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Published: Tuesday, 2/28/2006

Ohio high court hits sentencing law

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - In a decision potentially affecting hundreds of cases, the Ohio Supreme Court yesterday unanimously struck down portions of the state's so-called "truth-in-sentencing" law.

The court cited a 2004 U.S. Supreme Court ruling that said judges must stop considering evidence that wasn't presented at trial when deciding sentences because it violated a defendant's right to trial by jury.

The parts that were struck down spelled out the factors judges must consider when weighing higher or maximum sentences, jail time instead of probation, or multiple sentences served consecutively.

Under the struck-down section of law, judges would consider such circumstances as the seriousness of the crime and whether an offender is a violent or repeat offender.

But defense attorneys aren't celebrating. They argued that the court's decision would allow judges to impose higher sentences without having to justify them.

"What they decided to do was tell judges to do whatever you want as long as you make the sentences higher," said Jeffrey Gamso of Toledo, legal director for the American Civil Liberties Union of Ohio. "Go ahead and give people multiple sentences and make them run consecutively. Go ahead and give people the maximum. But that's not what Senate Bill 2 was about. They seem to have taken away any ability for the courts of appeals to review a sentence."

The ruling does not affect capital murder cases in which juries play a role in sentencing.

"We do not order resentencing lightly," wrote Justice Judith Lanzinger of Toledo. "Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio's felony sentencing code must protect Sixth Amendment principles as they have been articulated."

Ohio attorney general spokesman Kim Norris applauded the decision.

"The court didn't strike down the law," she said. "It preserved the sentencing portions, giving judges more discretion to choose a sentence within the law."

The law replaced broad sentence ranges, such as 10 to 20 years with potential time off for good behavior, with more finite sentences..

"The irony is that a series of federal court cases designed to shift discretion from judges to juries have in fact ultimately sorted out in holdings that give judges a lot more discretion without having to state a reason. I suspect most judges would be happy with it," said David Diroll, executive director of the Ohio Criminal Sentencing Commission.

"All criminal defendants are now on a worse footing than they were before we appealed," said Theresa Haire, assistant state public defender.

In an Ottawa County case, the court also found unconstitutional the portion of the law allowing a judge to impose a higher sentence if he finds the defendant to be a "major drug offender." But it upheld the 2003 drug possession sentence of Jeannett S. Horn, 26, formerly of Port Clinton.

In that case, the judge imposed the maximum of 10 years in jail after finding her to be a "major drug offender" based on the 100 grams of crack cocaine found in her possession. But since the jury had made a similar finding, the maximum sentence was already a possibility, the Supreme Court ruled.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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