487 N.E.2d 585 | Ohio Ct. App. | 1985
Prosecutorial misconduct caused another panel of this court to reverse this defendant's previous convictions for aggravated burglary, aggravated robbery, and felonious assault. On remand for retrial, defendant pled guilty to aggravated burglary and felonious assault, and the state dismissed the aggravated robbery charge. Defendant now appeals from the resulting convictions for those two offenses, claiming that the court sentenced him improperly. He does not challenge the propriety of his convictions. More specifically, defendant contends that the new sentence for those offenses (a) increases the penalty imposed without justification, (b) requires him to pay a substantial fine despite his indigency, and (c) unfairly orders his sentences to be served consecutively. We find no abuse of the trial court's discretion by ordering consecutive sentences, but defendant's first two contentions have merit. Therefore, we affirm his unchallenged convictions, but remand for resentencing.
Following defendant's first trial, the court sentenced him to seven to twenty-five years for aggravated burglary, seven to twenty-five years for aggravated robbery, and three to fifteen years for felonious assault. The court directed that the sentence for felonious assault would run consecutively to the sentences for the other two offenses which would run concurrently. Thus, his aggregate sentence was ten to forty years. The court imposed no fine. Following defendant's convictions on guilty pleas, the court sentenced him to seven to twenty-five years for aggravated burglary and a consecutive term of five to fifteen years for felonious assault. Thus, his aggregate sentence on this occasion was twelve to forty years. In addition, the court sentenced the defendant to pay a $7,500 fine on the felonious assault charge.
Defendant's three assignments of error assert:
"I. The trial court erred when upon remand from the court of appeals it imposed upon appellant a more severe sentence than the sentence imposed at his original trial.
"II. The trial court erred when it imposed on indigent appellant a fine in addition to incarceration.
"III. The trial court erred when it imposed consecutive sentences upon appellant where it declared the offenses to be of similar import."
Before imposing an increased sentence on a defendant who has prevailed on appeal, the court must explain on the record the reasons for the greater sentence. That procedure is necessary to dispel any inference that the court is retaliating for the defendant's exercise of his right to appeal. An increased sentence is permissible only if the court's reasons are based on objective information concerning identifiable conduct by the defendant after the time of the original sentence. Absent such an explanation on the record, the increased sentence is constitutionally defective. See North Carolina v. Pearce (1969),
Defendant also correctly argues that the court should not sentence an indigent to pay a substantial fine which he has no likely ability to pay. R.C.
Finally, defendant argues that the court should not have ordered consecutive sentences because aggravated burglary and felonious assault are allied offenses of similar import. Defense counsel cites a statement by the trial judge which appears to refer to this subject indirectly. We suspect that the quoted language may have been an inadvertent misstatement or that it was mistranscribed. In any event, these two offenses are not allied offenses of similar import within the meaning of R.C.
Therefore, these two offenses do not merge for sentencing purposes. The trial court had reasonable latitude or discretion to determine whether defendant should serve these sentences concurrently or consecutively. State v. Johnson (1978),
Defendant's first two assigned errors have merit. His third does not.1 We affirm defendant's convictions, but remand for resentencing consistent with this opinion.
Judgment accordingly.
CORRIGAN, C.J., and NAHRA, J., concur.