State v. Long

[Cite as State v. Long, 2023-Ohio-1952.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-90
v. : (C.P.C. No. 15CR-3564)
Michael A. Long, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 13, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Timothy Young, Ohio Public Defender, and
Addison M. Spriggs, for appellant. Argued: Addison M.
Spriggs.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} In 2016, defendant-appellant, Michael A. Long, was convicted, following a
jury trial, of aggravated burglary, kidnapping, aggravated robbery, felonious assault,
murder, attempted grand theft of firearms, and having a weapon while under disability
(“WUD”). All but the WUD count included firearm specifications.1 Appellant elected to
have the WUD tried by the court. The trial court sentenced appellant to an aggregate prison
term of 25 years to life. On direct appeal, this court rendered a decision reversing and
remanding the matter for a new trial based on the trial court’s violation of appellant’s Sixth
1 The aggravated burglary, kidnapping, aggravated robbery, felonious assault, and murder counts carried
three-year firearm specifications; the attempted grand theft of a firearm count included a one-year firearm
specification.
No. 20AP-90 2
Amendment right to a public trial. State v. Long, 10th Dist. No. 16AP-708, 2017-Ohio-9322(“Long I”).
{¶ 2} After the judge who presided over appellant’s jury trial was elected to this
court, another judge was appointed to preside over appellant’s trial on remand. Appellant
voluntarily waived and relinquished his right to a jury trial, electing the matter to be heard
by the court. Appellant was convicted on all charges and attendant firearm specifications,
with the exception of the firearm specification accompanying the murder charge. The trial
court sentenced appellant to an aggregate prison term of 64 years to life.
{¶ 3} This court affirmed appellant’s convictions on direct appeal. State v. Long,
10th Dist. No. 20AP-90, 2021-Ohio-2656 (“Long II”). On May 18, 2022, this court granted
appellant’s application for reopening of his appeal for the limited purpose of allowing
review of appellant’s claim that he received ineffective assistance of appellate counsel for
failing to raise an argument regarding vindictive sentencing. State v. Long, 10th Dist. No.
20AP-90, 2022-Ohio-1601 (“Long III”).2 The matter is now before us on reopening. For
the following reasons, we confirm our prior judgment affirming the convictions.
I. Facts and Procedural History
{¶ 4} The evidence and testimony presented at appellant’s bench trial are set forth
in Long II at ¶ 2-14. In brief, early in the morning of July 17, 2015, Jill Mathias-Bowles
(“Jill”), her husband Timothy Bowles, Sr. (“Tim”), and their son Shawn Bowles (“Shawn”)
returned home from work and discovered another family member, Timothy Bowles, Jr.
(“Timmy”) tied up in the basement. Timmy had been beaten and was unconscious. Jill,
Tim, and Shawn encountered appellant and another man, Clement Cooper (“Poncho”)
attempting to steal several guns from a basement bedroom. A physical altercation between
the Bowles, appellant, and Poncho resulted in Jill being shot by appellant, Tim being struck
by a gun wielded by appellant, and Shawn being stabbed multiple times by a screwdriver
Poncho had extracted from his pocket while being restrained by Shawn in a chokehold.
Poncho died from asphyxia resulting from the chokehold.
2In a journal entry filed July 11, 2022, this court granted appellant’s motion to add an additional assignment
of error. However, subsequently we granted an application to reconsider filed by plaintiff-appellee, State of
Ohio, and denied appellant’s motion. State v. Long, 10th Dist. No. 20AP-90 (Aug. 16, 2022) (memorandum
decision).
No. 20AP-90 3
{¶ 5} In addition to the facts underlying appellant’s convictions, we set forth the
following procedural history relevant to the argument appellant advances in his reopened
appeal. Following this court’s remand in Long I, the judge who presided over appellant’s
jury trial became aware of various social media postings made by appellant’s mother,
Margaret Long (“Ms. Long”), related to the trial proceedings and/or the trial participants.
Concerned that continued postings of a similar nature could potentially jeopardize
appellant’s right to a fair trial, the court issued an order barring and prohibiting trial
participants and their extended families, persons acting in concert with trial participants
and their families and/or persons acting at the behest of or as agents of trial participants
and their families from posting on social media platforms any discovery from the case,
anything obtained through attorney-client communications, and any express or implied
threats against former jurors, witnesses, attorneys, and court personnel associated with the
case.3 The court advised that the order would remain in effect until a verdict was reached
in the second trial and that any violation of the order could result in a contempt finding, a
jail sentence, a monetary fine, criminal charges, or other appropriate sanctions.
{¶ 6} On September 13, 2018, the trial court issued a notice to Ms. Long ordering
her to personally appear on September 19, 2018 and show cause as to why she should not
be held in contempt for violating the court’s July 12, 2018 order. In a separate entry entered
the same day, the court appointed counsel to represent Ms. Long. After Ms. Long failed to
appear for the contempt hearing, the court issued a warrant for her arrest. Ms. Long
eventually turned herself into authorities. Following an October 3, 2018 hearing, the trial
court found Ms. Long in contempt and sentenced her to 20 days in jail, with 9 days of jail-
time credit. The October 3, 2018 order specified that the July 12, 2018 order would remain
in effect through the conclusion of appellant’s trial. Subsequent to this hearing, the judge
was elected to the appellate bench, and the case was then reassigned to a successor judge.
