When A Longer Sentence Does Not Equate To A Presumption Of Vindictiveness

Back in June 2016, I wrote a blog entitled, Courtroom Taxes For Utilizing The Jury Box:  A Look At Courts Taxing Defendants With Prison For Exercising Their Constitutional Rights.  Well, almost a year later, the issue of trial tax came up again in State v. Rahab, 2017-Ohio-1401.  This time around though, the Ohio Supremes had their chance to weigh in on the subject of Vindictiveness as it relates to trial tax.

In Rahab, Rahab was charged and indicted for burglary.  Prior to his jury trial, the state offered Rahab a plea deal.  The plea deal required Rahab to plead guilty as charged in exchange for a three year agreed sentence.  Rahab rejected this offer in open court and on the record.  After a jury trial, the jury found Rahab guilty of burglary.  The trial court sentenced Rahab to six years in prison.  Rahab appealed his sentence arguing that his sentence was contrary to law because the trial court had punished him for exercising his right to a jury trial rather than accepting the plea offer.

The First District Court of Appeals rejected Rahab’s argument and found that the trial court had based its sentence on the facts of the case and the defendant’s prior history rather than on his decision to go to trial.  Rahab appealed to the Ohio State Supreme Court which granted Rahab’s discretionary appeal.

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.  Bordenkircher v. Hayes, 434 U.S. 357.  A sentence vindictively imposed on a defendant for exercising his constitutional right to a jury trial is contrary to law.  State v. O’Dell, 45 Ohio St.3d 140.

Well that is all good, but how the hell does Rahab prove vindictiveness?

Rahab argued that the court’s statements during sentencing gave rise to an inference that it sentenced him vindictively and that the inference could be rebutted only by an unequivocal statement as to whether the decision to go to trial was or was not considered in fashioning the sentence.  State v. Scalf, 126 Ohio App.3d 614.

In other words, Rahab argued that the court should presume vindictiveness based on the trial court’s statements.

This presumption of vindictiveness comes from North Carolina v. Pearce, 395 U.S. 711.  In Pearce, Pearce successfully appealed his original trial and was granted a retrial.  After the retrial, Pearce was again found guilty.  This time around though, Pearce received a harsher sentence.  The court held that a presumption of vindictiveness arose when the judge imposed a more sever sentence after the second trial.  Id.  The presumption could be rebutted by affirmative, non-vindictive reasons for the sentence on the record.  Id.  According to the Pearce court, due process requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.  Id.

In every effort to not bore you than already accomplished, the Ohio Supremes explained through a series of United States Supreme Court cases on why Rahab’s argument of the presumption of vindictiveness fails.  The Ohio Supremes stated that they shall reverse Rahab’s sentence only if they 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.  With that logic, the Ohio Supremes held that Rahab had to prove actual vindictiveness.

Let’s see how that goes, shall we?!?

Rahab argued that from the get-go, the trial court was not too excited about him taking his case to trial:

Sir, you understand that the state is offering to do an agreed sentence of three years in prison.  The charge that you are facing now, sir, carries a potential sentence of 2 to 8.  There’s the presumption that you go to prison, okay?  And if you didn’t take the agreed sentence and you were found guilty, it would be up to the court to sentence you.  And the court does not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.

 You understand that?  Meaning it probably would be more.  I’m not going to fool you.  You understand?

Rahab argued that the above statements amounted to a threat from the court.  The Ohio Supremes did not see it Rahab’s way.  This was not a threat said the Ohio Supremes, but rather the trial court ensuring that Rahab understood the choice he was making by going to trial.

Prior to the sentencing hearing, Rahab wrote a letter to the trial court claiming that he had wanted to admit to the crime all along and the he only went to trial because his attorney made him.  When confronted by the trial court as to why he did not just take the plea deal, Rahab answered, “I didn’t think it was worth what I did, three years.”  Below is the trial court’s response:

Eight years.  I told you when they offered you three.  So, you know, I am a little perplexed that you’re saying you didn’t think three was fair and you’re telling me that your attorney made you go to trial.  And now you are telling me that you did it.  You did it, didn’t you, right?

After admitting to committing the burglary, the trial court went on:

Okay.  So I do not understand why you wouldn’t admit to that and plead to that, and you had to have a trial, or why you wouldn’t take the three years because I can sentence you to eight.

 Makes no sense to me.  So I don’t know what you talked about with your attorney, but…too late.  You went to trial.  You gambled, you lost.  You had no defense.  And you even admit that you did it, and yet you put this woman through this trial again.

 You traumatized her by breaking into her house.  And then you had to traumatize her again to relive it and go to trial.  I don’t get it.

When Rahab’s brother addressed the trial court about Rahab’s difficult upbringing, the trial court had this to say:

He went to trial with a prove-it defense.  He had absolutely no defense.  They had his fingerprints.  He gambled, he lost.  I’m sorry, you know right from wrong, but it just does not – it’s like, yeah, now that it’s all over, oh, I’m sorry I got caught, I’m sorry I got – I went to trial and I lost.  Too late.  Too late.  To me, too late.

Sticking with its gambling theme, the trial court went on to state:

Well, guess what, you lost your gambling.  You did this.  You had no defense, and you wouldn’t take responsibility.  You wanted to go to trial.  All right, big winner you are.

The Ohio Supremes found these troubling because no court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial.  BUT, according to the Ohio Supremes, these statements cannot be read in isolation and they must review the entire record.

After reviewing the “entire record” the Ohio Supremes found that the trial court had a great deal of information to consider before it imposed sentence.  The Ohio Supremes went to state that it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain, but they still did not amount to vindictiveness.

Justice Hoover of the Fourth District Court of Appeals, sitting for Justice Fischer, in her concurring in part and dissenting in part opinion made some noteworthy remarks.

Justice Hoover found the remarks made by the trial court prior to trial as a threat to Rahab.  Essentially, “either take the plea bargain offered by the state and forego your right to a trial or suffer a longer sentence upon a finding of guilty by the jury.”  Justice Hoover felt this remark along with the remarks at the sentencing hearing, which repeatedly mention Rahab’s rejection of the plea bargain and his decision to “gamble” and go to trial, clearly showed that the trial court acted vindictively when it sentenced Rahab.

Based on that, Justice Hoover asked the question, “If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?”

Lastly, Justice Hoover found that the majority’s decision may have a chilling effect on the willingness of criminal defendants to exercise their constitutional rights to trial.

I am with Justice Hoover on this one.


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