STATE OF OHIO v. RICKYM ANDERSON
Appellate Case No. 26525
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 15, 2016
2016-Ohio-135
Trial Court Case No. 12-CR-1911/1; (Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 15th day of January, 2016.
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
STEPHEN A. GOLDMEIER, Atty. Reg. No. 0087553, and CHARLYN BOHLAND, Atty. Reg. No. 0088080, The Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Rickym Anderson appeals from his resentencing on several charges following our remand to correct the trial court‘s failure to make consecutive-sentence
{¶ 2} The facts and procedural history of Anderson‘s case are detailed in State v. Anderson, 2d Dist. Montgomery No. 25689, 2014-Ohio-4245, which ordered the remand. Briefly, 16-year-old Anderson and two companions, Dylan Boyd and M.H., robbed two victims in a residential garage at gunpoint, shooting one of the victims and locking the other in the trunk of a car. Id. at ¶ 8-12. Boyd was the shooter in that incident. Anderson, Boyd, and another teenager then stole a third victim‘s purse at gunpoint. Anderson held the gun during that offense and threatened to shoot the victim. Id. at ¶ 14. Anderson and Boyd subsequently were apprehended. Anderson admitted involvement in both robberies. He initially was charged in juvenile court. He then was bound over to the general division of the common pleas court for trial as an adult. He was charged with three counts of aggravated robbery, one count of kidnapping, and one count of felonious assault. A firearm specification accompanied each charge. Id. at ¶ 18. A jury found Anderson guilty of everything except felonious assault. The trial court imposed an aggregate 28-year prison term. Boyd, who previously had pled guilty, received a nine-year sentence. Id.
{¶ 3} In his prior direct appeal, Anderson raised eight assignments of error. First, he argued that the trial court had erred in overruling a suppression motion. Second, he claimed his sentence was unlawfully disproportionate to the sentence Boyd received. Third, he asserted that the trial court had erred in failing to comply with
{¶ 4} On review, we overruled the first, fifth, sixth, seventh, and eighth assignments of error. Anderson at ¶ 87. We overruled the second assignment of error, which alleged disproportionate sentencing, as moot because we were remanding for resentencing. Id. We sustained the third and fourth assignments of error, finding that the trial court had failed to award proper jail-time credit and had failed to make the statutory findings necessary for consecutive sentences. As a result, we vacated Anderson‘s sentence and remanded the cause “for a new sentencing hearing.” Id.
{¶ 5} On remand, the trial court held a resentencing hearing on November 19, 2014. During the hearing, defense counsel asked the trial court to impose the same nine-year sentence Boyd had received, arguing that Anderson in fact was less culpable than Boyd. Defense counsel also argued that consecutive sentences were not justified. (Resentencing Tr. at 8-10). The trial court disagreed. It imposed an aggregate 19-year prison term. The aggregate sentence included concurrent 11-year prison terms for the three counts of aggravated robbery in addition to a consecutive five-year term for kidnapping and a mandatory, consecutive three-year term for a firearm specification. (Id. at 14-15). The trial court also made the statutory findings for consecutive sentences. (Id. at 20-21). In addition, the trial court explained why it believed Anderson deserved a more severe sentence than Boyd. (Id. at 16-19). Finally, the trial court recognized that it had increased Anderson‘s sentence on counts one and two from nine years to 11 years, while reducing his aggregate sentence from 28 years to 19 years. (Id. at 22). The trial court
{¶ 6} In his present appeal, Anderson advances seven assignments of error from his resentencing. His first assignment of error challenges the trial court‘s imposition of an aggregate 19-year sentence. Anderson claims this sentence is impermissibly disproportionate1 to the nine-year sentence received by Boyd, who pled guilty. Anderson reasons that he and Boyd were “similarly situated” defendants and that the additional 10 years in prison he received amounted to an unconstitutional “trial tax” insofar as it punished him for exercising his right to a jury trial.
