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March 14, 2005

More big Ohio Blakely news

I have frequently spotlighted the interesting stories surrounding the application of Blakely to Ohio's sentencing laws (general background here and here, post-Booker developments here and here). The tale continue with the Ohio First Appellate District's ruling late last week in State v. Montgomery, 2005-Ohio-1018 (1st Dist. Mar. 11, 2005) (available here)

As reported here last month, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio.  The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong." 

Interestingly, the Bruce court only had occassion to address Blakely's application to judicial fact-finding in support of maximum terms under Ohio law, but Mongtomery now extends the analysis to judicial fact-finding in support of any sentence above the Ohio statutory minimum (and does so despite the fact that two other Ohio appellate districts have rejected the approach taken in Bruce):

As we have noted previously, Blakely's bright-line rule is that any fact that increases the penalty for a crime above the prescribed statutory maximum must be found by a jury or admitted by the defendant.  In Bruce, we held that the statutory maximum is the maximum term a sentencing court can impose without any additional findings by the court.  Under R.C. 2929.14(B), the only prison term a sentencing court can impose on an offender who has not previously served a prison term, without making additional findings, is the minimum prison term allowed by law for the offense.  Thus, we hold that the statutory maximum for an offender who has not previously served a prison term is the minimum prison term allowed by law for the offense....

While our decision today to treat the minimum prison term as the statutory maximum for offenders who have not previously served a prison term is in conflict with the Third Appellate District's decision in State v. Trubee and the Tenth Appellate District's decision in State v. Abdul-Mumin, we believe that it comports with our holding in Bruce, where we explained that the "statutory maximum" sentence is the maximum sentence a court may impose without any additional findings, and with Booker, where the Supreme Court reaffirmed the bright-line rule that any fact that affects the level of punishment above the statutory maximum must be found by a jury or admitted by the defendant.

As I have highlighted before, in memos linked here, the Ohio Criminal Sentencing Commission has been tracking Blakely developments closely.  It appears that this Commission will now need to update its two memos (available here and here) on Blakely and Booker in Ohio.  Even more importantly, the Montgomery ruling highlights that the Ohio Supreme Court needs to jump into this scrum as soon as possible.

March 14, 2005 at 01:21 PM | Permalink

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The Ohio Supreme Court currently has several Blakely/Booker cases before it, and briefing has commenced on all of them. None of them are currently set for argument.

Posted by: Jay Macke | Mar 14, 2005 4:48:37 PM

Hello,
I have a friend in prison and is a first time offender for a felony 1. Are they reviewing all cases for first time offenders or are they waiting till the prisoner gets an attorney to file? And are they making anything retroactive?
Thank you.

Posted by: Angela | Aug 28, 2005 1:19:00 AM

I have a friend in prison who is a first
time felon. He was sentenced to 4 years for
a probation violation. The original charge
was for failure to comply with the sign of an officer. He has never been to prison before
and was imposed 4 years when the minimum
sentence is 1 year. He has been in prison
since 8/2/05. Is it to late to do something
about the minimum sentencing requirements?

Posted by: Lisa | Sep 11, 2005 11:20:08 AM

I have a friend in prison and she is a first time offender and has been denied for everything she has filed.She has an f-3 and was sentened to 4 years she has done 27 months of that sentence. I have been looking at case that are similar to hers and these people are sentenced to less time and aren't even doing half the time she is..I have a hard time understanding that people who kill people get less time than this..She was Sentenced by Judge Russo in Cleveland courts.

Posted by: Judy | Sep 25, 2005 8:44:15 PM

I have a friend in Ohio who was sentenced for a first time felony offense. The charges he was convicted for were for a sex offense that assumably occured 20yrs prior to him being charged. There were lots of lower court errors made with no appeal scheduled though it was filed by his then attourney. He recieved 4 mandatory life sentences for the crime he was convicted for. Could you make any recommendations as to what this man can do for himself at this point he has served 5+ years and 2 years home confinement prior to his sentence. Any suggests to help this man clear his name or get a new trial or sentence reconsideration. He still maintains he is innocent of the charges brought by a former family friend,

Posted by: Julz | Nov 13, 2005 8:15:58 PM

I am writing in regard to my son who is currently incarcerated for 3 years and 10 mos. at Chillicothe, Ohio which I understand is a "Medium" security. He is a first time offender. I understand there is a new law regarding first time offenders. My son has an addiction to pain killers due to an injury he received years ago. He has rehab several times but relapsed. I feel he has a disease and prison is not the place where he should be. Unfortunatly, I have no funds to obtain an attorney and he did't either. If someone could contact me regarding the status of Ohio's First Time Offenders Law, I would really appreciate it. I'm elderly and this is really affecting my health, both physically and emotionally.
Thanks, Rose Kennedy

