State v Foster and Sentencing Appeals

Here is an interesting juxtaposition. Judges in Ohio, pursuant to State v. Foster, no longer need to state on the record the reasoning for their sentences if they sentence within the statutory guidelines. However, if a first time felony offender is given a consecutive sentence that is longer than the maximum sentence that could have been given for the most serious offense for which the defendant either pled or was found guilty, then the defendant can appeal the sentence.

But upon what basis should the appeals court look at the lower court's sentencing record if that record is silent? Judges need not give their reasons. So, how can the appeals court make any decision about the lower court's sentence?

There must be some way to challenge the assumption that judges consider the relevant factors in sentencing when they give sentences that cumulatively are outside the guidelines. Surely State v. Foster was not intended to remove appellate review of cumulative sentences in this kind of case.

Perhaps I am too confused to think about this right now. More research is necessary.