Sentencing Issues Continue to Cause Confusion

When the General Assembly enacted H.B. 86, effective September 30, 2011, the goal was to reduce the prison population.  The legislature had realized that the war on drugs couldn’t be paid for anymore.  Ohio’s prison population had exploded and the costs of housing all these non-violent folks had become untenable.  Those in power finally realized that it might not be the best idea to throw everyone in prison for long periods of time for low-level felonies like drug possession and thefts.  So, H.B. 86 overhauled Ohio’s felony sentencing structure.  Among other things, the general assembly created mandatory probation for certain offenders, revised judicial release provisions, and raised threshold amounts of money for certain crimes like theft.

Under the old law, if a person stole $500 or more, that was a felony of the fifth degree.  Under the new law, one had to steal $1,000 for it to be a felony, otherwise its a misdemeanor of the 1st degree.  Although inflation had obviously been running its course over the many years, the statutory amounts had not kept pace.  $500 simply wasn’t what it used to be.   The maximum penalty for a 5th degree felony is up to 12 months in a state prison.  The maximum penalty for a 1st degree misdemeanor is 180 days in a local jail.

But there have been questions related to timing of the new provisions.  If someone stole $600 prior to September 30, 2011, but was not sentenced until after H.B. 86 took effect, is he subject to 12 months in prison or 6 months in a jail?  Could you convict him of a felony, but only sentence him for a misdemeanor?  The Ohio Supreme Court directly addressed these issues in State v. Taylor, decided February 13, 2013.

In July 2011, Taylor stole $550 worth of cologne from a department store.  Yes, that’s right.  Taylor is probably the last man you would want to share a cab or an elevator with.   At the time he committed the offense, he would be considered a felon and subject to 12 months in prison.  However, by the time his sentencing hearing took place, H.B. 86 had been enacted.  The trial court determined that not only was he subject to the lesser penalty of 180 days in jail, but that he had to be considered a misdemeanant as well, not a felon, and entered a conviction for a misdemeanor.

The State of Ohio appealed and the Ninth District Court of Appeals reversed, deciding that while he was entitled to benefit from the lower penalty, he had to be convicted of the felony.  This may seem academic in some respects given that he could only be sentenced for a misdemeanor, but potential employers tend to look harsher upon “convicted felons.”  This decision was in direct conflict with decisions out of the 5th District and the Ohio Supreme Court took the case as a certified conflict between different Appellant courts.

The Ohio Supreme Court reversed the Ninth District and agreed that Taylor was entitled to be convicted of a misdemeanor.  Although he had committed the offense prior to the enacted of H.B. 86, because he wasn’t sentenced until after that went into effect, R.C. 1.58(B) applied.

R.C. 1.58(B) states: “If the penalty, forfeiture or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.”

The State had argued that R.C. 1.58(B) applied only to punishments for an offense and not the category or degree of an offense.  Therefore, Taylor should have been convicted of a felony and sentenced for a misdemeanor.  The Supreme Court rejected this argument and determined that the legislature had intended for persons in Mr. Taylor’s situation to be convicted of the lesser offense.  The Court stated that implicit in the decrease in classification of an offense is a decease in the corresponding penalty.  Essentially, the two necessarily go together.

The court noted that the question is not whether they legislature had decreased the level of offense, as it clearly did, but rather whether persons in Taylor’s circumstances could benefit from the reduction.  And because the R.C. 1.58(B) states that defendant’s not yet sentenced benefit from the amendments, he had to be classified as a misdemeanant, not a felon.  The Court went on to note that the legislature had “conditioned application of the reduced penalty – which arises by virtue of the reduced classification – on whether or not the offenders had been previously sentenced.”  Here, Taylor had not been sentenced and therefore, the reduced penalties, which cannot be separated from the reduced classification of offense, applied to him.

This is probably the right call.  It doesn’t make any logical sense to claim that a defendant can be convicted of a felony but only sentenced for a misdemeanor. The to go hand-in-hand. The potential punishments are determined by the level of offense under Ohio’s sentencing laws.  And because R.C. 1.58(B) clearly stated that a defendant should get the lesser punishment if the enactment of the statute came prior to the sentencing, Taylor wins.  If the legislature wanted the amendments to only apply to those that committed the offense on or after the effective date of H.B. 86, it could have said so.