{¶ 7} On August 6, 2019, plaintiff-appellee, State of Ohio, filed a motion to show
cause for contempt against Ms. Long for continued violations of the July 12, 2018 order.
The successor court held a hearing on the motion on September 10, 2019. The court heard
arguments concerning the validity of the court’s July 12, 2018 order restricting the actions
3 The order defined “families” as “including but not limited to mothers, fathers, brothers, sisters, aunts, uncles,
cousins, grandparents, children, nephews, nieces and siblings-in-law.” (July 12, 2018 Order at 5.)
No. 20AP-90 4
of non-parties and, relatedly, whether contempt proceedings were an appropriate
enforcement mechanism. The state presented exhibits as to the alleged offending social
media postings. At the conclusion of the hearing, the court asked the parties to submit
briefs on the legal issues and ordered that the exhibits were to be filed under seal to protect
appellant’s Sixth Amendment rights. The parties submitted their post-hearing briefs on
September 27, 2019.
{¶ 8} On October 24, 2019, the trial court held a hearing in appellant’s criminal
case at which it addressed, as relevant here, appellant’s written waiver of his right to a jury
trial and his election to be tried by the court.4 Thereafter, appellant’s bench trial
commenced on October 29, 2019. Prior to the presentation of evidence, the trial court
noted Ms. Long had indicated to the court that she had obtained “power of attorney” over
appellant and wished to fire appellant’s counsel. During a colloquy with both appellant and
Ms. Long, the trial court cautioned Ms. Long against posting comments on social media
about the upcoming trial. Ms. Long indicated she would try to control her emotions over
the course of the trial. The trial court noted Ms. Long’s tendency to speak before thinking
and advised her to remain calm during the proceedings. Ms. Long agreed and told the
judge “you never gave me no bad vibe.” (Oct. 29, 2019 Tr. at 66.) The trial then
commenced. After the state presented its first witness, the court and the parties agreed to
resume trial on December 16, 2019.
{¶ 9} In the interim, on November 18, 2019, the state filed a motion to show cause
for contempt against Ms. Long for continued violations of the July 12, 2018 order. The trial
court held a hearing on the motion on December 3, 2019. At the outset of the hearing, the
court noted that one of Ms. Long’s recent social media posts referenced the court, and, as a
result, the matter had been referred to the Franklin County Sheriff’s Office. Following an
off-the-record discussion with the common pleas court administrative judge, the trial court
indicated it would refer the contempt matter to a visiting judge of the common pleas court
for hearing on January 21, 2020. Noting the state’s objection, the trial court averred “[w]e
have to avoid the appearance of impropriety. * * * I’m not taking this lightly. I think I can
be completely fair and impartial but that’s not the question here. It’s what the appearance
is.” (Dec. 3, 2019 Tr. at 6-7.) The court further asserted that because appellant had elected
4 Appellant’s jury waiver was filed October 24, 2019.
No. 20AP-90 5
to be tried by the court, “I have a young man’s life in my hands * * * [a]nd to be quite frank
with you, I don’t want anything to interfere with that.” (Dec. 3, 2019 Tr. at 10.) Referencing
Ms. Long’s actions, the court stated “I would just as soon get it out of the mix. My chief
concern is not her, it’s Michael.” (Dec. 3, 2019 Tr. at 11.)5
{¶ 10} Appellant’s trial resumed on December 16, 2019. During defense counsel’s
cross-examination of Jill on December 17, 2019, the court paused the proceedings, and the
following colloquy between the court, a courtroom deputy, Ms. Long, and the prosecutor
occurred:
THE DEPUTY: Out of the courtroom.
MS. LONG: Huh-uh.
THE DEPUTY: Out of the courtroom.
THE COURT: You can go voluntarily or they can take you the
other way.
MS. LONG: This is bullshit. I’m already going to call the
reporters anyhow on you.
THE COURT: Well, call the reporters then, ma’am.
Just for the record, she’s been sitting behind the prosecution
the whole thing [sic] making faces during testimony toward
several of the witnesses.
I had alluded this to the deputies during the lunch hour. They
were watching it. They were directed if it continues, she was
to be warned once and then she would be removed or held in
contempt.
***
* * * [H]er actions during testimony, she would make sure that
she was behind - - several times you [the prosecutor]
maneuvered so that you would block her. She would only
move again. She was constantly making faces.
Now, deputies, let me ask a question. Did you see the same
thing I was seeing - -
5The entry of transfer was signed by the trial judge and the administrative judge on December 18, 2019; the
entry was filed January 21, 2020.
No. 20AP-90 6
THE DEPUTY: Yes.
