The 11th didn’t release any criminal decisions this week, so instead here’s a quick update from the Ohio Supreme Court in State v. Bonnell. Any of my appellate friends with a current or future sentencing issue involving stacked prison terms will want to take a look at this case.
The law in Ohio requires judges to find that consecutive sentences are necessary and not disproportionate to the crime and then make at least one of three findings before imposing consecutive sentences: 1) that the person was awaiting trial or sentencing or was on parole or in some other way under the court’s thumb; 2) that the harm caused by the two offenses was so great that a single prison sentence is inadequate; or 3) that the person’s criminal history is bad enough to demonstrate that consecutive sentences are necessary to protect the public.
Courts in Ohio have interpreted these requirements in different ways. Some have said that the judge needs to specifically say the magic words – in other words, “I find that Mr. X has… .” Some have said that the findings can be implied and pieced together from other things that the judge said during sentencing. The latter approach leads to appellate briefs with charts of words and phrases taken from throughout the transcript and pieced together like a kidnapper’s ransom note made out of newspaper clippings.
In State v. Bonnell, 2014-Ohio-3177, the OSC cleared it up for us and chose the first option. The judge must simply say the magic words. The court has “no obligation to state reasons to support its findings,” it just has to state the findings. The court doesn’t need to quote the statute word-for-word, it just needs to be clear that the finding was made.
So there you have it. Check your transcripts and sentencing entries for the magic words, folks. If they’re not there, cite Bonnell in your argument for resentencing. And stay tuned, because this will surely lead to an argument about whether the judge can just correct the magic words and keep the sentences consecutive, or whether failure to say the magic words the first time means the defendant catches a break and automatically gets concurrent terms.