[Cite as State v. Ferrell, 2021-Ohio-1259.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2020-P-0057 - vs - :
WILLIAM T. FERRELL, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR 00845.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
James W. Armstrong, Leipply & Armstrong, 2101 Front Street, Riverfront Centre, Suite 101, Cuyahoga Falls, OH 44221 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, William T. Ferrell, appeals from the Judgment Entry
of the Portage County Court of Common Pleas, resentencing him to a greater prison
term for Nonsupport of Dependents following a remand due to sentencing error. For the
following reasons, we reverse the judgment of the lower court and remand for
resentencing.
{¶2} On December 19, 2013, Ferrell was indicted by the Portage County Grand Jury for six counts of Nonsupport of Dependents, felonies of the fourth degree, in
violation of R.C. 2919.21(A)(2) or (B).
{¶3} On August 21, 2014, a plea hearing was held at which Ferrell pled guilty to
four counts of Nonsupport of Dependents. A Nolle Prosequi was entered by the State
on the remaining two counts of the indictment. The guilty plea was accepted by the trial
court and the finding of guilt was memorialized in an August 26, 2014 Judgment Entry.
A sentencing hearing was held on January 20, 2015, at which the court
sentenced Ferrell to 100 days in jail and four years of community control. The court
required that Ferrell become employed and abide by a payment plan to satisfy his child
support arrearages.
{¶4} On two occasions in 2015 and 2016, Ferrell was found to have violated
probation. Following the second violation, on December 2, 2016, the court ordered
Ferrell to successfully complete the program at NEOCAP, a community-based
corrections facility, and serve one year of intensive supervision and one year of regular
probation.
{¶5} On June 23, 2017, the probation department filed a third Motion to
Revoke/Modify Probation on the ground that Ferrell had not reported to probation or
advised of an address change as required. Ferrell admitted to the allegations at an
August 11, 2017 hearing. Counsel emphasized Ferrell’s mental health and housing
concerns, noting that he was attempting to find employment. The court ordered Ferrell
to serve one year in prison for each of the four counts for which he had been convicted,
with the terms to be served consecutively, noting that Ferrell “had been back here too
many times.” The sentence was memorialized in an August 15, 2017 Entry.
2 {¶6} Ferrell appealed from this judgment arguing, inter alia, that the trial court
erred by ordering consecutive prison sentences without making proper statutory
findings. This court held that the trial court failed to make specific consecutive
sentencing findings as required by R.C. 2929.14(C)(4)(a)-(c), its sentence was contrary
to law, and vacated the sentence with instructions to the trial court to resentence Ferrell.
State v. Ferrell, 11th Dist. Portage No. 2017-P-0069, 2019-Ohio-836, ¶ 39-40.
{¶7} The trial court held a resentencing hearing on April 10, 2019. The court
inquired of the prosecutor if the matter would start at “phase one on the motion to
revoke,” to which the prosecutor responded affirmatively. The court asked defense
counsel to speak on sentencing, “with the understanding, and this is very important, that
the Defendant was in my court, in my presence now that I’ve gone through the file fully,
he was in my court four times on motions to revoke, another three times on status
hearings rather than motions to revoke, and he didn’t do anything he was supposed to
do.” Defense counsel presented certificates of achievement and letters from prison
employees to demonstrate Ferrell’s positive progress. Ferrell stated that he enrolled in
college courses while in prison, participated in a leadership institute and counseling,
and mentored other prisoners. He expressed guilt that his son had recently been
convicted and ordered to serve a prison term since he had not been there for him as a
father.1 The court emphasized Ferrell’s probation violations, noting he failed to take
advantage of the opportunity given at NEOCAP and that he “had a total disregard for
this court.” It continued: “Now, you may have changed now, but at that time, you had
absolute total disregard for the law, the Court, and your children by the way, who you
1. Although not referenced at the resentencing hearing, a letter was made part of the record from Ferrell’s children’s mother, who argued that Ferrell had not been present for the children as a father and this had negatively impacted their lives, including the ability to pay for college.
