Judge Can Impose Jointly Recommended Consecutive Sentences Without Independent Review
A trial court judge is not required to make a separate consecutive-sentence finding if presented with a jointly recommended sentence that contains consecutive sentences, the Ohio Supreme Court ruled today.
In a 5-2 decision, the Supreme Court affirmed the 24-year prison sentence of William D. Sergent, who pleaded guilty to three counts of rape of his minor daughter, issued by a Lake County Common Pleas Court. Writing for the Supreme Court, Justice Sharon L. Kennedy ruled the justices had to determine if a sentence without a separate finding by the judge that consecutive sentences were justified is “authorized by law,” and not appealable.
The decision resolves a split among Ohio appellate courts, which differed on the requirement of the independent consecutive-sentencing finding. Two justices dissented without a written opinion noting they would have affirmed the ruling of the Eleventh District Court of Appeals that a separate finding was necessary.
Sergent Seeks to Appeal Sentence
In general, a defendant can appeal a felony sentence, however, under R.C. 2953.08 (D)(1), if a sentence is jointly recommended by the defense and the prosecutor and if the sentence is “authorized by law,” it cannot be appealed, Justice Kennedy explained. Sergent argued that the proper method for sentencing required the judge to make a finding, which he did not, and that failure means the sentence is “not authorized by law,” and Sergent is entitled to be resentenced.
Sergent signed a written plea agreement admitting to raping his daughter on three occasions between June 2009 and August 2010, and understood that each one carried a mandatory three-to 10-year prison term. He also understood that part or all of the prison terms could be ordered to serve consecutively.
The trial court conducted a hearing incorporating the agreement, accepted the plea and listened to Sergent acknowledging that he understood the consequences of waiving his constitutional rights and that his plea was voluntary. After hearing from the defense and prosecutor about the joint recommendation of three eight-year terms to run consecutively, the judge stated he considered the recommendation and other factors required by law, and imposed the jointly recommended sentence.
Appeals Court Questions Sentence
Representing himself, Sergent filed a motion to withdraw his plea, which the trial court denied, and then he appealed to the Eleventh District. The appellate court appointed counsel to represent Sergent. The appellate court found there was an arguable issue based on the Ohio Supreme Court’s 2014 State v. Bonnell decision that the judge needed to do a separate assessment to find that consecutive sentences could be imposed and needed to incorporate those findings in his sentencing entry.
The Eleventh District determined that R.C. 2929.14(C)(4) required the separate finding, and since the trial court did not follow the law, the sentence was not authorized and Sergent could appeal. The Eleventh District recognized its decision was in conflict with rulings by the Second and Fourth District Courts of Appeals and certified the question to the Supreme Court, which agreed to hear the matter and resolve the split.
Lake County prosecutors argued the same question had been raised in the 2005 State v. Porterfield Supreme Court case that found that not conducting a consecutive-sentencing finding does not prevent a jointly recommended sentence from being authorized by law, and not subject to appeal. Sergent asserted that Porterfield is outdated because the state has since changed its sentencing structure and requires the findings.
Justice Kennedy wrote that in the Porterfield decision the Court found the jointly imposed sentence eliminated the need for the judge to make consecutive findings, but never addressed the meaning of the phrase “authorized by law.” In a 2010 decision (State v. Underwood), the Court clarified “authorized by law,” to mean a sentence that comports with all mandatory sentencing provisions.
She explained the imposition of consecutive sentences for Sergent’s crime was not mandatory, and the judge had the discretion to impose concurrent sentences. Because the findings were not related to a mandatory provision, adopting the joint recommendation without the independent finding is authorized by law, and Sergent cannot appeal his sentence, the Court concluded.
Justice Kennedy added that the Porterfield decision still controls the issue and is not outdated, noting the General Assembly’s current version has been moved in the Ohio Revised Code, but the judicial fact-finding requirements of a judge is the same today as it was when Porterfield was decided.
The Court also disagreed that its Bonnell decision allows Sergent to appeal. Justice Kennedy explained in the Bonnell case there was a plea agreement, but not a jointly recommended sentence. That difference makes the Sergent case different from Bonnell and does not apply to his circumstances.
“Accordingly, where a trial judge imposes such an agreed sentence without making those findings, the sentence is nevertheless ‘authorized by law’ and not reviewable on appeal pursuant to R.C. 2953.08(D)(1),” she wrote.
Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, and Judith L. French joined Justice Kennedy’s opinion.
Justices Paul E. Pfeifer and William M. O’Neill dissented and would have affirmed the Eleventh District.
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