Consecutive Sentencing and Anonymous Tips

There are a few interesting issues floating around the criminal law arena, both in Ohio appellate courts and the U.S. Supreme Court.  So, let’s take a look at two of them: consecutive sentencing and the reliance on an anonymous tip for reasonable suspicion to make a traffic stop.

Consecutive Sentencing:

Felony sentencing law in Ohio has been, shall we say, a pain for both courts and criminal defense lawyers for several years and for several reasons.  There was the long and difficult road regarding how to properly merge “allied offenses of similar import,” the void/voidable judgment issue related to the improper imposition of post-release control, and many more.

One of the more important sentencing issues from a defense perspective is whether a defendant should have to serve multiple sentences for multiple offenses consecutively or concurrently.  If the judge orders that the sentences be served concurrently, that means both sentences are served at the same time.

In other words, each day a defendant spends behind bars counts towards all sentences.  If a defendant is sentenced to concurrent terms of 18 months for felony possession of heroin and 12 months for possession of cocaine, the defendant will spend 18 months in prison.  If the judge orders the defendant serve these same sentences consecutively, however, then he must first finish the 18 months before serving the 12 months, meaning he is locked-up for a total of 30 months.  This is a big deal.

The law in Ohio is that there is a presumption for concurrent sentences, pursuant to R.C. 2929.41(A).  However, as always, there are exceptions.  If the court makes certain findings then the presumption for concurrent sentences can be overcome and the court is permitted to order consecutive sentences.

R.C. 2929.14(C)(4) is the section that contains the findings required for a court to impose consecutive sentences in most felony cases.  It is clear that the court must order concurrent sentences unless it makes the findings.  The real question is whether the court is required to explicitly state the findings, or is saying other things which can be interpreted as being the findings enough?  Does the court have to state the language in the statute verbatim, or is close enough going to suffice?  Ohio’s appellate courts are all over the map on this issue.

Some district courts are requiring strict compliance with the statute.  If the Court doesn’t say the magic words listed in the statute, then the trial court erred in imposing consecutive sentences.  Other districts are holding that if the trial court says things during the sentencing hearing that seem to be related to the findings required, that is sufficient.  These courts will look at what was said by the trial judge and say something like this: “well, it appears the court was finding that consecutive sentences are not disproportionate to seriousness of the defendant’s conduct,” which is one of the findings required. But that is not the end of the story.

Another issue is whether the trial court is required to give reasons for making the findings.  Does the court have to explain why it made particular findings or can it merely recite the language of the statute?  The most recent version of R.C. 2929.14(C)(4) does not require the court to provide its reasons, whereas an earlier version of the statute did.  So there is a strong argument that the court does not have do so.  But if the court is only required to recite the language, how are appellate courts supposed to provide meaningful review of sentencing decisions?  Without knowing how the trial court reached its decision, its difficult to determine whether it erred or not.

Due to the inconsistency in how trial courts are treating the issue, no one is quite sure what the law is currently.  It is important for defense attorneys to pay attention to their particular district court rulings, some of which are inconsistent with each other.  But there is a good chance these issues will be resolved soon as the Ohio Supreme Court heard oral argument in State v. Bonnell on January 7th.  Hopefully the court will provide some clarity.   Stay tuned.

Anonymous Tips:

How reliable are anonymous tips?  If an unidentified person calls the police and simply says Jack Smith is trafficking drugs in his Ford truck, is this enough to allow the police to pull him over?   The U.S. Supreme Court recently heard oral argument in Navarette v. California, a case where an anonymous tipster called the police and reported an apparent drunk driver.  The caller claimed the truck had almost run him off the road and provided a vehicle description and license plate number.

The police, based on nothing more than the tip, pulled the truck over and ultimately discovered a large quantity of marijuana in the trunk.  The caller was never identified and there was no way for law enforcement to ascertain how reliable or honest this mystery person was.  More importantly, the police never observed any erratic driving independently.  What if the caller was lying and simply wanted to inconvenience someone he dislikes?

In Florida v. J.L., a 2000 U.S. Supreme Court case, the court held that an anonymous tip, standing alone, is insufficient to establish reasonable suspicion to perform a “Terry Stop.”  The court held that the police had to personally observe other facts that corroborate the tipsters claims in order to seize someone for investigation.

Generally, in order to seize someone under the 4th amendment, the police must either have probable cause that a crime has been committed or at least “reasonable suspicion that crime is afoot.”  If there is reasonable suspicion, the police may briefly detain the individual (in a car or on the street) in order to affirm or dispel that suspicion.  Often, a Terry stop will blossom into probable cause for an arrest.  Terry stops were created by the pro-prosecution Rehnquist court in order to make it easier for cops to seize people when they felt something was going on.

