[Cite as State v. Collins, 2013-Ohio-938.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 98575 and 98595




                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                        TONY COLLINS
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-529965 and CR-533453

        BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                    March 14, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

      {¶1} Defendant-appellant, Tony Collins, appeals from the sentence imposed

upon resentencing in CR-529965. He contends that the trial court vindictively sentenced

him to a higher sentence upon remand and that this court should therefore reduce his

sentence to two years, the original sentence. We hold that there is insufficient evidence

in the record to rebut the presumption of vindictiveness that arises when a court sentences

a defendant to an increased sentence after a successful appeal and, accordingly, vacate the

sentence and remand with instructions to the trial court to modify Collins’s sentence in

CR-529965 to two years incarceration.

                                     I. Background

      {¶2} Collins was indicted in two cases that were consolidated and heard before

the court. The trial court found him guilty of all the charges. In CR-529965, Collins

was found guilty of Count 1, drug possession of marijuana in excess of 5,000 grams with

forfeiture of a cell phone; Count 2, drug trafficking with forfeiture of a cell phone; and

Count 3, possession of criminal tools with forfeiture of a cell phone. In CR-533453, he

was found guilty of Count 1, drug possession; and Count 2, drug trafficking with a

schoolyard specification.

      {¶3} The court determined that the drug trafficking and drug possession

convictions merged and the state elected to sentence Collins on the drug trafficking
counts. In CR-529965, the court sentenced Collins to two years for drug trafficking,

concurrent to six months for possession of criminal tools. Collins was also ordered to

forfeit the cell phone.     In CR-533453, the court sentenced Collins to four years,

consecutive to the sentence in CR-529965, for an aggregate prison term of six years.

         {¶4} On appeal, this court reversed Collins’s convictions for drug trafficking, the

attendant schoolyard specification, and possession of criminal tools, finding they were not

supported by sufficient evidence. This court also reversed the cell phone forfeiture

order.    This court affirmed Collins’s convictions for drug possession, however, and

remanded for resentencing on the drug possession counts. State v. Collins, 8th Dist. No.

95422, 2011-Ohio-4808.

         {¶5} On September 30, 2011, while Collins’s case was on appeal, H.B. 86

became effective. As a result, the maximum penalty for the drug possession charge in

each case was reduced to three years.

         {¶6} On remand, the trial court sentenced Collins in CR-529965 to three years

incarceration; in CR-533453, Collins was sentenced to one year in prison. The trial court

ordered the sentences to be served consecutively, for an aggregate sentence of four years.



         {¶7} Collins now appeals the sentence imposed in CR-529965. He contends

that the trial court violated his due process rights by imposing a harsher sentence upon

remand (three years instead of the two he was originally sentenced to) after his successful

appeal of his original convictions.
                                      II. Analysis

      {¶8} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969), the United States Supreme Court held that a trial court violates the due process

clause of the Fourteenth Amendment when, motivated by retaliation for a defendant’s

successful appeal, it resentences a defendant to a harsher sentence. Id. at 724. Although

a court may impose an enhanced sentence, it must demonstrate that it was not motivated

by vindictiveness toward the defendant for exercising his rights. Id. at 723. Thus, to

ensure that a non-vindictive rationale supports the increase, and to allay any fears of the

defendant that an increased sentence is the product of vindictiveness, the Pearce court

held that whenever a judge imposes an increased sentence after a successful appeal, there

is a presumption of vindictiveness that can be rebutted only by objective information in

the record justifying the increased sentence. Id.; Wasman v. United States, 468 U.S. 559,

564-565, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).

      {¶9} Subsequently, in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104

L.Ed.2d 865 (1989), the Supreme Court limited the presumption announced in Pearce to

those situations where there is a “reasonable likelihood” that the enlarged sentence was

the product of vindictiveness. Where there is no such reasonable likelihood (e.g., where

the resentencing judge is different than the original judge,1 or where a sentence imposed




      See, e.g., State v. Douse, 8th Dist. No. 82008, 2003-Ohio-5238; State v.
      1

Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783 NE.2d 903, ¶ 25.
after trial is greater than a first sentence imposed after a guilty plea2 ), the presumption

does not apply and the defendant has the burden of showing actual vindictiveness.      Id. at

800.

       {¶10} “Actual vindictiveness” implies an animus against a defendant because he

exercised his right of appeal that resulted in the reversal of the prior conviction due to an

error by the sentencing judge. State v. Boyd, 6th Dist. No. L-07-1095, 2009-Ohio-3803,

¶ 15, citing State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334, 883 N.E.2d 1077

(2d Dist.); Pearce at 723.

       {¶11} In this case, the original and resentencing judge were the same             and

accordingly, the presumption set forth in Pearce applies. Our review of the record

demonstrates that, although there is nothing in the record to suggest that the resentencing

judge imposed the harsher sentence due to actual vindictiveness, 3 there is also no

objective information in the record to rebut the presumption that vindictiveness was

behind the increased sentence.

