(And stuck it chooses to be, I should add. Earlier this week, in State v. Elmore, the court reaffirmed Foster and rejected a number of challenges to it we've been raising since a reconsideration motion filed just days after it was decided.)
But Foster has had negative consequences beyond guaranteeing a return to unbridled discretion - consequences compounded by courts of appeals too timorous or inattentive to fix them when they can. Today, the Lucas County Court of Appeals, in an opinion that refuses to discuss the one serious issue it seems was before it, exemplifies the problem. The case is State v. Boyd, and it's ugly.
Here's what happened.
In 2003, Stephen Boyd was charged with four counts of rape. There were two victims, and
Boyd was convicted by a jury of four counts of rape. The charges grew from events on separate occasions and with different victims. That is, he was charged in Counts 1 and 2 with raping A on one occasion and in counts 3 and 4 with raping B on a different occasion. They were, by all accounts, particularly horrible crimes. The case was tried to a jury which found Boyd guilty of everything. He was sentenced by Judge Skow to 20 years in prison, and here's where the details start to matter.
Each count of rape was a first degree felony permitting a sentence of 3, 4, 5, 6, 7, 8, 9, or 10 years. Skow gave him 10 years for each finding that Boyd committed the worst form of the offense. Then finding that consecutive sentences were necessary to protect the public were not disproportionate to the offenses, he made the sentences for each victim concurrent but consecutive to the sentences for the other victim. That is, the 10 year sentences for counts 1 and 2 were concurrent to each other and were the 1o year sentences for counts 3 and 4. But the 10 year pairs were consecutive to each other, so Boyd got a total of 20 years.
He appealed, of course. The sentence and most of the appeal was done before Foster was decided, but appellate counsel had some sense of what was coming based on what SCOTUS had been doing. So he acknowledged that it wasn't Ohio law but said that there were real problems with maximum and consecutive sentences based on findings made by the trial judge rather than the jury. By the time the appeal was decided, in 2006, the Ohio Supreme Court had ruled on Foster. In light of that, and grudgingly, the court reversed and remanded for resentencing. (Opinion here.)
Back the case went to the trial court. The assumption, and this is what mostly happened in these cases, so the assumption was warranted, was that the judge would simply reimpose the same sentence - this time without an explanation. But there was one difference. Skow was not going to be the judge. While the case was pending on appeal, he'd been elected to and taken his place on the court of appeals. The case was going to his replacement, Stacy Cook.
Boyd had never had retained counsel. He had one lawyer appointed for trial, another for appeal. On remand, he got a third appointed lawyer. (He'll be up to five by the time the story - so far - is over.) And his judge, well, Cook decided she'd do her job right. She'd actually read the record and make an independent assessment of what the sentence should be. Hard to complain about that in theory. It is what she's supposed to do, and it's what few judges in that position actually do unless someone goads them into it.
This time, it was a shame.
She read the record, reviewed the transcript (perhaps consulted with her husband, former prosecutor and now judge Gary Cook, though I don't know that), thought about it, and decided Skow wasn't harsh enough. It was a terrible crime, she said. Each count, she decided, should be run consecutive to each other count. None of this 20 year trivia, she said. Slam the door. 40 years. Before imposing sentence, she told Boyd's lawyer what she was going to do. She gave him time to write a memorandum (sorry, I don't have a copy) explaining why she couldn't do it. She wondered, even as she imposed sentence, whether she had the authority. She decided the court of appeals would tell her. 40 years.
She appointed counsel (we're up to four) for the appeal. When, after numerous extensions, counsel didn't file a brief, the court of appeals removed her from the case and appointed new (fifth) counsel. He filed a brief, raising three assignments of error.
APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION WHEN THE RESENTENCING COURT IMPOSED A HARSHER SENTENCE UPON REMAND.The first and third were easy.
THE RESENTENCING COURT ACTED OUTSIDE OF ITS AUTHORITY WHEN IT MODIFIED ASPECTS OF APPELLANT'S SENTENCE WHICH WERE NOT SUBJECT TO THE ASSIGNMENTS OF ERROR SET FORTH IN HIS FIRST APPEAL, THEREBY DENYING APPELLANT DUE PROCESS AS PROVIDED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
THE RESENTENCING COURT COMMITTED AN ABUSE OF DISCRETION BY IMPOSING CONSECUTIVE SENTENCES AGAINST THE APPELLANT.
The harsher sentence issue in the first relied on North Carolina v. Pearce, a 1969 SCOTUS decision saying that increased sentences after successful appeals are presumptively vindictive and, therefore, unconstitutional. The problem is that Pearce has been whittled away to near nothingness and simply doesn't apply in this case. Besides, Cook made enough of a record to show she wasn't punishing him for having the gall to appeal.
The third would be a meaningful issue if Foster hadn't essentially left trial courts with full discretion to impose any sentence within statutory ranges. At least, that's how the 6th District views it. As long as the judge claims to have considered the relevant statutes, and then imposes a sentence within the statuory range, there's no abuse of discretion. Cook did that and more.
But the second assignment is tougher because it's right. I don't know exactly how it was argued, since I don't have access to the brief, but here's the guts of the claim: You remanded because the judge violated the Constitution by the way he went about imposing maximum sentences and in the way he went about making the sentences for Counts 3 and 4 run consecutively to the sentences in Counts 1 and 2. On remand, the judge can impose those same terms but do it the right way, or she can change those terms (which would result in reducing the sentence).
What she can't do is go off on a frolic (oddly, that's sort of a legal term of art) and change other aspects of the sentence. She can't do that because it's beyond the scope of authority given to her in the remand.
That's the argument. It should be a winner. We don't actually know how the court of appeals felt about it, because the court never addressed it. What it said, instead, was that because Pearce didn't apply, the first and second assignments of error were overruled. That's wrong. It's nonsense. If it isn't careless, then it's dishonest. I'd like to think it's careless.
Look, this isn't the first case where a sentence has been increased after a Foster remand. When I started writing this, it was the harshest increase on a Foster remand of which I knew. (I heard about an even worse one while I was writing.) The court should have taken it more seriously, should have really engaged with the issues, should have done it's job and reversed.
But when you're not fully engaged, when you blow off the winning argument and cost the guy 20 years of his life. . . .
Skow may have gotten it wrong. Maybe Boyd should have gotten 40 years from the beginning. Hell, maybe someone should have cut off his balls. But that's not what happened. Our system, if it's going to get the respect it wants, needs to respect itself and the law.
When I was a new lawyer, back in Texas, a wise and terrific attorney named Floyd Holder explained to me the Heinous Crime Rule. "If the crime is sufficiently heinous," Floyd said, "there's no such thing as reversible error." There are exceptions, though few and far between. The appeal from Boyd's resentencing should have been one of them. It didn't even get a carefully done loss. They just blew it off.
There really is no excuse.