Youngstown Daily Legal News

Murky statute leads to another resentencing of murderer

ANNIE YAMSON
Special to the Legal News
Published: July 9, 2014

In a case recently considered by the entire bench of the 8th District Court of Appeals, a sentencing order from the Cuyahoga County Court of Common Pleas was reversed for a second time due to the lower court’s inability to make the proper statutory findings before imposing consecutive sentences.

The case stemmed from the 2005 conviction of Akanbi Nia for aggravated murder and attempted aggravated murder.

A jury found Nia guilty after evidence demonstrated that he and an accomplice were in the back seat of a vehicle when they shot the driver and passenger of the car in the back of their heads over a $100 debt.

Nia was sentenced to an aggregate prison term of 28 years to life in the Cuyahoga County court and his convictions were affirmed by the 8th District in a 2007 appeal.

However, a three-judge panel vacated the sentences and remanded the case to the trial court for resentencing.

The lower court scheduled a resentencing hearing and ordered that Nia be transported back to Cuyahoga County from the Mansfield Correctional Institution.

The transfer and hearing never took place and, in 2011, Nia filed for discharge.

About a week later, the court attempted to conduct a resentencing hearing via video conference, but Nia declined to waive his physical appearance in court and the trial court subsequently overruled the motion for discharge.

In 2012, Nia filed a writ of mandamus against the trial court and the prison warden to compel them to remand him to the custody of the Cuyahoga County Sheriff and later that year, Nia was ordered to be transported back to Cuyahoga County for resentencing where he received the same 28-year sentence.

Nia’s most recent appeal challenged that sentence.

Again, he claimed the trial court failed to make the proper findings before imposing his sentence.

Judge Patricia Blackmon, writing on behalf of the 8th District’s majority, cited R.C. 2953.08 as the standard of review for consecutive sentences, which was revised by HB 86 in 2011.

“The presumption in Ohio is that sentencing is to run concurrent, unless the trial court makes the required findings for imposing consecutive sentences set forth in R.C. 2929.14(C)(4),” wrote Judge Blackmon. “Compliance with this statute ‘requires separate and distinct findings in addition to any findings relating to purposes and goals of criminal sentencing.’”

In its review of the resentencing hearing, the court of appeals determined that the trial court did not “totally comply” with the requirements of R.C. 2929.14 prior to reimposing consecutive sentences.

According to the transcript of the resentencing proceedings, the trial court judge stated, “I don’t always remember individual cases, and even some very serious ones tend to get confused over time. Some, on the other hand, some cases remain very active in memory and every time I drive by the intersection of Superior and Coventry Roads in East Cleveland ... I remember this trial. I remember the circumstances. I remember what happened.”

The judge went on to say “nothing less than a consecutive sentence” would adequately punish Nia and protect society.

He also found that a lesser sentence would “demean the seriousness” of the crime and noted that he was not known in the court for handing out consecutive sentences, but in Nia’s case, “anything less than the 20 years to life plus eight years consecutive would not be appropriate.”

After reviewing the trial court’s statements, the court of appeals found that it complied with the first part of the statute by finding that consecutive sentences were necessary to adequately punish Nia and protect the public and that they were not disproportionate to the seriousness of the criminal conduct.

“However, the trial court failed to find that at least one of the factors in R.C. 2929.14(C)(4), subsection (a), (b) or (c) applied,” wrote Judge Blackmon.

According to the law, the court was required to find that Nia committed one or more of his offenses while awaiting trial or under a sanction or that at least two of the offenses were committed as part of one or more courses of conduct.

The trial court could also have found that the harm caused by the offenses was so great or unusual that no single prison term would adequately reflect the seriousness of the conduct or that the defendant’s criminal history demonstrated that the sentences were necessary to protect the public.

Judge Blackmon wrote that the trial court came close by stating that it did “not believe that concurrent sentences are appropriate” but it “stopped short of specifically stating the finding.”

“Consequently ... because the trial court failed to make all the separate and distinct findings as required, the consecutive sentence was not properly imposed,” Judge Blackmon concluded, remanding the case to the Cuyahoga County court for another resentencing hearing.

Judge Mary Boyle dissented in part, holding that R.C. 2929.14(C)(4) does not require a trial court to give a rote recitation of the words of the statute when making consecutive sentencing findings.

“It is my view — as this court and others have long held — that ‘in making the (statutory) findings, a trial court is not required to use talismanic words to comply with the guidelines and factors for sentencing,’” wrote Judge Boyle. “Thus, there are no ‘buzz words’ or ‘magic phrases’ that a trial court must state.”

In Judge Boyle’s opinion, the trial court held a comprehensive hearing where it demonstrated consideration of all the appropriate statutory criteria and made thoughtful findings.

She noted that, if a trial court is simply required to recite necessary factors from a statute, a defendant loses a thorough and complete sentencing hearing where actual reasons for the sanction are provided by the court.

As a result, Judge Boyle said “countless numbers of appeals” will be remanded “just so the trial court can say the ‘magic’ words,” wasting limited judicial resources.

“And most certainly, this court can expect to see the case again after the resentencing hearing, when the defendant will then argue that the record does not clearly and convincingly support the trial court’s findings,” wrote Judge Boyle.

Judge Eileen T. Gallagher concurred with the majority but wrote a separate opinion also noting her concern with “the practical effect of” the statute.

“We all agree the court is not required to use ‘magic’ words in order to satisfy its obligation to make the required findings,” she wrote. “But as a practical matter, the statute constrains judges to use or paraphrase language from the statute in order to comply with its requirements.”

Judge Kenneth Rocco also sided with the majority but wrote separately to voice his agreement with Judge Boyle’s opinion, stating that the trial court’s rationale for a chosen sentence is more important than the statutory findings themselves.

“But, because it has been a long, hard slog to the point where the trial court actually makes the required findings, perhaps we should let the matter rest here for a while,” Judge Rocco concluded.

The case is cited State v. Nia, 2014-Ohio-2527.

[Back]