[Cite as State v. Collins, 2013-Ohio-938.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 98575 and 98595
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TONY COLLINS DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-529965 and CR-533453
BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 14, 2013 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: T. Allan Regas Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Tony Collins, appeals from the sentence imposed
upon resentencing in CR-529965. He contends that the trial court vindictively sentenced
him to a higher sentence upon remand and that this court should therefore reduce his
sentence to two years, the original sentence. We hold that there is insufficient evidence
in the record to rebut the presumption of vindictiveness that arises when a court sentences
a defendant to an increased sentence after a successful appeal and, accordingly, vacate the
sentence and remand with instructions to the trial court to modify Collins’s sentence in
CR-529965 to two years incarceration.
I. Background
{¶2} Collins was indicted in two cases that were consolidated and heard before
the court. The trial court found him guilty of all the charges. In CR-529965, Collins
was found guilty of Count 1, drug possession of marijuana in excess of 5,000 grams with
forfeiture of a cell phone; Count 2, drug trafficking with forfeiture of a cell phone; and
Count 3, possession of criminal tools with forfeiture of a cell phone. In CR-533453, he
was found guilty of Count 1, drug possession; and Count 2, drug trafficking with a
schoolyard specification.
{¶3} The court determined that the drug trafficking and drug possession
convictions merged and the state elected to sentence Collins on the drug trafficking counts. In CR-529965, the court sentenced Collins to two years for drug trafficking,
concurrent to six months for possession of criminal tools. Collins was also ordered to
forfeit the cell phone. In CR-533453, the court sentenced Collins to four years,
consecutive to the sentence in CR-529965, for an aggregate prison term of six years.
{¶4} On appeal, this court reversed Collins’s convictions for drug trafficking, the
attendant schoolyard specification, and possession of criminal tools, finding they were not
supported by sufficient evidence. This court also reversed the cell phone forfeiture
order. This court affirmed Collins’s convictions for drug possession, however, and
remanded for resentencing on the drug possession counts. State v. Collins, 8th Dist. No.
95422, 2011-Ohio-4808.
{¶5} On September 30, 2011, while Collins’s case was on appeal, H.B. 86
became effective. As a result, the maximum penalty for the drug possession charge in
each case was reduced to three years.
{¶6} On remand, the trial court sentenced Collins in CR-529965 to three years
incarceration; in CR-533453, Collins was sentenced to one year in prison. The trial court
ordered the sentences to be served consecutively, for an aggregate sentence of four years.
{¶7} Collins now appeals the sentence imposed in CR-529965. He contends
that the trial court violated his due process rights by imposing a harsher sentence upon
remand (three years instead of the two he was originally sentenced to) after his successful
appeal of his original convictions. II. Analysis
{¶8} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969), the United States Supreme Court held that a trial court violates the due process
clause of the Fourteenth Amendment when, motivated by retaliation for a defendant’s
successful appeal, it resentences a defendant to a harsher sentence. Id. at 724. Although
a court may impose an enhanced sentence, it must demonstrate that it was not motivated
by vindictiveness toward the defendant for exercising his rights. Id. at 723. Thus, to
ensure that a non-vindictive rationale supports the increase, and to allay any fears of the
defendant that an increased sentence is the product of vindictiveness, the Pearce court
held that whenever a judge imposes an increased sentence after a successful appeal, there
is a presumption of vindictiveness that can be rebutted only by objective information in
the record justifying the increased sentence. Id.; Wasman v. United States, 468 U.S. 559,
564-565, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).
{¶9} 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,1 or where a sentence imposed
See, e.g., State v. Douse, 8th Dist. No. 82008, 2003-Ohio-5238; State v. 1
Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783 NE.2d 903, ¶ 25. after trial is greater than a first sentence imposed after a guilty plea2 ), the presumption
does not apply and the defendant has the burden of showing actual vindictiveness. Id. at
800.
{¶10} “Actual vindictiveness” implies an animus against a defendant because he
exercised his right of appeal that resulted in the reversal of the prior conviction due to an
error by the sentencing judge. State v. Boyd, 6th Dist. No. L-07-1095, 2009-Ohio-3803,
¶ 15, citing State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, 883 N.E.2d 1077
(2d Dist.); Pearce at 723.
{¶11} In this case, the original and resentencing judge were the same and
accordingly, the presumption set forth in Pearce applies. Our review of the record
demonstrates that, although there is nothing in the record to suggest that the resentencing
judge imposed the harsher sentence due to actual vindictiveness, 3 there is also no
objective information in the record to rebut the presumption that vindictiveness was
behind the increased sentence.