Posted by: Rose Kennedy | Nov 14, 2005 3:22:16 PM

My boyfriend got sentenced in Jan. 2003, for felony assault. They gave him six years. He has been moved three times since then and is now in Lebanon ohio,which is three hours away and hard for us to go visit him. This is his first felony offense. I am aware of this new law alittle and I don't know who i should talk to this about. I can't afford an attorney, at this time. If you could tell me who to contact, i would greatly appreciate it. We have a little girl together,who will be turning four in a couple of months and she and I really need him home. He is not a bad person, I just feel like they really screwed him over on his punishment. Please and thank you for your time.

Posted by: starr | Nov 23, 2005 11:31:41 PM

I am writing in regard's to my boyfriend that is currently incarcerated for a 2 year sentence in Chillicothe's minimum security prison. He has served 8 month's so far and it is the first time he has ever been to prison or have a felony charge. He was charged with vehicular manslaughter, even though it was a pure accident. I was with him in the wreck. He was completly sober. Hospital record's show that. I have heard that Ohio has been discussing on trying to pass a new law on first time offenders and the minimum sentencing, but that is all I have heard. I was curious if anyone has any information about this and if it could effect my boyfriend any. Thank you very much, Tracey Grate.

Posted by: Tracey Grate | Dec 8, 2005 6:45:38 AM

HI, my brother is a first time offender and is being held for possecion amd tracking two counts on both and they are fel 1's. he's looking at 20 years prison I can't believe this mess. It was illegal search and percejure And I just can't understand this MDO law that kis gonna take most of his life away when if he had stayed in the house he'd be free right now ...cause they ran his name and everything and said he was free to go. But then came back and wanted to search his truck without a wartrant and he didn't give consint either. This aint right

Posted by: Tia | Jun 27, 2006 8:38:14 PM

I need some help with my husbands case and the attorney is a joke and unhelpful. This is his first felony charge which is an F3 and F4 he was sentenced to 4 1/2 years and has already completly served his F4 sentnece. He is innocent and the only evidence they had on him was a cohearsed drunken confession. He has attempted to file for judicial release 3 times all being denied and has heard that Ohio is in the process of bringing back the old law where a year in prison was equilvant to 8 months and 13 days. Has anyone else heard of this or know anything about this? Is there a way to get hi case back to trial even though he plead out for a lesser sentence because the prosecutor and his attorney said he would get the maxium sentence if he didnt. A part of the plea was after 2 years they would grant him his judicial and they have not but they conviently can not find that in his record because after figuring in his time served from county he has done 2 years and has 2 years and 6 months left. If anyone has any information regarding the rumor of the old law coming back or any advice on what I can do to help my husbands case I would defintily appreciate anything that you can provide. Thank you.

Posted by: Jenny | Aug 2, 2006 3:10:20 PM

My brother is in Madison Correctional Facility for an F3 for Failure to Comply. He is a first time offender. When he was sentenced the judge offered him a yr mandatory w/no probation or 3 yrs. with judicial release before a year. Then they took a break, so my brother had time to think about his choice. When they came back the judge took the yr off the table. The 10K lawyer offered no insight as to why. The judge said he didn't want him to spend a yr in prison, so he gave him 3 yrs. He has been in now for around 8 months. We can't afford another attorney especially after the idiot one before ripped us off. We are all tapped out! Of course the judge saying he doesn't want him to serve a year is not in the records, so what will happen if he applies for release. Can you provide any insight on the new senticing guidelines just passed here in August 06. I guess in the prison library (according to brother) there is a Ohio Supreme Court decision that just came down on 1st time offenders and non violent criminals. Judges are letting violent and multiple offenders bond out of jail because there is no room in prisons, so OSC issued this ruling so 1st timers and non violent criminals can get released and make room for the violent ones in the county jails. Any insight would be great.

Posted by: Donna | Aug 28, 2006 10:11:17 AM

Father of a first time offender Sentenced to 5 years on a n aggravated vehicular homicide and 2 years on an aggravated vehicular assault terms to run consecutively. He has no past criminal history of any sort and one traffic violation for speeding. Has there beeen a new ruling in Aug 2006 on sentencing guidelines regarding first time offenders. He is already at the state C.R.C. facility any information or resonse would be greatly appreciated. thank you Tim Wolford

