When I was in law school and took criminal procedure, the focus of the course was on the adjudication process. Based on what I have seen as a trial judge, I don’t think that focus has changed. And it’s obviously important that criminal defense attorneys understand the Ohio Rules of Criminal Procedure, how to file proper pretrial motions, and how to raise constitutional issues regarding searches and seizures. But the fact of the matter is that most criminal cases are adjudicated not by a trial or be winning a pretrial motion but by the entry of a plea of guilty or no contest.
What this means is that if you do criminal defense work, most times you will be representing a defendant at a sentencing who has been found guilty by a plea and not by a trial. For those defendants, the sentencing hearing is far and away the most important part of their criminal case. It is that hearing that will determine whether the defendant goes to prison, or gets probation. If the hearing is for an offense that carries a mandatory prison sentence, then the hearing will determine how long of a prison sentence that the defendant will serve.
Too often I think that attorneys feel that that judge already knows what sentence he or she is likely to impose. While this is true in many cases, it is certainly not true in all cases. If you are representing a criminal defendant at a sentencing hearing there are several things you can do to increase your client’s chances of receiving probation or a shorter rather than a longer prison sentence.
First of all try to get the prosecution to agree to a joint recommendation regarding the sentence that will be imposed. While trial judges don’t have to accept such recommendations, most judges will accept them and sentence accordingly.
If the prosecution is not prepared to join in a joint recommendation regarding the sentence to be imposed, then try to get the prosecution to agree to remain silent at the sentencing hearing. If the prosecution does agree to remain silent at sentencing, keep in mind, however, that the victim or a representative of the victim still has the right to be heard at a sentencing hearing.
Do research on the judge and how that judge sentences for the offense with which your client is charged then base your advocacy on that research. Judges like to consistent when imposing sentences. Obviously, absolute consistency cannot be achieved, nor should it, because the facts of each crime are unique, but judges try to avoid handing out inconsistent sentences for the same offense when possible.
Be sure you know the law regarding sentencing. Ohio Revised Code Chapter 2929 spells out in detail the factors that judges are to use when sentencing defendants. You need to know those factors and refer to them when you are advocating on behalf of your client, whether by means of a sentencing brief or oral allocution at the sentencing hearing.
Sentencing briefs can often be a good way for a criminal defense attorney to advocate to the court his or her position regarding how a client should be sentenced. They are probably better than allocution made during sentencing because a judge can read them when he or she is not handling a call day docket.
Many judges sentence during their call days when they are handling not only sentencing hearings, but arraignments, bond hearings, probation violations, and defendants who have been picked up on a warrant. During such call days a defendant’s attorney is not going to get an unlimited amount of time to make his or her case regarding how the judge should sentence that attorney’s client.
You are much more likely to get more of the judge’s attention if you file a sentencing brief stating your position regarding sentencing. You should only do so if, however, you know that the judge is willing to accept such a brief. Therefore you should ask the court through either the judge or the judge’s support staff if the judge would be okay with your filing such a brief. Keep in mind that you must serve a copy on the prosecution and that it should be filed enough in advance of the sentencing hearing that the judge has time to read it before the hearing.
Sometimes friends and family members of the defendant want to send letters to the judge on behalf of the defendant. You should not encourage such friends and family members to send the letters directly to the judge. Rather they should be sent to your office and then you should deliver them to the judge and provide copies to the prosecution. This avoids any appearance that the defendant’s family and friends are trying to ex parte the judge. It has the further advantage of allowing you to make sure that inappropriate material doesn’t get sent to the judge.
One of the most crucial things you can do for your client is to make sure that your client interacts with the probation department in an appropriate manner. Veronica Perry is the Chief Probation Officer of the Medina County Common Pleas Court, General Division. Prior to coming to Medina County, she was a supervisor for the Cuyahoga County Common Pleas Court Probation Department and a probation officer for that department. I asked her to list ten things that a criminal defense attorney should do when their clients are interacting with a probation department. Here they are:
- Make sure your client understands where to go for the initial probation intake procedure, and if possible, personally walk the client to the probation department.
- Explain the consequences of failing to comply to your client. Explain the benefits of complying to your client.
- Attitude. Explain the benefits of being courteous and respectful towards the probation officer.
- Honest. The probation officer already knows the answer to the question/issue more often than not and he or she will be much more willing to be supportive if the client is forthcoming.
- Discuss financial obligations, such as drug testing fees, home arrest fees, etc., with your client and if they will be a financial hardship approach the court and/or probation officer regarding the details PRIOR to your client encountering problems that may lead to an unsuccessful outcome.
- Assure that your client thoroughly understands all the agreements he or she will sign with the probation department, such as the rules of pretrial supervision and the rules of general supervision.
- Inform your client the importance of keeping in contact with their probation officer. Explain the value of calling the probation officer if your client cannot keep an appointment and the consequences of not complying.
- Notify your client of the importance of complying with all treatment expectations, drug testing requirements, and the importance of maintaining sobriety. If your client is a drug addict with a severe drug addiction assist them in finding and completing a drug treatment program.
- Inform your client that if they violate their supervision conditions to notify you immediately so that you can arrange the client’s surrender prior to the client getting arrested.
- Explain to your client that meeting the conditions of probation and satisfying the court’s orders has great benefits. Inform your client that by demonstrating they satisfied the court’s orders and were cooperative during the probation process, they may ask the court for an early termination of probation. Most times, if all conditions have been met, the court will comply with the request.
You should also become familiar with the Ohio Risk Assessment System, most generally known as ORAS. The following institutions and organizations must use ORAS:
- Each common pleas, municipal, or county court when it orders an assessment for sentencing or other purposes;
- The probation departments serving those courts;
- State and local governmental correctional institutions;
- Private correctional institutions;
- Community-based correctional facilities;
- The Adult Parole Authority; and
- The Ohio Parole Board.
Seven forms, or “tools”, have been developed to implement ORAS. They are:
- A pre-trial tool known as PAT;
- A community supervision screening tool known as CSST;
- A community supervision tool known as CAT;
- A prison screening tool known as PST;
- A prison intake tool known at PIT;
- A re-entry tools known at RT; and
- A supplemental re-entry tools known as SRT.
The Ohio Risk Assessment System is used by probation departments and the DRC to determine what programs are offered to what defendants. For example, low-risk offenders are not supposed to be sent to a community-based correctional facility and, ideally, only high-risk offenders would be sent to such facilities, although there are situations in which moderate-risk offenders will be accepted into such facilities. Clearly, if you are representing a criminal defendant who is being sentenced ORAS and its tools will be impacting greatly on what happens to your client. Therefore you need to know how it works and how your client can improve his or her score on ORAS.
What I would like for you to take away from this article is that a sentencing hearing is probably from your client’s perspective one of the most important events in his or her life. Your clients need a skillful advocate at that hearing and your goal is to be that advocate.
Judge Kimbler practiced law in Sandusky, Norwalk, and his home town of Lodi, for over 11 years before becoming Wadsworth Municipal Court Judge in 1986. He served as Judge in the Wadsworth court from February 10, 1986 until he was elected Medina County Common Pleas Court Judge in 1996. Judge Kimbler served three terms on the Medina County Common Pleas Court bench until his retirement on December 31, 2014. He is married to the Honorable Joyce V. Kimbler, who followed Judge Kimbler on the Medina County Common Pleas Court bench.
Judge Kimbler has conducted approximately 575 jury trials as judge with 251 of those being on the municipal court bench and the rest on the common pleas court bench
*This article has been republished by permission of the Cleveland Metropolitan Bar Association.