Chairman White, members of the Committee,
I thank you for an opportunity to testify as an Interested Party on HB 130. With a bill of this scope and purview, it does not seem unusual that we find ourselves fully in support of some of the proposals, yet concerned with other proposed changes. I am here today to address some of the provisions of the Substitute Bill which are immediate in need of your attention, and should be addressed by the members of this Committee before the ink becomes too dry.
I. Mandatory prison terms: [page 97; lines 3012-3023]
The substitute bill incorporates a new provision regarding the failure of the sentencing court to: (1) notify the offender that the prison term is a mandatory prison term, or (2) incorporate into the final sentencing entry. I am here today to confirm that this is a recurring problem, which is to say that it happens entirely too often. And I can speak to it from experience, having had it come up in cases in the past, and under one of the cases that I am presently working on.
People at the Department of Corrections are very aware of this problem. I have had discussions with staff in the Bureau of Sentence Computation, the unit that officially logs the prison terms based upon the information received from the sentencing court. Based upon these discussions, the current DRC policy is to maintain a list of statutory sections that under Ohio law carry a mandatory prison term. If an offender is received into DRC custody for an offense under a statutory section which is on the list of those which carry a mandatory prison term, but the sentencing entry does not indicate that it is a mandatory prison term, the policy of the Bureau of Sentencing Computation will enter it as a mandatory sentence unless there is something further in the entry which indicates that it is not a mandatory prison term. In other words, if the entry is silent on whether the prison term is mandatory, the Bureau will enter into DRC's database as a mandatory sentence.
There is a problem with this current policy, because under many cases it has been held that DRC does not have legal authority to "correct" a judgment of a sentencing court where DRC believes the court is in error. However, the fix provided by the substitute bill will not work, it will be challenged in court, and it will make for a very big mess for DRC and the courts.
The "fix" provided by the substitute bill is to statutorily declare the omission by the sentencing court in telling the offender that he is serving a mandatory prison term can be "corrected" by the filing of a "corrected journal entry." Likewise, the failure of the sentencing court to include in the sentencing entry that the prison term imposed is a mandatory sentence can be "corrected" in similar fashion. The bill statutorily declares that neither of these omissions "affect the validity of the imposed sentence."
The problem with the "fix" proposed by the bill is that it is flatly contrary in several different respects to the decisions of a boatload of cases decided by Ohio courts.
Analysis should properly begin with recognition that long-standing Ohio constitutional law has provided that a criminal defendant must be advised of all the consequences of pleading guilty, including (and specifically) that the defendant is not eligible for probation, or under current law's legal phrasing, the offense carries a mandatory prison term. Ohio Criminal Rule 11(C)(2)(a). Where the defendant is not advised of this basic legal reality, his guilty plea fails to satisfy the constitutional prerequisite that the trial court must satisfy itself on the record that the decision to plead guilty is based upon a knowing, voluntary and intelligent waiver of his rights to trial. Under circumstances where the defendant is not informed of the fact that the offense he is pleading guilty to carries a mandatory prison term, the law will allow him to withdraw his guilty plea or appeal to an appellate court which will reverse the judgment of conviction and remand for new trial. It follows that the "fix" proposed in the Substitute Bill by statutorily declaring that the failure of the trial court to notify the offender does not affect the validity of the sentence, and the omission can be cured by the filing of a "corrected entry" flies in the face of very basic constitutional due process of law, as recognized by Ohio and federal courts.
Imposing a mandatory prison term has been held by the Ohio Supreme Court to be a statutory duty of the sentencing court. The sentencing court does not have discretion to impose it or not; if Ohio law provides for a mandatory prison term the sentencing court must impose it. State v. Beasley (1984), 14 Ohio St.3d 74. The Supreme Court of Ohio has also held where the sentencing court fails to exercise a statutory duty in imposing sentence, the sentence is "void." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085. Where the sentence is "void," the remedy is for a re-sentencing hearing. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. At this re-sentencing hearing, under Rule 43 of Ohio Criminal Rules of Procedure, the offender has a right to be present. State v. Abner, 2002-Ohio-6504.
