Youngstown Daily Legal News

Trial court cannot give vindictive sentence, judges rule

Mike Dies (center), president of the West Akron Baseball League has been recognized by the Indians organization as a part of the “Mentor of the Year” awards program. Dies, who works for Rubber World Magazine, lives in West Akron and has coached and umpired in the league since 2000. Dies, who mentored a player named Isaac (far left) won the award for changing the child’s life. Dies’s father, Ken, (right) is also a coach. Dies Electric is a sponsor of the team. (Photo courtesy of Mike Dies)

JESSICA SHAMBAUGH
Special to the Legal News
Published: January 29, 2014

Recently the 12th District Court of Appeals reversed a seven-year sentence for a Butler County man who pleaded guilty to several charges including aggravated burglary and domestic violence.

Robert Seymour was first indicted in April 2011 for one count each of domestic violence, aggravated burglary, grand theft, failure to comply with an order or signal of a police officer and violating a protection order and two counts of assault.

Three months after his indictment he pleaded guilty to all charges and the Butler County Court of Common Pleas sentenced him to a total of 13 years and six months in prison.

On direct appeal, the 12th District ruled that the counts of domestic violence, aggravated burglary and violating a protection order should have merged as allied offenses of similar import.

It found that the trial court committed plain error by failing to merge the counts and remanded the matter for correction.

At resentencing, the state chose to pursue the aggravated burglary charge.

During the first sentencing hearing, the trial court had ordered Seymour to serve six years for aggravated burglary.

At resentencing it increased that sentence to seven years and Seymour appealed again to the 12th District.

“The trial court erred to the prejudice of appellant in resentencing appellant to increased punishment upon remand, in violation of appellant’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Aricle I, Section 16 of the Ohio Constitution,” Seymour argued on appeal.

Upon review, the three-judge appellate panel found that the U. S. Supreme Court had previously ruled that a trial court violates the due process of law when it resentences a defendant to harsher sentences out of retaliation or vindictiveness for the defendant’s successful appeal.

“Although a court may still impose an enhanced sentence on remand, it must demonstrate that the enhanced sentence was not motivated by vindictiveness toward the defendant for exercising his rights,” Judge Michael Powell wrote for the court.

Seymour argued that in his case, the trial court’s decision to increase his sentence was made out of vindictiveness.

In support, he pointed to the facts that the same judge presided over both sentencing hearings but failed to give explanation for the enhanced sentence.

The appellate judges held that a presumption of vindictiveness applied to Seymour’s case and ruled that the common pleas court was required to give “objective information justifying the increased sentence.”

The record, however, showed no such justification and showed only that the trial judge noted Seymour’s extensive criminal background.

The judges ruled that this information was available at the time of the first sentencing and found no reason that it should have enhanced the sentence on resentencing.

“Therefore, the increased sentence in this case is constitutionally defective and the matter must be remanded for resentencing. If the trial court decides to impose a harsher sentence than the sentence imposed originally, then the trial court must affirmatively state upon the record the reasons for imposing the harsher sentence,” Judge Powell stated.

Presiding Judge Robert Hendrickson and Judge Stephen Powell concurred.

The case is cited State v. Seymour, 2014-Ohio-72.

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