State v. Watkins ( 2011 )

[Cite as State v. Watkins, 2011-Ohio-2979.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0088
vs. : T.C. CASE NO. 08CR0965
JON A. WATKINS :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 17th day of June, 2011.
. . . . . . . . .
Andrew D. Wilson, Prosecuting Attorney, Atty. Reg. No.0073767;
Andrew R. Picek, Asst. Prosecuting Attorney, Atty. Reg. No.
0082121, 50 E. Columbia Street, 4th Floor, P.O. Box 1608,
Springfield, OH 45501
Attorneys for Plaintiff-Appellee
Charles W. Slicer, III, Atty. Reg. No.0059927, 111 W. First Street,
Suite 205, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This appeal is from a final judgment of the court of
common pleas that imposed sentences for two felony offenses,
following our reversal of sentences the court previously imposed
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and a remand for resentencing. State v. Watkins, 186 Ohio App.3d
619, 2010-Ohio-740.
{¶ 2} Defendant, Jon A. Watkins, was found guilty following
a jury trial of aggravated robbery, R.C. 2911.11, a first degree
felony, and kidnapping, R.C. 2905.01, as a second degree felony.
The trial court imposed maximum sentences of ten years for the
aggravated robbery and eight years for the kidnapping. The court
further ordered that the two terms would be served consecutively,
for an aggregate prison term of eighteen years. Watkins appealed.
{¶ 3} We reversed the sentences the court imposed on findings
“that the facts in the record in this case do not justify maximum
consecutive sentences for a first time offender and that the trial
court abused its discretion by imposing maximum consecutive
sentences.” ¶46. We sustained Watkins’s third assignment of
error “because we conclude that the imposition of maximum
consecutive sentences is not warranted by the evidence in this
record, resulting in an 18-year sentence for a first-time offender
. . .” ¶47. Pursuant to App.R. 27, we reversed the sentences
imposed by the trial court and ordered the cause “remanded for
resentencing.” ¶57.
{¶ 4} On remand, after acknowledging our decision and order
of remand, and discussing the reasons for the eighteen year sentence
it previously imposed, the trial court stated:
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{¶ 5} “I can’t just do something that I don’t think is right;
and if I think the facts in the record do justify maximum consecutive
sentences, I think that’s not just within my discretion but it’s
my duty to impose sentences I see fit.” (Tr. 40.)
{¶ 6} The court then imposed the same maximum, consecutive
eighteen-year sentences we previously reversed. Defendant filed
a notice of appeal.
ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS
DISCRETION AND IMPOSED A MAXIMUM CONSECUTIVE SENTENCE.”
{¶ 8} In Blust v. Lamar Advertising of Mobile, Inc. (2009),
183 Ohio App.3d 478, we wrote, at ¶10:
{¶ 9} “The law-of-the-case doctrine holds that the decision
of the reviewing court in a case remains the law of that case on
the questions of law involved for all subsequent proceedings at
the trial and appellate levels. Nolan v. Nolan (1984), 11 Ohio
St.3d 1, 11 OBR 1, 462 N.E.2d 410. The doctrine functions to compel
trial courts to follow the mandates of reviewing courts. Thatcher
v. Sowards (2001), 143 Ohio App.3d 137, 757 N.E.2d 805. ‘Moreover,
the trial court is without authority to extend or vary the mandate.’
Id. at 142, 757 N.E.2d 805.”
{¶ 10} Our decision in the prior appeal is an unappealed final
order. It determined a question of law: that the trial court abused
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its discretion when it imposed maximum, consecutive sentences
totalling eighteen years. That decision was the law of the case
for purposes of the remand for resentencing we ordered pursuant
to App.R. 27. The trial court was then required to execute our
mandate. The court instead varied our mandate by imposing the
same maximum, consecutive sentences we previously reversed.
{¶ 11} We did not find in the prior appeal that the court abused
its discretion by failing to state cogent reasons for the sentence
the court previously imposed. We found that the eighteen-year
sentence the court imposed was not justified by “the facts in the
record of this case.” ¶46. That concluded the issue of law
concerned. The trial court might disagree with our decision, but
the court was not thereby authorized to fail to execute our mandate.
{¶ 12} From the statement quoted above, it appears that the
trial court judge was unable to reconcile his views with our prior
decision. When a judge’s impartiality might reasonably be
questioned, the judge has an obligation to recuse himself or
herself. Code of Judicial Conduct, Rule 2.11(A). By instead
refusing to execute our mandate due to his contrary personal views,
the judge did not comply with the law of the case. Rule 1.1 of
the Code of Judicial Conduct states: “A judge shall comply with
the law.”
{¶ 13} Defendant’s assignment of error is sustained. Because
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we lack confidence that the trial court judge, Hon. Douglas M.
Rastatter, will execute another mandate to resentence Defendant,
we will exercise the authority conferred on us by Section 3(B)(2),
Article IV of the Ohio Constitution to modify the judgment from
which this appeal is taken.
{¶ 14} As we pointed out, Defendant Watkins is a first offender.
The victim of his kidnapping offense was subjected to degrading
behavior, but suffered no physical harm. In consideration of the
matters in R.C. 2929.11 and 2929.12, we will order the sentences
the trial court imposed modified, to instead impose a sentence
of six years for the aggravated robbery conviction and four years
for the kidnapping conviction, to be served consecutively. As
modified, the judgment of the trial court will be affirmed.
{¶ 15} Further, and pursuant to App.R. 27, the case will be
remanded to the trial court for the limited purpose of notifying
the Ohio Department of Rehabilitation and Correction and any other
relevant authority of the modified sentence, to do so in no less
than thirty days, and to thereafter report its compliance with
our mandate.
FAIN, J. And FROELICH, J., concur.
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Copies mailed to:
Andrew R. Picek, Esq.
Charles W. Slicer, III, Esq.
Hon. Douglas M. Rastatter