Fascinating Ohio case (with lots of Blakely talk)

Ohio has been identified as a bellweather state in the upcoming national election (and my law school has created this cool Election Law site partially as a reflection of this reality). But now it appears that Ohio may become a Blakely bellweather: in addition to the thoughful work of OSU alum Judge Sutton in Koch (basics here), yesterday an Ohio intermediate court in State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004) issued an opinion which includes the most extended and thoughtful state court discussion of the impact of Blakely on a state sentencing system.

Because State v. Taylor, 2004 WL 1900333 (Ohio App. Aug 26, 2004), is both factually and legally rich, it merits two posts. In a post later today I will focus on the extensive Blakely analysis in the separate opinions of Judge James Sweeney and Judge Michael Corrigan. But first the opinion for the court, authored by Judge Anne Kilbane, deserves independent attention.

In Taylor, a jury found the defendant guilty of possession of drugs, and the sentencing judge imposed the maximum prison term available for a fourth degree felony. On appeal, Taylor claimed the judge's findings and reasons to support the maximum sentence, as required by Ohio law, were inadequate or improper. As Judge Kilbane explained, the court concluded that it "need not address whether the judge's determination was adequate, because we agree that it was improper."

The judge's determination was deemed improper as a result of a colloquy with defendant Taylor during which Taylor's lawyer instructed him not to answer a question seemingly related to charges on which he had been acquitted. At the end of the colloquy, the sentencing court asserted: "I find for the record he's not showing any remorse, he's served a prior prison term, and this is his fourth adult case. Mr. Taylor, I guarantee that you will offend again and therefore I feel that a maximum prison term in this case is necessary to protect the public from future crimes."

On appeal, the State of Ohio asserted that "the judge took into account Taylor's prior convictions to support the required finding that he posed the greatest likelihood of committing future crimes and, therefore, merited the maximum sentence." But the Ohio appeals court was not convinced:

[T]his colloquy also shows that the judge's sentencing decision was influenced by Taylor's refusal to respond to questioning about the money found in the car and on his person after the accident. The judge rejected Taylor's assertion of his constitutional right against self-incrimination on the grounds that the verdict had already been reached, and he found, without explanation, that Taylor's refusal to answer showed a lack of "remorse."

Regardless of whether the willingness or refusal to answer questions is evidence of a defendant's state of remorse, he retains the right against self-incrimination through sentencing, [Footnote 14: Mitchell v. United States 526 U.S. 314, 321 (1999)] and it is improper for a judge to punish a defendant for exercising a constitutional right. Moreover, judges must avoid even the appearance that sentencing decisions are tied to a defendant's exercise of constitutional rights, because such an appearance deters defendants from asserting those rights. Because the issue involves a constitutional right, we can uphold the finding only if we find, beyond a reasonable doubt, that the judge would have imposed the same sentence absent the error.

The colloquy shows an unavoidable juxtaposition between Taylor's refusal to answer and the judge's imposition of sentence. At the very least, a reasonable person could draw an inference ... that the sentencing decision was related, at least in part, to Taylor's refusal to answer the question. One cannot say, beyond a reasonable doubt, that the sentencing decision was not affected by his exercise of a constitutional right. One might even say that the colloquy shows that the judge imposed a more severe sentence on Taylor because he refused to admit he committed offenses of which he had been acquitted, and that the judge intended to sentence him for the acquitted offenses.

In either case, the imposition of sentence is tainted by the judge's apparent belief that Taylor had no constitutional right to assert, and his apparent umbrage at Taylor's assertion of that right. The judge erred when he determined that Taylor did not have a constitutional right to avoid self-incrimination at sentencing, and in determining that the exercise of that constitutional right was an aggravating factor in sentencing.

Because of this conclusion, the court was officially able to duck directly confronting Blakely issues, even though the "jury did not make a finding that Taylor posed the greatest likelihood of recidivism, nor did he admit such a thing." The court said "such [Blakely] issues can be raised on remand." However, as will be discussed in a subsequent post, Judges Sweeney and Corrigan wrote separately in Taylor because they apparently had a lot to say about Blakely.