{¶ 7} It is beyond dispute that a defendant cannot be punished for refusing to plead guilty and exercising his right to a trial. State v. Blanton, 2d Dist. Montgomery No. 18923, 2002 WL 538869, *2-3 (April 12, 2002). “Accordingly, when imposing a sentence, a trial court may not be influenced by the fact that a defendant exercised his right to put the government to its proof rather than pleading guilty.” Id. Where the record creates an inference that a defendant‘s sentence was enhanced because he elected to put the government to its proof, we have looked for additional evidence dispelling the inference and unequivocally explaining the trial court‘s sentencing decision. Id.
{¶ 8} Here Anderson contends an unrebutted inference does exist that the trial court punished him for exercising his right to a jury trial. According to Anderson, this
{¶ 9} Upon review, we agree that Anderson and Boyd received different sentences. We also recognize that, in rejecting Anderson‘s claim that he was less culpable than Boyd, the trial court characterized the two defendants as being “equally culpable.” (Resentencing Tr. at 18). It does not follow, however, that equally culpable defendants necessarily must receive the same or similar sentences. Although Anderson and Boyd may have had a shared level of criminal culpability for their activity in this case, the record supports a finding that they were not similarly situated in all relevant respects for purposes of sentencing.
{¶ 10} At the resentencing hearing, the State and the trial court both recognized (and Anderson does not dispute) that Boyd had agreed to plead guilty and to testify against Anderson, if requested, as part of a plea deal that included an agreed nine-year prison sentence. (Id. at 13, 15-16). The trial court explained that it imposed a nine-year sentence in Boyd‘s case precisely because it was an agreed sentence that was part of a negotiated deal. (Id. at 16). The trial court added that “go[ing] to trial * * * has nothing to do” with the sentences it imposes. Id.
{¶ 11} Having examined the record, we conclude that the trial court adequately
{¶ 12} In his second assignment of error, Anderson claims the trial court‘s consecutive-sentence findings clearly and convincingly are not supported by the record. This argument implicates
if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:* * *
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 13} Here the trial court made the foregoing findings, including findings under both
{¶ 14} Upon review, we do not believe the record clearly and convincingly fails to support the trial court‘s findings. The trial court first found that consecutive service of the kidnapping sentence was necessary to protect the public from future crime and to punish the defendant. Affirmative support for these findings exists in the PSI report, which details Anderson‘s criminal history, and the trial transcripts, which reveal the facts underlying his current offenses. Anderson, who was 16 years old at the time of the crimes at issue, had a prior juvenile adjudication for robbery, a second-degree felony if committed by an adult.
{¶ 15} At sentencing, the trial court explained why it found the kidnapping offense
* * * Now Mr. Anderson, did he say, “Oh, my gosh, I shouldn‘t have done that. Let me go back to school. Let me go back home?” No. He was the one with the gun at the next offense. And here, there was a handicapped young lady who was frightened, who saw that gentleman—not a kid—with a gun while they asked for her cell phone.
In talking to the police, Mr. Anderson indicated that Mr. Boyd had the gun at the first offense. However, the second offense—oh for—also at the first offense after they placed [the victim] in the trunk, they took her purse, they couldn‘t find the keys, but they took a credit card, they took the cigarettes, then went somewhere from her, smoked the cigarettes, and apparently made their next plan.
Mr. Anderson, when talking to the police admitted he had the gun at him (sic) at the second offense but pretty much denied culpability. At the time of the presentence report, Mr. Anderson, rather than taking full responsibility, reported he was with some people who decided to rob some people. He said that as a result of the robbery, someone was shot and a female was put in a truck (sic) of the vehicle and her purse was stolen. He stated that he and the people he was with then left the area and robbed another girl. He stated that a short time later, the police came up and
arrested them. Mr. Anderson advised that he never fired the gun but that at some point in the night he was in possession of it. Asked why he committed the offense, he stated he personally did not comment (sic) any offense but was hanging around with people who did and that he was not under control of himself as the drugs had taken over his mind, apparently smoking some marijuana earlier in the day and taking a couple of Xanax.
(Id. at 17-18).