Exhibit 1: why it is a bad idea to consent to a search

I know this space is mostly reserved for a discussion of appellate decisions and permutations of various issues in criminal law, but this story just had to be addressed.  The Dayton Daily News ran a story about a gentleman who was arrested for possession of drugs and a weapon after he drove the victim of a shooting to the hospital for treatment.   You might ask your self; how did this happen?  Why did the police search the car of someone transporting a shooting victim to the hospital?  What grounds did they have?  Certainly there was no warrant, so there must have been one of the many exceptions invoked, right?  Well, the guy apparently consented. Yes, that’s right, this arrestee consented to a search of his car knowing full well that the car contained drugs and a gun.  I wish I could say this was an isolated incident of stupidity.  But, I cannot.  This happens all the time.  STOP CONSENTING TO A SEARCH WHEN YOU KNOW YOU HAVE SOMETHING THE POLICE WILL FIND INTERESTING.  


Impeaching One’s Own Witness

Under the common law, which this country inherited, there was a rule of evidence called the “voucher rule.”  This rule prohibited a party from calling a witness only to impeach (call into question) the witness’s credibility.  The rule was given its namesake as it was said that a party “vouches” for his own witnesses.  Basically, no party should call a liar as a witness.  Why would a party wish to do such a thing?  Typically, the reason was to get prior inconsistent statements into the record and before the jury.  For example, imagine that Jane Smith previously told detectives that she saw Fred Jones shoot the victim.  Later, Jane changes her story and says that she saw the defendant shoot the victim.  If the State calls Jane to testify against the defendant at his trial for the murder, the defendant is easily permitted to question Jane about these earlier statements blaming the crime on Fred.

But if the State didn’t call Jane as a witness, should the defendant be able to call her and ask her about these statements concerning Fred?  The answer would be no under the voucher rule.  If Jane is called by the defendant and she testifies that she saw the defendant shoot the victim, defense counsel cannot inquire about the prior statements to let the jury hear that she once accused someone else of the crime.

While the voucher rule has been abrogated, the general premise remains and is currently located within Evidence Rule 607(A), which states:

“The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to [some hearsay exceptions].”

As you will see, the real change between 607(A) and the old voucher rule is that a party may impeach its own witness concerning prior statements if (1) the trial testimony comes as a surprise, and (2) it does damage to that party’s case.  So if a witness pulls an about face and testifies contrary to what the party thought the witness was going to say, the attorney is allowed to then ask about the prior statements.  However, if the party is  aware before the trial that the witness has made conflicting statements, that party cannot call the witness merely to ask about prior, helpful statements as they wouldn’t have been surprised.

One nuance though comes by way of a 1973 U.S. Supreme Court case in Chambers v. Mississippi, where the court had determined that a defendant on trial for murdering a police officer had been deprived of his Due Process right to a fair trial when the old voucher rule was applied.  Chambers wished to call and examine another individual who had previously confessed to killing the officer – something fairly important in raising reasonable doubt in his case – and the trial court balked.  The U.S. Supreme Court held that Chambers’ due process right to a fair trial had been violated and reversed the conviction.

This idea that invocation of the voucher rule (or the modern rule of evidence) violates due process was recently argued in the felony murder case of State v. Wynn, 2014-Ohio-420.  So, did the defendant win?  The Second District said no.  Wynn had wished to call his co-defendant to the stand and ask him about earlier statements he had made to the police that would have helped Wynn’s theory of defense.  Although the state had reached a plea agreement with the co-defendant requiring him to testify truthfully against Wynn, the state never called the co-defendant (perhaps to keep the earlier statements from being elicited).    The trial court refused to allow Wynn to impeach his own witness because there was no surprise as he was well aware the co-defendant changed his story over time, which would violate 607(A).  But wouldn’t this be a violation of due process according to the Chambers decision?

