Sentencing, Community Control, Intervention in LIEU of conviction, and diversion for felony criminal cases in Columbus, Ohio
FELONY SENTENCING IN COLUMBUS
In Columbus, Ohio, if you resolve a felony criminal case by plea bargain, or are convicted of one or more felony criminal offenses at trial, then you will be sentenced to the offense to which you plead, or of which you were convicted. If that is the case, it is important for you to understand the sentencing laws, options, and variables involved in Columbus sentencing.
COLUMBUS, OHIO PENALTIES FOR FELONY CRIMES
All penalties for Ohio felony crimes are set forth by statute in the Ohio Revised Code. Section 2901.03 of the Ohio Revised Code abolished common-law crimes in Ohio, and states that a person’s conduct is not a crime in Ohio unless a statute provides two elements: (1) a prohibition or duty, and (2) a penalty for violation. A trial court is required to impose the sentence provided by statute and has no power to substitute a different sentence. Penalties for felony offenses are found mainly in the Title 29 of the Ohio Revised Code. Purposes, principals, guidelines, and procedures for imposing sentences for felony offenses are covered in Chapter 2929 of the Ohio Revised Code.
PURPOSES AND PRINCIPLES OF SENTENCING FOR FELONY CONVICTIONS IN COLUMBUS, OHIO
The sentence given by the court must comply with the purposes and principles of sentencing set forth in Section 2929.11 of the Ohio Revised Code. Section 2929.11(A) provides that the purposes of sentencing are to punish the offender and protect the public “using the minimum sanctions that the court determines accomplish the purposes without imposing an unnecessary burden on state or local government resources.”
FACTORS THAT MUST BE CONSIDERED IN EVERY COLUMBUS CASE
All Ohio courts must consider whether the offender’s conduct is more serious or less serious than that normally constituting the offense, and whether the offender is more likely or less likely to commit future crimes. With respect to whether the conduct is more serious, the court must weigh the factors under Section 2929.12(B) of the Ohio Revised Code against the factors showing that the conduct is less serious under Section 2929.12(C).
Section 2929.12(B) sets forth “more serious” factors:
- Injury exacerbated by victim’s physical or mental condition or age;
- Victim suffered serious physical, psychological, or economic harm;
- Offender held public office or position of trust and the offense related to the office or position;
- Offender’s occupation obliged the offender to prevent the offense or to bring those committing it to justice;
- Offender’s reputation, occupation, or office facilitated the offense or is likely to influence others’ conduct;
- Offender’s relationship with the victim facilitated the offense;
- Offender acted for hire or as part of organized criminal activity;
- Offender was motivated by prejudice based on race, ethnicity, gender, sexual orientation, or religion;
- In a domestic violence or assault case, offender is a parent or other custodian, victim was a family or household member, and offense was committed in the vicinity of one or more children other than the victim.
Section 2929.12(C) sets forth “less serious” factors:
- Victim induced or facilitated the offense;
- Offender acted under strong provocation;
- Offender did not cause or expect to cause physical harm to person or property;
- Substantial grounds exist to mitigate the offender’s conduct, even if they don’t constitute a defense.
In deciding whether the offender is likely to commit future crimes, a court in Columbus, Ohio must weigh the factors under Section 2929.12(D) against the factors under Section 2929.12(E). Section 2929.12(D) sets forth the following factors that tend to show the offender is more likely to commit future crimes:
- Offense was committed while on bail, awaiting sentencing, on community control or PRC, or after PRC was unfavorably terminated;
- Offender has a history of criminal convictions or juvenile delinquency adjudications;
- Offender has not responded favorably to sanctions previously imposed in adult or juvenile court;
- Offender shows a pattern of alcohol/drug use related to the offense and doesn’t acknowledge it or refuses treatment;
- Offender shows no genuine remorse.
Factors that show the person is less likely to commit future crimes are set forth under Section 2929.12(E) of the Ohio revised Code:
- Offender has no prior juvenile delinquency adjudication;
- Offender has no prior adult conviction;
- Offender led a law-abiding life for a significant number of years;
- Offense was committed under circumstances unlikely to recur;
- Offender shows genuine remorse.
LENGTH OF PRISON TERMS FOR PERSONS CONVICTED OF FELONIES IN COLUMBUS, OHIO
If you are convicted of a felony in Columbus, Ohio, the general rule is that the court must select a definite term from the ranges set forth in Section 2929.14(A) of the Ohio Revised Code:
Felony of the First Degree: 3, 4, 5, 6, 7, 8, 9, 10, or 11 years in prison.
Felony of the Second Degree: 2, 3, 4, 5, 6, 7, or 8 years in prison.
Felony of the Third Degree: 9, 12, 18, 24, 30, or 36 months in prison for most, but 12, 18, 24, 30, 36, 42, 48, 54, or 60 months for a few F3s.
Felony of the Fourth Degree: 6 to 18 months in one month increments.
Felony of the Fifth Degree: 6 to 12 months in one month increments.
