinion, and runs contrary to the
statute on appellate review of sentencing, RC 2953.08. Subsection (G)(2) specifies that "the
appellate court's standard of review is not whether the sentencing court abused
its discretion."
But I think the panel reads the statute far too
narrowly. RC 2953.08(A)(4) allows the
defendant to appeal if the sentence is "contrary to law," and that means more
than whether the sentence is within the statutory limits. A judge also has to comply with the
principles and purposes of sentencing under RC 2929.11, and consider the seriousness
and recidivism factors under RC 2929.12.
True, appellate review of a judge's determinations here has always been extremely
lax, but Thompson reads those
requirements out of the statute; the judge can completely ignore those, as long
as he doesn't impose a five-year sentence on a 4th degree felony.
Thompson's
handling of consecutive sentences is even more problematic. As previous 8th District decisions have
recognized, the review of consecutive sentences is not limited to determining
whether they are contrary to law; a panel can also reverse if it clearly and
convincingly finds that the record does not support the judge's findings. That's a very deferential standard of review,
but so is abuse of discretion, and it's hard to see a lot of daylight between
the two: you say to-mah-toe, I say to-may-toe. Call it what you want, but it clearly gives
the appellate court more to do than simply making sure the judge made the
necessary findings.
The opinion next deals with Thompson's argument that his sentence
was disproportionate to those of his codefendants, and the panel correctly
notes that his co-defendants pled guilty and testified against him, and so were
no longer "similar: offenders. But the paragraph before that is very troubling. First, the court states that "the concept of 'proportionality'
in felony sentencing arises only in the context of consecutive sentences." To be sure, as the court notes, one of the
findings required by RC 2929.14(C)(4) is that consecutive sentences aren't
disproportionate to the seriousness of the offender's conduct and to the danger
he poses to public. But the concept of
proportionality is broader than that: it
stems from RC 2929.11(B)'s requirement that a sentence be "consistent with
sentences imposed for similar crimes committed by similar offenders." The opinion
goes on to say that the
disproportionality finding for consecutive sentences "relates solely to the offender's
conduct and not to the conduct of any others -- it does not require the court to
compare the offender's conduct to that of others." How a judge could decide that a sentence is
not disproportionate without comparing it to that of others is unclear. The opinion concludes that since the judge
made the finding that the sentences weren't disproportionate, Thompson can't
claim that they were.
The net result of Thompson
is to essentially immunize the trial judge's sentence from appellate
review, so long as the judge made the necessary findings for consecutive
sentences, and imposed a sentence within the statutory limits. And lost in the shuffle in all this is that Thompson
got a sentence three times more than the maximum sentence for a first degree
felony, like rape. People who commit
murder are likely to get out of prison before Thompson does. I'm certainly not a fan of check fraud, but
it's hard to see how even Thompson's crime spree merits a sentence north of
three decades. That the court upheld the
sentence was bad enough, but gutting appellate review of sentencing made it
that much worse.
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