The Second District said no.  The court distinguished Chambers on the grounds that the refusal to allow the defendant to impeach his own witness was only one of the problems at trial.  In addition, the trial court had not permitted, as a violation of the hearsay rule, other witnesses to testify that this other gentlemen had made incriminating statements.  Therefore, it was the entire nature of the trial that, when view in total, was so unfair as to violate Chambers’ due process right to a fair trial.  Wynn simply didn’t have the accumulation of evidentiary rulings that created such an unfair trial.  Moreover, notwithstanding the trial court’s ruling, Wynn was able to elicit much of the co-defendant’s prior, helpful statements anyway.  So, no harm, no foul in the end.

What to take away from this?  That Chambers can be useful, but it really was a fact-specific ruling.  A defendant will need to demonstrate multiple roadblocks set-up that prohibit a defendant from truly mounting a defense.  In such circumstances, the rulings may constitute a violation of due process when viewed under the totality of the circumstances. However, absent such a case, the rules of evidence will generally win out.

When is suspicion reasonable?

To the court’s credit, it at least stated that the decision was a “close call.”  I don’t personally feel that it was; I think the call was easy and clear.  Then again, I would have decided the case exactly opposite of what the Second District decided in State v. Foxx, a case in which the court determined that police had reasonable suspicion to effectuate a traffic stop based upon the following:

1. A gas station had very recently been robbed

2. the robber had fled on foot

3. it was the early morning hours

4.there were only 2 routes away from the gas station in the direction the robber had fled on foot

5. there were only 2 cars on the route the arresting officer chose to patrol, the car in which the defendant was a passenger and a taxi cab

5. the police arrived in the area within 3-4 minutes of the robbery.

As many likely know, in order to effectuate a traffic stop police must have reasonable suspicion (if not probable cause) that the person to be seized is up to no good.  Courts like to state that the police must be able to point to specific, articulable facts giving rise to a reasonable suspicion that “crime is afoot.”  A hunch or a gut sense is not enough, the officer must be able to identify specific facts that would objectively cause a reasonable officer in his position to feel that the defendant is engaging or about to engage in a crime.  If so, the officer is permitted to detain the individual in order to investigate and either affirm or dispel the suspicion.  This is referred to as a “Terry stop.”  The duration and intensity of the stop is guided by one of our old friends: reasonableness.  This means the stop (seizure, in 4th Amendment parlance) can last no longer than is necessary in order to affirm or dispel the suspicion that the defendant is engaging in criminal conduct.

So do the facts mentioned above rise to level of reasonable suspicion?  I don’t think so.  Sure the officer knew that someone had just committed a crime.  But how in the world was he sure that the robber was in the car he pulled over?  Reasonable suspicion, like probable cause, is person specific.  An officer must be able to state with particularity observations about this particular person or that particular car which makes the officer suspicious that he or she has committed a crime.  Simply being in the vicinity of a recent crime should not be enough to seize persons and subject them to questioning or even a pat-down search.  We all have the right to be left alone.

In reading the decision, the appellate panel focuses on the fact that the car was in the area right around the time of the robbery, that there were limited routes of escape, and that there were few others on the road at 1:40 a.m.  However, and this is important, the court did not rely on any independent observations about this particular car.  The officer had also testified that he personally observed the target car commit traffic violations and that alone would have permitted a traffic stop, but the court didn’t rely on that to uphold the seizure.

In fact, the court specifically declined to address the state’s alternative argument that the traffic violations permitted the officer to pull the car over.  It’s unfortunate the court didn’t decide the issue on that basis because that would have been an easier and better way to resolve the “close” case.  Instead, defense attorneys are left with a very unhelpful bit of precedent on the books.   Anytime there is a middle-of-the-night crime and there are few persons in the area and the police respond quickly, a prosecutor is going to throw Foxx in the face of the trial judge and say, “see there is clearly precedent for this sort of stop.”  We’ll just have to hope there are enough distinguishing facts in our case to convince the judge that the court clearly stated this was “close” and under our particular facts, it should not apply.


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.