Posted by: Tim Wolford | Sep 9, 2006 10:12:39 AM

My husband is a first time felony offender,and was charged with involuntary manslaughter a-1,2 aggravated robbery charges a-1,and rsp-3rd degree,and he recieved 3 years for a gun spec.even though he had no gun.But because he was at the scene of a homicide they gave him the gun spec..He was sentenced to 15 to 85 years to run consecutively to all charges.The man who was killed was only shot one time by my husbands' cousin who was charged with the actual murder and he's also incarcerated.My husband recieved this sentence for simply being at the wrong place at the wrong time.He was 17 at the time and was charged as an adult.He saw the parole board on 10/23/06 and was denied parole and was told by the board members that he must serve 5 more years.He has already done 14 years and it's on record that he did not committ the crime but due to him being there he was charged with the above crimes.I believe my husband was unjustly and unfairly sentenced being that he's a first time felony offender.Is it too late for us to do anything and do the felony sentence law pertain to his case?We're really desperate and don't know who to turn to so please help us if you have any info.Also do anyone know if he can try to be resentenced being that his hearing was before his cousins and he was found guilty of the actual murder?Me and his children really need him home.Please,help us.We'd really appreciate any info.Thank you

Posted by: deneen | Oct 31, 2006 8:49:27 PM

Hi, my fiance and little cousin are in prison. They heard something about eight months and fourteen days in prison being equal to a year sentence, is this true?

Posted by: Brandi | Jan 2, 2007 7:20:12 PM

My close friend Marc, is in jail right now waiting for the grand jury trial. He has been charged with two counts of aggrevated robbery. It is his first offense on his record. He has admitted that it was for drugs. The other guy that was with him has a record of robbery, aggrevated robbery among other things. can i have some tips to help? could he possibily get a lesser sentance? could we go on influence and drug problem? STATE of OHIO.

Posted by: Jamie S. Nentwick | Dec 5, 2007 1:09:55 AM

MY SON WAS GIVEN A 5 YEAR SENTENCE
OF WHICH TIME SERVED WAS APPLIED.
HE IS A FIRST TIME FELON. IS THERE
A NEW LAW THAT CAN CUT HIS TIME IN
HALF. HE HAS TO SERVE 85% OF HIS SENTENCE. HE IS GOING ON ONE YEAR.
WE WERE TOLD THAT SINCE THIS WAS HIS FIRST OFFENSE, HE WOULD PROBABLY DO TWO YEARS AT THE MOST.
HIS PRISON COUNSELOR, TOLD HIM HE
WOULD BE DOING 4 YEARS AND 3 MONTHS. HOW CAN WE LOWER HIS TIME? DO WE NEED TO GET ANOTHER
ATTORNEY? HE IS A CLEAN CUT
PERSON AND NEVER BEEN IN PRISON BEFORE. HE HAS NO TATTOOS AND THIS MAKES HIM STAND OUT LIKE A
NEON SIGN AT THE YARD. THE CORRECTION OFFICERS WHO WATCH
HIM BELIEVE HE IS INNOCENT AND SAY HE DOES NOT BELONG THERE.
HE NEEDS A PRO BONO ATTORNEY'S TO HELP HIM OUT. WE HAVE ALREADY EXHAUSTED ALL OUR RESOURCES. IF YOU CAN REFER US TO SOMEONE WILLING TO REVIEW HIS CASE WE WOULD GREATLY BE INDEBTED TO YOU.
PLEASE HELP US SAVE OUR SON....
THEY HAVE HIM IN A SPECIAL NEEDS
UNIT BECAUSE HE REFUSE TO HURT SOMEONE AND NOW THEY HAVE A CONTRACT OUT ON HIM

GOD BLESSYOU AND ALL THOSE IN SIMILAR SITUATIONS...
ELIZABETH

Posted by: ELIZABETH | Sep 18, 2008 7:53:01 PM

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Posted by: | Oct 14, 2008 8:37:33 AM

Hello,
I am writing because my 20 year old son has been sentenced to 3 years on a robbery charge, and 10 months on a possesion charge. He is currently incarcerated at Noble correctional Facility where he has been since March 2008. He isa first time felon, and before he was sentenced to prison he did receive an assessment for a community based correctional facility ,was accepted and a bed was available for him at the time. Right now I need information on how I may be able to get him a juicial release to this community based correctional facility (CBCF)

Posted by: t.harmon | Dec 29, 2008 1:14:31 PM

my husband got a eight year sentence he has 5 yrs left he aint a bad person he is his first time in prison he has 2 flonus assults and a child endanering and i dont have money for a attery we are bout to have a lil boy toether will he have a lesser sentence.

Posted by: Krista | Jan 13, 2009 5:29:35 PM

i am just a friend of the person who is in prison and i am trying to help him out as best as i can i am just a electronic tesh.

Posted by: candie | Apr 24, 2009 7:45:48 PM

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