Appeals court scolds Judge Krichbaum

Krichbaum denies violating defendant’s constitutional rights

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGSTOWN — A judge from Mahoning County Common Pleas Court has been sharply rebuked by an appeals court, which said he violated a defendant’s constitutional rights.

The 7th District Court of Appeals scolded Judge R. Scott Krichbaum because it said he implied he was lengthening a defendant’s prison term because the defendant opted for a jury trial and declined to testify in it.

The ruling came in Johnny Donald Jr.’s appeal of his eight-year prison sentence for felonious assault.

“We are dismayed that, at this stage in American jurisprudence, we must admonish a court to abstain from fashioning a punishment based upon a defendant’s exercise of the constitutional right to a jury trial and to remain silent, but the totality of the record compels us to do so here,” the three-judge appeals panel unanimously ruled.

The decision was written by Judge Joseph J. Vukovich, with Judges Cheryl L. Waite and Mary DeGenaro concurring.

Judge Krichbaum saw the matter differently, however.

“Johnny Donald’s sentence was not increased based upon anything but his conduct regarding the crime he was convicted of and his prior criminal history,” Judge Krichbaum said in an interview. “I followed all of the statutory sentencing guidelines to the letter of the law.”

Donald, 40, of Ridge Avenue, received the prison term from Judge Krichbaum on June 25, 2008, after a jury convicted Donald of striking his live-in girlfriend with a steel-shafted golf club, in which she suffered bruises and injuries to her arm.

The jury convicted Donald of the March 23, 2008, felonious assault after 12 minutes of deliberations at the end of a three-hour trial. Donald confessed his crime to a police officer at the scene, who recounted that confession during trial testimony.

“It was a very simple trial because he had confessed the crime to the police, and the victim also described what occurred, and it was completely consistent,” Judge Krichbaum said.

At the sentencing hearing, Dawn Cantalamessa, an assistant county prosecutor, recommended the eight-year prison term, the maximum allowed by law.

Donald has a criminal record, and Judge Krichbaum considered that when he sentenced him. The judge sentenced Donald to two years in prison in 2004 for hitting a man on his head with aluminum siding while the victim tried to block the blows with his walking cane.

In Donald’s first sentencing hearing on the golf-club assault, Judge Krichbaum reported the prosecution was offering to recommend a two-year prison term – the minimum prison term – if Donald would plead guilty.

The judge acknowledged telling Donald in a pre-trial discussion that, if he went to trial and a jury found him guilty, he’d probably get the maximum sentence.

“I, in fact, asked him to tell me what the difference between eight years and two years is, and he understood it was six years but denied he had anything to do with this,” Judge Krichbaum said, according to the transcript of the first sentencing hearing.

Judge Krichbaum, who has been a common pleas judge since 1991, said during the June 25, 2008, sentencing that Donald knew the evidence against him would be overwhelming and was “stupid” for thinking he could get away with his crime by hoping the victim wouldn’t show up to testify against him.

“The defendant, after the victim and the police officer offered overwhelming testimony against him, chose not to speak at all. So, evidently, he agreed that all that was true the way it was presented,” the judge said.

The appeals court found fault with Judge Krichbaum’s comment about Donald’s decision to exercise his right to remain silent under the Fifth Amendment to the U.S. Constitution.

“The right against self-incrimination follows the defendant to sentencing ... The failure to testify at one’s own trial cannot be punished,” the appeals judges ruled.

Judge Krichbaum “made grossly inappropriate comments at sentencing, such as calling the defendant ‘stupid’ for taking a case to trial and construing his failure to testify as an admission,” the appeals judges said.

“There’s no novel legal issue in this case. This is well-established law, and the court of appeals found a significant error,” said J. Dean Carro, a University of Akron law professor.

Carro heads the school’s appellate review office and regularly serves as an appeals lawyer for indigent defendants in criminal cases.

“In Ohio, as in most states, trial judges have great discretion in determining sentencing,” Carro said. “It would be a rare case when a court of appeals would find an abuse of discretion that would mandate a new sentencing proceeding” as it did in this case, he added.

J. Michael Thompson, an assistant county prosecutor who has prosecuted cases daily in Judge Krichbaum’s court for 3w1‚Ñ2 years, said he believes Donald’s defense lawyer, John Jeffrey Limbian, not the judge, was the one implying that Donald would be punished for exercising his right to a jury trial.

