State v. Hairston, 07ap-160 (11-6-2007)

{¶ 60} I respectfully dissent.

{¶ 61} We, as an appellate court, function under the guidance of the Supreme Court of Ohio. The Supreme Court of Ohio has told us inState v. Xie (1992), 62 Ohio St.3d 521, 527, that "a presentence motion to withdraw a guilty plea should be freely and liberally granted." The trial court judge in Louis Hairston's case did not do so.

{¶ 62} I do not know what better reason a person would have to go to trial than the reason that a judge is planning on giving him or her a life sentence of incarceration. Adding the 39-year sentence this trial judge announced in open court to the 31-year sentence originally given in Scioto County results in a sentence of 70 years. Mr. Hairston would have to live to the age of 90 to see a day outside a prison cell if these sentences were to stand up.

{¶ 63} To conclude, as the majority does, that the trial court gave full and fair consideration to Mr. Hairston's motion to withdraw his guilty pleas seems to me to be a conclusion that is not supported by the transcript of proceedings. Mr. Hairston expressed his wish to withdraw his pleas and the trial judge immediately responded "Yeah, the answer to that is no." (Tr. at 13.) Apparently Mr. Hairston had instantaneous "full and fair consideration" which was expressed by the trial judge in seven words.

{¶ 64} This case is one of a significant number of cases I see where the results of significant changes in the statutes of Ohio are manifest. Thirty plus years ago, a young man the age of Louis Hairston would have been sent to a reformatory in hopes that he could be rehabilitated. He would have been eligible for release on parole after 38 months, no matter how many scheduled felonies he had committed. The adult parole authority could keep him in custody until it felt he was no longer a danger to society, but it could release him after less than four years of incarceration if he rehabilitated himself or was rehabilitated. Ohio has given up on rehabilitating inmates via reformatories.

{¶ 65} Until relatively recently, Ohio had a law on the books which indicated that no matter how many scheduled felonies a person committed, the person could be released on parole after serving 15 years, possibly less for good time. The legislature wiped out that statute.

{¶ 66} Now we regularly see trial court judges giving sentences which exceed what an inmate can receive for murdering someone. The sentence for murder in Ohio is 15 years to life. Louis Hairston could have murdered three people and still have been eligible for release from prison after serving less time than he will serve for these home invasions.

{¶ 67} I have little or no sympathy for what Louis Hairston did. However, I have a great deal of concern that we are warehousing for life a large number of young men, especially the poor and minorities. I have even more concern that the state of Ohio may have given up on the whole concept of rehabilitation. Louis Hairston was 19 years old with a ninth grade education when he got involved in a series of home invasions with a brother. He had no criminal record as a juvenile, despite living in a number of group homes during his teen years. Due to emotional and health problems, he received Social Security income. I find it hard to throw his life away without a trial.

{¶ 68} I respectfully dissent.