{¶ 16} The trial court then reviewed Anderson‘s criminal history (set forth above) and concluded based on (1) the facts of the present crimes, (2) his criminal history, and (3) his continued denial of responsibility, that the sentence it imposed was appropriate. (Id. at 19). In our view, these considerations support a finding that a consecutive sentence on the kidnapping charge was necessary to protect the public from future crime and to punish the offender. We certainly cannot say the record clearly and convincingly fails to support these findings by the trial court. The same facts and circumstances discussed above also support the trial court‘s additional findings that consecutive sentences are not disproportionate to the seriousness of Anderson‘s conduct and to the danger he poses to the public. Again, we cannot say the record clearly and convincingly fails to support these findings.
{¶ 17} The only other required finding was either that “[a]t least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of
{¶ 18} In his third assignment of error, Anderson contends the trial court erred in failing to journalize its consecutive-sentence findings in its sentencing entry, as required
{¶ 19} Upon review, we find no reversible error in the trial court‘s method of journalizing its consecutive-sentence findings. In Bonnell, the Ohio Supreme Court stated that a trial court must make consecutive-sentence findings at the sentencing hearing and incorporate those findings into its sentencing entry. Bonnell at ¶ 29. The Bonnell court added, however, that an “inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law.” Id. at ¶ 30. In other words, it does not constitute grounds for reversal, and a trial court may correct its omission with a nunc pro tunc entry, which itself is not appealable. Id. at ¶ 31.
{¶ 20} Here the trial court filed an amended termination entry resentencing Anderson to 19 years in prison. Eighteen minutes later it filed a “supplemental” termination entry containing the consecutive-sentence findings it made at the sentencing hearing. The supplemental entry stated that “[t]he findings herein are hereby incorporated within this Court‘s Sentencing Termination Entry.” (Doc. # 20 at 2). Nothing more was required. The third assignment of error is overruled.
{¶ 21} In his fourth assignment of error, Anderson claims the trial court impermissibly punished him for his successful prior appeal when, at resentencing, it increased his sentence on three counts without providing an adequate explanation for
{¶ 22} On the record before us, we find no presumption of vindictiveness and no indication that the trial court punished Anderson for his prior successful appeal. “The U.S. Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), ‘created a presumption of judicial vindictiveness that applies when a judge imposes a more severe sentence upon a defendant.‘” State v. Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2015-Ohio-2715, ¶ 19, quoting Plumley v. Austin, ___ U.S. ___, 135 S.Ct. 828, 190 L.Ed.2d 923 (2015) (Thomas, J., dissenting). The presumption of vindictiveness does not apply, however, every time a defendant receives a higher sentence. Id. at ¶ 20, citing Alabama v. Smith, 490 U.S. 794, 799 (1989). The presumption applies only when circumstances are such that there exists a “reasonable likelihood” the increased sentence is the product of actual vindictiveness on the part of the sentencing judge. Smith at 799, citing United States v. Goodwin, 457 U.S. 368, 373 (1982).
{¶ 23} The record here falls short of establishing a reasonable likelihood that Anderson‘s sentence was influenced by judicial vindictiveness. Prior to Anderson‘s successful appeal, the trial court imposed the following sentences: (1) two concurrent nine-year prison terms for two counts of aggravated robbery; (2) a consecutive seven-year term for a third count of aggravated robbery; (3) a consecutive six-year term for one count of kidnapping; (4) a consecutive three-year term for three merged firearm specifications, and (5) a consecutive three-year term for another firearm specification that it did not merge. The result was an aggregate 28-year prison term.
{¶ 25} On appeal, Anderson complains about the trial court increasing his sentence on the three aggravated robbery convictions (counts one, two, and three) from two nine-year terms and one seven-year term to three 11-year terms. Although his
{¶ 26} We find Anderson‘s argument unpersuasive. Assuming for the moment that Anderson‘s argument is that the trial court was required to apply the same prior numerical sentences at his resentencing, allowing only reconsideration of the non-mandatory consecutive sentencing, Anderson would have received a 21-year aggregate sentence and not a 19-year sentence. The vacated sentences were 9 years and 9 years and 7 years for three aggravated robberies, six years for the kidnapping and two three-year firearm specifications, one for each of the robbery events that were separated in time and victim. If those same numbers apply, with the trial court making the kidnapping consecutive, as it did upon resentencing, then the sentence is nine years, nine years, and seven years, concurrent for a total of nine years, plus six years for the kidnapping, consecutive for a total of 15 years, plus three years and three years for the two separate firearm specifications, statutorily consecutive, for a total of 21 years, not 19. We fail to see how this lesser sentence is vindictive.
