Foster and criminal sentencing again

So, the criminal defendant needs to appeal the sentencing decision handed down by the common pleas court, and this appeal does not actually involve the Foster decision, as least in the short view.

But, the defendant is indigent, is in prison, and the application costs for the appeal are waived. However, there is no sign that the transcripts costs (required since the sentencing hearing is involved) are waived for an indigent defendant.

If this is truly the case (I am still researching this), then the per-page cost of the transcript could truly make it impossible to afford appealing the case.

Surely, there is some relief for the indigent defendant in this situation as well!

Objection During Sentencing

It appears that in order to preserve an issue for appeal, where that issue arises during sentencing pursuant to a plea, then the defense attorney (or prosecutor) must object before the sentencing hearing is finished. For instance, this should happen for a first time felony offender and where the statute says that the offender should not receive more than the minimum sentence without the judge stating the reasoning behind a higher sentence, and the sentence is higher than the minimum. Or where the cumulative consecutive sentence is higher than the highest sentence available for the most serious offense.

This is tough stuff for the first felony sentence defended by a solo practitioner.

But, does this mean that the issue cannot be appealed?

More research is necessary.

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.

There Is No Ambiguity in the Ohio Sentencing Statutes

In a case last week, the Third Appellate District stated that the Ohio rule of lenity did not apply to the case at appeal because the "rule of lenity" applies only where there is ambiguity in a statute or conflict between multiple states. The Court discussed the effect of the State v. Foster decision to this case. See:

State v. Corbin