3 owe $81,000.00 in back child support.” The court ordered Ferrell to serve a term of 18
months for each of the four offenses, to be served consecutively. The court made
consecutive sentencing findings and concluded the hearing with the following: “this was
a motion to revoke where the Defendant was given a multitude of opportunities and just
threw it back in the Court’s face, and so I guess lesson learned by all defendants.” The
sentence was memorialized in an April 11, 2019 Judgment Entry.
{¶8} The trial court held a “judicial release” hearing2 on April 15, 2019, because
it was “impressed with what [Ferrell had] accomplished while in jail.” The court
indicated that if it “released” him, Ferrell would be placed on probation. Ferrell inquired
about the length of probation and counsel indicated Ferrell was apprehensive about
probation and further did not intend to withdraw his notice of appeal. The court stated:
“Well then I’m just not going to hear it then” and the hearing concluded. In a May 6,
2019 Judgment Entry, the court concluded Ferrell was “not interested in being placed
on community control” and found Ferrell’s sentence “shall remain in effect.” On May 9,
2019, the court issued a Judgment Entry Nunc Pro Tunc which altered its previous
statement of jail time credit.
{¶9} Ferrell filed an appeal from the nunc pro tunc entry. We dismissed the
appeal as untimely filed. State v. Ferrell, 11th Dist. Portage No. 2019-P-0064, 2020-
Ohio-866, ¶ 6. He subsequently filed a motion for delayed appeal which was granted by
this court.
2. In the entry issued following the hearing, the trial court referred to it as a “status hearing on judicial release” and it referenced “releasing” Ferrell during the hearing. However, the judicial release statute sets forth that an offender sentenced to an aggregate prison term of more than five years but less than ten, as Ferrell was at the April 10, 2019 resentencing, may move for judicial release after serving five years of the prison term. R.C. 2929.20(C)(4). Thus, Ferrell would not have been eligible for judicial release. This hearing would more properly be construed as one reconsidering the court’s sentence.
4 {¶10} On appeal, Ferrell raises the following assignments of error:
{¶11} “[1.] The Trial Court committed prejudicial error by re-sentencing
Appellant, who the Trial Court was aware had mental health issues, to a maximum four
consecutive prison sentences of eighteen months, for a total of six years, for Criminal
Nonsupport of Dependents involving two children with the same Mother.
{¶12} “[2.] Appellant’s rights to due process were violated when he received two
additional years in prison by the Trial Court for exercising his Constitutional and
Appellate Rights.”
{¶13} We will first address the second assignment of error, as it is dispositive of
the appeal. In his second assignment of error, Ferrell argues that his due process rights
were violated when he received two additional years in prison on remand for
resentencing. He contends that the court’s punishment was vindictive and was not
based on legitimate reasons such as his conduct after the original sentencing
proceeding.
{¶14} “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). The appellate court “may vacate the sentence
and remand the matter to the sentencing court for resentencing[,] * * * if it clearly and
convincingly finds * * * the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
The State contends that plain error must apply since Ferrell did not object to the
increased sentence. We note that Ferrell’s counsel did state “we would object to the
consecutive sentences as imposed by the court,” although not specifically noting an
objection to the increase. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting
5 substantial rights may be noticed although they were not brought to the attention of the
court.” The Ohio Supreme Court has recognized that “a sentence [that is] vindictively
imposed on a defendant” is contrary to law. State v. Rahab, 150 Ohio St.3d 152, 2017-
Ohio-1401, 80 N.E.3d 431, ¶ 8. Regardless of whether a plain error standard is applied,
it is evident that if a greater sentence is imposed vindictively in violation of the law, this
would affect a defendant’s substantial rights and constitute reversible error.
{¶15} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.E.2d 656
(1969), the United States Supreme Court held: “whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear. Those reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant occurring after the time of
the original sentencing proceeding.” Id. at 726. This was based on the rationale that
due process of law requires vindictiveness not play a part in sentencing and that a
defendant must not be unconstitutionally deterred from exercising the right to appeal.
