State v. CraycraftState v. Craycraft
Donald W. White, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103, for plaintiff-appellee
The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶ 1} Defendant-appellant, Jeremiah C. Craycraft, appeals from a Clermont County Court of Common Pleas decision resentencing him upon remand from this court to correct an allied-offenses sentencing error. For the reasons outlined below, we affirm.
{¶ 2} Appellant was indicted for two counts of felonious assault, two counts of domestic violence, two counts of second-degree felony child endangering, and two counts of third-degree felony child endangering after K.C. and S.C., his two-month-old fraternal twins,
{¶ 3} This court affirmed appellant‘s conviction and sentence on direct appeal. See State v. Craycraft, 12th Dist. Nos. CA2009-02-013 and CA2009-02-014, 2010-Ohio-596. However, upon establishing a new two-part test used to determine whether offenses are allied offenses of similar import under
{¶ 4} Upon remand from this court, the trial court held a new sentencing hearing during which time the state elected to pursue appellant‘s two felonious assault offenses, one relating to K.C. and one relating to S.C., for purposes of sentencing. The trial court then merged the remaining offenses and sentenced appellant to serve two consecutive eight-year prison terms, or, stated differently, a total of 16 years in prison. Appellant now appeals from the trial court‘s decision, raising one assignment of error for review.
{¶ 5} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY RESENTENCING APPELLANT.
{¶ 6} In his single assignment of error, appellant presents three issues for review. Each of the three issues raised by appellant will be addressed more fully below.
De Novo Sentencing Hearing
{¶ 7} Initially, appellant argues that the trial court erred by holding a de novo sentencing hearing upon remand from this court to correct the allied-offenses sentencing error. We disagree.
{¶ 8} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, the Ohio Supreme Court analyzed the scope of a trial court‘s resentencing hearing following a remand to correct an allied-offenses sentencing error. As the court stated, “[i]n a remand based only on an allied-offenses sentencing error,” such as the case here, “the guilty verdicts underlying a defendant‘s sentences remain the law of the case and are not subject to review. Further, only the sentences for the offenses that were affected by the appealed error are reviewed de novo; the sentences for any offenses that were not affected by the appealed error are not vacated and are not subject to review.” (Emphasis added and internal citations omitted.) Id. at ¶ 15. The court also found that a “remand for a new sentencing hearing generally anticipates a de novo sentencing hearing.” Id.
{¶ 9} While not addressing the exact issue raised by appellant here, based on the Ohio Supreme Court‘s decision in Wilson, we find the trial court did not err by holding a de novo sentencing hearing upon remand from this court to correct the allied-offenses sentencing error. See State v. Weathers, 12th Dist. No. CA2011-01-013, 2011-Ohio-6793, ¶ 25 (remanding matter for new sentencing hearing upon finding an allied-offenses sentencing error); State v. McClendon, 2nd Dist. No. 23558, 2011-Ohio-5067, ¶ 33 (remanding matter to
Vindictive Resentencing
{¶ 10} Next, appellant argues that the trial court “vindictively increased” his sentence upon remand “after a successful appeal to the Ohio Supreme Court.” As noted above, appellant was originally sentenced to serve a total of 22 years in prison. As part of this sentence, the trial court ordered appellant to serve two consecutive six-year prison terms, or, stated differently, a total of 12 years in prison, on the two felonious assault offenses. However, upon remand from this court, the trial court ordered appellant to serve two consecutive eight-year prison terms, for a total of 16 years in prison, on the two felonious assault offenses. According to appellant‘s argument, which implicates North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969), and its progeny, the trial court violated his due process rights by increasing the sentence he received on each felonious assault offense from a six-year prison term to an eight-year prison term. We disagree.
{¶ 11} In Pearce, the U.S. Supreme Court explained that due process precludes vindictiveness from playing any role in a defendant‘s sentence following a remand. Id. at 725. Under some circumstances, a presumption of vindictiveness exists when a defendant
{¶ 12} At the outset, although we note that the same judge presided over both appellant‘s original sentencing hearing and his new sentencing hearing upon remand, we question whether the presumption of vindictiveness automatically applies when a defendant is resentenced following a remand for the application of the Ohio Supreme Court‘s decision in Johnson. As in those cases requiring a remand for resentencing under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, these are not cases in which a trial court judge has been reversed for erroneously applying the law. See State v. Andrews, 12th Dist. No. CA2006-06-142, 2007-Ohio-223, ¶ 23 (questioning whether presumption of vindictiveness automatically applies when a defendant is resentenced as a result of the Ohio Supreme Court‘s decision in Foster).
{¶ 13} That said, to support his vindictive resentencing claim, appellant initially argues that the trial court engaged in impermissible “sentence packaging” during its original sentencing hearing by sentencing him to serve two consecutive six-year prison terms on the felonious assault offenses knowing “it was able to impose more time on the other offenses which now required merger.” However, even if we were to find the trial court originally engaged in impermissible sentence packaging, it is clear that upon remand the trial court properly considered each of the state elected felonious assault offenses before ordering appellant to serve two consecutive eight-year prison terms. Each of the two elected offenses
{¶ 14} Appellant also argues that there was no evidence presented to justify increasing his sentence from two consecutive six-year prison terms to two consecutive eight-year prison terms. According to appellant, this indicates actual vindictiveness on the part of the trial court. However, as noted above, the trial court was required to conduct a de novo review of the affected sentences and “impose a sentence that [was] appropriate for the merged offense” upon remand. Wilson, 2011-Ohio-2669 at ¶ 15, 18; Whitfield, 2010-Ohio-2 at ¶ 24.
{¶ 15} Furthermore, prior to sentencing appellant to serve two consecutive eight-year prison terms upon remand, the trial court specifically stated that it had considered appellant‘s extensive criminal history, the severity of the victims’ injuries, the victims’ ages at the time of the assault, appellant‘s relationship to the victims, and his lack of remorse. We find no error in the trial court‘s decision finding two consecutive eight-year prison terms was an appropriate sentence. Accordingly, because the record is devoid of any evidence indicating the trial court‘s sentencing decision was vindictive, appellant‘s second issue presented is overruled.
Application of 2011 Am.Sub.H.B. No. 86
{¶ 16} Finally, appellant argues that 2011 Am.Sub.H.B. No. 86, effective September 30, 2011, which revised several felony sentencing provisions previously invalidated and severed by the Ohio Supreme Court in Foster, should be applied here “since this court will be reviewing his sentence after the effective date” and this matter may be remanded back “to be
{¶ 17} In light of the foregoing, having found no merit to any of the three issues appellant raised on appeal, we overrule appellant‘s single assignment of error.
{¶ 18} Judgment affirmed.
POWELL, P.J., and HUTZEL, J., concur.