The Ohio Supreme Court has recently issued a decision in State v. Bonnell that answers some of the messy issues related to the reenacted consecutive sentencing statute, R.C. 2929.14(C)(4). Spoiler alert, it isn’t good for anyone hoping there would be meaningful appellate review of felony sentencing in Ohio. The decision basically continues us down the path of almost unfettered discretion for trial courts to do whatever they want, as long the prison term fits mathematically within the eligible range. The way appellate review of felony sentencing works now is that unless the trial court imposes 12 years for an F-5 drug possession charge, the sentence is unassailable.
It is no secret that in enacting H.B. 86 in 2011, the Ohio legislature wanted to get more people out of prison quicker. It’s simply too expensive to house all these folks. The U.S. prison population is the largest in the world and climbing. One aspect of the bill to accomplish that larger goal was a limitation on a trial court’s ability to impose consecutive sentences for multiple offenses. It’s not that consecutive sentences were done away with, but that there is a presumption that multiple sentences are to be served concurrently. So, in Ohio, we are to start with the assumption that when a defendant is convicted of multiple felonies, the various sentences are to be served at the same time (there are exceptions to this presumption, but for the run-of-the-mill case, the presumption applies).
If, however, the trial court makes certain “findings,” outlined in R.C. 2929.14(C)(4), the presumption is thrown aside and the judge may impose consecutive sentences. What are the findings the court has to make? The applicable subsection now reads as follows:
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.
While these findings are mostly subjective and easy enough for a trial court to make if it wants to, the court still has to make them in order to impose consecutive sentences. Probably unsurprisingly to those of us in the trenches, trial courts initially struggled to even bother to make the requisite findings before sending defendants to the big house for very long periods of time. After defense appeals started to work their way through the system, and appellate courts routinely overturned the unlawful sentences, judges learned their lesson and began stating their findings at the sentencing hearing. Is that the end of the story. Of course not. Important questions still needed addressing.
First, does the judge have to state the findings verbatim from the statute, or may he simply say something that seems to correspond to one of the findings? As one appellate judge asked me at an oral argument, “what happens if the judge leaves out an ‘a’ or a ‘the’ when making the finding? Although the judge’s question to me was obviously a bit tongue in cheek, the larger point was a valid one. How close to the statute’s wording is good enough?
Ohio’s Appellate courts were all over the map on the issue. Some appellate courts were willing to look at the transcript of what was said by the trial judge and author an opinion along the lines of, “well, it appears the court was saying consecutive sentences are necessary to protect the public from future crime.” Other appellate districts were requiring strict compliance: if you don’t say the magic words, the sentence is unlawful.
Second, does the judge have any obligation to state its reasons for making the findings? If the sentencing judge claims that “consecutive sentences are not disproportionate to the seriousness of the defendant’s conduct,” how did he or she come to that conclusion? Is it enough to simply make the finding, or must a court provide supporting reasons? Normally when someone comes to a factual conclusion about something, there is a reason behind it. Why not make them provide those reasons so that we all can see whether the sentence is simply nuts under the circumstances?
These were questions at issue in State v. Bonnell, 2014 Ohio 3177, and the Ohio Supreme Court answered in a most frustrating manner.
As to the first question, the court stated stated:
When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing, and by doing so it affords notice to the offender and to defense counsel. See Crim.R. 32(A)(4). And because a court speaks through its journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings into the sentencing entry. However, a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld. (emphasis added).
As to the second issue, the court stated in its conclusion that:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings
In short, what the court held is essentially this:
1. The court must make the findings in order to impose consecutive sentences. This was not really a surprise as that is exactly what the statute says. The fact the court had to explicitly say so is an issue.
2. Although the court has to make the findings, as long as the appellate court can read the hearing transcript and cobble together words and phrases that kinda, sorta address the findings, that is good enough.
For instance in Bonell, the high court actually wrote that “[w]e can discern from the trial court’s statement that Bonnell had ‘shown very little respect for society and the rules of society’ that it found a need to protect the public from future crime or to punish Bonnell. We also can conclude that the court found that Bonnell’s ‘atrocious’ record related to a history of criminal conduct that demonstrated the need for consecutive sentences to protect the public from future crime.” Really? That’s what you get out of that. I view it more as the court saying, “you are a bad person and I want you to be punished to the maximum extent I can do so.” Every appellate court is simply going to shoehorn the judge’s statements into the findings and call it a day. Cut and paste appellate review at its finest.
3. Most importantly, the court need not give any reasons or justification for how it made its findings. You do not have to show your work, judge. If a sentencing judge proclaims it made the finding, that is that.
There is actually justification for the court reaching this conclusion. When the legislature reenacted the consecutive sentencing statute, it omitted any requirement for the court to state its reasons underlying those findings. Because a previous version of the statute included such a provision, an argument can be made that the legislature specifically and intentionally decided to relieve courts from that obligation.
This interpretation is clearly contrary to the overall purpose behind the legislation, but there is textual support for the result reached here. My belief is that the legislature simply forgot to include the provision, or assumed judges would provide reasons. We’ll never know for sure, and this case doesn’t shed any light on the matter, as there is virtually no analysis on that point. The court essentially makes a conclusory holding that reasons need not be stated and calls it a day.
Bonnell continues with the trend of gutting any possibility of meaningful appellate review of sentences. If a particular judge disagrees with the legislature’s intention to shorten prison terms, there isn’t anyone that can stop him. This decision gives free-range to hang ’em judges.