{¶ 27} We also view Anderson‘s reference to an improper “package” sentence as misplaced. As this court noted in Bradley, Saxon stands for the proposition that a trial
{¶ 28} In the present case, this court previously did vacate all of Anderson‘s multiple sentences upon a finding that consecutive sentences had been imposed on some counts without the necessary findings. But Anderson did not appeal that decision, and, consistent with our remand, the trial court proceeded to conduct an entirely new resentencing hearing.
{¶ 29} In State v. Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2015-Ohio-2715, this court recently found the sentencing-package doctrine inapplicable where we previously had “reversed the entire sentence and remanded for a new sentencing hearing.” Id. at ¶ 16. In Rammel, the trial court initially had imposed an aggregate eight-year prison sentence for multiple offenses. On appeal, we found that the trial court had exceeded the statutory maximum sentence for some counts and had failed to make the findings necessary to impose partially consecutive sentences. As a result, we vacated the entire sentence and remanded for resentencing. Id. at ¶ 2-5. On remand, the trial court reduced the sentence it had imposed on some counts. However, the trial court also reconfigured its prior concurrent-consecutive sentencing, changing the sentence on a breaking-and-entering charge from concurrent to consecutive. The result of this
{¶ 30} We rejected both arguments in Rammel. With regard to the sentencing-package doctrine, we reasoned in part: “The trial court did not use the sentencing-package doctrine or exceed the scope of remand. We concluded in Rammel II that changes in sentencing law rendered Rammel‘s original sentence void. Consequently we reversed the entire sentence and remanded for a new sentencing hearing. The trial court had to reconsider all of its sentencing decisions, including which sentences to require Rammel to serve consecutively.” Id. at ¶ 16. The same can be said in Anderson‘s case. In light of our prior opinion vacating his sentences and remanding for resentencing, the trial court had to reconsider all of its sentencing decisions, including the term of imprisonment for the three aggravated robberies. The sentencing-package doctrine imposed no impediment.
{¶ 31} Finally, with regard to vindictive sentencing in Rammel, we reasoned:
There is no basis for a presumption of vindictiveness in a case in which the defendant has agreed to a narrowly set range for sentencing and the total length of a defendant‘s sentence after resentencing for multiple offenses is shorter than the total length of the original sentence. Rammel‘s agreed 5-8 year sentencing range for multiple offenses solidified his
concern over the total length of his sentence, not the length of any individual sentence. Indeed even when the burglary charges were believed to allow maximum 5 year sentences, the only way for the trial court to impose more than the minimum of the 5-8 year range was for some combination of the sentences to be served consecutively. He chose to continue with the agreed range. Thus, in this case the vindictiveness presumption simply does not apply. Moreover, “vindictiveness of a sentencing judge is the evil the [Pearce ] Court sought to prevent rather than simply enlarged sentences.” [Citation omitted]. The Pearce Court wanted to prevent judges when resentencing a defendant who had successfully challenged his conviction from punishing the defendant with a heavier sentence. Imposing a shorter total sentence within an agreed-upon range of sentence is hardly a punishment. Here, the trial court followed Rammel‘s agreement and reduced the total length of his sentence by one year. Accordingly, the circumstances in this case do not indicate a need to guard against vindictiveness.
If the Pearce presumption does not apply, “the burden remains upon the defendant to prove actual vindictiveness.” (Citation omitted.) Smith, 490 U.S. at 799. Rammel does not attempt to show actual vindictiveness, and we do not see any evidence of it.
Id. at ¶ 21-23.
{¶ 32} Rammel is distinguishable from Anderson‘s case insofar as it involved a
{¶ 33} In his fifth assignment of error, Anderson contends the “mandatory” nature of the felony sentencing statutes in Revised Code Chapter 2929 constitutes cruel and unusual punishment as applied to him. He argues that the sentencing statutes compelled the trial court to impose “mandatory prison terms” without the ability to consider his age and various attendant circumstances of youth. In particular, he complains about mandatory three-year terms for firearms specifications, minimum sentences of at least
{¶ 34} Upon review, we find Anderson‘s argument to be unpersuasive. In support of his cruel-and-unusual punishment claim, he analogizes his case to precedent including Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). But Anderson‘s reliance on these cases and other similar cases is misplaced. They bear no similarity to his situation.