A good illustration of the inter-workings of all of these legal principles is a Franklin County case. In State v. Terry Rand, the defendant had been sentenced to serve a prison term, but it was not designated a "mandatory sentence." After serving a number of years in prison, an alert clerk in the Chillicothe Correctional Institution observed that Mr. Rand had previously been convicted of a second degree felony, which meant that the current prison term should have been imposed as a mandatory prison term. So, she sent a letter to the Franklin County judge asking him if Mr. Rand should be serving a mandatory prison term or a non-mandatory prison term. The judge immediately realized his mistake and entered an amended judgment entry imposing a "mandatory prison term." When Mr. Rand got this amended judgment entry in the mail, he immediately forwarded it to his attorney, who filed an appeal. In the appeal ("Rand I") the Court of Appeals held that the following: (1) the failure to impose a prison term as a "mandatory" prison term is not a "technical" or "clerical" error, for which the law allows for correction by an amended judgment entry ("nunc pro tunc"); (2) the failure to impose a mandatory prison term rendered the original sentence void, due to the trial court's violation of a statutory duty; (3) that the case must be remanded for a re-sentencing hearing; and (4) the inmate has a right to be present for his re-sentencing hearing. When Mr. Rand was returned to court for re-sentencing, and now provided with a transcript of his guilty plea hearing, he entered a motion to withdraw guilty plea under the Ohio Criminal Rules of Procedure, based upon the fact that he had never been advised by the sentencing judge at the time of his guilty plea that he would be subject to a mandatory prison term. The sentencing judge overruled the motion to withdraw guilty plea and went ahead and sentenced him to the mandatory prison term. On appeal in Rand II, the Court of Appeals held that the failure to advise at the time of his plea that he would be subject to a mandatory prison term violated Rule 11 of the Ohio Rule of Criminal Procedures, reversed the judgment of conviction and remanded for a new trial. [Postscript: on remand Mr. Rand re-negotiated the case and was sentenced to a 5 year mandatory prison term on his guilty plea instead of the 8 years originally imposed.]
So, in sum, the "fix" that is provided for in the Substitute Bill is exactly the kind of "fix" that the courts have stated cannot be done in the exact manner that the Bill sets forth to do it. A void sentence cannot be "fixed" by an amended judgment entry. The "fix" for a void sentence is a re-sentencing hearing where the inmate has a right to be present. And taken back for a re-sentencing hearing, the Law of Unintended Consequences will apply: the entire conviction may be undone by inmates who will take advantage of the situation and try to cop a better deal, or maybe try to beat the case at trial, now that the case is perhaps years old. Like in the Rand case, the fix could be worse than the problem it was designed for.
This General Assembly has great power in exercising the legislative function. However, it does not include the power to override constitutional provisions, nor Rules of Court implemented through Article IV rule-making under the Modern Courts Amendment to the Ohio Constitution. It is also a sensitive area to be legislating under what circumstances a judgment entry is "valid" as opposed to void, and how defective judgments can or cannot be corrected by the judicial system. Under the Separation of Powers Doctrine, it might be wiser for the legislature to decide that it should defer from legislating on this patch of turf.
II. Judicial Release: [pp.98-105]
(A) Eligibility: R.C. 2929(C)(3): [page 100; lines 3101-3110]
A huge eligibility problem pertains to the offender who is sentenced to "five years or more but less than ten." This provision provides that this offender becomes eligible "not earlier than five years after the offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, no sooner than five years after the expiration of all mandatory prison terms." Example: offender convicted of Aggravated Robbery (F-1), sentenced to 4 yrs, plus 3 years for firearm specification. Under the bill, the offender becomes eligible for judicial release after he has served 8 years. But since he only had to serve a total of 7 years, he has already been released and he is home watching television.
The reality is that this provision guarantees that any offender sentenced to exactly five years is never eligible for judicial release. In fact, the only offenders with firearm specifications who will become eligible for judicial release under this provision are those who are sentenced to a total of a total of 7 years or more. If we can safely assume that less culpable offenders are more likely to be sentenced to prison terms totaling 5 or 6 years, why do we deny them judicial release eligibility in favor of those more culpable offenders sentenced to terms totaling 7 or more years.
