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August 28, 2004

Formalism meets functionality: An Ohio case study

Many have previously noted the formalism in the Blakely/Apprendi rule, often while highlighting ways legislatures might evade the rule's strictures. (Consider this commentary on Blakely by Professor Sherry Colb and recall that Justice O'Connor's dissent in Apprendi stressed these concerns.) Though only time will tell if we will see legislative efforts to evade the Blakely rule, in the meantime Blakely's formalism will create a host of challenging questions (headaches?) for functional sentencing law.

Indeed, as I reflect on modern sentencing reforms, I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.

As I reviewed the very interesting Ohio opinions in State v. Taylor and State v. Quinones (details here), I came to appreciate how challenging it will be in Ohio to map Blakely's formalism on to Ohio's functional sentencing provisions. Ohio has an interesting structured sentencing system which avoids grids by establishing basic (and relatively broad) sentencing ranges for felonies of different degrees. Then, after setting forth these ranges, Ohio Revised Code § 2929.14 has these interesting (and functionally sensible) provisions:

(B) Except [under certain specified circumstances] the court shall impose the shortest prison term authorized for the offense ... unless (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term [and/or] (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.
(C) Except [under certain specified circumstances], the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense ... only upon offenders who committed the worst forms of the offense [or] upon offenders who pose the greatest likelihood of committing future crimes....

In other words, it seems that Ohio's sentencing laws require a judge to impose the statutory minimum sentence unless he or she makes certain findings under 2929.14(B), and a judge may not impose the statutory maximum sentence unless he or she makes additional findings under 2929.14(C). In addition to being impressed with the elegant good sense of this system, I am struck by how hard it is to understand exactly what Blakely means, or might mean, for these provisions.

At first blush, because additional "findings" are required for imposing more than the minimum sentence and for imposing the maximum sentence, it would seem that Blakely is implicated every time an Ohio judge seeks to impose a sentence above the statutory minimum and/or the statutory maximum. This seems to be the instinct of the court in State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004), which vacated and remanded an imposed maximum sentence for "resentencing in light of Blakely" after noting that a jury "did not make a finding that Quinones had committed the worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either."

However, the findings required by Ohio law under 2929.14(B) and (C) do not all look like classic "factual" findings. Deciding what sentence might "demean the seriousness of the offender's conduct" or what behavior consitutes the "worst form of the offense" seems like a value judgment more than a factual finding. (Or maybe this should be called a mixed question of sentencing fact and law.) Moreover, these judgments might be made solely, or at least largely, on the basis of facts found by the jury at trial or admitted by the defendant in a plea agreement. Thus, upon reflection I can see some merit in Judge Corrigan's suggestion in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004) (details here), that these provision of Ohio law might be able to skate around Blakely.

Any additional thoughts from Ohioans out there (who I know are reading based on this lengthy and insightful comment)?

August 28, 2004 at 10:00 PM | Permalink


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Question: What is the definition of "prison term", as referred to above? Is a term served in a county jail a "prison term", or just time served in a state or federal prison?

Posted by: Jeannie | Aug 29, 2004 10:42:58 AM

I think the problem with Judge Corrigan's suggestion is that it doesn't take into account the central role that appellate review of sentencing was intended to have under Ohio's sentencing scheme. Those sentencing findings ("worst form of the offense", etc.) are intended to be reviewed on appeal, and compared to other sentences imposed in similar crimes where the findings were or were not made. The idea was to create a "common law of sentencing" upon which courts, prosecutors, and defense attorneys could draw in attempting to ascertain the appropriate sentence for a particular set of facts.

Ohio judges for the most part hate the system. Trial judges view it as a "magic words" form-over-substance scheme, and appellate judges tend to exacerbate the problem by doing everything they can to duck substantive review of the actual sentences imposed.

