State v. Liddy

2023 Ohio 4028

• Court: Ohio Court of Appeals
• Decided: November 6, 2023
• Docket: 2023-A-0029
• Status: Published

Opinion

[Cite as State v. Liddy, 2023-Ohio-4028.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2023-A-0029

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

RICHARD JAMES LIDDY, Trial Court No. 2021 CR 00111 Defendant-Appellant.

OPINION

Decided: November 6, 2023 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff- Appellee).

Michael J. Ledenko, Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Richard James Liddy (“Mr. Liddy”), appeals the judgment of the

Ashtabula County Court of Common Pleas sentencing him to 18 months in prison to be

served consecutively to a prison term imposed in a separate case. Mr. Liddy was

resentenced following this court’s reversal and remand in State v. Liddy, 2022-Ohio-4282,

202 N.E.3d 172 (11th Dist.) (“Liddy I”).

{¶2} Mr. Liddy asserts a single assignment of error, contending the trial court

erred by sentencing him to a maximum and consecutive prison sentence. {¶3} After a careful review of the record and pertinent law, we find Mr. Liddy’s

sole assignment of error is without merit. First, Mr. Liddy’s assertion that maximum

sentences may be imposed only on the most deserving offenders is based on prior

statutory language that does not reflect current Ohio law. Second, Mr. Liddy’s assertion

that the trial court imposed his sentence because of his disruptive courtroom behavior

does not involve the concept of vindictive sentencing.

{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common

Pleas.

Substantive and Procedural History

{¶5} In March 2021, the Ashtabula County Grand Jury indicted Mr. Liddy for

failure to comply with an order or signal of a police officer, a third-degree felony, in

violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), and 2921.331(E). The state alleged

Mr. Liddy “operate[d] a motor vehicle so as willfully to elude or flee a police officer after

receiving a visible or audible signal from a police officer to bring his motor vehicle to a

stop.” It further alleged that Mr. Liddy’s “operation of the motor vehicle * * * caused a

substantial risk of serious physical harm to persons or property,” which elevated the

charged offense from a first-degree misdemeanor.

{¶6} Mr. Liddy initially pleaded not guilty. In July 2021, Mr. Liddy withdrew his

not guilty plea and entered written and oral pleas of guilty to attempted failure to comply,

a fourth-degree felony, in violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii),

2921.331(E), and 2923.02(A). The trial court held a change of plea hearing where it

engaged in a colloquy with Mr. Liddy pursuant to Crim.R. 11, accepted his guilty plea,

and found him guilty. The trial court ordered a pre-sentence investigation and deferred

Case No. 2023-A-0029 sentencing until the resolution of a separate case pending before a different trial court

judge (case no. 2018 CR 00443).

{¶7} On April 25, 2022, Mr. Liddy was sentenced in the separate case to five

years in prison. On the same day, the trial court held a sentencing hearing in the

underlying matter. After reviewing the aggravating and mitigating factors, the trial court

imposed an 18-month prison sentence to be served consecutively to the prison term in

the separate case.

{¶8} The trial court inquired of the state whether the offense of attempted failure

to comply was subject to the Ohio Revised Code’s mandatory consecutive sentencing

provisions. The court commented, “Not that it’s gonna make a difference in my decision,

because the facts of this case are so egregious that he’s going to get an eighteen month

sentence regardless. But had it been a straight failure to comply, that is a mandatory

consecutive sentence that must be imposed.” The state informed the trial court that a

consecutive sentence was mandatory.

{¶9} The trial court reiterated Mr. Liddy’s consecutive 18- month prison term and

granted him 425 days of jail-time credit. The trial court subsequently filed a judgment

entry memorializing Mr. Liddy’s sentence. The entry did not contain any consecutive

sentence findings pursuant to R.C. 2929.14(C)(4). The entry also stated Mr. Liddy was

not entitled to jail-time credit because he received all credit due to him in the separate

case.

{¶10} Mr. Liddy appealed. In Liddy I, supra, we found the trial court’s imposition

of a purported “mandatory” consecutive sentence was clearly and convincingly contrary

to law because the applicable statutes do not mandate consecutive prison term for the

Case No. 2023-A-0029 offense of attempted failure to comply. Id. at ¶ 5. We also found the trial court erred by

issuing a sentencing entry containing a substantive difference regarding jail-time credit

from that pronounced at the hearing. Id. at ¶ 6. We reversed the trial court’s judgment

and remanded for resentencing. Id. at ¶ 7.

{¶11} On remand, the trial court ordered the parties to brief the issues of

consecutive sentences and jail-time credit. On April 20, 2023, the trial court held a

resentencing hearing. Mr. Liddy repeatedly spoke out of turn, used profanity, and

accused the trial court judge of bias. He also stated he had not received counsels’

sentencing briefs. The trial court held a short recess, during which Mr. Liddy was provided

with copies of the briefs. When the hearing resumed, Mr. Liddy continued his disruptive

behavior. The trial court ended the hearing and stated it would be rescheduled.

