STATE OF OHIO v. TONY COLLINS
Nos. 98575 and 98595
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 14, 2013
[Cite as State v. Collins, 2013-Ohio-938.]
BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: REVERSED AND REMANDED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-529965 and CR-533453; RELEASED AND JOURNALIZED: March 14, 2013
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Tony Collins, appeals from the sentence imposed upon resentencing in CR-529965. He contends that the trial court vindictively sentenced him to a higher sentence upon remand and that this court should therefore reduce his sentence to two years, the original sentence. We hold that there is insufficient evidence in the record to rebut the presumption of vindictiveness that arises when a court sentences a defendant to an increased sentence after a successful appeal and, accordingly, vacate the sentence and remand with instructions to the trial court to modify Collins‘s sentence in CR-529965 to two years incarceration.
I. Background
{¶2} Collins was indicted in two cases that were consolidated and heard before the court. The trial court found him guilty of all the charges. In CR-529965, Collins was found guilty of Count 1, drug possession of marijuana in excess of 5,000 grams with forfeiture of a cell phone; Count 2, drug trafficking with forfeiture of a cell phone; and Count 3, possession of criminal tools with forfeiture of a cell phone. In CR-533453, he was found guilty of Count 1, drug possession; and Count 2, drug trafficking with a schoolyard specification.
{¶3} The court determined that the drug trafficking and drug possession convictions merged and the state elected to sentence Collins on the drug trafficking
{¶4} On appeal, this court reversed Collins‘s convictions for drug trafficking, the attendant schoolyard specification, and possession of criminal tools, finding they were not supported by sufficient evidence. This court also reversed the cell phone forfeiture order. This court affirmed Collins‘s convictions for drug possession, however, and remanded for resentencing on the drug possession counts. State v. Collins, 8th Dist. No. 95422, 2011-Ohio-4808.
{¶5} On September 30, 2011, while Collins‘s case was on appeal, H.B. 86 became effective. As a result, the maximum penalty for the drug possession charge in each case was reduced to three years.
{¶6} On remand, the trial court sentenced Collins in CR-529965 to three years incarceration; in CR-533453, Collins was sentenced to one year in prison. The trial court ordered the sentences to be served consecutively, for an aggregate sentence of four years.
{¶7} Collins now appeals the sentence imposed in CR-529965. He contends that the trial court violated his due process rights by imposing a harsher sentence upon remand (three years instead of the two he was originally sentenced to) after his successful appeal of his original convictions.
{¶8} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court held that a trial court violates the due process clause of the Fourteenth Amendment when, motivated by retaliation for a defendant‘s successful appeal, it resentences a defendant to a harsher sentence. Id. at 724. Although a court may impose an enhanced sentence, it must demonstrate that it was not motivated by vindictiveness toward the defendant for exercising his rights. Id. at 723. Thus, to ensure that a non-vindictive rationale supports the increase, and to allay any fears of the defendant that an increased sentence is the product of vindictiveness, the Pearce court held that whenever a judge imposes an increased sentence after a successful appeal, there is a presumption of vindictiveness that can be rebutted only by objective information in the record justifying the increased sentence. Id.; Wasman v. United States, 468 U.S. 559, 564-565, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).
{¶9} Subsequently, in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the Supreme Court limited the presumption announced in Pearce to those situations where there is a “reasonable likelihood” that the enlarged sentence was the product of vindictiveness. Where there is no such reasonable likelihood (e.g., where the resentencing judge is different than the original judge,1 or where a sentence imposed
{¶10} “Actual vindictiveness” implies an animus against a defendant because he exercised his right of appeal that resulted in the reversal of the prior conviction due to an error by the sentencing judge. State v. Boyd, 6th Dist. No. L-07-1095, 2009-Ohio-3803, ¶ 15, citing State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, 883 N.E.2d 1077 (2d Dist.); Pearce at 723.
{¶11} In this case, the original and resentencing judge were the same and accordingly, the presumption set forth in Pearce applies. Our review of the record demonstrates that, although there is nothing in the record to suggest that the resentencing judge imposed the harsher sentence due to actual vindictiveness,3 there is also no objective information in the record to rebut the presumption that vindictiveness was behind the increased sentence.
{¶12} “[F]ollowing a defendant‘s successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that
{¶13} At sentencing, the trial court told Collins that he remembered the cases and described the events that led to the convictions. The judge reviewed Collins‘s criminal record and then, after giving his reasons for imposing consecutive sentences, sentenced Collins as set forth above. The trial court did not reference any information it had obtained since Collins‘s original sentencing, however, to justify the increased sentence4
{¶14} The State contends that the trial court‘s recitation of Collins‘s extensive criminal history was sufficient to justify the increased sentence. However, the record of the original sentencing hearing demonstrates that the trial court was aware of and reviewed Collins‘s criminal record before sentencing him the first time.
{¶15} Further, the State‘s assertion that the trial court could consider charges that were dismissed to justify a harsher sentence upon resentencing is without merit. “The fact that defendant was convicted of fewer offenses did not involve any conduct of the defendant in relation to the offense of which he was convicted. Neither did that fact throw ‘new light’ on defendant‘s life, health, habits, conduct and mental and moral propensities. * * * The fact that charges were dismissed, which as a result diminished the number of sentences the court could impose, portrays no basis for imposing harsher sentences.” State v. Bradley, 2d Dist. No. 06CA31, 2008-Ohio-720, ¶ 18.
{¶16} Finally, the State contends that the increased sentence in CR-529965 is appropriate because Collins‘s aggregate sentence in both cases did not increase. But as the Ohio Supreme Court made clear in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, the sentencing package doctrine is not applicable to Ohio law; sentencing courts may not employ the doctrine when sentencing a defendant and appellate courts may not use the doctrine when reviewing a sentence or sentences. Id. at paragraph two of the syllabus. Thus, per Saxon, each count stands alone, and an
{¶17} Accordingly, because the Pearce presumption applies, and the trial court made no affirmative findings on the record to justify the increased sentence, we are constrained to find vindictiveness in the trial court‘s imposition of the increased sentence in CR-529965 upon remand after Collins‘s successful appeal. Accordingly, we vacate Collins‘s sentence in CR-529965 and remand with instructions that the trial court modify the sentence in that case to two years.
{¶18} Additionally, because the record does not reflect that the trial court entered an order vacating Collins‘s convictions for drug trafficking, the attendant schoolyard specification, and possession of criminal tools, as instructed in our first remand of this case, this court sua sponte orders that Collins‘s convictions for drug trafficking, the attendant schoolyard specification, and possession of criminal tools are hereby vacated.
{¶19} Sentence vacated and remanded.
It is ordered that appellant recover of appellee his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. Case remanded to the trial court for proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR