Sunday, November 6, 2016

Ohio Criminal Sentencing Laws

Ohio Criminal Sentencing Laws

Ohio criminal sentencing laws seem straightforward at first, but the details get quite complicated.  This article is designed to set forth the Ohio sentencing structure, along with some of the problems and developments in this area.

I will start off with a straightforward chart of Ohio criminal sentencing guidelines.  This chart does not include specialized offenses, such as murder, rape and bulk drug offenses, which have more specialized schemes.

The Ohio sentencing guidelines are as follows:

Misdemeanors                         Jail Time                                              Maximum Fine
Minor (MM)
M4 (Fourth Degree)
Up to 30 days
Up to 60 days
Up to 90 days
Up to 180 days

Felonies                                   Prison Time                                         Maximum Fine
F5 (Fifth Degree)
6 to 12 months
6 to 18 months
12 to 60 months
9 to 36 months
2 to 8 years
3 to 11 years

*          For specified higher level offenses
**        For specified lower level offenses (Ohio legislature created this lower class of offenses to reduce prison sentences for certain offenses)

Misdemeanor And Felony Sentences Must Be Served At The Same Time

When one is sentenced on both a felony and a misdemeanor, the two sentences must be served concurrently.  In a decision entered recently this year, this Ohio Supreme Court resolved conflicting opinion among the lower courts on this issue.  Consecutive sentences are served one right after the other, with no double credit for any of the time served.  Two six month sentences would add up to a year if they ran consecutive to one another.  Concurrent sentences are served at the same time.  For example, two six month sentences would add up to only six months if they ran concurrent to one another.  

In that decision, the defendant pled guilty to a count of felony receiving stolen property and a count of misdemeanor receiving stolen property.  The judge sentenced him to 11 months in prison for the felony and 6 months in jail for the misdemeanor, each to run consecutively for a total of 17 months.  Polus was charged with two more felony counts of receiving stolen property.  He pled to those and received two more consecutive sentences of 11 months each for a total of 22 months to begin after he finished serving the 17 months from the previous conviction.  Polus appealed.  The Ohio Supreme Court decided that Ohio law generally required misdemeanor sentences to run concurrent with felony sentences.

Ohio law lists 3 misdemeanors that are excepted from this rule: (1) pandering sexually oriented matter involving children; (2) escape; and (3) possession of a deadly weapon while under detention.  These 3 misdemeanors can, but are not required to, run consecutively with a felony conviction. 

Ohio Sentencing Hearings 

Ohio sentencing hearings are where the judge decides the sentence for one convicted of a crime.  The criminal defense attorney focuses on the positive things his client has done while showing the bright side of negative things.  Positive things include: gainful employment; past history of volunteering and/or helping people; repaying the victim; steps take to address problems (drug treatment and alcohol treatment); and being a responsible parent to minor children.  The bright side of negative things include showing that addressing a defendant’s drug addiction would benefit society more than incarcerating the individual.  In this instance, the negative issue taking the form of a drug addiction is presented as a problem to be solved, shifting the focus away from the State of Ohio’s desire to lock up the offender. 

Intervention In Lieu Of Conviction

Intervention in Lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program.  In order to be eligible, drug addiction, alcohol addiction, or mental health issues must have played a part in the commission of the offense.  The program focuses on treating, rather than punishing, the problem.

Once the charges are dismissed, the record is not sealed off from the public.  The arrest record likely still exists.  In order to wipe the docket and arrest from the record, one must file to have those records sealed and expunged.  The waiting period for expunging convictions is one year for a misdemeanor or three years for a felony.  The Ohio Supreme Court decided, in State v. Niesen-Pennycuff, that the court may, but is not required to, impose a waiting period for expunging a dismissal.  Because the charges are dismissed at the conclusion of an intervention in lieu of conviction program, there is no conviction and it is considered a dismissal.  Since the waiting periods only apply to convictions, expungement of the docket and arrest is available immediately. 

What Jail Time Credit Will Be Applied?

 One question that frequently arises at sentencing is what jail time credit will be applied?  Time spent in confinement can be credited against a sentence.  Confinement includes jail and community based correctional facility (CBCF).  Treatment can count if the defendant was confined there.  In order to get credit, the person had to be in custody for the case that is proceeding to sentencing.  In other words, the person cannot get credit for time served on another charge or other case.

Credit for jail time is supported by the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause of Article 1, Section 2 of the Ohio Constitution, R.C. 2967.191, R.C. 2929.19, and R.C. 2945.38.  The Ohio Supreme Court has ruled on jail time credit in a number of decisions:  State v. Fugate, 117 Ohio St.3d 261; State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400. 

Most of the time, the court properly applies jail time served at sentencing.  There is often a pre-sentence investigation, which sets forth the number of days of jail-time credit due to the defendant facing sentencing.  If the defendant is still in custody, the defendant often has a wristband on which states the date that the person was taken into custody.  However, in those few instances where this is not done correctly, it is important to know the types of confinement that is entitled to credit, as well as the supporting statutes, constitutional provisions, and cases dealing with this important issue. 

What Factors Affect An Agreed Sentence?

I often hear my clients tell me that someone else got a certain sentence for a similar offense and whether they could also get the same sentence.  My usual response is that no two cases and defendants are exactly alike and so the sentences would not necessarily be exactly alike.  First, some prosecutors and courts will not agree to a sentence.  In these instances, the plea bargain is focused on dismissing offenses or reducing offenses.  An experienced criminal defense attorney familiar with that court will be able to estimate the usual range of sentences the court would likely hand out in that situation.  However, this scenario can also result in a sentence much less or much greater than expected.   

Some courts and prosecutors will allow agreed sentences.  Even in these cases, the court still reserves the right to change its mind, but rarely does so.  The focus in this situation is what will convince a prosecutor to agree to a more advantageous sentence? There are some situations where the prosecutor may not agree to a lighter sentence.  These include where a minimum statutory sentence is required, a victim opposes a light sentence, or the
police, prosecutor or judge have already decided against doing so.  Factors that can influence a prosecutor include:  the strengths and weaknesses of their case, payment of restitution, the skill of the criminal defense attorney, addressing a mental health or substance abuse problem that likely contributed to the offense, positive contributions to the community by the defendant, and showing that the facts of the case are not as bad as they may seem.  A skilled criminal defense lawyer knows how to best present these factors to the prosecutor for the benefit of his client.   

About The Author – Daniel Gigiano, Esq.

Attorney Daniel Gigiano is located in downtown Wadsworth, Medina County, Ohio.  Daniel Gigiano, Esq. regularly represents individuals in need of criminal defense in the state courts located in Medina County, Wayne County and Summit County.  He has tried dozens of criminal jury trials, winning positive results for his clients.    

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