A Judicial Decision: Concurrent or Consecutive Prison Sentences?

by Judge James L. Kimbler

A Facebook friend recently asked why I imposed a concurrent prison sentence in a criminal case. The case involved a defendant who had drove recklessly and caused a automobile collision. Two people where killed in the collision and another person was seriously injured. The people who were killed were in the other car while the person who was seriously injured was a passenger in the defendant's car. That person and the defendant were good friends.

The crime for which the defendant was indicted for recklessly causing the two deaths is known as Aggravated Vehicular Homicide, and is a third degree felony. The crime for which the defendant was indicted for recklessly causing serious injury to is known as Aggravated Vehicular Assault, a fourth degree felony.

When I sentenced the defendant, I sentenced him to four years in prison for each of two deaths, which was a total prison sentence of eight years. Those sentences I ran consecutively. I also sentenced him to one year in prison for causing the injuries to his friend. That sentence I ran concurrently. It was that sentence that prompted my friend's question.

When a judge is sentencing a defendant in a case where there are multiple charges, often that judge has to decide whether prison sentences should be served consecutively or concurrently. If the sentences are to be served consecutively, then the second sentence doesn't start until the first one is finished. If the sentences are to be served concurrently, then both are being served at the same time.

An example would be if a defendant was charged with two separate offenses that involved two different dates. Let's say the judge orders a three year prison sentence for each offense. If the sentences are served concurrently, then the defendant serves three years for both offenses. If they are served consecutively, then the defendant serves six years for both offenses.

The decision to impose either consecutive or concurrent sentences is obviously one of the most important decisions a judge makes when sentencing a defendant.

There are many factors a trial judge must consider when making such a decision. The first is the language of the Ohio Revised Code.

The Ohio General Assembly has mandated that certain sentences be served consecutively. An example of this is sentences for what are called "firearm specifications." A firearm specification is language added to the indictment by the grand jury that states that the defendant either used the firearm or possessed the firearm while committing the offense. These sentences can add one or three years onto a prison sentence and must be served consecutively to the sentence for the underlying offense.

Other factors include whether the crimes arose from the same set of facts or out of the same conduct; whether the defendant and the prosecution make a joint recommendation on sentencing; how much total prison time a judge thinks a defendant should serve; the nature of the offenses; and, in some cases, the wishes of the victim of the defendant's crime.

It was the last reason that was determinative in the case mentioned in the first paragraph of this article. The defendant's friend did not want the defendant to serve a prison sentence for injuring him. Although a victim's wishes are not binding on a trial judge, I do consider them when imposing a sentence.

In this particular case I considered the fact that the friend had voluntarily got into the defendant's car along with the fact that the friend did not want the defendant to go to prison for the charge of Aggravated Vehicular Assault. In his victim's impact statement he indicated that he wanted the defendant to be placed on probation. Since I was imposing a prison sentence for the death of the people in the other car, probation was not an option. Therefore I ran the prison sentence for the crime of Aggravated Vehicular Assault concurrent with the other sentences.

This meant that while the defendant would serve a prison sentence for injuring his friend, he would not serve any additional prison time for that crime.