{¶ 35} In Miller, the U.S. Supreme Court invalidated mandatory sentencing schemes that require juveniles convicted of homicide to “receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes[.]” Miller at 2475. In Graham, the Court held that the Eighth Amendment prohibits sentences of life without parole for juvenile offenders who commit non-homicide offenses. Graham at 82. In Roper, the Court held that the Eighth Amendment prohibits execution of individuals who were juveniles when they committed their crimes. Roper at 578.
{¶ 36} In the present case, of course, Anderson was not convicted of homicide. Nor did he receive a death sentence or a sentence of life without parole. Therefore, the foregoing cases are not applicable to him. We note that the only “mandatory” aspect of Anderson‘s individual sentences was a three-year prison term for the newly merged firearm specifications and, it appears, a minimum three-year prison term on the
{¶ 37} Even accepting, arguendo, that Ohio law compelled the trial court to impose punishment of at least three years in prison for Anderson‘s substantive first-degree felony counts and a consecutive three-year term for the merged firearm specifications, we see no violation of the Eighth Amendment to the U.S. Constitution or Article I, Section 9 of the Ohio Constitution. Contrary to the implication of Anderson‘s appellate brief, not all “mandatory” punishment imposed on juveniles in adult court is cruel and unusual. In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, for example, the Ohio Supreme Court considered whether Ohio‘s felony sentencing scheme constituted cruel and unusual punishment as applied to a juvenile convicted of aggravated murder in adult
{¶ 38} The only authority Anderson cites directly supporting the proposition that all mandatory minimum sentences imposed on juveniles tried in adult court constitute cruel and unusual punishment is State v. Lyle, 854 N.W.2d 378 (Iowa 2014). In Lyle, the defendant was tried in adult court for a robbery he committed as a juvenile. The sentencing statute in adult court required a prison term of at least seven years. The defendant argued that application of the statute constituted cruel and unusual punishment “when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.” Id. at 380. In a 4-3 decision, the Iowa Supreme Court agreed, concluding that “all mandatory minimum sentences of imprisonment for youthful offenders are unconstitutional under the cruel and unusual punishment clause in article I, section 17 of our constitution.” Id. at 400.
{¶ 39} Upon review, we decline to adopt the majority approach in Lyle. Notably, the Iowa Supreme Court conceded that “no other court in the nation has held that its
{¶ 40} Having examined Eighth Amendment jurisprudence, as well as Article I, Section 9 of the Ohio Constitution, we are persuaded by the three dissenters in Lyle who found no support, in any other case in the nation, for the proposition that any mandatory minimum sentence imposed on a juvenile offender in adult court constitutes cruel and unusual punishment. In the present case, Anderson received three concurrent 11-year prison terms for aggravated robbery, a consecutive five-year term for kidnapping, and a consecutive three-year term for merged firearm specifications. For Eighth Amendment purposes, he appears to propose a categorical restriction prohibiting mandatory prison sentences on juveniles convicted in adult court. As set forth above, however, the only similar categorical prohibitions that have been established outside of Iowa involve sentencing juveniles to mandatory life without parole (Miller, supra), to life without parole for non-homicide offenses (Graham, supra), or to death for offenses committed as juveniles (Roper, supra). We agree with the Lyle dissenters that this line of cases cannot reasonably be extended to prohibit any and all mandatory sentences for juveniles tried in adult court.
{¶ 42} In his sixth and seventh assignments of error, Anderson asserts that the mandatory-transfer provisions of
{¶ 43} In Anderson‘s prior appeal, we addressed and rejected precisely the same assignments of error challenging the mandatory-transfer provisions of
{¶ 44} Upon review, we find res judicata applicable. The doctrine bars re-litigation
{¶ 45} Having overruled all assignments of error, we affirm the judgment of the Montgomery County Common Pleas Court.
FROELICH, P.J., and FAIN, J., concur.
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