THE COURT: - - where she was making faces towards the
witnesses?
THE DEPUTY: Yeah, that was my third time actually saying
something to her.
THE COURT: Okay. Anything else for the record?
[THE PROSECUTOR:] And, Judge, we were just trying to
position ourselves so our witnesses felt comfortable and not
threatened by her actions, Your Honor.
(Dec. 17, 2019 Tr. at 633-34.)
{¶ 11} A discussion followed as to Ms. Long’s need to assist her blind son
(appellant’s brother) in exiting the courtroom. The court assured Ms. Long someone would
take her son to her. Although the record does not reveal Ms. Long’s response to the court’s
statement, the record does note an exchange between appellant and Ms. Long wherein
appellant implores Ms. Long to “just chill for me” and Ms. Long replies, “I’m doing it for
you.” (Dec. 17, 2019 Tr. at 636.) Thereafter, the court asserted, “[l]et’s take [appellant] out.
Let’s take a recess, chill for a minute.” (Dec. 17, 2019 Tr. at 636.) Addressing the courtroom
deputy, the court averred, “[o]ne more outburst and just take her. * * * She can leave the
building. If she so much as comes through those doors trying to enter back in through the
other doors, just arrest her, bring her in front of me, we’ll do a summary hearing right now,
we’ll call Mr. Gatterdam [Ms. Long’s appointed counsel in the contempt proceedings], I will
put her in jail for the night, and then we can have the contempt proceeding tomorrow.”
(Dec. 17, 2019 Tr. at 636-37.)
{¶ 12} The court then asked the courtroom deputy if appellant was distraught about
what had transpired with Ms. Long. After the deputy indicated appellant was probably
upset, the court granted defense counsel’s request to confer with appellant. Following a
brief recess, defense counsel and the prosecutor completed their questioning of Jill.
Thereafter, the trial court told appellant’s brother to advise Ms. Long that she would be
permitted back in the courtroom only after the trial court consulted with her appointed
counsel. The court then discussed Ms. Long’s behavior with appellant, stating, “[y]ou’re
here for your life, and I’m worried that her priorities are more about the fight than it is
No. 20AP-90 7
about your life. * * * Right now I care about your rights. Okay? And I will do so here, but
she doesn’t need to be disruptive.” (Dec. 17, 2019 Tr. at 653-54.)
{¶ 13} Continuing, the court stated, “[Appellant], here’s my problem. * * * I’ve got
multiple jobs in this situation. I’m to protect your rights. I’m to protect the safety of
everybody in this room. Those are the people that help me. * * * I got to deal with witnesses.
Now, you can say what you want. I watched your mom all day along over there. * * * And
she can’t help herself sometimes I don’t think. * * * I think she thinks she’s doing the right
thing and she doesn’t realize how it’s coming off. * * * I’m worried that her actions are
disrupting your ability to have a fair trial and I’m not going to have it. * * * You’ve got a
tough situation here and you need all the benefits you can get. * * * And I don’t know what
legal advice she’s giving you, but you need to think things through.” (Dec. 17, 2019 Tr. at
656-57.) Thereafter, trial was adjourned until the next morning, December 18, 2019.
{¶ 14} Prior to the presentation of evidence on December 18, 2019, the trial court
noted for the record that Ms. Long’s counsel had been apprised of the previous day’s events.
The court informed the courtroom deputies that Ms. Long was not permitted inside the
courtroom until the court heard from her counsel. Addressing appellant, the trial court
averred “I was not happy with [Ms. Long’s] actions yesterday. She was being disruptive
and, you know, she’s excluded for now, until [her counsel] can come to me after our
discussions and explain to me why I should let her back in.” (Dec. 18, 2019 Tr. at 693-94.)
{¶ 15} Trial resumed and continued until the trial court rendered judgment on the
record on the last day of trial, January 16, 2020. After the court rendered its judgment, Ms.
Long interjected, “You know this is bullshit.” (Jan. 16, 2020 Tr. at 1025.)6 The court
averred, “Whoa, ma’am. Why don’t you take your son and go.” (Jan. 16, 2020 Tr. at 1025.)
Addressing appellant, Ms. Long stated “Michael. Michael, don’t worry.” (Jan. 16, 2020 Tr.
at 1026.) Thereafter, the court told Ms. Long, “You say another word, ma’am, and you’re
going in.” (Jan. 16, 2020 Tr. at 1026.) Appellant interjected, “Please don’t, mom.” (Jan. 16,
2020 Tr. at 1026.)
6 The record does not establish on what date or under what circumstances Ms. Long was permitted to return
to the courtroom.
No. 20AP-90 8
{¶ 16} The trial court held a sentencing hearing on February 3, 2020, during which
it permitted Ms. Long to make a statement on behalf of appellant.7 Ms. Long began by
questioning some of the evidence the state presented at trial. When defense counsel
attempted to interject, Ms. Long told him to “[p]lease get out of my face,” and to “[l]et me
speak.” (Feb. 3, 2020 Tr. at 17.) The trial court informed Ms. Long she would be permitted
to speak and that she should direct her comments to the court and not the courtroom
gallery. Ms. Long then stated, “Mikey is innocent and they know he is. They covering up
for Timmy and them. It don’t make no sense. This is this white privilege shit that - - that’s
why black people don’t want to come up in these mother fucking courtrooms * * * because
they can never get a fucking fair trial.” (Feb. 3, 2020 Tr. at 18.) The trial court responded,
“Enough. Wait a minute” and told Ms. Long to “[t]urn back around.” (Feb. 3, 2020 Tr. at
19.) Ms. Long stated, “No, I’m done” to which the trial court replied, “No, you’re not.” (Feb.
3, 2020 Tr. at 19.)
{¶ 17} Ms. Long then stated: “Give him his (inaudible) so we can file his fucking
appeal.” (Feb. 3, 2020 Tr. at 19.) At this point, appellant told Ms. Long, “He talking to you.
Just come and talk to him.” (Feb. 3, 2020 Tr. at 19.) The trial court averred, “It’s okay. Let
her go pout.” (Feb. 3, 2020 Tr. at 19.) Addressing appellant, Ms. Long asserted: “He
already said I threatened him. * * * He should have been pulled off your case when he said
I threatened him.” (Feb. 3, 2020 Tr. at 19.) The trial court then stated, “Okay. Chill.”
(Feb. 3, 2020 Tr. at 19.)
{¶ 18} Later in the proceeding, Jill and Ms. Long exchanged heated words which
ultimately led to an admonishment by the courtroom deputy that continued argument
could result in the ejection of both women from the courtroom. Thereafter, the court stated,
“I sat through the trial, just so everybody knows. I watched the evidence. I listened to
everybody intently.” (Feb. 3, 2020 Tr. at 31.) The trial court ultimately imposed an
aggregate sentence of 64 years to life.
II. Assignment of Error
{¶ 19} In his reopened appeal, appellant assigns one error for our review:
The trial court erred when it vindictively increased Mr. Long’s
sentence from 25-years-to-life imprisonment after a
7The trial court also allowed statements in support of appellant from Maddie Cooper Cunningham and
Vanessa Arnold, Poncho’s mother and aunt, respectively. Kimberly Bowles spoke on behalf of the victims.
No. 20AP-90 9
successful first appeal to 64-years-to-life imprisonment.
Sixth and Fourteenth Amendments, United States
Constitution; Article I, Section X, Ohio Constitution.
III. Analysis
{¶ 20} Once an appeal has been reopened, the appellant “must establish the merits
of both the direct appeal and the claim for ineffective assistance of [appellate] counsel.”
Long III at ¶ 26. See also State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, ¶ 37 (“Under
App.R. 26(B), the determination whether appellate counsel was deficient and prejudiced
the applicant is to be made after the appeal has been reopened and the parties are afforded
the opportunity to have counsel, transmit the necessary record, and substantively brief the
issues.”). In his single assignment of error, appellant addresses both the merits of his claim
that the trial court imposed a vindictive sentence in violation of his due process rights and
that appellate counsel was ineffective in failing to raise that issue.
{¶ 21} Regarding the merits of his claim, appellant first argues that the aggregate
sentence imposed following his second trial (64 years to life) was presumptively vindictive,
as it was more than 2.5 times longer than the aggregate sentence imposed following the first
trial (25 years to life). Alternatively, appellant argues that even if the second sentence was
not presumptively vindictive, it was the result of actual vindictiveness by the trial court. We
disagree with both contentions.
{¶ 22} The Supreme Court of Ohio has recognized the United States Supreme
Court’s decision in N. Carolina v. Pearce, 395 U.S. 711 (1969), as holding that a sentence
that punishes a defendant for successfully appealing a conviction is vindictive and therefore
violates a defendant’s due process rights and as further holding that to prevent
vindictiveness from influencing a sentencing decision and to allay any fear on the part of a
defendant that an increased sentence is in fact the product of vindictiveness, the sentencing
judge must provide reasons for the increased sentence based upon objective information
concerning identifiable conduct on the part of the defendant occurring after the time of the
No. 20AP-90 10
original sentencing proceeding.8 See Beatty v. Alston, 43 Ohio St.2d 126, 129-30 (1975),
citing Pearce at 726. “This rule has been read to ‘[apply] a presumption of vindictiveness,
which may be overcome only by objective information in the record justifying the increased
sentence.’ ” Wasman v. United States, 468 U.S. 559, 565 (1984), quoting United States v.
Goodwin, 457 U.S. 368, 374 (1982).
{¶ 23} The Supreme Court has clarified Pearce however and held that the
presumption of vindictiveness does not apply in every case where a convicted defendant
receives a harsher sentence on retrial. Alabama v. Smith, 490 U.S. 794, 799 (1989).
Instead, the presumption arises only in circumstances where there is a “reasonable
likelihood” that an increased sentence is the product of vindictiveness on the part of the
sentencing authority. Id., citing Goodwin at 374. “Where there is no such reasonable
likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Id.,citing Wasman at 569.
