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February 27, 2006

What is exactly the Blakely remedy in Ohio?

Upon a quick read, I was impressed with many parts of the Ohio Supreme Court's decision today in Foster, the state's big Blakely case (basics here), and not only because this blog got a nice plug in footnote 3 (details here).  Portions of the opinion were thoughtful, especially when the Court surveys the basics of Ohio law and the national post-Blakely landscape in the states.

However, when the Blakely rubber hits the Ohio sentencing road, Foster becomes far less appealing.  Some reasons for concern about Foster are already effectively detailed by commentors here, and for me the big head-scratcher is the exact remedy adopted by the Ohio Supreme Court.  Though it is clear that Foster did not adopt or endorse a remedy incorporating jury findings into Ohio's sentencing scheme, it is not at all clear exactly what remedy Foster did adopt or endorse.

The key remedy discussion of the Foster opinion, starting at page 36, carries the heading "Applying the Booker remedy."  However, the discussion that follows does not state or even suggest that the previously mandatory findings required by Ohio law are now advisory.  Likewise, the Foster opinion does not embrace or even suggest that appellate review for reasonableness (or for anything else) is now a component of Ohio's sentencing system.

A little more guidance emerges from the companion decision Mathis, and especially through this final paragraph:

Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C. 2929.19(B)(2) has been excised, nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case.  Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender.  In addition, the sentencing court must be guided by statutes that are specific to the case itself.

I read this opaque paragraph as suggesting the mandates of Ohio's statutory sentencing system remains important now as an advisory system, although other parts of Mathis raise doubts about whether the Ohio sentencing system preserves any serious role for appellate review.

February 27, 2006 at 01:46 PM | Permalink

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Comments

I fear that's an awfully charitable reading of Mathis. Given that the two mentioned statutes merely state the principles and purposes of sentencing (R.C. 2929.11) and factors indicating seriousness and recidivism (R.C. 2929.12), the fact that those statutes must be considered does not impose any significant restraint on the discretion of trial judges to impose draconian sentences. Read together with the fact that Mathis specifically overrules State v. Comer's requirement that the sentencing court make those findings on the record justifying its sentence, it seems to me that Mathis, like Foster itself, stands for the idea that sentencing judges have extremely broad discretion to impose any sentence available under statute, including maximum and consecutive terms.

Posted by: Jay Macke | Feb 27, 2006 2:02:50 PM

My first day's impression is this opinion is a political gold medal and a lawless exercise of the judicial power. The decision purports to follow Blakely but, in fact, cheerfully ignores it. The Court gets all the credit it can for following the U.S. Supreme Court and still keeps everyone in jail. At least as to those in pending cases in jail for more than the minimum, or consecutively sentenced, this case is a sophistry. The Court points out on page 22, para. 51 that legislature has used "shall" at important points when regulating sentencing. While that is analyzed as the predicate for the ensuing prohibited Blakely findings, it is cunningly obviated on pg.38,para/ 97. There the Court concludes, in its outrageous "severance" argument, the "shortest" term language for a no-prison defendant in 2929.14 (B) has no purpose without the subsequent sections allowing judicial factfinding, which have been declared unconstitutional, and it is therefore excised, and held for naught. That 'shortest' term language is treated as if it never existed. For crimes committed after today there may be nothing wrong with this opinion, other than it ignores statutory language. But it is written in such a way (brilliantly, I might add) to remove it from ex post facto challenge. At the resentencing, where you will proceed at your peril, you will not be able to say (F-1s and 2s with no prior prison)vested you with a 2 or 3 year sentence because the court has written that section right out of the statute. "The following sections...have no meaning now that judicial factfindings are unconstitutional." Id. If that was never the law, no ex post facto violation is present and the upcoming 7 year sentence you're about to get was with in the range. The only argument against this seems to me to be the "severance" charade on pages 36 and 37 is a subterfuge designed to avoid following federal law. As such, it is not immune from federal review under Bouie v. Columbia, 378 U.S. 347. The court can and must void the Blakely offensive provisions of .14 (B) but it cannot additionally void the legislative determination of 'shortest' term because there is no reason to do so.
There will be much more. P.S. I am a private criminal defense lawyer.

Posted by: Albert Purola | Feb 27, 2006 6:56:46 PM

Say more, say more...

Posted by: Doug B. | Feb 27, 2006 7:03:44 PM

I agree with much of what Mr. Purola writes. The decision adheres to the letter, but not the spirit, of Booker and Blakely. It is a decision that will likely lead to much longer sentences for many defendants. Attorneys will now have to figure out how to advise clients with multiple convictions who were given concurrent sentences and whose cases are now pending on direct appeal. Is the best course of action now to dismiss the appeal, for fear that a vacatur and remand would result in double or triple the initial sentence?