{¶12} On April 25, 2023, the trial court held another resentencing hearing. The

state and defense counsel presented argument, and Mr. Liddy spoke on his own behalf.

Like in the prior hearing, Mr. Liddy repeatedly spoke out of turn and used profanity.

Despite Mr. Liddy’s interruptions, the trial court discussed several sentencing factors on

the record. In particular, the trial court emphasized the seriousness of Mr. Liddy’s conduct

in nearly causing multiple traffic collisions; he committed the offense while on bail; his

failure to meaningfully accept responsibility; and his extensive criminal history. The trial

court also made the necessary consecutive sentence findings pursuant to R.C.

2929.14(C)(4). The trial court reimposed an 18-month prison sentence to be served

consecutively to the prison term in the separate case and granted Mr. Liddy one day of

jail-time credit. In May 2023, the trial court filed a sentencing entry memorializing Mr.

Liddy’s sentence.

Case No. 2023-A-0029 {¶13} Mr. Liddy appealed and raises the following assignment of error:

{¶14} “The trial court clearly and convincingly committed prejudicial error that

deprived RICHARD LIDDY of due process of law guaranteed by the Fourteenth

Amendment to the United States Constitution and Article One, Section Ten of the Ohio

Constitution and violated Revised Code 2953.08 by sentencing him to maximum and

consecutive prison sentences after entering a guilty plea.”

Standard of Review

{¶15} The standard of review for an appeal of a felony sentence is governed by

R.C. 2953.08(G)(2). See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 21. That provision states in relevant part:

{¶16} “The court hearing an appeal * * * shall review the record, including the

findings underlying the sentence or modification given by the sentencing court.

{¶17} “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court’s standard of review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

{¶18} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶19} “(b) That the sentence is otherwise contrary to law.”

{¶20} “‘Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such certainty

Case No. 2023-A-0029 as is required “beyond a reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

Law and Analysis

{¶21} In his sole assignment of error, Mr. Liddy contends that the trial court erred

by sentencing him to a maximum and consecutive prison sentence.

{¶22} He first argues that a court “may impose the longest prison term authorized

for the offense * * * only upon offenders who committed the worst forms of the offense,

upon offenders who pose the greatest likelihood of committing future crimes, upon certain

major drug offenders * * *, and upon certain repeat violent offenders * * *.” (Emphasis

sic.) Mr. Liddy’s proposition comes from State v. Edmonson, 86 Ohio St.3d 324, 715

N.E.2d 131 (1999), and the Supreme Court of Ohio’s quotation of former R.C. 2929.14(C).

See id. at 328. The court described the statutory language as establishing Ohio’s “public

policy disfavoring maximum sentences except for the most deserving offenders.” Id. R.C.

2929.14(C) has since been amended and no longer contains the quoted language.

Therefore, Mr. Liddy’s proposition does not reflect current Ohio law.

{¶23} Mr. Liddy next argues his sentence was imposed as a result of the trial

court’s vindictiveness. Vindictive sentencing occurs when a sentencing court retaliates

against a defendant for having successfully challenged his first conviction. See North

Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.E.2d 656 (1969). It is

prohibited because the fear of vindictiveness “may unconstitutionally deter a defendant’s

exercise of the right to appeal or collaterally attack his first conviction.” Id. A presumption

Case No. 2023-A-0029 of vindictive sentencing arises when the same judge imposes a harsher sentence

following a successful appeal. State v. Ferrell, 2021-Ohio-1259, 170 N.E.3d 464, ¶ 17

(11th Dist.). The presumption has been applied to resentencing after reversal due to

errors made by the trial court in the initial sentence. Id. Absent the presumption, “[a]n

appellate court may reverse a sentence for vindictiveness only if, after review of the entire

record, it finds clearly and convincingly that the sentence was based on actual

vindictiveness.” State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶

33.

{¶24} Mr. Liddy concedes there is no presumption of vindictiveness in this case,

most likely due to the fact the trial court imposed the same sentence as in Liddy I.

However, Mr. Liddy alleges the existence of actual vindictiveness. He argues the trial

court imposed a “maximum consecutive sentence” based on the “language” he used at

the April 2023 hearings. According to Mr. Liddy, sentencing him for “anything other than

his conduct in this case amounts to vindictive sentencing.”

{¶25} Mr. Liddy’s argument misconstrues the concept of vindictive sentencing. As

stated, it involves a trial court’s retaliation following a defendant’s exercise of his rights.

We acknowledge the Supreme Court of Ohio recently found a sentencing court acted

contrary to law when it increased a defendant’s sentence by six years as a result of his

disrespectful courtroom outburst. See State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-

1878, 198 N.E.3d 68, ¶ 32. However, Mr. Liddy does not assert an argument based on

Bryant, and we will not construct one on his behalf.

{¶26} Mr. Liddy’s sole assignment of error is without merit.

Case No. 2023-A-0029 {¶27} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

JOHN J. EKLUND, P.J.,

MATT LYNCH, J.,

concur.

Case No. 2023-A-0029