Recommendation: delete the (C)(3) subsection in its entirety. Amend line 3095 in subsection (C)(2) to read: "but less than ten years". This amendment would leave it completely discretionary with the sentencing judge whether and when beyond a sentence totaling 2 years or more to grant judicial release after an offender serves his complete mandatory prison term(s) plus 180 days of the non-mandatory time.
(B) Removal of ten-year cap on eligibility: [line 3104-3105]
I was present in this Committee's hearing on May 24, 2007, when Mr. Murphy of the Prosecuting Attorney's Association testified in opposition to the original provisions of HB 130 which would remove the ten-year cap on the eligibility for judicial release. By letter (appended) dated May 25, 2007, I wrote to the two sponsors of this bill outlining the reasons for retaining the provisions that removed the ten-year cap. I am very disappointed to see in the Substitute Bill that Mr. Murphy has prevailed in negotiations which have continued since that time and to which I have not been party to. And, I urge the members of this Committee to further weigh the merits on this issue.
Let us begin with a reality-check: Ohio's prison population has never been higher; it is 33 % over the capacity that it was built and designed for; all reliable projections by the Sentencing Commission and the Department of Corrections is that the problem is only going to get worse. Or I should say, worse and worse, as one bill after another bill considered in this House calls for Mandatory prison terms, or longer prison terms. Just earlier this morning, we have heard the Sponsor of SB 183 call for yet another. Coming your way is a bill pending in the Senate bill which lengthens prison terms available for repeat non-violent offenders, as if there was room at the Inn for them. I point out that Mr. Murphy's organization supports all of these bills.
If we lived in a perfect world of unlimited public resources to deal with surging prison population, we would not be having this hearing. But we do not live in that world, and the state budget seems to point in the direction of doing more with less. Even if we had the public resources that we definitely lack, Director Terry Collins of the DRC tells you straight-out: we cannot build our way out of this crisis. By the time any new prison is built or an old prison is re-opened, we will fill it to capacity with the inmates admitted into custody during the time of prison construction or renovation.
It seems to me that this would be a very good time to look to reasonable measures that can be availed to which would ameliorate the building pressure resulting from the surging prison population. Removal of the ten-year cap on judicial release eligibility is exactly the kind of mechanism you should be looking for. Think of the 2421 Common Pleas Court Judges as 241 tiny release valves. At any given time, almost off of them are turned "off." Once in a while, one or two of them might be turned "on."
In deciding whether any inmate serving a prison term of over ten years is suitable for release, I think the optimal mechanism is one that is accountable to the public. It should be comforting to know that, unlike unaccountable parole board, the decision to grant judicial release is made by an elected officeholder, whose future political livelihood is to some extent dependent upon tomorrow's newspaper headlines, and therefore may exercise utmost caution in granting a judicial release.
The average annual cost of every inmate as calculated by DRC is a little over $25,000. Releasing after 10 years of an inmate sentenced to serve a 14 year aggregated prison term results in a savings of $100,000 that DRC will not have to expend. Release nine other inmates serving similar sentences and you have saved a million dollars of public tax money. In Calendar Year 2006, there were 2,315 judicial releases granted. This saved the taxpayers of Ohio $5,787,500 for every year their sentence was shortened.
To the critics who argue that removal of the ten year cap betrays the premise of the "truth in sentencing" philosophy of S.B. 2 enacted in 1996, I would say that, with the support of the prosecutors association, this General Assembly rejected the "truth-in-sentencing" premise by enactment of indefinite sentences for certain sex offenses last year. Mr. Murphy is on record for advocating in favor indefinite sentences for all 1st and 2nd degree felonies, which is exactly the scheme we had prior to enactment of S.B. 2. The answer to critics is that this change is another of the fine-tuning adjustments in the law required by evolving circumstances.
Recommendation: This Committee should amend the Substitute Bill by inserting "fifteen years" instead of "ten years" on Line 3105. The bill should further provide that an offender serving over 10 years but less than 15 years does not become eligible for judicial release until he has served ten years. In short, this amendment would give the sentencing judge who sentenced an offender to more than ten but less than fifteen years an opportunity to review his sentence after the offender has served ten years.
Obviously, the Department of Corrections and the joint sponsors were in favor of removing the ten year cap on judicial release eligibility under the provisions of the original bill. I am advised that the Ohio Judicial Conference still supports removal of the cap, as well as the Ohio Public Defender.