Sentencing

Sen­tenc­ing

By Jus­tice Paul E. Pfeifer

In June 2007, a jury found Jack Carlisle guilty of kid­nap­ping and gross sex­ual impo­si­tion in con­nec­tion with the sex­ual assault of his 6-year-old fos­ter daugh­ter. A month later, the trial court sen­tenced Carlisle to three years’ impris­on­ment for the kid­nap­ping charge and one year for the gross sex­ual imposition.

The sen­tences were to be served con­cur­rently, giv­ing Carlisle a total of three years in prison. That was to be fol­lowed by five years of manda­tory post-release con­trol, which is a period of super­vi­sion by the adult parole authority.

The trial court also clas­si­fied Carlisle as a sex­u­ally ori­ented offender, granted him 278 days of jail-time credit – for the time he spent in jail await­ing his trial. Then the court sus­pended exe­cu­tion of his sen­tence and con­tin­ued his bond pend­ing an appeal. How­ever, two days later the clerk of the court jour­nal­ized the final, appeal­able order that reflected his sentence.

When Carlisle took his case to the court of appeals, he chal­lenged his con­vic­tions but didn’t raise any issues regard­ing his sen­tence. The court of appeals affirmed Carlisle’s con­vic­tions, issued a spe­cial man­date to the trial court to carry the judg­ment into exe­cu­tion, revoked his bail, and sent the case back to the trial court for exe­cu­tion of sentence.

Hav­ing exhausted his appeals, and fac­ing revo­ca­tion of his bond and impris­on­ment, Carlisle filed a motion in Feb­ru­ary 2009 with the trial court to recon­sider and mod­ify his sen­tence. Carlisle suf­fered from chronic, life-threatening con­di­tions, and he argued that the trial court had author­ity to mod­ify his sen­tence because it had not been “exe­cuted” – that is, he had not yet been deliv­ered to the state prison.

The motion filed by his attor­neys stated: “This Court must ask itself whether Mr. Carlisle’s pun­ish­ment is worth the cost” in light of his “expen­sive” med­ical treat­ment, which included kid­ney dial­y­sis three times a week.

The state opposed the motion. It acknowl­edged the sig­nif­i­cant med­ical expenses asso­ci­ated with Carlisle’s incar­cer­a­tion but essen­tially said that it was will­ing to bear those costs in light of the seri­ous­ness of his offenses. The state fur­ther argued that Carlisle’s med­ical con­di­tions didn’t pre­vent him from com­mit­ting the offenses and, there­fore, incar­cer­a­tion was nec­es­sary for the pro­tec­tion of the community.

But the court granted Carlisle’s motion and set a resen­tenc­ing date. The state filed a response to that, assert­ing that the trial court lacked author­ity to mod­ify its final judg­ment. Nev­er­the­less, the court vacated Carlisle’s sen­tence “due to change of cir­cum­stances” and con­ducted a resen­tenc­ing hear­ing, where Carlisle’s attor­neys noted that his dial­y­sis alone costs Medicare and his pri­vate insurer $100,000 a year.

At the hear­ing, the court men­tioned that the state is “cut­ting bud­gets every­where” and that “the costs in this sit­u­a­tion are going to be astro­nom­i­cal.” It then found that Carlisle did not pose a threat to the com­mu­nity and imposed a sen­tence of five years of com­mu­nity con­trol, with no time in prison.

When the case once again went back to the court of appeals, it reversed the trial court’s rul­ing. The court of appeals agreed with Carlisle that a trial court has author­ity to mod­ify a crim­i­nal sen­tence until the defen­dant is deliv­ered to the prison to begin serv­ing the sen­tence, but it con­cluded that the trial court lacked author­ity to mod­ify Carlisle’s sen­tence because his con­vic­tions had been affirmed by the court of appeals when Carlisle had filed his ini­tial appeal.

After that, the case came before us – the Ohio Supreme Court – for final review. In writ­ing our major­ity opin­ion, Chief Jus­tice Mau­reen O’Connor noted that in his argu­ment to our court, Carlisle’s attor­ney con­ceded that “the trial court lacked author­ity to mod­ify a final sen­tence.” His attor­ney claimed instead that “the trial court had unfet­tered author­ity to resen­tence him because his sen­tence had not yet been exe­cuted and, there­fore, was not yet final.” We disagreed.

A crim­i­nal sen­tence is final upon issuance of a final order – that is to say, when the judg­ment has been jour­nal­ized. In this case, a valid judg­ment of con­vic­tion was jour­nal­ized on July 13, 2007. But the trial court pur­ported to mod­ify Carlisle’s sen­tence nearly two years later. “The trial court’s attempt to do so,” Chief Jus­tice O’Connor wrote, “was improper.”

Carlisle’s argu­ment that a sen­tence is not final until it is exe­cuted evolved from an ear­lier time, when trial courts had the author­ity to mod­ify a crim­i­nal sen­tence at any time before it was exe­cuted. But that author­ity no longer exists. As a con­se­quence, the court cases that appeared to sup­port Carlisle’s posi­tion suf­fered from a fun­da­men­tal flaw: they relied on laws that have since been repealed.

One of those laws – which was called the “shock pro­ba­tion” statute – used to autho­rize trial courts to impose pro­ba­tion on defen­dants who had served a spec­i­fied por­tion of their prison sen­tences – thus, the defen­dant got the “shock” of incar­cer­a­tion before the “pro­ba­tion” phase of the sentence.

Another of those laws pro­vided that after sen­tenc­ing for a felony – up to the time the defen­dant was deliv­ered to the prison where he was to serve his sen­tence – the court was allowed to sus­pend the sen­tence and place the defen­dant on probation.

But both laws have been repealed, and thus the court opin­ions that arose from those laws no longer apply. Nev­er­the­less, Carlisle argued that a trial court retains the author­ity to mod­ify a final crim­i­nal sen­tence until it is exe­cuted because the Ohio Gen­eral Assem­bly has not expressly pro­hib­ited such modifications.

We dis­agreed. The repeal of the laws that were men­tioned ear­lier unequiv­o­cally con­sti­tuted a with­drawal of the author­ity that the courts once had to mod­ify sentences.

For those rea­sons, we con­cluded – by a seven-to-zero vote – to affirm the judg­ment of the court of appeals, although we did so on dif­fer­ent grounds from those relied on by that court. And with this deci­sion, we sent the case back to the trial court to exe­cute the orig­i­nal sen­tence, send­ing Carlisle to prison for the sex­ual assault of his 6-year-old fos­ter daughter.

EDITOR’S NOTE: The case referred to is: State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553. Case No. 2010–2158. Decided Decem­ber 22, 2011. Major­ity opin­ion writ­ten by Chief Jus­tice Mau­reen O’Connor.

Posted by Paul Pfeifer on May 29 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.