It is routine in the courts for a defendant who is convicted in a trial to receive a sentence greater than the prosecution’s pre-trial plea offer, Thompson said. It’s routine because a defendant who pleads guilty is accepting responsibility for his actions and saving the state the time, expense and risk of a trial, he said.

“If it’s the intent of a judge to punish you simply for exercising your right to have a trial, then it’s wrong, but I don’t believe that’s what happened here,” said Atty. Scott Cochran, a criminal defense lawyer and president of the county bar association.

Thompson said he doesn’t believe Judge Krichbaum would penalize any defendant for not testifying in his trial. The judge, a former criminal defense lawyer, “considers the right to remain silent sacred,” Thompson said.

At Donald’s resentencing in September, Thompson said the prosecution didn’t think the judge did anything wrong at the original sentencing, and Thompson urged the judge to reimpose the original sentence.

At the resentencing, the judge apologized for calling Donald “stupid,” but denied that he punished Donald for electing to go to trial. He said he was offended by the suggestion he punished Donald for going to trial. He also denied punishing Donald for not testifying in his trial.

As for Judge Krichbaum’s reputation for imposing long sentences on those who are convicted in a trial, Thompson said: “The cases that go to trial in his court tend to be the kind where no one should be compromising, where just terrible things have happened.

“If you look at a string of rapists and murderers, and you have a judge giving them long sentences, we should be celebrating that, not criticizing it,” Thompson added.

Judge Krichbaum acknowledged in the first sentencing hearing transcript that he participated in plea discussions. A trial judge should not do so, the appeals court said.

The court cited as its authority a 1980 case that originated in Mahoning County, in which the Ohio Supreme Court ruled that a judge should avoid participating in plea negotiations.

“My effort in this case in talking with the defendant with counsel present was to make sure that the defendant understood and went into the trial with open eyes,” the judge said at the resentencing.

Although it found fault with some of the judge’s comments at the sentencing hearing, the appeals panel rejected claims by Donald’s first appellate lawyer, Aaron Snopek of Solon, that Donald didn’t get a fair trial and that the judge erred by making findings at the sentencing hearing concerning the seriousness of the victim’s injuries.

milliken@vindy.com

JUDICIAL QUOTES

Some quotes from John Jeffrey Limbian, defense lawyer, and Judge R. Scott Krichbaum at Johnny Donald Jr.’s first sentencing hearing and some quotes from the 7th District Court of Appeals decision that scolded Judge Krichbaum:

John Jeffrey Limbian, defense lawyer: “Your honor, it’s my distinct impression from the pretrial discussions in chambers that you would be giving my client the maximum if he was found guilty at trial.”

Judge Krichbaum replied: “Well, I told your client in a pre-trial discussion that the maximum sentence was eight years, and if he denied doing this and the jury of 12 people came into this courtroom and unanimously agreed that he was guilty beyond any reasonable doubt, then the maximum sentence was a probability, especially in light of the fact that he was being offered a sentence of two years if he were to enter into a plea.”

“And I, in fact, asked him to tell me what the difference between eight years and two years is, and he understood it was six years but denied he had anything to do with this.”

Judge Krichbaum: “The defendant, after the victim and the police officer offered overwhelming testimony against him, chose not to speak at all. So, evidently, he agreed that all that was true the way it was presented.”

7th District Court of Appeals decision: “The court’s [Judge Krichbaum’s] statement was improper. The court cannot hold it against a defendant at sentencing that he refused to testify in his own trial and thus penalize a defendant for exercising his constitutional right not to testify. Moreover, the failure to testify does not mean that the defendant ‘agreed that all that was true the way it was presented.”’

7th District Court of Appeals decision: “A trial court may not impose an increased sentence in retaliation for the defendant choosing to exercise his right to trial, regardless of whether the evidence of his guilt is said to be overwhelming.”

7th District Court of Appeals decision: “We conclude that the sentencing court violated the defendant’s constitutional rights.”

Sources: Original sentencing hearing transcript; 7th District Court of Appeals decision

BILL OF RIGHTS

Constitution

The first 10 amendments to the U.S. Constitution are commonly known as the Bill of Rights, which were ratified Dec. 15, 1791. The Fifth Amendment states:

AMENDMENT 5: Trial and Punishment, Compensation for Takings

X‚âNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.