If the police were required to have probable cause that a person has committed a crime in order to investigate, the number of folks stop by police would be much lower than we experience today.  And of course when the job of law enforcement is hindered by that pesky 4th Amendment, the court just had to change the 4th Amendment, right?

The issue as to whether the anonymous tip, standing alone, will be enough for the police to stop a car to investigate is once again directly before the court in  Navarette.  If the court simply applies the law of J.L, this is an easy case and the defendant should win.  If the police did not independently observe anything to corroborate the tipster’s claims, there wasn’t reasonable suspicion to perform the traffic stop, period.  However, the government is asking the court to reevaluate that requirement or to alter it such that when it is really, really important for public safety reasons, corroboration should not be needed.  After all, why shouldn’t police be able to just to stop anyone they wish when they get an “anonymous tip.”

There is no way the police would ever falsely claim they received an anonymous tip, right?  I’ll leave it to your imagination as to how the government could abuse this run-around of our 4th amendment rights.  My gut sense is that if the court backtracks from J.L, we might see a dramatic spike in the number of anonymous tips received by police.

The Perils Of Pleading No Contest, Part II

I previously authored an article about the need to fully appreciate exactly what the consequences are of pleading no contest.  I will reiterate that there are very valid and sometimes necessary reasons for doing so.  However, sometimes the appellate court will slap you down for it.  Another instance of this can be found in State v. House, 2014-Ohio-138.

House had been charged with, among other crimes, murder and felonious assault.  In his defense, House wished to pursue a not guilty by reason of insanity defense (NGRI).  House planned to argue that due to suffering from PTSD, he was incapable of fully understanding the wrongfulness of his actions at the time of the murder.   House was referred for two separate mental health evaluations and each expert report concluded that House was competent to stand trial and that he was sane at the time of the murder.  Based upon these evaluations, the state filed a “motion in limine” requesting the trial court issue a ruling precluding House from introducing any evidence regarding his PTSD at the trial.   The state’s argument was that because the experts determined his PTSD did not affect his sanity at the time of the murder, any evidence regarding his PTSD was wholly irrelevant to the issues at hand.

A motion in limine is a preliminary ruling from the court prior to the start of trial and usually related to evidentiary issues.  “In limine” translates roughly into “at the threshold.” The purpose of the motion is to obtain an early determination regarding some contested evidence issue so that all parties are on notice as to how the court is planning to rule during trial.  This allows both sides to properly prepare their evidence, arguments and theories of the case.  However, a preliminary order by the court is just that, preliminary.  It is not binding on the court and the judge can change his or her mind during the trial.  Therefore, if a party believes that the court’s preliminary order excluding evidence is wrong, the party must still attempt to introduce the evidence at trial and have the court actually exclude it in order to preserve it for appeal.  Otherwise the party really never suffered any prejudice because, in theory, the court might have allowed the evidence to be introduced but the proponent never attempted to do so.  Although its unlikely the court would have changed its mind, without attempting to use the evidence, no one will ever truly know.

The trial court granted the state’s motion in limine and preliminarily ruled that he was prohibited from introducing any evidence regarding his PTSD and that he was not permitted to pursue a NGRI defense without any expert testimony.  Following these decisions, House waived his right to a jury trial and a bench trial commenced.  After the first day of trial, House withdrew his former plea of not guilty and entered a no contest plea.  He then appealed the trial court’s rulings that he was not permitted to introduce evidence regarding PTSD and not permitted to pursue a NGRI defense without expert testimony.  This seems like something that perhaps the court of appeals so decide, right?  Well, maybe, but the appellate court did not in this case.  Why? because House had waived his right to object to the preliminary rulings when he pleaded no contest.

The court noted that “[a]n evidential ruling, prospective or otherwise, is never final until the trial in completed [.]”  There is nothing in the opinion that shows House attempted to introduce the evidence at trial, but even if he had done so, the fact that he pleaded no contest mid-trial precluded appellate review.  Citing a few earlier opinions, the court reasoned that to allow an appellate court to review evidentiary rulings for a trial that was cut-short by defendant’s change of plea would provide the defendant an unfair advantage.  The Second District quoted a Sixth District opinion in stating, [t]o allow a defendant to plead no contest immediately following an adverse evidentiary ruling and then appeal that ruling, would be to permit a defendant to interrupt his trial any time to pass questions as to the admissibility of evidence on to the court of appeals in the hope of prevailing and having the opportunity to start his trial over again.”

The end result is that if your case involves an adverse evidentiary ruling, you will need to finish the trial to preserve the issue for appeal.  It should be noted that this does not effect the ability to appeal the denial of a motion to suppress after pleading no contest.  When a court overrules a motion to suppress evidence, that is considered a final order of the court.  In contrast, preliminary orders in limine and rulings during a trial are not final and cannot be appealed unless you finish the trial.

Just one more nuance to pay attention to when considering whether to plead no contest.