STATE OF OHIO v. MATTHEW A. RAMMEL
Appellate Case Nos. 25899, 25900
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 2, 2015
[Cite as State v. Rammel, 2015-Ohio-2715.]
Trial Court Case Nos. 11-CR-435, 10-CR-3732. (Criminal Appeal from Common Pleas Court)
Rendered on the 2nd day of July, 2015.
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
KATHERINE R. ROSS-KINZIE, Atty. Reg. No. 0089762, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Matthew Rammel appeals from his resentencing on numerous offenses. He
I. Procedural History
{¶ 2} In 2011, seventeen charges were pending against Rammel in two separate cases. In Case Number 10-CR-3732 he had been charged with third-degree felony burglary under
{¶ 3} The total sentence imposed by the trial court was within the agreed range. The court sentenced Rammel to 180 days for each misdemeanor receiving stolen property and to 18 months for each felony receiving stolen property. For each of the five burglaries the court imposed 5 years. Lastly, the trial court sentenced Rammel to 12 months for breaking and entering. The court ordered that the felony receiving-stolen-property sentences be served consecutively to each other and consecutively to the burglary sentences, that the burglary sentences be served
{¶ 4} Rammel appealed his sentence, arguing among other things that the trial court erred by ordering consecutive sentences and by failing to consider properly the principles of sentencing under
{¶ 5} Rammel later filed an
{¶ 6} On remand, the trial court reduced each burglary sentence from 5 years to 3 years. The court also reduced the two felony receiving-stolen-property offenses from 18 months to 12 months, citing a change in the sentencing law that made these offenses
{¶ 7} Rammel appealed his resentencing, and his appellate counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he had not found any error having arguable merit. We independently reviewed the case and concluded in State v Rammel, 2d Dist. Montgomery Nos. 25899, 25900, 2014-Ohio-1281 (Rammel III), that there were no potential assignments of error having arguable merit. We noted that the sentence is “within the statutory ranges and that the applicable sentencing statutes were followed.” Rammel III at ¶ 10. “Perhaps more importantly,” we continued, “Rammel‘s aggregate sentence range had been agreed to by the parties.” Id. We concluded that there was no merit to the contention that on remand the trial court should simply have reduced the burglary sentences by two years. So we affirmed the new sentence.
{¶ 8} Rammel then filed an
II. Analysis
{¶ 9} Rammel assigns three errors to his resentencing, which focus on the change to the breaking-and-entering sentence, from concurrent to consecutive service. The first assignment of error alleges that the trial court used the sentencing-package doctrine, rejected by the Ohio Supreme Court, to restructure the sentences and alleges that by modifying the breaking-and-entering sentence the court exceeded the scope of remand. The second assignment of error alleges that the change in the breaking-and-entering sentence was motivated by the trial court‘s vindictiveness. The third assignment of error alleges that appellate counsel rendered Rammel ineffective assistance by not raising the issues raised in the first two assignments of error.
A. Is Rammel‘s sentence subject to review?
{¶ 10} The State contends that Rammel is precluded from challenging his sentence by
{¶ 11} The First District has held that “a sentence is not an agreed sentence unless
{¶ 12} Here, Rammel agreed to be sentenced within a certain range but not to a specific term. Given the unusual specific facts of the resentencing in this case resulting from multiple appeals, we decline to find that his sentence is an agreed sentence for purposes of
B. Restructuring Rammel‘s sentence
{¶ 13} The first assignment of error alleges that the trial court erred by using the sentencing-package doctrine to restructure Rammel‘s sentence and erred by exceeding the scope of remand by modifying the breaking-and-entering sentence.
{¶ 14} An appellate court may modify or vacate a sentence if it “clearly and convincingly” finds that “the record does not support the sentencing court‘s findings” under
{¶ 15} Rammel contends that his sentence is contrary to law because the trial court relied on the sentencing-package doctrine to restructure his sentence. In particular, Rammel points to the breaking-and-entering sentence, which the trial court originally ordered him to serve concurrently but on remand ordered him to serve consecutively, despite the fact that the sentence was unaffected by H.B. 86. It was Rammel‘s position at oral arguments that the maximum total sentence that the trial court could impose at resentencing was 5 years.1
{¶ 16} 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. Under Rammel‘s plea agreement with the State, he agreed to plead no contest in exchange for a total sentence of 5 to 8 years. On remand, Rammel could have moved to withdraw his pleas based on this change in the individual maximums, or he
{¶ 17} The first assignment of error is overruled.
C. Vindictive sentencing
{¶ 18} The second assignment of error alleges that the trial court resentenced Rammel vindictively because he had successfully appealed his original sentence.
{¶ 19} 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.” Plumley v. Austin, __ U.S. __, 135 S.Ct. 828, 190 L.Ed.2d 923 (2015) (Thomas, J., dissenting). “Due process of law * * *,” said the Supreme Court, “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Pearce at 725. The Court was concerned that “the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction.” Id. The Court created the
{¶ 20} But the “presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence.’ ” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Rather, the Supreme Court has “limited its application * * * to circumstances ‘where its “objectives are thought most efficaciously served.” ’ ” Id., quoting McCullough at 138, quoting Stone v. Powell, 428 U.S. 465, 482 and 487, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). “Accordingly,” the Court has said, “in each case, we look to the need, under the circumstances, to ‘guard against vindictiveness in the resentencing process.’ ” McCullough at 138, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
{¶ 21} 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.
{¶ 23} 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.
{¶ 24} The second assignment of error is overruled.
D. The claim for ineffective assistance of appellate counsel
{¶ 25} The third assignment of error alleges that Rammel‘s appellate counsel rendered ineffective assistance.
{¶ 26} To prevail on a claim for ineffective assistance, a defendant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, the defendant must show that trial counsel‘s representation fell below an objective standard of reasonableness. Id. Reversal is warranted only where the defendant shows a reasonable probability that but for counsel‘s errors the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). The same
{¶ 27} Rammel alleges that his appellate counsel was deficient for not challenging his sentence based on the issues raised in the first two assignments of error. Given our conclusions on those issues, we cannot say that appellate counsel should have raised the issues or that, if counsel had raised them, Rammel‘s sentence would have been different.
{¶ 28} The third assignment of error is overruled.
III. Conclusion
{¶ 29} We have overruled all of the assignments of error. Therefore the trial court‘s judgment is affirmed.
FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Katherine Ross-Kinzie
Hon. Mary L. Wiseman