There are certain offenses that carry indefinite prisons terms, such as aggravated murder, murder, certain sex offenses, human trafficking, and crimes with a sexual motivation.
MANDATORY VERSUS OPTIONAL PRISON TERMS IN COLUMBUS, OHIO
The Ohio Legislature makes prison mandatory for certain types of offenses. Most mandatory prison terms are set forth in Section 2929.13(F) of the Ohio Revised Code, which includes the following:
- Aggravated Murder or Murder
- Assaults against peace officers
- Any F-1 or F-2 when the offender has a prior conviction for aggravated murder, murder, or an F- 1 or F-2
- Certain sex offenses
- Certain drug offenses
- Certain traffic offenses
There are many other offenses, some listed in section 2929.13(F) and others that are not listed, that require mandatory prison terms. The length of the mandatory prison term is usually selected from the range set forth in section 2929.14(A), but for certain offenses and specifications there are specific prison sentences that must be imposed. For example, if a firearm is used, displayed, brandished, or otherwise indicated and the offense has a firearm specification under Section 2941.145, then there is a mandatory three year prison sentence.
When a prison sentence is not mandatory, then the judge has discretion to impose a prison term and/or community control sanctions (probation). For most F-1s and F-2s, and for certain F-3s, there is a presumption “in favor” of prison. See Section 2929.13(D)(1) of the Ohio Revised Code. The presumption can be rebutted by the defense if certain factors are met, and in that case the prosecutor has the right to appeal the sentence. See Sections 2929.13(D)(1) and 2953.08(B) of the Ohio Revised Code. For most F-3s, there is no presumption one way or the other, so the judge has discretion to impose prison or probation. See Section 2929.13(C) of the Ohio Revised Code.
For certain types of F-4s and F-5s, it is mandatory that the court sentence the offender to community control (probation) if:
- The most serious charge is F-4 or F-5;
- Not an offense of violence; and
- No prior felony conviction at any time or prior misdemeanor offense of violence within 2 years.
See Section 2929.13(B)(1)(a)(i)-(iii) of the Ohio Revised Code.
Like most things favorable to defendants under Ohio law, there are exceptions, so mandatory doesn’t necessarily mean mandatory. The judge can still impose prison, even if probation is “mandatory,” if he makes certain findings under Section 2929.13(B)(1)(b)(i)-(xi), or follows the procedure set forth in § 2929.13(B)(1)(c).
SENTENCES FOR COLUMBUS, OHIO DRUG CRIMES
If you are charged with a drug offense in Columbus, you need to know that Chapter 2925 of the Ohio Revised Code identifies and defines Ohio drug crimes. Felony drug offenses in Ohio include Aggravated Trafficking and Trafficking in Drugs; Illegal Manufacture of Drugs; Illegal Cultivation of Marijuana; Possession of Drugs; Permitting Drug Abuse; Illegal Processing of Drug Documents; Deception to Obtain a Dangerous Drug; Tampering with Drugs; Sale of Counterfeit Controlled Substances; and Possession and/or Sale of Controlled Substance Analogs. The Ohio Sentencing Commission has published a 2-page Drug Offense Sentencing Guide, which is very helpful in determining potential sentences for each offense. The potential penalties for both Drug Trafficking and Drug Possession are listed based on the quantities of narcotics that are charged in the indictment. The Sentencing Guide can be found online here.
CONSECUTIVE VERSUS CONCURRENT SENTENCES IN COLUMBUS OHIO
For persons convicted in Columbus, Ohio, the general rule under Ohio law is that there is a presumption that prison terms be served concurrently (meaning at the same time). See Section 2929.41(A) of the Ohio Revised Code. However, the court has discretion to impose consecutive sentences if he finds it necessary to protect the public or punish the offender, that consecutives sentences are not disproportionate, and finds one of the following:
- Crimes were committed while awaiting trial/sentencing, under sanction, or under PRC;
- Harm so great or unusual that a single term does not adequately reflect the seriousness of the conduct; or
- Offender’s criminal history shows that consecutive terms are needed to protect the public.
Ohio Rev. Code § 2929.14(C)(4).
Furthermore, there are circumstances where the court has no discretion and must impose consecutive sentences. For instance, firearm and other specifications carry consecutive terms that must be served before the underlying term for the offense. See Section 2929.14(C)(1)(a)-(c) of the Ohio Revised Code.
COMMUNITY CONTROL (PROBATION) IN COLUMBUS, OHIO
When the sentencing court is not required to and chooses not to impose a prison sentence, the court may impose a sentence of only time served or a simple fine, but will usually put the defendant on “community control,” with conditions involving one or more community control sanctions. Community control sanctions are what used to be called conditions of probation. Under Ohio law, probation is now called “Community Control.” See Section 2929.15 of the Ohio Revised Code. Community control sanctions can include residential or non-residential sanctions. Non-residential sanctions can include basic or intensive probation supervision (usually simple reporting), or more stringent requirements such as community service, educational or training requirements, conditions of employment, counseling, drug and/or alcohol treatment, or even house arrest or daily reporting. See Section 2929.17 of the Ohio Revised Code. Residential sanctions care the most restrictive and can include local jail time (up to 6 months), half-way house, or time at a community-based correctional facility (CBCF) for up to 6 months. See Section 2929.16 of the Ohio Revised Code. The court can impose other conditions of community control reasonable related to the conduct involved in the criminal offense.