{¶ 24} Of particular relevance here is the Supreme Court’s decision in Texas v.
McCullough, 475 U.S. 134 (1986), wherein it concluded that the presumption of
vindictiveness is inapplicable where “different sentencers assess[] the varying sentences
that [a defendant] receive[s].” Id. at 140. The court noted that “the presumption derives
from the judge’s ‘personal stake in the prior conviction,’ ” which does not exist when the
prior proceedings were conducted by a different judge. Id. at 140, fn. 3, quoting Chaffin v.
Stynchcombe, 412 U.S. 17, 27 (1973). “[W]hen different sentencers are involved, ‘[it] may
often be that the [second sentencer] will impose a punishment more severe than that
received from the [first]. But it no more follows that such a sentence is a vindictive penalty
for seeking a [new] trial than that the [first sentencer] imposed a lenient penalty.’ ” Id.,quoting Colten v. Kentucky, 407 U.S. 104, 117 (1972).
{¶ 25} In State v. Hall, 10th Dist. No. 09AP-302, 2009-Ohio-5712, this court noted
that “Ohio courts have recognized that the presumption in Pearce has been narrowed by
McCullough.” Id. at ¶ 16. We particularly noted holdings to this effect by our sister districts
8 In Texas v. McCullough, 475 U.S. 134 (1986), the Supreme Court clarified that “[t]his language [restricting
the reasons to conduct occurring after the time of the original sentence], however, was never intended to
describe exhaustively all of the possible circumstances in which a sentence increase could be justified.
Restricting justifications for a sentence increase to only “ ‘events that occurred subsequent to the original
sentencing proceedings’ ” could in some circumstances lead to absurd results.” (Emphasis sic.) Id. at 141,
quoting Wasman v. United States, 468 U.S. 559, 572 (1984).
No. 20AP-90 11
in State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, ¶ 85 (1st Dist.) (“[w]here a
different judge imposes a harsher sentence after an independent assessment, there is no
true ‘increase’ in the sentence, and the vindictiveness presumption does not apply”); State
v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, ¶ 20 (2d Dist.) (“[t]he Pearce
presumption of vindictiveness does not apply in this case because Defendant’s current
sentence was imposed by a judge different from the sentencer who had imposed the prior
sentence”); and State v. Goodell, 6th Dist. No. L-07-1016, 2007-Ohio-5318, ¶ 18 (Pearce
presumption of vindictiveness “does not apply where, as here, the resentencing judge is not
the one who originally sentenced the defendant”). Because the resentencing judge was
different than the original sentencing judge, we declined to apply the Pearce presumption
of vindictiveness. Hall at ¶ 15, 17. We followed Hall in State v. Busby, 10th Dist. No. 09AP-
1119, 2010-Ohio-4516, ¶ 9 (“[a] different judge resentenced appellant in this case and,
therefore, no presumption of vindictiveness arises”). Ohio courts have also found that in
cases where a different judge imposes a harsher sentence on remand, the judge is not
required to state reasons for doing so. Goodell at ¶ 18, citing State v. Gonzales, 151 Ohio
App.3d 160, 2002-Ohio-4937, ¶ 65 (1st Dist.); State v. Johnson, 2d Dist. No. 23297, 2010-
Ohio-2010, ¶ 19, quoting State v. Thrasher, 178 Ohio App.3d 587, 2008-Ohio-5182, ¶ 14
(“[w]hen there is no presumption of vindictiveness to overcome, the Pearce requirements
do not apply. In such a case, we have determined, logically enough, that ‘no explanation is
required’ to rebut a non-existent presumption”); Lodi v. McMasters, 31 Ohio App.3d 275(9th Dist.1986) (“[b]ecause there were different sentencers, there is no presumption of
vindictiveness and the [second] judge need not set forth the reasons for resentencing
McMasters to an enhanced sentence.”) Id. at 277.
{¶ 26} Appellant acknowledges that Ohio courts, including this court, have
consistently found the Pearce presumption of vindictiveness inapplicable where, as here,
the resentencing judge who imposes a harsher sentence is different than the original
sentencing judge. Nonetheless, appellant urges this court to apply the presumption of
vindictiveness in this case because the aggregate sentence imposed following his second
trial was significantly longer, i.e., more than 2.5 times longer, than the aggregate sentence
imposed following his first trial, despite the fact that at the second trial he was convicted of
one less firearm specification.
No. 20AP-90 12
{¶ 27} In support of his argument, appellant relies on State v. Clark, 4th Dist. No.
1335 (Feb. 23, 1988). There, Clark was initially convicted of one count of kidnapping and
two counts of rape. The trial judge sentenced Clark to concurrent sentences of 8-15 years
on the kidnapping count and 9-25 years on each rape count. After Clark’s convictions were
reversed on appeal, a second trial was held before a new judge. Clark was convicted of two
counts of rape and one count of abduction, a lesser-included offense of kidnapping. The
new trial judge sentenced Clark to concurrent sentences of 5-10 years on the abduction
count and 10-25 years on each rape count. In the aggregate, Clark received a 1-year increase
in his sentence following his second trial.
