State v. PriceState v. Price
{¶1} Defendant-appellant, Christian Price, appeals from the trial court‘s judgment sentencing him to seven years in prison. For the reasons that follow, we reverse and remand for resentencing.
I. Background
{¶2} In Cuyahoga C.P. No. CR-11-549930, a jury found Price guilty of rape, kidnapping, and telecommunications harassment, and the trial court sentenced him to six years incarceration. This court subsequently reversed Price‘s convictions for rape and kidnapping.1 State v. Price, 8th Dist. Cuyahoga No. 98410, 2013-Ohio-1542 (”Price I“).
{¶3} In reversing, this court noted that the evidence against Pricе “was not strong,” and that Price‘s assertions in a recorded telephone conversation between him and the victim that the intercourse was consensual “could certainly be viewed as credible.” Id. at ¶ 28. This court further found that the state violated Price‘s
{¶4} Meanwhile, Price was indicted in Cuyahogа C.P. CR-12-558932 for rape, kidnapping for the purpose of terrorizing the victim, and kidnapping for the purpose of engaging
{¶5} The case was assigned to the same judge as in Price I. The telecommunications charge was dismissed during trial, and the jury found Price not guilty of rape and kidnapping for the purpose of terrorizing the victim, but guilty of kidnapping for the purpose of engaging in sexual activity, a first-degreе felony.
{¶6} Trial on the accompanying sexually violent predator specification was held to the bench. Based on Price‘s rape and kidnapping convictions in Price I, the trial court found him guilty of the sexually violent predator specification.2 Accordingly, pursuant to
{¶7} On appeal, this court affirmed Price‘s conviction. State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912 (”Price II“). The dissenting judge, however, concluded that Price‘s conviction was against the manifest weight of the evidence. He found that any alleged kidnapping was incidental to the rapе and, hence, if the victim‘s testimony did not prove rape beyond a reasonable doubt, it likewise could not prove kidnapping beyond a reasonable doubt. Id. at ¶ 89.
{¶8} Although Price argued on appeal that his conviction on the sexually violent predator specification should be vacated because it was based on his convictions in Price I, which by that time had been reversed although retrial had not yet been had, this court declined to
{¶9} After his retrial in Price I, Price filed a petition for postconviction relief and a new trial in Price II, requesting a new trial on the sexually violent predator specification attached to his kidnapping conviction. In light of the acquittals in Price I, the state conceded that Price was entitled to a new trial on thе sexually violent predator specification. Price waived his right to a jury, and the matter proceeded to a bench trial. After a trial, the trial court found him not guilty of the specification.
{¶10} The court then resentenced Price to seven years incarceration on the kidnaрping conviction in Price II and advised him of postrelease control and his reporting requirements as a Tier II sexual offender. This appeal followed.
II. Analysis
{¶11} Price raises three assignments of error, all of which challenge his seven-year sentence on the kidnapping conviction.
{¶12} When rеviewing felony sentences, this court may increase, reduce, modify a sentence, or vacate and remand for resentencing if we clearly and convincingly find that the record does not support the sentencing court‘s statutory findings, if applicable, or the sentence is contrary to law.
{¶13} During sentencing, the trial judge told Price that she rеmembered the evidence in the case, and “came away from the evidence in this case convinced that you have a tremendous problem disrespecting other people.” She told him that he had “enticed” an innocent woman to his home and then in a “predatory and cunning way” arranged to be upstairs, so that she had to come upstairs, isolated and away from safety. The judge told Price that his behavior was “absolutely despicable.” In response to Price‘s request for mercy and his assertion that he would not get in any more trouble if he was given the chance, the judge told Price that he had “already had several chances.” She stated that she was “of course” referring to his conviction for rape in the earlier case, and stated “that case was equally egregious.” She stated that the appeals court had reversеd the case “because the prosecutor made a remark during closing argument that didn‘t quite square with the evidence,” and she was “very glad” the jury had acquitted him and she did not have to find him to be a sexually violent offender. But, she told Price, “all of this evidence and all of this conduct is evil, it is predаtory.” She told him that she had listened to evidence of “consummate predatory evil, sexually abhorrent behavior.”
