Blakely's impact in Ohio

As noted here, yesterday's Ohio appellate court ruling in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004), is noteworthy and interesting for non-Blakely reasons. But it was the Blakely talk in the separate opinions of Judge James Sweeney and Judge Michael Corrigan that first caught my eye. Here are some highlights.

Judge Sweeney begins his concurring opinion in Taylor by noting that he is writing separately "to explain my position as to the resolution of the fourth assignment of error," which raised Blakely issues. Then, after reviewing the Blakely case, he explains:

In this case, the court could only impose the maximum penalty by making specific judicial findings beyond those either determined by a jury or stipulated to by the defendant. [FN1] Ohio law simply does not allow the trial court to impose maximum sentences (or certain other aspects of sentencing) in its discretion. Maximum sentences, consecutive sentences, and certain other sentences are reserved for offenders under certain and statutorily specified circumstances. Accordingly, we are required to review sentences de novo and not under the abuse of discretion standard. Thus, the maximum sentence is not within the "statutory range" of sentences that a trial court may impose in its sole discretion. Consequently, I believe an argument can be made that Ohio's sentencing law, in some respects and applications, is susceptible to the same constitutional violations that the U.S. Supreme Court discussed in Blakely.

FN1. The specific judicial findings being either that the offender committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes. R.C. 2929.14(C). Although R.C. 2929.14(C) further allows for the imposition of maximum sentences "upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section" that portion of the statute is not applicable in this case. I do not believe that Blakely affects the trial court's ability to consider other facts relative to sentencing, including the offender's age and criminal record among other factors contained in R.C. 2929.12. Nonetheless, the law does not allow the court to impose the maximum sentence based upon such facts in the absence of the findings required by R.C. 2929.14(C).

These statements alone make the Taylor decision quite interesing. But then Judge Michael Corrigan, concurring in judgment only in part and dissenting in part, gets his say. To begin, Judge Corrigan disputes the majority's (non-Blakely) holding, noted here, by asserting that the sentencing court properly "found that Taylor posed the greatest likelihood of reoffending, and it gave reasons in support of that finding based on Taylor's extensive criminal record, his age (22 years-old), and lack of remorse" justified a maximum sentence under Ohio law. He then turns to Blakely, explaining that though he is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes, the concurring opinion demonstrates that the issue is now joined." Consequently, Judge Corrigan weighs in with these "initial thoughts":

For the most part, Blakely has no applicability to Ohio sentencing statutes. This is because Ohio uses definite sentencing within minimum and maximum ranges for particular classes of felonies as opposed to guidelines used in the state of Washington which set maximum ranges within particular types of offenses in a class of felonies. For example, in Ohio a first degree felony is punishable by three, four, five, six, seven, eight, nine or ten years in prison. Unlike Washington, Ohio's sentencing statutes do not prescribe a prison term based on a point system relating to the offender's conduct. The Ohio trial judge has the discretion to sentence anywhere within the range, subject to statutory findings for imposing the maximum sentence....

To the extent that Ohio uses sentence enhancements, I tend to believe Blakely is not a problem. Nearly all sentence enhancements used in Ohio are charged in the indictment; for example, gun specifications, repeat violent offender or major drug offender specifications. That being the case, the offender would either plead guilty to the specification or the jury would make a factual finding on the specification. And it bears noting that sexual predator issues do not involve "punishment" for purposes of double jeopardy, so hearings on the predator classification would not be an issue.

Likewise, Blakely should not be an issue for consecutive sentencing. The federal courts have consistently held that the imposition of consecutive sentences does not raise issues under the Sixth Amendment as long as the individual sentence for each count does not exceed the maximum....

As for the findings required to impose the maximum sentence in a given case, those findings do not entail additional fact-finding in the sense that would implicate Blakely.... A finding that the offender committed the worst form of the offense would be based purely on the facts adduced at trial or pleaded to in the indictment. Recidivism factors like prior offenses need not be established by the jury, as the Supreme Court has specifically stated that prior convictions are not subject to the jury trial rule (there being obvious Fifth Amendment problems with the use of prior convictions when the accused does not testify).

Consequently, I believe the concurring opinion's statement that "the court could only impose the maximum sentence by making judicial findings beyond those either determined or stipulated to by the defendant" to be only partially correct. As Blakely makes clear, the sentencing court may still rule on those facts that are deemed important to the exercise of sentencing discretion. Sometimes, those facts do not present themselves until sentencing; for example, the vindictive offender who verbally or physically assaults the court during sentencing may show a lack of remorse or that he is a danger to the public. Those are factors that may be considered when imposing the maximum sentence, and they do not have to be determined by a jury. Other admitted factors, like an offender's age, may be stipulated.

The offender's age, extensive criminal record and lack of remorse as shown in this case are demonstrable facts that the judge could validly consider without violating Blakely. I would therefore find that the court did not err by imposing the maximum sentence.

Whew... I sure am glad that Judge Corrigan is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes" or else I might have run out of room on this blog for his "initial thoughts."

I hope to post more about Blakely and my home state when I have time this weekend to fully process Judge Corrigan's interesting (and debatable) "initial thoughts" about Blakely's impact in Ohio. Also relevant to this discussion will be another decision from the same Ohio appellate court, State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004) which was also handed down yesterday.