{¶12} “[F]ollowing a defendant’s successful appeal, a sentencing authority may
justify an increased sentence by affirmatively identifying relevant conduct or events that
2 Alabama v. Smith, 490 U.S. at 803.
Indeed, it is quite possible that the trial court actually meant to sentence 3
Collins to three years incarceration in CR-533453 (where the original sentence was four years) and to one year in CR-529965 (where the original sentence was two years), instead of to three years in CR-529965 and one year in CR-533453. occurred subsequent to the original sentencing proceedings.”4 Wasman, 468 U.S. at 572,
citing Pearce, 395 U.S. at 726. “Such information may come to the judge’s attention
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[Cite as State v. Collins, 2013-Ohio-938.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 98575 and 98595
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TONY COLLINS DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-529965 and CR-533453
BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 14, 2013 ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: T. Allan Regas Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Tony Collins, appeals from the sentence imposed
upon resentencing in CR-529965. He contends that the trial court vindictively sentenced
him to a higher sentence upon remand and that this court should therefore reduce his
sentence to two years, the original sentence. We hold that there is insufficient evidence
in the record to rebut the presumption of vindictiveness that arises when a court sentences
a defendant to an increased sentence after a successful appeal and, accordingly, vacate the
sentence and remand with instructions to the trial court to modify Collins’s sentence in
CR-529965 to two years incarceration.
I. Background
{¶2} Collins was indicted in two cases that were consolidated and heard before
the court. The trial court found him guilty of all the charges. In CR-529965, Collins
was found guilty of Count 1, drug possession of marijuana in excess of 5,000 grams with
forfeiture of a cell phone; Count 2, drug trafficking with forfeiture of a cell phone; and
Count 3, possession of criminal tools with forfeiture of a cell phone. In CR-533453, he
was found guilty of Count 1, drug possession; and Count 2, drug trafficking with a
schoolyard specification.
{¶3} The court determined that the drug trafficking and drug possession
convictions merged and the state elected to sentence Collins on the drug trafficking counts. In CR-529965, the court sentenced Collins to two years for drug trafficking,
concurrent to six months for possession of criminal tools. Collins was also ordered to
forfeit the cell phone. In CR-533453, the court sentenced Collins to four years,
consecutive to the sentence in CR-529965, for an aggregate prison term of six years.
{¶4} On appeal, this court reversed Collins’s convictions for drug trafficking, the
attendant schoolyard specification, and possession of criminal tools, finding they were not
supported by sufficient evidence. This court also reversed the cell phone forfeiture
order. This court affirmed Collins’s convictions for drug possession, however, and
remanded for resentencing on the drug possession counts. State v. Collins, 8th Dist. No.
95422, 2011-Ohio-4808.
{¶5} On September 30, 2011, while Collins’s case was on appeal, H.B. 86
became effective. As a result, the maximum penalty for the drug possession charge in
each case was reduced to three years.
{¶6} On remand, the trial court sentenced Collins in CR-529965 to three years
incarceration; in CR-533453, Collins was sentenced to one year in prison. The trial court
ordered the sentences to be served consecutively, for an aggregate sentence of four years.
{¶7} Collins now appeals the sentence imposed in CR-529965. He contends
that the trial court violated his due process rights by imposing a harsher sentence upon
remand (three years instead of the two he was originally sentenced to) after his successful
appeal of his original convictions. II. Analysis
{¶8} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969), the United States Supreme Court held that a trial court violates the due process
clause of the Fourteenth Amendment when, motivated by retaliation for a defendant’s
successful appeal, it resentences a defendant to a harsher sentence. Id. at 724. Although
a court may impose an enhanced sentence, it must demonstrate that it was not motivated
by vindictiveness toward the defendant for exercising his rights. Id. at 723. Thus, to
ensure that a non-vindictive rationale supports the increase, and to allay any fears of the
defendant that an increased sentence is the product of vindictiveness, the Pearce court
held that whenever a judge imposes an increased sentence after a successful appeal, there
is a presumption of vindictiveness that can be rebutted only by objective information in
the record justifying the increased sentence. Id.; Wasman v. United States, 468 U.S. 559,
564-565, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).
{¶9} 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,1 or where a sentence imposed
See, e.g., State v. Douse, 8th Dist. No. 82008, 2003-Ohio-5238; State v. 1
Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783 NE.2d 903, ¶ 25. after trial is greater than a first sentence imposed after a guilty plea2 ), the presumption
does not apply and the defendant has the burden of showing actual vindictiveness. Id. at
800.
{¶10} “Actual vindictiveness” implies an animus against a defendant because he
exercised his right of appeal that resulted in the reversal of the prior conviction due to an
error by the sentencing judge. State v. Boyd, 6th Dist. No. L-07-1095, 2009-Ohio-3803,
¶ 15, citing State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, 883 N.E.2d 1077
(2d Dist.); Pearce at 723.
{¶11} In this case, the original and resentencing judge were the same and
accordingly, the presumption set forth in Pearce applies. Our review of the record
demonstrates that, although there is nothing in the record to suggest that the resentencing
judge imposed the harsher sentence due to actual vindictiveness, 3 there is also no
objective information in the record to rebut the presumption that vindictiveness was
behind the increased sentence.