       {¶12} “[F]ollowing a defendant’s successful appeal, a sentencing authority may

justify an increased sentence by affirmatively identifying relevant conduct or events that



       2
              Alabama            v.     Smith,         490        U.S.        at        803.


       Indeed, it is quite possible that the trial court actually meant to sentence
       3

Collins to three years incarceration in CR-533453 (where the original sentence was
four years) and to one year in CR-529965 (where the original sentence was two
years), instead of to three years in CR-529965 and one year in CR-533453.
occurred subsequent to the original sentencing proceedings.”4 Wasman, 468 U.S. at 572,

citing Pearce, 395 U.S. at 726. “Such information may come to the judge’s attention

from evidence adduced at the second trial itself, from a new presentence investigation,

from the defendant’s prison record, or possibly from other sources.” Id. at 571, citing

Pearce, 395 U.S. at 722-723. “Relevant conduct or events” sufficient to overcome the

presumption of vindictiveness are those that throw “new light upon the defendant’s ‘life,

health, habits, conduct, and mental and moral propensities.’” Id. at 570-571, quoting

Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

      {¶13} At sentencing, the trial court told Collins that he remembered the cases and

described the events that led to the convictions. The judge reviewed Collins’s criminal

record and then, after giving his reasons for imposing consecutive sentences, sentenced

Collins as set forth above. The trial court did not reference any information it had

obtained since Collins’s original sentencing, however, to justify the increased sentence



      4
       In State v. Quinones, 8th Dist. No. 97054, 2012-Ohio-1939, ¶ 5, in reliance
on Pearce, this court stated that the reasons for an increased sentence must be
based on information concerning identifiable conduct by the defendant or events
that occurred after the first sentencing. In Wasman, however, although not
expressly deciding whether an increased sentence can be justified by reference to an
event or conduct occurring before the original sentencing, the United States
Supreme Court noted that Pearce “is not without its ambiguities” and that “two of
the separate opinions in Pearce suggest that the Court did not intend to confine the
sentencing authority’s consideration to ‘conduct’ occurring subsequent to the first
sentencing proceedings.” The Wasman Court found it “unnecessary to reconcile
these apparent ambiguities” in Pearce because the question whether an increased
sentence can be justified by reference to an event or conduct occurring before the
original sentencing was not presented by the case. Wasman, 468 U.S. at 571-572.
in CR-529965. Indeed, the only new information the judge had was that Collins had

attended AA classes and obtained his GED while incarcerated.

      {¶14} The State contends that the trial court’s recitation of Collins’s extensive

criminal history was sufficient to justify the increased sentence. However, the record of

the original sentencing hearing demonstrates that the trial court was aware of and

reviewed Collins’s criminal record before sentencing him the first time.

      {¶15} Further, the State’s assertion that the trial court could consider charges that

were dismissed to justify a harsher sentence upon resentencing is without merit. “The

fact that defendant was convicted of fewer offenses did not involve any conduct of the

defendant in relation to the offense of which he was convicted. Neither did that fact

throw ‘new light’ on defendant’s life, health, habits, conduct and mental and moral

propensities. * * * The fact that charges were dismissed, which as a result diminished

the number of sentences the court could impose, portrays no basis for imposing harsher

sentences.” State v. Bradley, 2d Dist. No. 06CA31, 2008-Ohio-720, ¶ 18.

      {¶16} Finally, the State contends that the increased sentence in CR-529965 is

appropriate because Collins’s aggregate sentence in both cases did not increase. But as

the Ohio Supreme Court made clear in State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, the sentencing package doctrine is not applicable to

Ohio law; sentencing courts may not employ the doctrine when sentencing a defendant

and appellate courts may not use the doctrine when reviewing a sentence or sentences.

Id. at paragraph two of the syllabus. Thus, per Saxon, each count stands alone, and an
increased sentence on one count cannot be justified by the fact that the aggregate sentence

for all counts did not increase.

       {¶17} Accordingly, 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

in CR-529965 upon remand after Collins’s successful appeal. Accordingly, we vacate

Collins’s sentence in CR-529965 and remand with instructions that the trial court modify

the sentence in that case to two years.

       {¶18} Additionally, because the record does not reflect that the trial court entered

an order vacating Collins’s convictions for drug trafficking, the attendant schoolyard

specification, and possession of criminal tools, as instructed in our first remand of this

case, this court sua sponte orders that Collins’s convictions for drug trafficking, the

attendant schoolyard specification, and possession of criminal tools are hereby vacated.

       {¶19} Sentence vacated and remanded.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Common

Pleas Court to carry this judgment into execution. Case remanded to the trial court for

proceedings consistent with this opinion.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
