Sign In

Consecutive sentencing deja vu

by Judge Diane V. Grendell

The most significant development of the last decade in Ohio’s felony sentencing laws was the Supreme Court of Ohio’s decision in State v. Foster, which struck down the laws governing the imposition of more than minimum sentences, maximum sentences, consecutive sentences and sentencing enhancements for repeat-violent and major drug-offenders as unconstitutional.1 For the next five years, sentencing judges had “full discretion to impose a prison sentence within the statutory range.”2

In May 2011, the Ohio General Assembly passed Amended House Bill 86 affecting the first significant modifications to felony sentencing since Foster. The first noteworthy change to the felony sentencing laws concerns the purposes of felony sentencing, as stated in R.C. 2929.11(A). The two goals of felony sentencing remain “to protect the public from future crime by the offender and others and to punish the offender … .” However, these goals are to be effected “using the minimum sanctions that the court determines accomplishes those purposes without imposing an unnecessary burden on state or local government resources.” This change reflects one of the legislature’s concerns in passing H.B. 86, i.e., the more efficient use of state resources in the deterrence and punishment of crime.3 The concern is also reflected in a 2008 report from the Council of State Governments Justice Center, commissioned “to help develop a statewide policy framework to reduce spending on corrections and reinvest in strategies to increase public safety.”4

The former version of R.C. Chapter 2929 was deemed constitutionally infirm because it required “judicial fact-finding” before the imposition of particular sentences. Former R.C. 2929.14(B) required the sentencing court to impose “the shortest prison term authorized for the offense,” unless the offender was serving or had served a prison term at the time of the offense, or the court found 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.”

House Bill 86 deletes this language. In the new version of R.C. 2929.14, a sentencing court is not required to give any particular consideration before imposing or exceeding the shortest authorized prison term.5

Former R.C. 2929.14(C) required judicial fact-finding before the imposition of “the longest prison term authorized for the offense.” Specifically, maximum sentences could only be imposed “upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders … , and upon certain repeat violent offenders … .”

Likewise, H.B. 86 deletes this language without requiring a sentencing court to give any particular consideration before the imposition of a maximum sentence.6

With respect to the shortest and longest sentences, H.B. 86 conforms R.C. 2929.14 to the holding of Foster in that sentencing courts will enjoy “full discretion” to sentence within the statutory range. Sentencing decisions, nevertheless, “shall be guided by the overriding purposes of felony sentencing,” i.e., “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”7 As noted by the Supreme Court of Ohio in Foster, “There is no mandate for judicial fact-finding in the general guidance statutes.”8

As with the provisions governing the imposition of the shortest and longest sentences, Foster struck down R.C. 2929.14(E)(4), governing the imposition of consecutive sentences, as unconstitutional, for requiring judicial fact-finding. The basis for this part of Foster’s holding, however, was undercut by the U.S. Supreme Court’s decision in Oregon v. Ice.9 As was acknowledged by the Supreme Court of Ohio, “[A]fter Ice, it is now settled law that … the jury-trial guarantee of the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to imposing consecutive sentences.”10

Accordingly, H.B. 86 re-enacts the provisions of former R.C. 2929.14(E)(4) as they existed prior to Foster:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.11

Although the requirements for imposing consecutive sentences have been re-enacted, they will not, in practice, operate exactly in the same way as they did prior to Foster. The decision also struck down R.C. 2929.19(B)(2), which required the sentencing court to make a finding that gives “its reasons for imposing the consecutive sentences,” as well as “its reasons for imposing the maximum prison term.”12 This statute was not re-enacted in H.B. 86. Thus, a sentencing court is not statutorily required to “make a finding that gives its reasons for selecting the sentence imposed.”

The issue arises, then, as to a sentencing court’s obligation to communicate its findings and/or reasons justifying the imposition of consecutive sentences. In State v. Comer, the Supreme Court of Ohio held that “when imposing consecutive sentences, a trial court is required to make its statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing.”13 This holding, however, rested on R.C. 2929.14(E)(4) and 2929.19(B)(2)(c), both of which were found unconstitutional in Foster. As noted above, R.C. 2929.14(E)(4) has been reenacted while R.C. 2929.19(B)(2)(c) has not. While this issue may be revisited by the legislature or addressed by the Supreme Court of Ohio, trial courts would be welladvised to make the statutory findings required by re-enacted R.C. 2929.14(E)(4) and give reasons supporting these findings in the record at the sentencing hearing.

While a sentencing court will not be expressly statutorily required to state its findings at the sentencing hearing, such action is implied by the new R.C. 2929.14(E)(4) and there exists practical reasons for doing so. As noted in Comer, “an in-court explanation gives counsel the opportunity to correct obvious errors” and “encourages judges to decide how the statutory factors apply to the facts of the case”, whereas, “[i]f these important findings and reasons were not given until the journal entry there is the danger that they might be viewed as after-the-fact justifications.”14

A sentencing court’s duty to communicate its findings justifying the imposition of consecutive sentences in the record, i.e., the written judgment entry of sentence, is codified elsewhere in the sentencing statutes. “If the sentencing court was required to make the findings required by … (E)(4) of section 2929.14, … , and if the sentencing court failed to state the required findings on the record, the court hearing an appeal under division (A), (B), or (C) of this section shall remand the case to the sentencing court and instruct the sentencing court to state, on the record, the required findings.”15

The changes enacted by H.B. 86 discussed thus far are those that must be understood in relationship with the Supreme Court’s Foster decision. House Bill 86 introduces other changes into Ohio’s felony sentencing law, which serve the broader goals of the reform legislation.

