NO TAXATION WITHOUT REPRESENTATION!! Remember learning that slogan in school when discussing the American Revolutionary War?  Just in case you don’t, this slogan was chanted because the Brits were taxing us Yankees and we had no say in their parliament.  So, that really pissed us off and we went to war (I know there was more to it, but let’s be honest, the founding fathers did not want to pay the Brits).

War ensued; we won, and formed our own government.  And now, said government taxes the hell out us working folk!  Everything these days seems to be taxed.  Don’t get me wrong I enjoy roads, bridges, stadiums, etc.  But as a Red Blooded American I have a right to bitch about taxes.

In State v. Noble, 2015-Ohio-652, Justin Noble had a bit of grip when it came to his trial tax for taking his criminal case to the jury.  Now before diving into this case, let me give you a real quick explanation of what attorneys mean by a trial tax.

Trial tax is essentially a punishment from the court for taking a case to a jury trial (sometimes a bench trial) on a case where the defendant is clearly guilty of the offense and has no legitimate defenses in the eyes of the court.  Said punishment is anything from prison time, jail time, tougher sanctions, etc.  Let me give you a quick scenario I have seen in the courtroom with regards to trial tax.

Waiting for my case to be called one afternoon, I had the pleasure of witnessing a defense attorney and what I would call a difficult client discussing their case.  It was apparent from the reactions of the client, that the client did not want to take any deals and wanted to proceed with a trial.  It was even more apparent from the look on the defense attorney’s face that he wanted to smack his client and explain to his client how not only would he be found guilty, but the judge would fry him during sentencing.  Client was not hearing it.

A few moments later, the judge takes the bench and this guy’s case was called.  Client and defense attorney go to the podium and the judge asked defense counsel how his client wanted to proceed.  Meaning, is he going to take the plea deal or go to trial.  Defense counsel stated that after speaking with his client, the client elected to proceed with trial.

Judge looks at the client and begins to have a little discussion.  The judge tells the client that if he accepts the plea deal, the most he will be facing his community control with basic supervision and sanctions.  However, if he proceeds to trial, the judge explained how he might not like what the witnesses would say about the incident and that could change his mind to lean towards prison time over community control.

Well wouldn’t ya know, that son um’ bitch changed his mind real quick!  Client entered a guilty plea right then and there to secure that plea deal.

Based on the above, you can kind of tell how the judge made it clear that, in his mind, there were no defenses, the witnesses will prove the state’s case, and because of that prison time may be in order.

In Noble, however, Noble went forward on his case and had is day in court.

Noble was indicted on 16 counts of thefts, ranging from fifth and fourth degree felonies.  During the investigation, Noble rode around with a detective from the Warren County Sherriff’s Office to visit the areas of theft.  During his ride along, Noble detailed the numerous thefts and explained his level of involvement with the thefts and his accomplice’s level of involvement.

Believing he still had a fighting chance for a not guilty verdict, even though he told the detective everything needed to lock in a conviction, Noble took his case to the jury.  During the two day trial, thirteen victims testified against Noble along with the detective that conducted the investigation.  During the detective’s testimony, the detective explained how Noble specifically admitted to removing items from vehicles.

At the end of the trial, the jury came back with a guilty verdict on all counts.  Noble’s case then went to sentencing.  The judge stated the following to Noble:

So, the sad but true tail is that you have learned nothing in your young life.  The only positive thing that anybody can say about you is you did cooperate with the police here.  But you wasted this jury’s time with this trial.  There was absolutely nothing your attorney could do for you.  You had no defense whatsoever.  You committed every one of these crimes as clearly as could be.

The jury took every opportunity to look at it and scrutinize the evidence carefully, but this isn’t a case where you had some legitimate defense to the claim, you just simply took a shot and hoped that the jury was dumb enough to busy some these nonsensical arguments.  So, this court will not give you any benefit of leniency.

On the other hand, I don’t accept the argument that maximum consecutive sentences are appropriate either.  You did help the police officer, you do get some credit for that.  You don’t get the same kind of leniency you would have gotten if you had just fessed up, taken responsibility and said, okay, I got caught, I screwed up, now what’s my prison sentence.

You’re going to prison for these crimes and there’s no ifs, ands, or butts about it.  The harm is just extraordinary and the nature of the crime spree is overwhelming.

Thereafter, Noble was sentenced to eight years in prison to be served consecutively to his sentences in two other cases.  On appeal, Noble asserted that he was penalized for exercising his constitutional right to a trial.  Specifically, Noble asserted that the trial court’s statements indicating that the trial was a waste of time and that he would not be granted the same leniency he otherwise would have been afforded if he had pled guilty created an appearance that the trial court punished him for pursuing a jury trial.

The appellate court starts off their analysis by recognizing that “a defendant is guaranteed the right to a trial and should never be punished for exercising that right.”  State v. O’Dell, 45 Ohio St.3d 140 (1989).  The augmentation of sentence based upon a defendant’s decision to stand on his right to put the government to its proof rather than plead guilty is improper.  State v. Scalf, 126 Ohio App.3d 614.

The appellate court goes on to state that it is improper for a trial court to create the mere appearance that it has augmented a defendant’s sentence because he has elected to put the government to its proof. State v. Howard, 2013-Ohio-2884.  Thus, when an appearance of an augmented sentence is created, even when a defendant may not in fact have been punished for electing to go to trial, a defendant’s sentence must be vacated.  State v. Morris, 2005-Ohio-962.  However, if the trial court unequivocally dispels any such inference by clearly stating the defendant’s decision to go to trial was not considered in imposing the sentence, then vacating the defendant’s sentence is not necessary.  Id.

After reviewing the trial court’s sentencing speech to Noble, the appellate court held that the statements made by the trial court created the appearance from which an inference could be made that it may have augmented Noble’s sentence because he exercised his right to a jury trial.  In addition, the appellate court found there to be no evidence in the record that the trial court made an unequivocal statement that Noble’s sentence was not more severe because he exercised his constitutional right.  Based on those findings, the appellate court vacated Noble’s sentence and remanded the case back down to the trial court for resentencing.

To be honest, I get that courts don’t want what seems to be an open and shut criminal case going through their court.  Jury trials take up a significant amount of time, cost tax payers money, and can clog up the court’s docket.  Thus, threating a defendant with a trial tax for asserting their rights might ease this burden.

But that should not matter!  If a defendant wants to take his case to the jury, even though he or she has no defense, they should be able to do so without the fear of judge imposing a harsher sentence.