State v. Howard ( 2007 )

{¶ 26} I concur in the majority's resolution of the first assignment of error. However, with respect to the second assignment of error, I conclude that the trial court erred by imposing a harsher sentence of an additional three years' imprisonment in violation of the Due Process Clauses of both the Ohio and U.S. Constitutions.

{¶ 27} There is nothing in this record that suggests that the second trial court judge relied upon information not before the first judge. Further, the second judge provides absolutely no explanation for the harsher sentence after a successful appeal.

{¶ 28} I agree with the majority that justice must not only be done, it must seem to be done. In order to achieve justice in this case, I believe it is both wise and consistent with the Ohio and U.S. Constitutions to require any second sentencing judge to place on the record the reason(s) for imposing a harsher sentence. Requiring an articulation with some particularity of the information relied upon to enhance a sentence is not an onerous task. Such a rule would prevent the sentencing disparities that are likely to occur when two different judges engage in sentencing on the same sentencing facts and would thus avoid the unseemly appearance that the defendant's ultimate sentence is greater than his first for no better reason than a change in the identity of the sentencing judge. Such a rule, easy of application, protects a successful appellant from the possibility of retaliatory vindictiveness and safeguards a convicted defendant's right to an appeal from any chilling effect borne out of the potential that an even harsher sentence may result on identical facts.

{¶ 29} In the clear absence of cognizable and temporarily relevant data, combined with a record devoid of any explanation by the judge for an additional three-year term, I would find that vindictiveness is established. AlthoughPearce has been modified, it is still necessary that new information of an objective character utilized by the court be placed on the record. Otherwise, the "constitutional legitimacy" of a harsher sentence cannot be assessed by appellate review.

{¶ 30} Although the majority readsMcCullough as eliminating the presumption of vindictiveness enunciated in Pearce, such a conclusion is far too restrictive. McCullough involved jury sentencing wherein the conviction as well as the sentence was set aside by the trial judge. Subsequently, the trial judge imposed an increased sentence after retrial and conviction. Obviously, after a second trial on the merits, nothing in the Constitution would require the sentencing judge to ignore "objective information" acquired during the trial that justifies a harsher penalty. Thus, in McCullough, the presumption was inapplicable and the trial judge's "careful explanation" of its findings complied with Pearce and its progeny. Such is not true in the case before us.Pearce does not permit an enhancement without any justification or explanation.

{¶ 31} Special vigilance is warranted in this type of case. I note that this is not the first or only case in which this particular judge increased a sentence after remand without explanation. See State v. Davis (Mar. 9, 2007), Clark App. No. 2006-CA-69, 2007 WL 706802.

{¶ 32} I would reverse and modify the aggregate sentence to 25 years pursuant to the authority set forth in Section 3(B)(2), Article IV of the Ohio Constitution and R.C. 2953.08(G)(2).