Id. at 725. Subsequently, the Court clarified that Pearce created a presumption of
vindictiveness, and “where the presumption applies, the sentencing authority or the
prosecutor must rebut the presumption that an increased sentence or charge resulted
from vindictiveness; where the presumption does not apply, the defendant must
affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S. 559, 569,
104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). A presumption does 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). It has been limited to
6 circumstances in which “there is a ‘reasonable likelihood’ * * * that the increase in
sentence is the product of actual vindictiveness on the part of the sentencing authority.”
Id.
{¶16} The Ohio Supreme Court has indicated that the Pearce presumption is
narrow in its application and does not apply in circumstances such as where a
defendant is given a harsher sentence after he successfully moves to vacate his plea
and subsequently goes to trial, since “more information bearing on sentencing will be
available to the judge after trial.” Rahab at ¶ 14; also State v. Bozek, 11th Dist. Portage
No. 2017-P-0028, 2018-Ohio-4945, ¶ 50-52. Similarly, it found no presumption of
vindictiveness where a defendant rejects a sentence offered during plea negotiations
and subsequently receives a greater sentence following trial. Id. at ¶ 16-18. As the
Court explained, such cases are distinguishable from Pearce, where the judge was
“expected to operate in the context of roughly the same sentencing consideration after
the second trial as [he did] after the first.” Id. at ¶ 14, citing Smith at 802.
{¶17} In Ohio, it has generally been held that “a presumption of vindictiveness
arises when the same judge imposes a harsher sentence following a successful
appeal.” State v. Banks, 8th Dist. Cuyahoga No. 107048, 2019-Ohio-980, ¶ 29; State v.
Carnahan, 3d Dist. Defiance No. 4-15-18, 2016-Ohio-3213, ¶ 13; State v. Edwards, 6th
Dist. Wood No. WD-13-037, 2014-Ohio-2436, ¶ 5-8. The presumption has been applied
to resentencing after reversal due to errors made by the trial court in the initial sentence.
State v. Hitchcock, 5th Dist. Fairfield No. 19-CA-56, 2020-Ohio-6751, ¶ 9, 20-24;
Edwards at ¶ 6-8.
{¶18} In the present matter, Ferrell was given a greater sentence, two years
7 longer than the original one, following reversal of his sentence in a successful appeal
arising from the trial court’s failure to make consecutive sentencing findings. The same
judge presided over the original sentencing hearing and the resentencing. See
McCullough, 475 U.S. at 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (the Pearce presumption
does not apply where “different sentencers assessed the varying sentences” the
defendant received). These facts fit the circumstances under which a presumption of
vindictiveness has been applied.
{¶19} This matter is distinguishable from other cases where this court has
declined to apply the presumption. In Bozek, the presumption did not apply for reasons
similar to those set forth in Rahab, supra. In State v. Polizzi, 11th Dist. Lake Nos. 2020-
L-016 and 2020-L-017, 2021-Ohio-244, this court declined to apply the Pearce
presumption and applied the standard of actual vindictiveness where the trial court
imposed a shorter overall prison term on remand for failure to make consecutive
sentencing findings, holding that a shorter sentence “does not imply a reasonable
likelihood of vindictiveness.” Id. at ¶ 36. We recognize that, in Polizzi, this court found
that a de novo hearing was proper where the sentence was vacated, at which additional
statements and argumentation could be considered and there was no expectation of
finality as to the defendant’s sentence when he challenged it on appeal. These
principles are accurate and the resentencing hearing conducted here was consistent
with the law. However, in Polizzi, since a shorter prison term was ordered, the same
issues of due process raised here relating to vindictiveness did not apply.
{¶20} Having found that the presumption applies, it is necessary to determine
whether it has been rebutted. Pursuant to Pearce, when a more severe sentence is
8 imposed by a judge “the reasons for his doing so must affirmatively appear,” they must
be “based upon objective information” and “the factual data upon which the increased
sentence is based must be made part of the record.” Pearce, 395 U.S. at 726, 89 S.Ct.
