May 23, 2012
Sentencing

by Justice Paul E. Pfeifer

In June 2007, a jury found Jack Carlisle guilty of kidnapping and gross sexual imposition in connection with the sexual assault of his 6-year-old foster daughter.  A month later, the trial court sentenced Carlisle to three years’ imprisonment for the kidnapping charge and one year for the gross sexual imposition.

The sentences were to be served concurrently, giving Carlisle a total of three years in prison.  That was to be followed by five years of mandatory post-release control, which is a period of supervision by the adult parole authority.

The trial court also classified Carlisle as a sexually oriented offender, granted him 278 days of jail-time credit – for the time he spent in jail awaiting his trial.  Then the court suspended execution of his sentence and continued his bond pending an appeal.  However, two days later the clerk of the court journalized the final, appealable order that reflected his sentence.

When Carlisle took his case to the court of appeals, he challenged his convictions but didn’t raise any issues regarding his sentence.  The court of appeals affirmed Carlisle’s convictions, issued a special mandate to the trial court to carry the judgment into execution, revoked his bail, and sent the case back to the trial court for execution of sentence.

Having exhausted his appeals, and facing revocation of his bond and imprisonment, Carlisle filed a motion in February 2009 with the trial court to reconsider and modify his sentence.  Carlisle suffered from chronic, life-threatening conditions, and he argued that the trial court had authority to modify his sentence because it had not been “executed” – that is, he had not yet been delivered to the state prison.

The motion filed by his attorneys stated: “This Court must ask itself whether Mr. Carlisle’s punishment is worth the cost” in light of his “expensive” medical treatment, which included kidney dialysis three times a week.

The state opposed the motion.  It acknowledged the significant medical expenses associated with Carlisle’s incarceration but essentially said that it was willing to bear those costs in light of the seriousness of his offenses.  The state further argued that Carlisle’s medical conditions didn’t prevent him from committing the offenses and, therefore, incarceration was necessary for the protection of the community.

But the court granted Carlisle’s motion and set a resentencing date.  The state filed a response to that, asserting that the trial court lacked authority to modify its final judgment.  Nevertheless, the court vacated Carlisle’s sentence “due to change of circumstances” and conducted a resentencing hearing, where Carlisle’s attorneys noted that his dialysis alone costs Medicare and his private insurer $100,000 a year.

At the hearing, the court mentioned that the state is “cutting budgets everywhere” and that “the costs in this situation are going to be astronomical.”  It then found that Carlisle did not pose a threat to the community and imposed a sentence of five years of community control, with no time in prison.

When the case once again went back to the court of appeals, it reversed the trial court’s ruling.  The court of appeals agreed with Carlisle that a trial court has authority to modify a criminal sentence until the defendant is delivered to the prison to begin serving the sentence, but it concluded that the trial court lacked authority to modify Carlisle’s sentence because his convictions had been affirmed by the court of appeals when Carlisle had filed his initial appeal.

After that, the case came before us – the Ohio Supreme Court – for final review.  In writing our majority opinion, Chief Justice Maureen O’Connor noted that in his argument to our court, Carlisle’s attorney conceded that “the trial court lacked authority to modify a final sentence.”  His attorney claimed instead that “the trial court had unfettered authority to resentence him because his sentence had not yet been executed and, therefore, was not yet final.”  We disagreed.

A criminal sentence is final upon issuance of a final order – that is to say, when the judgment has been journalized.  In this case, a valid judgment of conviction was journalized on July 13, 2007.  But the trial court purported to modify Carlisle’s sentence nearly two years later.  “The trial court’s attempt to do so,” Chief Justice O’Connor wrote, “was improper.”

Carlisle’s argument that a sentence is not final until it is executed evolved from an earlier time, when trial courts had the authority to modify a criminal sentence at any time before it was executed.  But that authority no longer exists.  As a consequence, the court cases that appeared to support Carlisle’s position suffered from a fundamental flaw: they relied on laws that have since been repealed.

One of those laws – which was called the “shock probation” statute – used to authorize trial courts to impose probation on defendants who had served a specified portion of their prison sentences – thus, the defendant got the “shock” of incarceration before the “probation” phase of the sentence.

Another of those laws provided that after sentencing for a felony – up to the time the defendant was delivered to the prison where he was to serve his sentence – the court was allowed to suspend the sentence and place the defendant on probation.

But both laws have been repealed, and thus the court opinions that arose from those laws no longer apply.  Nevertheless, Carlisle argued that a trial court retains the authority to modify a final criminal sentence until it is executed because the Ohio General Assembly has not expressly prohibited such modifications.

We disagreed.  The repeal of the laws that were mentioned earlier unequivocally constituted a withdrawal of the authority that the courts once had to modify sentences.

For those reasons, we concluded – by a seven-to-zero vote – to affirm the judgment of the court of appeals, although we did so on different grounds from those relied on by that court.  And with this decision, we sent the case back to the trial court to execute the original sentence, sending Carlisle to prison for the sexual assault of his 6-year-old foster daughter.

EDITOR'S NOTE: The case referred to is State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553. Case No. 2010-2158. Decided December 22, 2011. Majority opinion written by Chief Justice Maureen O'Connor.