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Published: 5/29/2006

Sentencing law prompts delays, praise

BY MARK REITER
BLADE STAFF WRITER
Brian Woody, right, who was convicted earlier in Ottawa County for a chain-reaction crash that killed six people, is resentenced to the same term. Next to Woody is attorney Adrian Cimerman. Brian Woody, right, who was convicted earlier in Ottawa County for a chain-reaction crash that killed six people, is resentenced to the same term. Next to Woody is attorney Adrian Cimerman.
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The vast majority of Ohioans have probably never heard of Andrew Foster, a Licking County man who was sentenced to a total prison term of nine years for breaking and entering, safecracking, grand theft, and other charges.

Likewise, few people outside the Toledo area probably know of Daniel Cole, who was sent to prison for 26 years for sexually assaulting two 12-year-old girls he abducted from a West Toledo shopping center in 2004.

But a recent state Supreme Court ruling that voided the sentences imposed on Foster, Cole, and hundreds of other convicted felons statewide is costing taxpayers unknown thousands of dollars in transportation and related costs. That's because defendants whose old sentences are affected by the ruling have to be brought back from prisons across Ohio for resentencing in the counties where they were convicted.

The time lost by court officials and judges statewide on rescheduling and resentencing the defendants, as well as the delays that result for other court matters, is virtually incalculable.

And the end result appears to be an exercise in futility.

Cole's trip from the Lebanon Correctional Institution in southwest Ohio, for example, resulted in the same 26-year sentence that he received seven months earlier in Lucas County Common Pleas Court.

So why go through all this trouble for what appears to be a waste of time and money?

Though lower-court judges won't comment on the justices' rulings, prosecutors are offering high praise for the Ohio Supreme Court's decision in State vs. Foster - yes, that Andrew Foster, one of four defendants involved in the court's ruling. The prosecutors say the ruling means that judges' sentences will remain intact, and they will no longer be burdened with giving detailed explanations for imposing maximum, consecutive, or more than minimum sentences.

"The decision has helped prosecutors and judges. It is a lot easier to sentence defendants now," Wood County Prosecutor Ray Fischer said.

The decision struck down portions of the state's decade-old sentencing law, which was intended to provide guidance to judges in meting out punishment for crimes and give consistency in sentencing, setting in motion a ripple effect in the review of sentences for those inmates who appealed their punishment.

The decision, released in late February, was written by Justice Judith Lanzinger of Toledo and unanimously approved by the court.

In overturning the sentences imposed on Foster and others, the court freed judges from making certain findings during the sentencing phase of criminal proceedings.

Previously, common pleas judges had to make specific findings of fact to justify giving harsh sentences or imposing consecutive sentences.

The ruling also brought the state sentencing law in line with U.S. Supreme Court rulings issued in 2004 and 2005 that addressed the criminal sentencing authority of federal judges.

One of the cases, U.S. vs. Booker, restored the discretion of federal judges to stray outside mandated sentencing guidelines.

In the other case, Blakely vs. Washington, the nation's highest court struck down a law similar to Ohio's sentencing law in Washington state that barred sentencing judges from considering evidence unless it is admitted by a defendant or found by a jury.

So far, the state Supreme Court decision has been applied to about 250 defendants whose sentences were appealed to the Ohio Supreme Court, as well as hundreds of other cases pending in the state's 12 appellate districts.

Cole, 38, whose sentence was imposed by Judge Ruth Ann Franks, was among dozens of appeals remanded by the Ohio Sixth District Court of Appeals in Toledo to lower courts.

Frances King, administrative assistant at the appellate court, couldn't provide figures on cases remanded to the common pleas courts in its eight-county jurisdiction, which includes Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams, and Wood counties.

But complying with the decision is being done at taxpayer expense.

The costs for transporting inmates from the 32 correctional facilities throughout the state to the courts and the money paid to court-appointed attorneys who represent them was not available from state or county officials, but it will likely run into the thousands of dollars.

Jeffrey Gamso, a Toledo defense attorney who is the legal director of the Ohio chapter of the American Civil Liberties Union, said the state Supreme Court, in throwing out sections of the sentencing law, has rewritten legislation that was designed to bring consistency and fairness.

However, Mr. Gamso believes that overall, the defendants who appealed will receive close to or the same sentence.

"The overall numbers will not change that much. Judges were pretty much giving the sentences they wanted to give, and just making the findings to justify them," he said.

"The overwhelming number of inmates are getting exactly the same sentence that they got before."

That is what happened in the case for a Toledo man who was convicted last year in Ottawa County for a chain-reaction accident that killed six people.

Ottawa County Common Pleas Judge Paul Moon sentenced Brian Woody to 19 years in prison for six counts of aggravated vehicular homicide and one count of aggravated vehicular assault.

When it was sent back to Judge Moon for resentencing, Woody, 30, was given the same sentence, and returned to the Mansfield Correctional Institution.

Ottawa County Prosecutor Mark Mulligan said about six other cases have been remanded on the same issue. While it may seem like a waste of public funds, he said the court must comply with the ruling of the state's justices.

"The alternative is to not resentence the defendants and let them go. This is certainly not an option," he said.

The state justices anticipated the extra costs and efforts when they made the ruling.

"The new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending appeal," wrote Justice Lanzinger, who is a former Lucas County Common Pleas and Ohio 6th District Court of Appeals judge.

Justice Lanzinger stressed that she and the other justices did not act "lightly" in striking down portions of the state's criminal sentencing laws, setting in motion the rehearing of hundreds of sentences currently on appeal.

Defense attorneys and the American Civil Liberties Union believe the ruling could allow judges to impose whatever sentence they want, while stripping defendants of potential avenues to appeal their punishment.

"This was not what we had hoped from the state Supreme Court. It essentially has allowed the courts to give harsher sentences," said Lorin Zaner, a Toledo criminal defense attorney.

Fearing the outcome would be more severe, Mr. Zaner said he would likely advise his clients in future cases against appealing sentences.

"I don't want clients to go through that," he said.

The 1996 Ohio statute that was overturned, often called the "truth-in-sentencing" law for imposing definite prison terms, was crafted by the state Supreme Court's Sentencing Commission, a 31-member panel of judges, lawyers, prosecutors, defense attorneys, lawmakers, and residents.

Judge Lanzinger was a member of the committee that wrote the law that was approved the General Assembly.

Although key aspects were struck down, Scott Anderson, a staff attorney for the commission, said the law remains functional.

"It has been gutted. But what it has done is take away what may have been special about Ohio sentencing guidelines, such as allowing harsh sentences for first-time offenders if the crime was deemed the worst form of the offense," he said.

The Booker decision in federal court that said guidelines were discretionary and not mandatory caused a similar review of sentences in courts throughout the country.

David Bauer, the assistant U.S. Attorney in charge of the Toledo office, said the inmates remanded to the federal court in Toledo received essentially the same sentences.

"I would say that in a great majority of the cases, the same sentence was imposed," Mr. Bauer said.

Contact Mark Reiter at: markreiter@theblade.com or 419-213-2134.



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