2072, 23 L.E.2d 656. It has been held that information rebutting vindictiveness can
include “new, probative evidence supporting a longer sentence” and relevant events or
conduct that shine “new light upon the defendant’s ‘life, health, habits, conduct, and
mental and moral propensities.’” McCullough at 143 (where a judge considered
“relevant fact[s] not before the [sentencer]” in the first sentencing proceeding and gave
a “careful explanation * * * for the sentence,” this satisfied the requirement that there is
“‘objective information … justifying the increased sentence’”); Hitchcock, 2020-Ohio-
6751, at ¶ 22 (citation omitted).
{¶21} In the present matter, in support of the sentence imposed, the trial court
stated that Ferrell had disregarded the court by repeatedly violating community control
and not completing NEOCAP, information that was known to the trial court at the first
sentencing hearing and which would not provide a justification for giving a greater
sentence on remand. Hitchcock at ¶ 29 (“[i]nformation regarding identifiable conduct on
defendant’s part that was known by the court at the original sentencing proceeding does
not rebut the presumption of vindictiveness that arises from the imposition of a harsher
sentence following defendant’s successful appeal of his sentence”).
{¶22} Some new information was available for consideration upon resentencing,
including: Ferrell had participated in various programs and educational opportunities
while incarcerated, the March 2019 letter from Ferrell’s children’s mother stating how his
actions had impacted his children, and Ferrell’s statements that his son was
9 incarcerated and taking responsibility for his actions and how they impacted his son.
While it is evident that the information showing Ferrell’s progress would not justify an
increased sentence, as the State emphasizes, the letter does constitute new information
that reflects negatively on Ferrell and was not before the court at the prior sentencing
hearing, although the record does not specifically demonstrate the court’s consideration
of the letter.
{¶23} However, even presuming that the letter, if considered by the court, may
justify the increase in the sentence, it has consistently been required that a trial court
state on the record reasons for the increase in the sentence in order to combat the
presumption of vindictiveness. Hitchcock at ¶ 29 (“due process compelled the trial court
to affirmatively explain the increase in its sentence in order to overcome the Pearce
presumption of vindictiveness”); State v. Collins, 8th Dist. Cuyahoga Nos. 98575 and
98595, 2013-Ohio-938, ¶ 17 (“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”). See also Wasman, 468 U.S. at 569, 104 S.Ct. 3217, 82 L.Ed.2d 424
(finding Pearce inapplicable under the circumstances because, “[i]n sharp contrast to
Pearce * * *[,] the trial judge here carefully explained his reasons for imposing the
greater sentence”). Where the trial court merely restates its reasoning for imposing the
original sentence, as occurred here, the presumption is not rebutted. Edwards, 2014-
Ohio-2436, at ¶ 9, 13 (“because the trial court failed to provide a rationale for enhancing
[the defendant’s] sentence on remand” and its explanation for the sentence “virtually
mirror[ed]” the explanation imposed at the original sentencing, “we find that the
10 sentence imposed was contrary to law”); State v. Wagner, 3d Dist. Union No. 14-06-30,
2006-Ohio-6855, ¶ 15 (“where the trial court has expressly referred without elaboration
to the exact same set of findings and factors in both sentencings, we are not convinced
that the record in support of the resentence to a higher prison term is sufficient to dispel
a ‘reasonable likelihood of vindictiveness’ in order to overcome the application of”
Pearce). As the Sixth Circuit has explained, where the Pearce presumption applies,
due process compels the trial court to “give ‘objective reasons’ for imposing a higher
sentence on Defendant on remand than the one it imposed prior to his appeal,”
requiring that the court “‘articulate[] some reason for imposing a more severe sentence’”
that has something to do “‘with conduct or an event, other than the appeal, attributable
in some way to the defendant.’” United States v. Jackson, 181 F.3d 740, 745-746 (6th
Cir.1999), citing United States v. Rapal, 146 F.3d 661, 664 (9th Cir.1998).
{¶24} Here, the trial court failed to give any acceptable justification for increasing
the sentence on the record, either at the sentencing hearing or in its judgment entry.
Instead, the only reasoning for the sentence was based on grounds that were entirely
known at the prior sentencing hearing: that Ferrell had repeatedly failed to comply with
the terms of his probation. The court’s statements demonstrated that it took exception
to Ferrell’s “disregard for the court” but this was not a ground for an increased sentence
under the facts and circumstances of this case. It certainly does not rebut the
presumption of vindictiveness. The fact that the court did not explicitly state that it
increased the sentence because Ferrell prevailed on appeal, as emphasized by the
State, is of no import where the presumption applies.
