Daniel F. Gigiano Co., L.P.A. - Attorney at Law | Legal Resources
AN EXPLANATION OF OHIO CRIMINAL
SENTENCING LAWS WHITE PAPER
By Daniel Gigiano – Attorney at Law PRINT VERSION
In this white paper, Attorney Daniel Gigiano reviews Ohio Ohio criminal sentencing laws. These laws seem straightforward at first, but the details get quite complicated.
Ohio Criminal Sentencing Guidelines
Ohio criminal sentencing laws seem straightforward at first, but the details get quite complicated. This white paper is designed to set forth the Ohio criminal sentencing structure, along with some of the problems and developments in this area. The Ohio criminal sentencing guidelines are in table below.
M4 (Fourth Degree)
up to 30 days
up to 60 days
up to 90 days
up to 180 days
F5 (Fifth Degree)
6 to 12 months
6 to 18 months
12 to 60 months*
2 to 8 years
3 to 11 years
Misdemeanor and Felony Sentences Must Be Served at the Same Time
When one is sentenced on both a felony and a misdemeanor, the two sentences must be served concurrently. In a recent 2016 decision, this Ohio Supreme Court resolved conflicting opinion among the lower courts on this issue. Consecutive sentences are served one right after the other, with no double credit for any of the time served. Two six month sentences would add up to a year if they ran consecutive to one another. Concurrent sentences are served at the same time. For example, two six month sentences would add up to only six months if they ran concurrent to one another.
In that decision, the defendant pled guilty to a count of felony receiving stolen property and a count of misdemeanor receiving stolen property. The judge sentenced him to 11 months in prison for the felony and six months in jail for the misdemeanor, each to run consecutively for a total of 17 months. Polus was charged with two more felony counts of receiving stolen property. He pled to those and received two more consecutive sentences of 11 months each for a total of 22 months to begin after he finished serving the 17 months from the previous conviction. Polus appealed. The Ohio Supreme Court decided that Ohio law generally required misdemeanor sentences to run concurrent with felony sentences.
Ohio law lists three misdemeanors that are excepted from this rule: (1) pandering sexually oriented matter involving children; (2) escape; and (3) possession of a deadly weapon while under detention. These three misdemeanors can, but are not required to, run consecutively with a felony conviction.
Ohio Criminal Sentencing Hearings
Ohio criminal sentencing hearings are where the judge decides the sentence for one convicted of a crime. The criminal defense attorney focuses on the positive things his client has done while showing the bright side of negative things. Positive things include: gainful employment; past history of volunteering and/or helping people; repaying the victim; steps taken to address problems (drug treatment and alcohol treatment); and being a responsible parent to minor children. The bright side of negative things includes showing that addressing a defendant’s drug addiction would benefit society more than incarcerating the individual. In this instance, the negative issue taking the form of a drug addiction is presented as a problem to be solved, shifting the focus away from the State of Ohio’s desire to lock up the offender.
Intervention in Lieu of Conviction
Intervention in lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program. In order to be eligible, drug addiction, alcohol addiction, or mental health issues must have played a part in the commission of the offense. The program focuses on treating, rather than punishing, the problem.
Once the charges are dismissed, the record is not sealed from the public. The arrest record likely still exists. In order to wipe the docket and arrest from the record, one must file to have those records sealed and expunged. The waiting period for expunging convictions is one year for a misdemeanor or three years for a felony. The Ohio Supreme Court decided, in State v. Niesen-Pennycuff, that the court may, but is not required to, impose a waiting period for expunging a dismissal. Because the charges are dismissed at the conclusion of an intervention in lieu of conviction program, there is no conviction and it is considered a dismissal. Since the waiting periods only apply to convictions, expungement of the docket and arrest is available immediately.
"Intervention in lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program."
What Jail Time Credit Will Be Applied
One question that frequently arises at sentencing is what jail time credit will be applied? Time spent in confinement can be credited against a sentence. Confinement includes jail and community-based correctional facility (CBCF). Treatment can count if the defendant was confined there. In order to get credit, the person had to be in custody for the case that is proceeding to sentencing. In other words, the person cannot get credit for time served on another charge or other case.
Credit for jail time is supported by the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause of Article 1, Section 2 of the Ohio Constitution, R.C. 2967.191, R.C. 2929.19, and R.C. 2945.38. The Ohio Supreme Court has ruled on jail time credit in a number of decisions: State v. Fugate, 117 Ohio St.3d 261; State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400.
Most of the time, the court properly applies jail time served at sentencing. There is often a pre-sentence investigation, which sets forth the number of days of jail-time credit due to the defendant facing sentencing. If the defendant is still in custody, the defendant often has a wristband on which states the date that the person was taken into custody. However, in those few instances where this is not done correctly, it is important to know the types of confinement that is entitled to credit, as well as the supporting statutes, constitutional provisions, and cases dealing with this important issue.
What Factors Affect an Agreed Criminal Sentence?
I often hear my clients tell me that someone else got a certain sentence for a similar offense and whether they could also get the same sentence. My usual response is that no two cases and defendants are exactly alike and so the sentences would not necessarily be exactly alike. First, some prosecutors and courts will not agree to a sentence. In these instances, the plea bargain is focused on dismissing offenses or reducing offenses. An experienced criminal defense attorney familiar with that court will be able to estimate the usual range of sentences the court would likely hand out in that situation. However, this scenario can also result in a sentence much less or much greater than expected.
Some courts and prosecutors will allow agreed sentences. Even in these cases, the court still reserves the right to change its mind, but rarely does so. The focus in this situation is what will convince a prosecutor to agree to a more advantageous sentence? There are some situations where the prosecutor may not agree to a lighter sentence. These include where a minimum statutory sentence is required, a victim opposes a light sentence, or the police, prosecutor or judge have already decided against doing so. Factors that can influence a prosecutor include: the strengths and weaknesses of their case, payment of restitution, the skill of the criminal defense attorney, addressing a mental health or substance abuse problem that likely contributed to the offense, positive contributions to the community by the defendant, and showing that the facts of the case are not as bad as they may seem. A skilled criminal defense lawyer knows how to best present these factors to the prosecutor for the benefit of his client.
For More Information on Ohio Criminal Sentencing Laws
For more information on Ohio criminal sentencing laws, go to gigianolaw.com/criminal-defense-attorney/ or contact Daniel Gigiano at 330-336-3330 for consultation. The initial 30 minute consultation is always free.
About The Author – Daniel Gigiano, Esq.
Daniel Gigiano, Esq. graduated from Loyola University Chicago School of Law and has practiced law since 1993. He is the owner of Daniel F. Gigiano Co., L.P.A. located in downtown Wadsworth, Medina County, Ohio.
Attorney Gigiano regularly represents individuals in criminal defense matters in the courts in Medina County, Wayne County and Summit County. Daniel Gigiano, attorney at law, has fought hard to ensure that the child support calculations were fair for his clients.
In addition to criminal law, Daniel Gigiano also practices law in the following areas:
- Bankruptcy and Foreclosure Defense
- Business Law
- Civil Litigation
- Family Law and Divorce
- Estate Planning
- Personal Injury
- Real Estate