{¶14} In his first assignment of error, Price contends that the judge was biased against him and sentenced him based on her belief that he was guilty of acquitted conduct. He argues that the judge indicated that she believed his convictions in Price I should have been upheld when she told him that he was lucky to get a retrial based only on a technicality relating to a comment by the prosecutor in closing statement that did not pertain to the weight of the evidence. He further contends that the judge‘s statement that she listened to “all of this” evidence of “predatory evil” and “sexually abhorrent behavior” demonstrated that she believed he was guilty
{¶15} This court has held that unindicted acts or not guilty verdicts can be considered in sentencing without resulting in error when they are not the sole basis for the sentence. State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-4478; State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶ 32; State v. Martin, 8th Dist. Cuyahoga No. 87618, 2007-Ohio-1833, ¶ 34. See also State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 98 (1990). (“It is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.“)
{¶16} Here, desрite the trial judge‘s apparent consideration of Price‘s conduct relating to rape and kidnapping offenses of which he was acquitted, the record provides adequate support for us to conclude that the sentence was not based solely on the acquitted сonduct. The trial judge reviewed the facts of the kidnapping in this case, noting that she found Price‘s behavior “cunning,” “predatory,” and “absolutely despicable.” Thus, the sentencing transcript as a whole reflects that Price was not sentenced solely on the acquitted conduct.
{¶17} The first assignment of error is overruled.
B. Vindictiveness and the Statutory Sentencing Factors
{¶18} In his second assignment of error, Price contends that the trial court‘s sentence was motivated by vindictiveness. He contends that the court imposed a six-year sentence in Price I for three counts (rape, kidnapping, and telecommunications harassment) but then imposed a higher sentence in this case, i.e., seven years for only one count (kidnapping with the purpose of engaging in sexual activity). He argues that he received a harsher sentence in this case when compared to Price I because he successfully appealed that case and was acquitted upоn remand.
{¶20} 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, or where a sentence imposed after trial is greatеr than a first sentence imposed after a guilty plea), the presumption does not apply and the defendant has the burden of showing actual vindictiveness. Id. at 800.
{¶21} The presumption of vindictiveness does not apply in this case because Price did not receive an enhanced sentence. The trial court initially sentenced Price to ten years to life in prison, the mandatory sentence required by
{¶22} Furthermore, we decline Price‘s suggestion that we compare the sentence in this case with that imposed in another case, recognizing the inevitable quagmire that would result from such comparisons. The sentence imposed in Price I was within the statutory range, as was the sentence imposed in Price II. Sentences within the statutory range are presumptively valid. State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.
{¶23} The second assignment of error is therefore overruled.
C. Consistency and the Statutory Sentencing Factors
{¶24} In his third assignment of error, Price contends that his seven-year sentence is not consistent with those imposed for similar crimes committed by similar offenders. He further contends that the trial court did not consider the statutory sentencing factors set forth in
{¶25} Price did not challenge the consistency of his sentence as compared to other similar offenders in the trial court and, therefore, has waived this argument for appeal. State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37; State v. Luyando, 8th Dist. Cuyahoga No. 97203, 2012-Ohio-1947, ¶ 15. Nevertheless, our review of the record demonstrates that the trial court did not consider the sentencing purposes set forth in
{¶27} The sentencing court must consider the seriousness and recidivism factors set forth in
{¶28} This court has held that a trial court fulfills its duty under the statutes by indicating that it has considered the relevant sentencing factors. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 11, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 14. The trial court need not refer to еach factor on the record; it is sufficient if the trial court acknowledges that it has complied with its statutory duty to consider the factors. Hinton at ¶ 11. This court has found that a trial court‘s statement in its sentencing journal entry that it considered the required statutory factors, without more, is sufficient to fulfill a trial cоurt‘s
{¶29} In this case, the record demonstrates that the trial court made no reference during sentencing to the statutory sentencing criteria and gave no indication that it had considered those criteria. Likewise, the sentencing journal entry contains no statement indicating that the trial cоurt considered the purposes and principles of sentencing and the seriousness of Price‘s conduct and the recidivism factors when it imposed his sentence.
{¶30} The third assignment of error is therefore sustained. The sentence is reversed and the case is remanded for resentencing.
{¶31} Sentence reversed; remanded for resentencing.
It is оrdered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR