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.

 

Self-Defense in Ohio Vs. Florida – what is stand your ground anyway?

Following the George Zimmerman acquittal, there has been a lot of discussion around our nation regarding the use of self-defense and, in particular, whether Florida’s “Stand your ground” law is appropriate or terrible social policy.  Is it a bad law? Would Mr. Zimmerman have been convicted absent the law? The point of this post it to try and educate the public regarding the law of self-defense, the duty to retreat (or not retreat) and how Ohio law may differ from Florida.

Let’s start with the basics.  Self-defense has been a viable affirmative defense to many crimes (assault, felonious assault, murder, etc.) for many, many years.  Since the inception of our great country, the law has recognized that no person is obligated to sit there while an aggressor beats on them; no person must remain idle when he or she has an objectively reasonable belief that they are about to suffer imminent serious harm or death.  We have always had the right to meet force with force.

Currently, the law in Ohio requires a defendant asserting self-defense to prove three things by a preponderance of the evidence (more likely than not):

(1)   That the defendant “was not at fault in creating the situation giving rise to the “affray.” Basically, you can’t start the fight and then claim self-defense when the other guy ends up dead.   A defendant must not have been responsible for causing the altercation in order to validly assert self-defense.

(2)   That the defendant “had a bona fide belief that he was in imminent danger of death or great bodily harm and the only means to escape such danger was in the use of such force.” The defendant must have reasonably believed, under the circumstances as he knew them, that he was about to suffer serious physical harm or death, and the use of force was necessary to thwart that imminent harm.

(3)   That the defendant “did not violate any duty to retreat or avoid the danger.”  Astute readers will notice that this third prong is somewhat duplicative to the second prong, because if the only means to escape the danger was the use of force, then obviously the defendant could not otherwise avoid the danger. But let’s not get too bogged down in that minutia. Appellate courts craft “tests” all the time that seem nonsensical.

This test is the classic common law definition of self-defense, and was rearticulated by the Ohio Supreme Court fairly recently in State v. Barnes (2002), 94 Ohio St.3d 21. So, where does Florida’s “stand your ground law” come into all this?  Stand your ground alters the second and third prongs of the test – whether the defendant violated a duty to retreat or to otherwise avoid the danger in deciding inflict harm on the victim rather than run.

In Florida, even if you are capable of retreating safely and avoiding the attack, you may still use whatever force is reasonably necessary in order to thwart the potential harm.  Run to your car? You may, but need not do so.  You are permitted to meet the force with force no matter the available alternatives.

This is fundamentally different than Ohio’s law on self-defense.  If you are out on the street and accosted by someone, but have the means to run away, you must do so.  Only when the use of force is your only alternative will self-defense be found legitimate by a jury.

There is one exception, however, to Ohio’s duty to retreat: the Castle Doctrine, as codified in R.C. 2901.05 and R.C. 2901.09.  Taken together, these sections state that a person has no duty to retreat from their residence or vehicle when confronted with the danger of physical harm. Moreover, there is a rebuttable presumption that the defendant acted in self-defense whenever he inflicted harm on the victim in his residence or car and the victim was unlawfully entering or within the residence or vehicle.  In other words, the state bears the burden of proving that the defendant did not act in self-defense if the circumstances fall within the Castle Doctrine.

In short, the Ohio legislature has determined that persons within their residence may use force, even deadly force, whenever they reasonably believe they are about to suffer serious physical harm or death, regardless of whether they could have run out the back door.   There is no duty to retreat from your “castle” (or carriage, I suppose).  Florida law essentially takes Ohio’s Castle Doctrine to the streets. No one should ever have to retreat, period.

So, with all of this in mind, did Florida’s law on self-defense have any impact on the Zimmerman trial? Absolutely not.  Zimmerman simply asserted the classic version of self-defense, and the jury evidently bought it.  As best I can tell, his argument was basically: (1) he was not the aggressor on that rainy evening in central Florida. Trayvon Martin threw the first punch. (2) He reasonably believed that he was about to suffer serious physical harm or death while his head was repeatedly hitting the pavement, and (3) he had no available option but to shoot young Mr. Martin to avoid serious injuries or possibly death.  Had the Florida legislature never enacted “stand your ground,” the arguments for and against Zimmerman’s use of force would have been the same.

Zimmerman never contended that he had the ability to retreat once the attack started, but wasn’t required to do so under “stand your ground.”  The defense never requested any instruction on “stand your ground” as it was irrelevant to the factual issues the jury was required to sort out.  Zimmerman’s argument was that he simply reacted reasonably under the circumstances, which he did not create, and did what he had to in order to save his life.  Had the trial taken place in Ohio, the ultimate issues would have been very similar.