{¶ 28} Citing Pearce, McCullough, and Wasman, the Clark court stated that “[t]he
law clearly requires that before a judge may impose a more severe sentence after a new trial,
the reasons for the increased sentence must affirmatively appear in the record. Pearce
further requires that those reasons must be based upon conduct by the defendant since the
time of the original sentencing.” The court concluded that because the record revealed “no
evidence of any conduct by [Clark] since the date of [the original] sentencing,” the trial
judge erred in imposing a greater sentence on Clark.
{¶ 29} We decline appellant’s invitation to follow Clark. First, although the Clark
court cited McCullough, it failed to recognize McCullough’s determination that the
presumption of vindictiveness does not apply when the original and resentencing judges
are not the same. Second, Clark is not binding authority upon this court, as it is a decision
from another appellate district. “ ‘ “We are bound by the decisions of the Supreme Court of
Ohio and generally, by past precedent produced by our own district.” ’ ” Dillon v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 22AP-392, 2023-Ohio-942, ¶ 59, quoting Estate of
Aukland v. Broadview NH, L.L.C., 10th Dist. No. 16AP-661, 2017-Ohio-5602, ¶ 21, quoting
Keytack v. Warren, 11th Dist. No. 2005-T-0152, 2006-Ohio-5179, ¶ 51. As noted above,
this court has declined to apply the Pearce presumption of vindictiveness where the
resentencing judge is different than the original sentencing judge. Hall; Busby. Finally,
the Clark case appears to be an outlier, as appellant has not pointed us to any other court
citing Clark and our research has not revealed any other Ohio court citing Clark.
{¶ 30} Further, to the extent appellant contends we should apply the presumption
of vindictiveness in this case simply due to the “alarmingly higher sentence” imposed by the
No. 20AP-90 13
resentencing judge, we note appellant cites no authority, other than Clark, in support of
this proposition. (Appellant’s Brief at 13.) For the reasons outlined above, we decline to
follow Clark. Further, this court will avoid promulgating any sentence disparity rule that
would allow a criminal defendant to challenge a resentencing decision made by a second
sentencer as per se vindictive solely because that sentence exceeded the sentence imposed
by the original sentencer by x number of years. Such a rule would run afoul of McCullough9
and its progeny, would undermine the resentencing court’s discretion to impose a sentence
based on its independent assessment of the record and which was within applicable
statutory limits, and would prove imprudent and unworkable as a practical matter.
{¶ 31} Further, at least one Ohio court has rejected a presumptively vindictive
sentence challenge where a second sentence imposed by a different judge was significantly
higher than that imposed by the original judge. In State v. Boyd, 6th Dist. No. L-07-1095,
2009-Ohio-3803, the court reviewed a Pearce challenge to a resentencing that doubled the
aggregate prison term of Boyd’s original sentence. For his various convictions, Boyd
initially received a total sentence of 20 years. Id. at ¶ 1. Boyd appealed and the court
vacated that sentence pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Id.Following remand, a different judge resentenced Boyd to an aggregate term of 40 years.
Id. Citing McCullough, the court determined that the presumption of vindictiveness did
not apply because different sentencers were involved and each assessed the varying
sentences Boyd received. Id. at ¶ 18-20.
9 We note that in McCullough, the second sentence imposed was 2.5 times higher than the first sentence
imposed. In McCullough, the defendant was entitled by Texas law to be sentenced by either a judge or a jury.
In the first trial, a jury found the defendant guilty of murder and, pursuant to the defendant’s election, the
jury sentenced him. The jury imposed 20 years in prison. The defendant filed a motion for a new trial based
on prosecutorial misconduct, and the trial judge granted the same. In the second trial, a jury again found the
defendant guilty of murder, however, pursuant to defendant’s election, the trial judge sentenced him. The
trial judge imposed 50 years in prison. We recognize that the case before us differs from McCullough in that
it involves a new trial pursuant to reversal and remand on appeal rather than a successful post-trial motion.
We also recognize that the Supreme Court in McCullough observed that the facts of the case provided no basis
for a presumption of vindictiveness and commented specifically that the granting of the post-trial motion
based on prosecutorial misconduct “hardly suggest[ed] any vindictiveness on the part of the judge towards
[the defendant].” McCullough at 139. Finally, we recognize that the court noted that in imposing the 50-year
sentence, the trial judge explained that at the second trial, she learned of new evidence from the testimony of
two witnesses who had not previously testified. Nevertheless, McCullough does not address or express any
concern with the 20-50 years, 2.5 times higher, disparity in the two sentences. In the case before us, the 25-
64 years disparity in the two sentences was 2.56 times higher.