The duration of community control can range from 1 to 5 years. Violations of community control can result in the imposition of more restrictive sanctions, such as residential sanctions, extension of the time served under community control up to the maximum of 5 years, or imprisonment.
INTERVENTION IN LIEU OF CONVICTION IN COLUMBUS, OHIO
In Ohio, under Section 2951.041 of the Ohio Revised Code, an accused can be eligible to receive treatment in lieu (instead) of conviction if the criminal behavior was caused by drug or alcohol use, mental health issues, or intellectual disabilities. Under this statute, an accused can file a motion asking the trial court to put a stop to the case and substitute a treatment plan in lieu of prosecution. If the trial court grants the motion, and the accused completes the treatment plan, then the case is dismissed.
Eligibility for treatment through Intervention In Lieu of Conviction is available for a whole host of fourth and fifth degree felonies, including theft offenses, felony nonsupport offenses, unauthorized use of a motor vehicle, passing bad checks, forgery, misuse of a credit card, fourth and fifth degree felony drug possession cases, and fifth degree felony drug trafficking charges, to name a few. It also is now available to certain repeat offenders. It is not available to persons charged with first, second, and third degree felonies – unless the prosecutor is willing to reduce to charge to a lesser offense. Nor is it available to persons charged with offenses of violence.
DIVERSION FOR COLUMBUS, OHIO FELONY CRIMES
In Columbus, the Franklin County, Ohio prosecutor’s office has established a diversion unit that screens first time offenders of non-violent felony offenses for diversion. Under this program, an offender performs community service, makes restitution to the alleged victims, and upon completion will have his or her case dismissed and the arrest and subsequent criminal proceedings will be eligible to be sealed or expunged. Look here to see if you may be eligible for diversion.
FINANCIAL SANCTIONS IN COLUMBUS, OHIO (FINES AND COURT COSTS)
In addition to prison or probation, there is also the possibility of financial sanctions. These can include fines, court costs, pay-for-stay jail costs, cost of prosecution and investigation, and restitution. The amount of a fine depends on the level of the offense and whether there is a specific provision that would call for a specific fine to be imposed. For example, the maximum fine for an F-1 offense is $20,000. Generally, the judge has discretion to fine the offender anywhere from $0 to $20,000. However, if the F-1 is a drug offense, the judge must impose at least a $10,000 fine, up to the maximum of $20,000. Even when fines are “mandatory,” you may be excused from having the fine imposed if you are financially unable to pay (indigent). Section 2929.18(B)(1) of the Ohio revised Code provides that if you file an affidavit of indigency prior to sentencing and the court determines you are unable to pay, then the court must not impose the fine. Inability to pay can also be grounds to avoid imposition of court costs.
COLUMBUS PRE-SENTENCE INVESTIGATIONS AND SENTENCING HEARINGS
A sentencing hearing is required in all felony cases before the judge can impose a sentence. See Section 2929.19 of the Ohio Revised Code. At sentencing, you, your lawyer, the prosecutor, the victim or victim’s representative, and any other witness the court allows, may present evidence relevant to sentencing. The court must consider those statements, the record, a pre-sentence investigation report, if any, and a victim impact statement, if any, before imposing sentence.
It is important to note that a pre-sentence investigation and report (PSIR) is required if the person is going to be sentenced to community control or probation. See Section 2951.03 of the Ohio Revised Code and Rule 32.2 of the Ohio Rules of Criminal Procedure.
The purpose of the PSIR is to provide the sentencing judge with more information about your history and characteristics, family and social background, prior record, circumstances surrounding the offense, and a risk assessment. Even when a PSIR is not required, there can be reasons for wanting one anyway, such as when one plans to file an application for judicial release under Section 2929.20 or in the hope of qualifying for a transitional control program under Section 2967.26. Likewise, there can be many reasons not to request a PSIR, such as when more damaging information would likely be presented to the court.
The PSIR is not the only way relevant information can be gathered and presented to the sentencing court for consideration before the sentencing hearing. It is common practice in all federal criminal cases, and, for experienced lawyers in state cases, to file a sentencing memorandum. The purpose of the sentencing memorandum is to provide relevant information to the judge, in a persuasive and positive way, to mitigate the sentence. A well-drafted and supported sentencing memorandum can make a huge difference in the ultimate outcome at sentencing.
If you have been charged with a felony it is important you work with a Columbus criminal defense attorney at James D. Owen, LLC to make sure you’re getting the defense you deserve.