{¶25} We question the argument by the State that the court chose to issue a
11 greater sentence based on the letter given that it decided, due to Ferrell’s achievements
in prison, to hold a hearing reconsidering his sentence just a few days later. At that
hearing, the court praised Ferrell’s conduct in prison and appeared willing to “release”
him before quickly ending the hearing after Ferrell expressed concerns with being
ordered to serve probation and an unwillingness to withdraw his notice of appeal. This
does not establish or rebut vindictiveness at the time of the sentencing hearing since it
occurred on a later date, and we fully recognize a trial court’s discretion to determine
the proper sentence to be served by an offender, but this further adds to the lack of
clarity behind the reason the court increased Ferrell’s sentence. It should be
emphasized that this court’s ruling is not a determination that the trial court was actually
vindictive in sentencing Ferrell. However, we must apply the presumption as required
by law. Had the trial court stated on the record a proper rationale for increasing Ferrell’s
sentence, the court’s sentence would be afforded appropriate discretion and the
outcome may be different.
{¶26} For the foregoing reasons, we reverse the sentence ordered by the trial
court and remand for resentencing. On resentencing, if the court chooses to increase
the sentence above that ordered in its initial sentence in 2017, it must make findings on
the record to support that increase, consistent with the law discussed herein.
{¶27} As a final point, since we are remanding this matter for resentencing, we
find it necessary to dispel an erroneous assumption under which it appears from the
record the trial court and counsel were operating at the time of resentencing regarding
our instructions on remand in Ferrell, 2019-Ohio-836. At resentencing, the trial court
indicated that the “appeals court is advising this Court to go back to the sentencing
12 date, the motion to revoke, that’s what I have to consider.” The court acknowledged
Ferrell’s accomplishments while incarcerated, but indicated that it could only consider
conduct presented at the time it heard the motion to revoke. Additionally, at the April
15, 2019 hearing after resentencing, the trial court stated that it “was obligated to
sentence the Defendant according to what had taken place during initial probation back
in 2013.” Counsel did not interpose an objection or observation that the court could
consider Ferrell’s accomplishments while in prison.
{¶28} We emphasize that our earlier opinion did not limit the trial court’s
consideration to Ferrell’s conduct or events as of the date of the hearing on the motion
to revoke. As discussed above, Ohio appellate cases provide support for the argument
that the trial court is permitted to consider conduct or events that occurred or were
discovered after the original sentencing at resentencing. See, e.g., State v. Thrasher,
178 Ohio App.3d 587, 2008-Ohio-5182, 899 N.E.2d 193, ¶ 17 (2d Dist.); Hitchcock,
2020-Ohio-6751, at ¶ 28. In a decision focusing on a federal trial court’s ability under
the sentencing guidelines post-Booker to consider a defendant’s post-sentencing
rehabilitation at resentencing after a successful appeal, the Supreme Court of the
United States also held that a trial court may consider such evidence. See Pepper v.
United States, 562 U.S. 476, 503-504, 131 S.Ct.1229, 179 L.Ed.2d 196 (2011). As
such, on remand, the trial court is permitted to consider conduct and events that
occurred after the original sentencing.
{¶29} The second assignment of error is with merit.
{¶30} In his first assignment of error, Ferrell argues that the trial court failed to
articulate with specificity the reasons it ordered him to serve a maximum sentence and
13 he sets forth reasons why the sentence was unwarranted. He further argues there was
no justification for adding two years to his prior term.
{¶31} To the extent that Ferrell questions the court’s rationale for ordering a
maximum sentence, this issue is moot given our disposition of the second assignment
of error. As to the issue raised regarding the increase in his sentence from the original
one, this was fully addressed above.
{¶32} The first assignment of error is moot.
{¶33} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, resentencing Ferrell, is reversed and this matter is remanded for further
proceedings consistent with this opinion. Costs to be taxed against appellee.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.