No. 20AP-90 14
{¶ 32} Having determined that the presumption of vindictiveness does not apply in
this case, we turn to appellant’s alternative argument, i.e., that the increased sentence
imposed by the trial court on remand resulted from actual vindictiveness. Absent a
presumption of vindictiveness, appellant must demonstrate actual vindictiveness. Busby
at ¶ 10, citing Hall at ¶ 17. In State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, the
Supreme Court set forth the standard for determining whether a sentence imposed by a
trial court resulted from actual vindictiveness:
Having declined to presume that the trial court acted with
vindictiveness, we begin our review of Rahab’s sentence as we
do in any other appeal—with the presumption that the trial
court considered the appropriate sentencing criteria. [State] v.
O’Dell, 45 Ohio St.3d [140] at 147, 543 N.E.2d 1220 [1989]. We
then review the entire record--the trial court’s statements, the
evidence adduced at trial, and the information presented
during the sentencing hearing—to determine whether there is
evidence of actual vindictiveness. We will reverse the sentence
only if we clearly and convincingly find the sentence is contrary
to law because it was imposed as a result of actual
vindictiveness on the part of the trial court. See R.C.
2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E. 3d 1231, ¶ 1.
Id. at ¶ 19.
{¶ 33} Appellant asserts the sentence imposed by the trial court resulted from actual
vindictiveness based upon: (1) the significant disparity in the aggregate sentences, and
(2) the court’s interactions with Ms. Long.
{¶ 34} As to the disparity in sentencing, we note that following the jury trial, the
original judge merged Count 1 (aggravated burglary), Count 3 (aggravated robbery), and
Count 7 (attempted theft of firearms) and imposed sentences of 4 years each on Count 1
and Count 5 (felonious assault of Shawn), 3 years each on Count 2 (kidnapping), and Count
4 (felonious assault of Jill), 15 years to life on Count 6 (murder of Poncho), 18 months on
Count 8 (WUD), and 3 years on each of the firearm specifications accompanying Counts 1,
2, 4, 5, and 6. The court ordered the sentences imposed on Counts 2, 4, 5, 6, and 8 to be
served concurrently with each other and consecutively to Count 1. The court further
ordered the sentences imposed on the firearm specifications accompanying Counts 2, 4,
and 5 to be served concurrently with each other and with Counts 1 and 6, with those 2
No. 20AP-90 15
firearm specifications to be served consecutively to each other. The total sentence was 25
years to life.
{¶ 35} Following the bench trial, the successor judge merged Counts 1 and 7,
imposed sentences of 8 years each on Counts 1, 2, and 3, 5 years each on Counts 4 and 5, 15
years to life on Count 6, 36 months on Count 8, and 3 years on each of the firearm
specifications accompanying Counts 1, 2, 3, 4, 5, and 6. The court ordered the sentences
imposed on Counts 1, 2, 3, 4, 5, and 6 to be served consecutively to each other and
concurrently with the sentence imposed on Count 8. The total sentence was 64 years to
life.
{¶ 36} Here, appellant does not dispute that in imposing sentence, the trial court
considered the appropriate sentencing criteria, including the purposes and principles of
sentencing set forth in R.C. 2929.11, the factors set forth in R.C. 2929.12, weighed the
factors set forth in R.C. 2929.13 and 2929.14, and set forth its reasons for imposing
consecutive sentences as required by R.C. 2929.14(C). Nor does appellant dispute that the
sentences imposed on each of the offenses were within applicable statutory limits. See R.C.
2929.14(A). Appellant simply argues that the significantly higher aggregate sentence
evinces actual vindictiveness by the trial court.
{¶ 37} On resentencing, a trial court is not bound to the original sentencing
considerations. State v. Hoover, 7th Dist. No. 20 BE 0002, 2021-Ohio-2485, ¶ 30. “The
resentencing court retains the discretion to review the entire record before imposing
sentence.” Id. Here, the trial court presided over the bench trial conducted after remand,
reviewed appellant’s record, independently weighed the appropriate principles and
purposes of sentencing, and ultimately concluded that a prison sentence totaling 64 years
to life was appropriate. Judges may differ in their philosophies on sentencing, and we
decline to find actual vindictiveness simply because a successor judge may have a different
sentencing philosophy than his or her predecessor. As noted above, when a second
sentencer imposes a greater penalty, “it no more follows that such a sentence is a vindictive
penalty * * * than that the [first sentencer] imposed a lenient penalty.” Colten at 117.
{¶ 38} Appellant also contends the trial court’s multiple interactions with Ms. Long
throughout the contempt proceedings, the bench trial, and the sentencing hearing
demonstrates actual vindictiveness by the trial court in sentencing appellant.
No. 20AP-90 16
{¶ 39} As a threshold matter, we note that “[a]ctual vindictiveness implies an
animus against a defendant because he or she exercised his or her right of appeal which
resulted in the reversal of the prior conviction based upon an error made by the sentencing
judge.” Boyd at ¶ 15. Appellant points to no authority establishing that a trial court’s
interactions with a defendant’s family member (or any other non-party supportive of a
defendant) during or ancillary to the defendant’s criminal proceedings may constitute
actual vindictiveness by a trial court in imposing sentence upon the defendant.
