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When Individual Sentences Not Disproportionate to Crimes, Consecutive Imposition Is Not Cruel, Unusual

2007-0394.  State v. Hairston, Slip Opinion No. 2008-Ohio-2338.
Franklin App. No. 06AP-420, 2007-Ohio-143.  Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., concur separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2338.pdf

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(May 21, 2008) In a case involving a defendant’s sentence to prison terms totaling 134 years for multiple felonies committed during a series of aggravated burglaries in German Village, a neighborhood in Columbus, the Supreme Court of Ohio ruled 7-0 today that when none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, the aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.  Justice Terrence O’Donnell wrote the Court’s lead opinion. 

Marquis Hairston of Columbus was convicted in 2006 on 14 felony counts arising from three robberies that took place in the early morning hours of Sept. 27, Oct. 10 and 25, 2005. In each case, multiple robbers invaded the victims’ homes, forced them at gunpoint to take off all their clothing, tied them up and threatened them, and then left in the victims’ stolen vehicles after loading them with personal property taken from the homes. Hairston was apprehended by police after pawning items taken in one of the robberies, and subsequently admitted his involvement in all three incidents during a videotaped interrogation. After initially pleading not guilty to all 26 felony counts with which he was charged and beginning a jury trial, Hairston entered guilty pleas to four counts of aggravated robbery, four counts of kidnapping and three counts of aggravated burglary, all with firearm specifications, and three additional counts of having a weapon while under disability. In exchange for his guilty pleas on those counts, the state agreed to withdraw the remaining charges.

At the sentencing hearing, the state requested maximum, consecutive sentences. Prosecutors pointed out  that Hairston had been imprisoned on two previous occasions for robbery and burglary, had begun the string of robberies just seven days after being released from prison, and had not expressed remorse for his actions. The trial judge heard statements by the victims detailing the impact of the robberies on them and considered defense arguments that Hairston’s young age (24), his completion of a GED while previously incarcerated and the absence of serious physical harm to any of the victims were grounds not to impose the maximum possible sentences.

At the conclusion of the hearing, the trial court sentenced Hairston to the maximum statutory prison term for each of the 14 felony counts and firearm specifications, which totaled 134 years, and ordered that all sentences be served consecutively (one after the other) rather than concurrently (at the same time).

Hairston appealed to the 10th District Court of Appeals, advancing among other arguments a claim that the aggregate sentence imposed by the trial court constituted cruel and unusual punishment. The court of appeals rejected that argument and affirmed the trial court. The Supreme Court subsequently agreed to review the issue of whether: “A violation of the Eighth Amendment to the United States Constitution occurs where a Defendant is sentenced to 134 years incarceration for three aggravated robberies where injuries are non-life threatening.” 

In today’s lead opinion, the Court rejected Hairston’s proposition of law and held that “[w]here none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.  Thus, the court affirmed the rulings of the trial court and court of appeals.

Justice O’Donnell wrote: “Focusing on his aggregate term of incarceration, Hairston claims that the trial court imposed a 134-year sentence which is shocking to a reasonable person and to the community’s sense of justice and thus is grossly disproportionate to the totality of his crimes. ... When considering whether a cumulative prison term imposed for multiple offenses is cruel and unusual punishment, several federal courts of appeals have concluded that the Eighth Amendment proportionality review does not apply to cumulative sentences. For example, in United States v. Aiello (1988) the (U.S. 2nd Circuit Court of Appeals) considered an Eighth Amendment challenge to a sentence of life imprisonment without parole, plus consecutive terms totaling 140 years, imposed for 11 felony counts related to a drug-trafficking enterprise. The court rejected the challenge, stating, ‘Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.’” 

“Several of our sister states have reached similar conclusions,” Justice O’Donnell noted. “In State v. Berger (2006), for instance, the (Arizona Supreme Court) rejected an Eighth Amendment challenge to a cumulative prison term of 200 years resulting from ten-year terms imposed consecutively for each of 20 counts of possessing child pornography. The court stated that  ‘“[a] defendant has no constitutional right to concurrent sentences for two separate crimes involving separate acts.”’ It further reasoned that ‘if the sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate.’  In Close v. People (Colo.2002) ... The court held that ... ‘[i]f a proportionality review were to consider the cumulative effect of all the sentences imposed, the result would be the possibility that a defendant could generate an Eighth Amendment disproportionality claim simply because that defendant had engaged in repeated criminal activity.’”

Applying those precedents to Hairston’s claim, Justice O’Donnell stated: “(W)e conclude that, for purposes of the Eighth Amendment and Section 9, Article I of the Ohio Constitution, proportionality review should focus on individual sentences rather than on the cumulative impact of multiple sentences imposed consecutively. Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment. ... Because the individual sentences imposed by the court are within the range of penalties authorized by the legislature, they are not grossly disproportionate or shocking to a reasonable person or to the community’s sense of justice and do not constitute cruel and unusual punishment. Accordingly, Hairston’s aggregate prison term of 134 years, which resulted from the consecutive imposition of the individual sentences, does not violate the Eighth Amendment to the United States Constitution or Section 9, Article I of the Ohio Constitution.”

Justice O’Donnell concluded the opinion by cautioning trial judges who will impose sentences in future cases.  He stated, “we note that this case should not be heralded as a signal for future sentencing courts to impose maximum, consecutive terms of incarceration in all cases. Although Foster eliminated judicial fact-finding, courts have not been relieved of the obligation to consider the overriding purposes of felony sentencing, the seriousness and recidivism factors, or the other relevant considerations set forth in R.C. 2929.11, 2929.12, and 2929.13. When imposing sentence, courts must be faithful to the law, not be swayed by public clamor, media attention, fear of criticism, or partisan interest, and be mindful of the obligation to treat litigants and lawyers with dignity and courtesy.”

Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp. 

Justice Judith Ann Lanzinger entered a separate opinion, joined by Chief Justice Moyer and Justice Paul E. Pfeifer, in which she “reluctantly” concurred in the Court’s judgment but urged the General Assembly to adopt new guidelines for consecutive sentencing to replace standards that were held unconstitutional and severed (removed) from Ohio’s criminal sentencing statute by this Court’s 2006 decision in State v. Foster.

Justice Lanzinger agreed with the legal analysis of the lead opinion and the Court’s judgment affirming the constitutionality of Hairston’s sentence. She went on, however, to note that “(T)he majority’s affirmation of Hairston’s sentence can be interpreted as effectively legitimizing noncapital life sentences and extending them to situations where no one is killed or seriously injured. It is a rare victim who does not consider the crime committed by an offender to be undeserving of a maximum penalty. When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence. It will take a courageous judge not to ‘max and stack’ every sentence in multiple-count cases.”

Justice Lanzinger noted that the Supreme Court’s 2006 holding in Foster dramatically altered Ohio’s legislatively created sentencing scheme by eliminating a presumption that sentences for multiple offenses were generally to be served concurrently, and also eliminating the statutory requirement that a trial judge must make certain specific factual findings to justify imposing consecutive sentences. She pointed to language in the Foster decision suggesting that lawmakers might need to enact new guidelines that reestablish some statutory limitations on consecutive sentencing while avoiding the constitutional flaws in the former version of the law.

Emphasizing that it is the province of the legislature and not the judicial branch to say what those limitations should be, Justice Lanzinger concluded that in today’s decision: “We are holding that a 134-year sentence is not cruel and unusual and does not violate the Eighth Amendment or Section 9, Article I of the Ohio Constitution. It is the General Assembly’s obligation to decide if such a sentence will become common.”

Toki M. Clark, 614.224.2125, for Marquis Hairston.

Steven L. Taylor, 614.462.3555, for the state and Franklin County prosecutor’s office.