I part company with Mr. Purola, though, in his optimism that Foster is ripe for SCOTUS review. The Ohio supremes explicitly recognized their choices of remedies, and as explicitly indicated that their task was to determine the intent of the Ohio General Assembly. Essentially, they decided that the legislature wanted judges to have the ability to impose consecutive and maximum sentences more than it wanted to create a presumption of minimum prison terms and concurrent sentences, etc. in some cases. It seems to me extremely unlikely that SCOTUS would believe itself in a better position to interpret Ohio statutory law than Ohio highest court.

And we're still waiting to hear more of your anslysis on Foster, Professor B.

Posted by: Donald Caster | Feb 28, 2006 12:15:35 AM

I believe that the United States Supreme
Court, as Mr. Caster would call SCOTUS,
could, would, and should entertain a review of the Foster decision as Mr. Purola suggests
above.
We must direct our attention to what
authority the Ohio Supreme Court relied
upon to sever or excise portions of Ohio's
sentencing laws as the did in their ruling.
They relied upon Geiger v. Geiger (1927),
117 Ohio St. 451, 466, 160 N.E. 28. Before
the Ohio Supreme Court could determine that
a severance is appropriate, three questions
MUST be answered.
I find it impossible for the second
question to be complied with:
"2) Is the unconstitutional part so con-
nected with the general scope of the whole
as to make it impossible to give effect to
the apparent intention of the legislature
if the clause or part is stricken out?"
Severance or excising remedies in Booker
was realized because Federal Guidelines
typically drive sentences up through the
application of sentencing enhancements
(which was the intent of the legislature).
Ohio's sentencing rules are structured
( pursuant to SB2 ) to keep sentences down
because judges had to impose the lowest
sentence (in the range of sentencing) un-
less they made certain types of findings.
The Ohio Supreme Court has decided it is
alright to excise the very mechanism that
the legislature put in place to meet their
intent to keep sentences down.
Therefore, the remaining sentencing laws
that the Ohio Supreme Court has left in
place by their ruling cannot possibly stand
by themselves! The parts deemed unconsti-tutional are a critical part in the
intention of the legislature of SB2 in the
objectives the legislature had in mind for
Ohio sentencing. and cannot meet the Geiger
Tests as the Ohio Supreme Court has deter-
mined to be the proper remedy.
In effect, the Ohio Supreme Court, has
carved out key cores or provisions of SB2
constituting a legislative exercise not
within the power of the authority of that
court to perform.
This is ripe for review and must be under-
taken. If not, this ruling will be the
largest misscarriage of justice Ohio has
ever seen.

B.A. Law / A.S. Paralegal
Universal Legal Support

Posted by: David M. Untied | Feb 28, 2006 5:31:07 PM

Unfortunately, I do not see how SCOTUS would have appellate jurisdiction over the remedy decision in Ohio. Clearly, the Court would have such jurisdiction to review the Ohio Court's opinion on whether the state sentencing system violated the Federal Constitution. However, the remedy adopted by the Ohio Supreme Court was a result of Ohio Court's severability analysis, looking to legislative history of the Ohio statute. In fact, looking at the comment posted by Mr. Untied, the court's severability analysis "relied upon Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 N.E. 28." This is an Ohio Supreme Court case, which only the Ohio Supreme Court has jurisdiction to apply and interpret.

I 100% agree that the remedy adopted by the Ohio Supreme Court is not a welcomed outcome for those of us hoping that Blakely and Booker would spur positive reform in America's criminal justice system. Therefore, I would like to think that there is some way for the Court to have appellate review over the adopted remedy. Unfortunately, severability analysis is an entirely state law creature, which places it outside the scope of SCOTUS's jurisdiction.

On a related, but somewhat side note, the Court's outcome in Cunningham will likely have implications in Ohio (and other states) since Ohio's sentencing system closely resembled California's. If the Court reverses Cunningham, thus holding CA's sentencing system unconstitutional, I do not believe the remedy question would be addressed by the Court. Once again, because the remedy would be a matter of state legislative history and state severability analysis, the U.S. Supreme Court has no jurisdiction (or expertise) to decide the issue.

Am I mistaken? I hope I am.

Posted by: DEJ | Feb 28, 2006 6:30:16 PM

There is really only one ground the state could appeal on, which is the consecutive sentencing decision. This runs counter to most federal courts, and MIGHT be of interest to SCOTUS, but doubtful. Foster did not rest this issue on any state constitutional ground, so I see this as the only possible issue.

As for defendants, the only chance I see is something like an ex post facto challenge to a sentence increased on remand. The Ohio Supreme Court seemed to think this was no problem, but I'm not so sure.

Other than that, the judicial ball game is over.

Posted by: Lawyer | Mar 2, 2006 1:57:40 PM

Do you think that the practice of sentencing a defendant immediately after a jury verdict is rendered could be a problem? I wonder how much it's possible for a judge to "carefully consider" the factors when the sentencing proceeding begins and ends within a half hour of the guilty verdict.

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Posted by: | Oct 14, 2008 10:26:52 PM

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