{¶ 40} Further, nothing in the record convinces this court that the trial court’s
interactions with Ms. Long had any bearing on the trial court’s sentencing decision. During
its initial interaction with Ms. Long on the first day of trial, the court merely advised her to
obey the court order against posting about appellant’s case on social media and to keep her
emotions in check during trial. The court’s next interaction occurred during Ms. Long’s
contempt hearing. After discovering that one of her social media postings referenced him,
the court immediately recused itself from the ongoing contempt proceedings. In so doing,
the court noted that although it believed it could fairly and impartially adjudicate both
appellant’s trial and the contempt proceedings, it chose to recuse to avoid even an
appearance of impropriety. The court noted that it held appellant’s life in its hands and
that its chief concern was appellant, not Ms. Long.
{¶ 41} The court’s interactions with Ms. Long continued during trial. During the
testimony of one of the prosecution witnesses, the trial court paused the proceedings to
discuss Ms. Long’s behavior. Noting that Ms. Long had been making faces at the
prosecution witnesses, the court barred her from the courtroom and ordered the courtroom
deputy to arrest her if she tried to re-enter. During a discussion with appellant about Ms.
Long’s disruptive behavior, the court expressed its fear that Ms. Long was prioritizing her
“fight” over appellant’s “life,” and that her actions had the potential to affect appellant’s
right to a fair trial. However, the court assured appellant it would protect his rights. When
the trial court rendered its judgment on the last day of trial, Ms. Long responded
inappropriately, uttering an expletive. In response, the trial court respectively addressed
Ms. Long as “ma’am” and cautioned her that further disruptions would result in her being
jailed.
No. 20AP-90 17
{¶ 42} Interactions between the trial court and Ms. Long continued during the
sentencing hearing. The trial court provided Ms. Long an opportunity to speak on behalf
of appellant. Using profanity, Ms. Long expressed her belief that the trial proceedings were
tainted because the Bowles family is Caucasian and appellant is African American. When
the trial court directed a comment to Ms. Long, she stated she was “done,” to which the trial
court replied, “No, you’re not.” Thereafter, again using profanity, Ms. Long alluded to a
potential appeal to be filed by appellant. After appellant asked Ms. Long to address the
court, the court interjected, “Let her go pout.” Referring to her contempt proceedings, Ms.
Long stated that the judge should have been removed from appellant’s case when the judge
said she threatened him. The trial court’s only response to this statement was “Okay. Chill.”
{¶ 43} Even if the interactions between the trial court and Ms. Long could be
considered contentious, the record contains no indication that those interactions
influenced the trial court’s sentencing decision in any way. The trial court did not mention
Ms. Long when imposing sentence upon appellant, nor did the court express or exhibit
personal hostility or ill will toward appellant stemming from Ms. Long’s behavior. Indeed,
the record reveals assertions by the trial court indicating its desire and obligation to afford
appellant a fair trial. Further, at the sentencing hearing, the trial court noted that it “sat
through the trial,” “watched the evidence,” and “listened to everybody intently.” These
statements signal that the trial court fashioned its sentencing decision in accordance with
the evidence presented during the trial, and not as the result of a vindictive motivation to
punish appellant for Ms. Long’s behavior.
{¶ 44} After a thorough review of the entire record, we cannot clearly and
convincingly find that the sentence imposed upon appellant was a result of actual
vindictiveness on the part of the trial court. Rahab at ¶ 19.
{¶ 45} In the second part of his assignment of error, appellant asserts his prior
appellate counsel was ineffective during his direct appeal for not presenting an assignment
of error asserting that the trial court imposed a vindictive sentence in violation of his due
process rights. Appellate counsel has wide latitude in determining which issues and
arguments will be most effective on appeal and is not required to argue meritless
assignments of error. State v. Williams, 10th Dist. No. 18AP-891, 2023-Ohio-1002, ¶ 36,
citing State v. Lee, 10th Dist. No. 06AP-226, 2007-Ohio-1594, ¶ 3. As explained above, we
No. 20AP-90 18
conclude that the sentence imposed by the trial court was not vindictive. As such,
appellant’s prior appellate counsel was not ineffective in failing to assert a meritless claim.
Id. (concluding appellate counsel was not ineffective in failing to raise a meritless claim).
{¶ 46} Because appellant has failed to establish the trial court imposed a vindictive
sentence in violation of his due process rights and that his prior appellate counsel was
ineffective in failing to present an assignment of error asserting that meritless claim, we
overrule appellant’s single assignment of error.
IV. Conclusion
{¶ 47} For the foregoing reasons, we overrule appellant’s single assignment of error
and, pursuant to App.R. 26(B)(9), confirm our prior judgment in Long II affirming the
judgment of the Franklin County Court of Common Pleas.
Judgment confirmed.
LUPER SCHUSTER and MENTEL, JJ., concur.