Blakely could change that, but only if the Ohio sentencing factors are viewed as what they really are: facts that determine the parameters of the trial judge's discretion, and which are subject to appellate review for propriety. See State v. Martin (1999), 136 Ohio App.3d 355, 361-62 (describing function of sentencing findings and role and purpose of appellate review). If Corrigan's view carries the day (and I'm fearful that it will), then Ohio Felony Sentencing really will become a meaningless exercise in formalism -- exactly what its critics have always accused it of being.

p.s. "prison term" is specifically defined in R.C. 2929.01(CC), and appears to include only incarceration by the State of Ohio. It's clear that it doesn't include local/county incarceration, since that's also specifically defined. However, the definition also appears to exclude federal time and time imposed in other states, although I sincerely doubt that arguing that would prevail in any Ohio court!

Posted by: Jay Macke | Aug 30, 2004 10:09:46 AM

As an attorney working in Ohio I agree that the factors in R.C. 2929.14(B) and (C) don't sound like traditional "facts". But if you examine the statutory scheme, those findings must be based on factors listed in R.C. 2929.12. Many of these factors do seem more like traditional facts rather than value judgments. I think the key Blakely question in Ohio will be whether a jury has to find the aggravating factors listed in R.C. 2929.12(B) so the judge can make the findings required by R.C. 2929.14(B) and (C).

Posted by: Brad | Sep 8, 2004 11:40:19 PM

In respone to Jeannie's question ..... "prison term" does not mean a term in a county jail. I believe it only means a term served in an Ohio prison, but it might include federal prison as well.

Posted by: Brad | Sep 8, 2004 11:42:32 PM

You were very kind to help me a few months ago, I have gone through the channels that you recommended, and I have heard nothing. My husbands case is Charles Cole and the State of Alaska. Please if there is any way you can help, I would be very grateful.

Posted by: Cheryl cole | Oct 11, 2004 9:12:03 AM

I am the wife of a Doctor who has gone through a "criminal" trial in Ohio last June of 2003. Tom Tyack is his attorney. In a most unusual attack,the FDA tried Ovimune, the company, M. Coleman,president,and M.V.Kaminski,of selling egg powder over state lines(they determined that eggs are "drugs") and were found guilty of misdemeanors(27). The problems and mistakes for the most part occured in Ohio and my husband is in Illinois. None the less, he was accused of the same misdemeanors as was M. Coleman. My attorney here in Chicago said that two people on trial cannot be found guilty of the same crimes....the Judge should through it out. My question though is...How will the federal sentencing guidelines be affected by the "new"???sentencing guidlines? I know this is little info to say the least,but I am sure the Mr. Tyack and Mr. Kravitz(Coleman's attorney) could fill yopu in. All I know is that this has been the most devestating event for me, It has ruined my husband's reputation, destroyed us financially, and we have yet to be sentenced. The irony is that Ovimune is a one horse operation consisting of two people, making no money and certainly no threat of the magnitude of the scope of the FDA or U.S.Gov.Yet they have spent millions trying to kill these two poeple. I'm sorry but my question is how will these guidlines affect misdemeanors. Thanks for any help and prayers. Marilyn Kaminski

Posted by: marilyn kaminski | Oct 26, 2004 3:44:28 PM

I have a friend who pled quilty to aggravated vehicle homicide and failure to stop after a accident, a accident that he was not aware of considering it was dark, rainy and leaves all over, he took a plea bargain so he would not put his elderly parents and the victims family through a hard lenghtly trial, he was sentenced to a "stated three year prison he has NEVER been in trouble... Is this a common sentence for a first time offender? And can this sentence be appealed? Please any info you can give me would be greatly appriciated..

Posted by: Teresa | Dec 15, 2004 12:01:20 PM

i am the wife of a man that was also sentenced to 3 years for a plea to aggravated vechilar homicide. he took the plea to protect our child from the court case. and his attorney said that was his only choice. he never left the scene of the accident and was released that night back to me, they drew blood that evening atleast 3 hours after the accident. he asked for a lawyer and was denied. we had hired an attorney but he really did nothing much. we gathered all the papers for support and to show he had family ties the in the community. he was not a bad person and we really need him home we are going to file for judical release and he is also checking into this blakely case if any one has any suggestions please help

Posted by: nancy | Mar 20, 2005 2:16:15 PM

Can a judge sentence a person on fifth degree felony FIVE times for the same charge?

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