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.

 

The Perils of Pleading No Contest

There are four pleas an Ohio criminal defendant can enter to a complaint or indictment: (1) not guilty, (2) not guilty by reason of insanity, (3) guilty and (4) no contest.  Many people believe the correct thing to do when they are of the belief they have actually committed the crime is to simply plead no contest.  In my experience defendants are not quite sure why this is the case other than perhaps friends and family members advised them that it is the correct course of action.  Hey, your not pleading guilty, and it gets the case over with, right?

Pleading no contest is often the correct thing to do, but an interesting appellate decision in State v. Martin, 2013-Ohio-5050 shows why this might not always be the best idea.  Before delving into the specifics of Martin, let’s first address the theory behind no contest pleas and why defendants may want or need to enter that particular plea.

A plea of no contest is essentially this: you as the defendant are not going to contest the factual allegations as stated on the face of the charging instrument (complaint or indictment), but you are not admitting your guilt, either.  If the face of the complaint or indictment contain all of the necessary elements of the offense, and thus providing a factual basis for the charge, then the court will proceed to find you guilty.  If the charging instrument is deficient for some reason (e.g., it fails to state an essential element of the charge), the court will have to find you not guilty.  Again, in theory, the idea is that you are simply not contesting the allegations, it is not as if you are acquiescing in state’s request to convict you.  While defective indictments/complaints are not necessarily uncommon, they are hardly something criminal defense attorneys encounter daily.  While we always review the indictment or complaint for legal sufficiency, it’s rare that you hit the jackpot.

So, the logical follow-up question for the layperson is, “if the judge is most likely going to find me guilty anyway, what is the purpose in pleading no contest?”  In truth, there are a few important reasons aside from the fact the indictment might fail to adequately charge a crime.  First, if your conduct resulted in damages to another person (e.g. an OVI crash), it is important to plead no contest so that your criminal conviction cannot be introduced against you in a subsequent civil trial.  If you plead guilty, the plaintiff in the civil suit can introduce a certified judgment of conviction at trial to prove that you were in fact driving impaired when you crashed.  Because you admitted guilt in the OVI criminal case, you cannot later deny that you were in fact drunk.  However, by pleading no contest, the plaintiff in the civil suit would retain the burden of having to prove that you were a drunk driver when you caused the accident and damages to the other party.

Another common reason, and perhaps the most important for criminal practitioners, is to preserve for appeal an objection to the trial court’s pre-trial rulings (motion to dismiss, motion to suppress evidence).   For example, if the court overrules a motion to suppress evidence, a defendant must plead no contest in order to appeal that decision.  If the defendant pleads guilty, by making a complete admission of guilt, he or she waives any right to later claim the trial court erred in its decision not to suppress the evidence.  Nobody cares if the cops violated your fourth amendment protections when you freely admit you are guilty.  Remember, when a court suppresses evidence it is not declaring the defendant is innocent of the crime.  Rather, the court merely prohibits the state from using the illegally obtained evidence against you in its effort to prove your guilt.

Now that we’ve engaged in a macro-level refresher on no contest pleas, let’s take a look at the Martin decision and why it may be a bit of a pit fall for criminal practitioners.  The defendant in Martin was charged with felony domestic violence (DV), which essentially requires the accused to “knowing cause or attempt to cause physical harm to a family or household member.”  Martin argued in the trial court that the victim, his step-sister, was not a “family or household member” as that term is defined under statute.  The defendant and the state both submitted briefs to the trial court regarding their respective legal positions.  After considering the arguments of both sides, the trial court issued a written decision stating how it intended to instruct the jury as to the definition of “family or household member,” and without going into the minutia here, let’s just say it was adverse to the defendant.  Based upon the trial court’s written decision, the jury instructions it intended to provide at trial was certainly going to allow the jury to find beyond a reasonable doubt that a step-sister falls within the definition of a “family or household member.”  Upon seeing the writing on the wall the defendant decided to cut-bait, plead no contest to the DV and have his legal argument decided by the court of appeals.  Or so he thought.

The Second District Court of Appeals quickly overruled his argument that the trial judge erred in finding him guilty of the DV because the victim was not a family or household member under law.  The appellate panel determined that by pleading no contest to the offense of domestic violence, the defendant did not contest the factual allegations in the complaint, including that the victim was a “family or household member.”  The defendant can’t first admit that she is a family or household member at the trial level and then claim she wasn’t when the case is on appeal.  If the defendant wished to contest that issue, he had to have a trial and argue that the state failed to prove that essential element of DV.

So, where does this leave us as criminal practitioners?  Aren’t there many factual allegations contained in indictments that we essentially admit upon a no contest plea after the trial court overrules a pre-trial motion?  The answer is yes, of course.  The difference between this situation and a case where the judge fails to suppress evidence or dismiss a case for violating the right to speedy trial boils down to nature of what was ruled upon by the lower court.  When the court determines the police did not violate the Fourth Amendment, he is ruling on something outside the four corners of the indictment.  The State does not alleged in the charging instrument that police acted constitutionally when they discover a defendant’s heroin.  Therefore, when the Defendant enters a no contest plea to the possession of heroin charge, while not contesting he was in possession of the drug, he is not admitting to the constitutionality of the search, thus preserving that issue for appeal.  The corollary of the Martin case for our heroin hypothetical would be if the defendant was contesting that substance was actually heroin at all.  That is a factual allegation in the indictment.  If the Defendant pleaded no contest to the indictment, he could not later argue on appeal that the court erred in finding him guilty because the substance recovered was not actually heroin.  The no contest plea admitted that fact.

While this was certainly a strange case in some respects, it does make logical and legal sense.  And this case is a helpful reminder that criminal defense attorneys must be aware of what they are preserving on appeal.  If you want to argue a fact that is alleged in the indictment, a no contest plea will foreclose that possibility.

 

Posted by Charles W. Morrison on November 20, 2013.