A difficult part of being a criminal defense attorney is trying to explain the unknown during a sentencing hearing.  Specifically, trying to tell a client that the plea deal is a great deal, but I have no clue on what the judge will do during sentencing.  This is not an easy task because the client’s liberty is on the line and it puts a lot of pressure on both the attorney and client.

Now this dilemma is not in every courtroom.  More times than not, the judge will tell the defense attorney what the sentence will be prior to going into the courtroom to help ease this process.  Other courtrooms, however, the judge may just say “well…sounds like a good plea deal; we will see what happens out in the courtroom for sentencing.”  This makes my heart sink every time!  Understand that the judge has no duty to inform an attorney what the sentence will be prior to the sentencing, but come on!  This can be even more stressful in felony court because now the client is looking at a possibility of prison time.

To paint a picture, here is a typical scenario during a pre-trial/sentencing hearing.  I talk with the prosecutor and worked out the plea deal my client wanted.  The prosecutor and I then go talk to the judge in order to explain the case and why a plea deal is proper.  At this point I usually chime in to start the mitigation process for sentencing purposes.  I go through my client’s life story and give my recommendations for sentencing.  After all of the talking is done, the judge is going to either tell me the sentence or will tell me that he will decide when he is on the bench.  Going forward with our sentencing story, let’s assume the latter.

I walk out from the judge’s chambers and motion to my client, who is probably on edge in the courtroom, to go out to the hallway to discuss the case.  I explain that I was able to work out the plea deal he wanted, but I was not able to get an indication of how the judge will sentence.  Silence from the client.  The silence lasts a couple minutes until the client asks “what do you think he will do during sentencing?”  A very difficult question to answer, I explain my thoughts and beliefs about how the judge will sentence.  But those are my thoughts and beliefs that could be dead on or completely off.  Going through what I call “The Good, The Bad, and The Ugly” of the client’s case, the client decides to go forward with a guilty plea to the reduced charge and sentencing.  The client stands before the judge, I give my sentencing speech, the client gives his speech, and then the judge imposes his sentence.  Great news!   The sentence was a suspended prison time, one year community control, court costs, and fine!  No prison!

But what if the prosecutor did not like that sentence?  What if the prosecutor felt that the sentence was contrary to law and wanted the defendant resentenced for a harsher sentence?  Does not seem possible or fair, but it can happen!

That is the situation that Daniel Marcum faced on appeal to the Tenth District Court of Appeals in State v. Marcum, 2015-Ohio-5237.

Marcum was indicted on a single count of fourth-degree felony possession of heroin on January 16, 2015.  Through pre-trial negotiations, Marcum pled to a stipulated lesser-included offense of fifth-degree felony possession of heroin.  At the time, Marcum was already serving a prison term for an unrelated offense and was scheduled to be released June 12, 2015.  The judge accepted Marcum’s guilty plea to the reduced charge and proceeded to sentencing.  After a brief colloquy between the judge, prosecutor, and defense attorney, the prosecutor agreed to defer to the trial court for purposes of sentencing.  No presentence investigation report was requested, ordered, or reviewed prior to sentencing.

After hearing from the defense attorney during mitigation, the trial court imposed sentencing.  The trial court sentenced Marcum to six months community control and required Marcum to serve 60 days at the Ohio Department of Rehabilitation and Correction.  Further, Marcum’s community control sanction was to terminate on June 13, 2015 (day after he is released from prison).  Lastly, the trial court suspended Marcum’s drivers’ license for six months, effective January 1, 2015.  The prosecutor never objected to the trial court’s sentence.

Assuming that someone got into trouble in the prosecutor’s office for this case, the prosecutor’s office filed an appeal assigning errors regarding Marcum’s sentence.  Specifically, the state argued Marcum’s sentence was contrary to law because the trial court 1) failed to obtain and review a presentence investigation report before imposing a community control sanction; 2) the trial court failed to impose at least one year of community control or a valid prison term; 3) the trial court erroneously backdated the effective date of the driver’s license suspension mandated by R.C. 2925.11 (E)(2) Possession of Control Substances.

Believing this to be complete bull crap, Marcum argued that the appeal is moot and must be dismissed because he fully completed the sentence imposed.  Marcum additionally argued that the sentence was not contrary to law.

Because Marcum raised that the case was moot, the court of appeals had to first tackle whether or not they had jurisdiction to hear the case.  The court stated that a moot case is one which seeks to get a judgement on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgement upon a then-existing controversy.  In re L.W., 2006-Ohio-644.  Well that makes sense and that should have ended the discussion.  There was no longer a controversy because Marcum completed his imposed sentence.  As Coach Lee Corso states every Saturday on Game Day, “Not so fast my friend!”

The court found that a person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of judgment imposed upon him or her.  Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. State v. Golston, 71 Ohio St.3d 224.  However, a defendant’s appeal of a sentence already served is moot.  State v. Duff, 2005-Ohio-2299.  Such an appeal is moot because there is no remedy that can be applied that would have any effect in the absence of a reversal of the underlying conviction. Id.  A sentence that has already been completed cannot be lessened or negated in any meaningful way.  But the same reasoning does not apply when the state is the party appealing a sentence, because the state’s challenge to the leniency of a sentence can result in an effective remedy.  Scheerer v. Munger, 281 P.3d 491.  Additionally, the Supreme Court of Ohio has since permitted the imposition of a harsher prison sentence on a defendant after a successful appeal by the state, even though the defendant had been released from prison after serving the prison sentence previously imposed. State v. Roberts, 2008-Ohio-3160.

The court of appeals went on to discuss the merits of the case and eventually concludes that the case is not moot and the court should have ordered a presentence investigation for review before sentencing Marcum.  The court reversed Marcum’s sentence and remanded it back to the trial court to resentence Marcum.

Well there you have it!  The state can get a second bite of the apple but no such luck for the defendant.  Basically, the court was saying that had Marcum appealed an error with merit and they found in favor of Marcum, it is too late.  His sentence has been served and not much the court can do.  But if the state thinks your sentence is too lenient and they file an appeal, you can always be resentenced for a harsher term.  Even though you completed your sentence!!

Going back to the example, my client may have to relive that very difficult time in his life all over again because the state felt the sentence was too lenient.

I call shenanigans!