Newly enacted R.C. 2929.13(B)(1)(a) establishes a preference for, and in certain conditions, a presumption of, community control sanctions for fourth- and fifth-degree felonies. Where an offender has been convicted of a fourth- or fifth-degree felony that is not an offense of violence, “the court shall sentence the offender to a community control sanction of at least one year’s duration,” depending on the offender’s criminal record, the seriousness of the current charges, and the availability of community control sanctions.16

Conversely, a sentencing court will have “discretion to impose a prison term on an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence,” depending on the circumstances of the current offense and the unavailability of community control sanctions.17

Newly enacted R.C. 2929.13(B)(1)(c) requires the department of rehabilitation and correction to provide sentencing courts with information regarding the availability of community control sanctions on request.

Otherwise, a court imposing a sentence for a fourth or fifth degree felony is required to make a finding as to whether any of the circumstances contained in R.C. 2929.13(B)(2) (formerly (B)(1)) apply and whether prison or community control sanctions are more consistent with the purposes and principles of sentencing set forth in R.C. 2929.11, in light of the seriousness and recidivism factors contained in R.C. 2929.12.18

In sum, H.B. 86 follows the holding of Foster with respect to the shortest and longest sentences authorized by statute, i.e., they may be imposed at the court’s discretion. With respect to consecutive sentences, the General Assembly has reenacted the major provision struck down by Foster, but later sanctioned by the U.S. Supreme Court’s decision in Ice and recognized for re-enactment by the Supreme Court of Ohio in Hodge. Finally, with respect to many nonviolent fourth- and fifth-degree felonies, H.B. 86 enacts a sentencing procedure that explicitly favors the imposition of community control sanctions, rather than prison, for nonviolent offenses.

This article first appeared in the August 2011 Lake Legal Views.

Author bio
Judge Diane V. Grendell has served in the 11th District Court of Appeals for 11 years, writing and participating in more than 3,850 opinions from Ashtabula, Geauga, Lake, Portage and Trumbull counties. Judge Grendell has also been requested to hear cases on the Supreme Court of Ohio on nine occasions, and to date has had more than 60 of her opinions published.

Endnotes

1 State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

2 Id. at paragraph seven of the syllabus.

3 While adding language to R.C. 2929.11(A), H.B. 86 removed the following similar language from R.C. 2929.13(A): “The sentence shall not impose an unnecessary burden on state or local government resources.”

4 Council of State Governments Justice Center, Justice Reinvestment in Ohio: Reducing Spending on Corrections and Reinvesting in Strategies to Increase Public Safety (New York: Council of State Governments Justice Center, 2009).

5 The versions of H.B. 86 passed by the House did contain a provision comparable to former R.C. 2929.14(B): “the court imposing a prison sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court who has not served, or is not serving, a prison term shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section.”

6 The versions of H.B. 86 passed by the House did contain a provision comparable to former R.C. 2929.14(C): “the court imposing a prison sentence upon an offender for a felony may shall impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes if the longest prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code or, upon certain major drug offenders ***, and upon certain repeat violent offenders ***.”

7 R.C. 2929.11(A)

8 2006-Ohio-856, at ¶42.

9 Oregon v. Ice (2009), 555 U.S. 160.

10 State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, at ¶19.

11 R.C. 2929.14(C)(4). Again, the final version of H.B. 86 differed significantly from the version passed by the House with respect to consecutive sentences. The earlier version provided for different findings before consecutive sentences could be imposed: “If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court shall first consider imposing the prison terms as concurrent sentences. The court may require the offender to serve the prison terms consecutively only if the court finds in language specific to the offender and the offenses that the consecutive service is terms are necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate because they are proportionate to the seriousness of the offender’s conduct and to the danger of future crime of the offender poses to the public” [sic].

12 Former R.C. 2929.19(B)(2)(c) and (e).

13 99 Ohio St.3d 463, 2003-Ohio-4165. Id. at paragraph one of the syllabus.

14 Id. at ¶22.

15 R.C. 2953.08(G)(1). This provision was added to R.C. 2953.08, effective Oct. 10, 2000. A year earlier, the Supreme Court of Ohio decided State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110, where it distinguished between the obligation to state the findings necessary to impose a particular sentence (as required R.C. 2929.14(B)), and the obligation to state the reasons or basis for its findings (as required by R.C. 2929.19(B)(2)).

16 R.C. 2929.13(B)(1)(a).

17 R.C. 2929.13(B)(1)(b).

18 R.C. 2929.13(B)(3)(a) and (b).

Contact OSBA


Headquarters:

1700 Lake Shore Drive
Columbus, Ohio 43204

Phone:

(800) 282-6556


Email:

OSBA@Ohiobar.org

Connect with OSBA


Attorney Member Directory Search