{¶12} “[F]ollowing a defendant’s successful appeal, a sentencing authority may
justify an increased sentence by affirmatively identifying relevant conduct or events that
2 Alabama v. Smith, 490 U.S. at 803.
Indeed, it is quite possible that the trial court actually meant to sentence 3
Collins to three years incarceration in CR-533453 (where the original sentence was four years) and to one year in CR-529965 (where the original sentence was two years), instead of to three years in CR-529965 and one year in CR-533453. occurred subsequent to the original sentencing proceedings.”4 Wasman, 468 U.S. at 572,
citing Pearce, 395 U.S. at 726. “Such information may come to the judge’s attention
from evidence adduced at the second trial itself, from a new presentence investigation,
from the defendant’s prison record, or possibly from other sources.” Id. at 571, citing
Pearce, 395 U.S. at 722-723. “Relevant conduct or events” sufficient to overcome the
presumption of vindictiveness are those that throw “new light upon the defendant’s ‘life,
health, habits, conduct, and mental and moral propensities.’” Id. at 570-571, quoting
Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).
{¶13} At sentencing, the trial court told Collins that he remembered the cases and
described the events that led to the convictions. The judge reviewed Collins’s criminal
record and then, after giving his reasons for imposing consecutive sentences, sentenced
Collins as set forth above. The trial court did not reference any information it had
obtained since Collins’s original sentencing, however, to justify the increased sentence
4 In State v. Quinones, 8th Dist. No. 97054, 2012-Ohio-1939, ¶ 5, in reliance on Pearce, this court stated that the reasons for an increased sentence must be based on information concerning identifiable conduct by the defendant or events that occurred after the first sentencing. In Wasman, however, although not expressly deciding whether an increased sentence can be justified by reference to an event or conduct occurring before the original sentencing, the United States Supreme Court noted that Pearce “is not without its ambiguities” and that “two of the separate opinions in Pearce suggest that the Court did not intend to confine the sentencing authority’s consideration to ‘conduct’ occurring subsequent to the first sentencing proceedings.” The Wasman Court found it “unnecessary to reconcile these apparent ambiguities” in Pearce because the question whether an increased sentence can be justified by reference to an event or conduct occurring before the original sentencing was not presented by the case. Wasman, 468 U.S. at 571-572. in CR-529965. Indeed, the only new information the judge had was that Collins had
attended AA classes and obtained his GED while incarcerated.
{¶14} The State contends that the trial court’s recitation of Collins’s extensive
criminal history was sufficient to justify the increased sentence. However, the record of
the original sentencing hearing demonstrates that the trial court was aware of and
reviewed Collins’s criminal record before sentencing him the first time.
{¶15} Further, the State’s assertion that the trial court could consider charges that
were dismissed to justify a harsher sentence upon resentencing is without merit. “The
fact that defendant was convicted of fewer offenses did not involve any conduct of the
defendant in relation to the offense of which he was convicted. Neither did that fact
throw ‘new light’ on defendant’s life, health, habits, conduct and mental and moral
propensities. * * * The fact that charges were dismissed, which as a result diminished
the number of sentences the court could impose, portrays no basis for imposing harsher
sentences.” State v. Bradley, 2d Dist. No. 06CA31, 2008-Ohio-720, ¶ 18.
{¶16} Finally, the State contends that the increased sentence in CR-529965 is
appropriate because Collins’s aggregate sentence in both cases did not increase. But as
the Ohio Supreme Court made clear in State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, the sentencing package doctrine is not applicable to
Ohio law; sentencing courts may not employ the doctrine when sentencing a defendant
and appellate courts may not use the doctrine when reviewing a sentence or sentences.
Id. at paragraph two of the syllabus. Thus, per Saxon, each count stands alone, and an increased sentence on one count cannot be justified by the fact that the aggregate sentence
for all counts did not increase.
{¶17} Accordingly, because the Pearce presumption applies, and the trial court
made no affirmative findings on the record to justify the increased sentence, we are
constrained to find vindictiveness in the trial court’s imposition of the increased sentence
in CR-529965 upon remand after Collins’s successful appeal. Accordingly, we vacate
Collins’s sentence in CR-529965 and remand with instructions that the trial court modify
the sentence in that case to two years.
{¶18} Additionally, because the record does not reflect that the trial court entered
an order vacating Collins’s convictions for drug trafficking, the attendant schoolyard
specification, and possession of criminal tools, as instructed in our first remand of this
case, this court sua sponte orders that Collins’s convictions for drug trafficking, the
attendant schoolyard specification, and possession of criminal tools are hereby vacated.
{¶19} Sentence vacated and remanded.
It is ordered that appellant recover of appellee his 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. Case remanded to the trial court for
proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR