[Cite as State v. Risko, 2019-Ohio-1879.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018CA00082
SCOTT RISKO                                    :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from Stark County Court of
                                                   Common Pleas, Case No. 2017CR2242


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 13, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    DONOVAN HILL
STARK COUNTY PROSECUTOR                            116 Cleveland Avenue N.W.
110 Central Plaza South                            Suite 808
Canton, OH 44702                                   Canton, OH 44702
[Cite as State v. Risko, 2019-Ohio-1879.]


Gwin, P.J.

        {¶1}     Appellant Scott Risko [“Risko”] appeals his sentence after a jury trial in the

Stark County Court of Common Pleas.

                                            Facts and Procedural History

        {¶2}     In January, 2018 the Stark County Grand Jury indicted Risko on one count

of aggravated vehicular assault, a violation of R.C. 2903.08(A)(1)(a), a felony of the third

degree, one count of vehicular assault, a violation of R.C. 2903.08(A)(2)(b), a felony of

the fourth degree, and one count of operating a vehicle under the influence of alcohol, a

drug of abuse or a combination, R.C. 4511.19(A)(1)(a) and/or (f), a misdemeanor of the

first degree. A violation of R.C. 2903.08(A)(1)(a) carries a mandatory prison term. The

indictment alleged that Risko, while intoxicated, operated a motor vehicle on November

7, 2017 that collided with M. P. causing her serious physical harm.

        {¶3}     Prior to trial, several pre-trials were held. The state offered to recommend

a mandatory one year in prison if Risko pleaded guilty. T. Apr. 18, 2018 at 3-4. The trial

court reminded Risko that if convicted of the offense of aggravated vehicular assault,

prison time was mandatory, and that one year was the lowest mandatory term. T. Apr.

18, 2018 at 5.          The trial court also indicated that she would accept the state's

recommendation of a one-year prison sentence. The court further advised Risko,

                 [COURT]: ...And you understand that if you go to trial, if you are

        convicted of these offenses — actually if you're convicted of just the felony

        of the third degree, that I would have available to me the ability to sentence

        you to 1, 2, 3, 4, or 5 years in prison, do you understand that?

T. Apr. 18, 2018 at 6.
Stark County, Case No. 2018CA00082                                                         3


       {¶4}   Risko indicated that he understood that the trial court could impose a longer

sentence based on the evidence and the testimony and that the sentence after trial could

be quite different from the one year. Risko declined the offer and opted to stand trial.

       {¶5}   Risko's jury trial began on May 1, 2018.          The state presented seven

witnesses including a patrol officer with the Massillon Police Department who responded

to the crash and took a video of the scene, M. P., the victim and a chiropractor and an

orthopedic surgeon who treated M. P.

       {¶6}   Risko stipulated that his blood alcohol content was .268 at the time of the

crash and admitted during opening and closing argument that he was intoxicated and

should not have been driving. Risko also stipulated that the medical records describing

M. P.'s injuries were authentic.

       {¶7}   After hearing the evidence and receiving instructions from the trial court, the

jury returned with a verdict of guilty to all the counts in the indictment.

       {¶8}   Risko returned to the trial court for sentencing on May 3, 2018. M. P.

addressed the trial court during sentencing describing the impact the collision had on her

life. She told the court that her life was turned upside down because of Risko's actions.

She lost her job, was in considerable pain, had medical bills of over $40,000, was unable

to care for her family and was suffering from depression.

       {¶9}   The state recommended a sentence of four or five years. The trial court

then proceeded to sentencing:

              [COURT]: ....But this does require a mandatory prison term, and now

       that I have assessed the circumstances and all of the facts of the case and

       weighed and balanced all of the principles and purposes of sentencing
Stark County, Case No. 2018CA00082                                                          4


         under the Ohio Revised Code, including all of, of the—those factors in your

         favor as well as factors making this more serious in that range of, of one,

         two, three, four or five years, it will be the sentence of the Court that you

         serve a period of three years in an appropriate state institution for this

         offense of aggravated vehicular assault.

Sent. T., May 3, 2018 at 12.

         {¶10} The trial court merged the vehicular assault charge and imposed a sentence

of 180 days on the OVI charge, to be served concurrent for a total prison term of three

years.

                                         Assignment of Error

         {¶11} Risko raises one assignment of error,

         {¶12} “I. APPELLANT’S SENTENCE WAS CONTRARY TO LAW.”

                                          Law and Analysis

         {¶13} In his sole assignment of error, Risko contends that his sentence is contrary

to law because the trial court imposed a sentence different from the pre-trial offer because

he chose to exercise his right to a jury trial.

         {¶14} The term “contrary to law” is not defined in R.C. 2953.08.

         {¶15} It is axiomatic 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, 147,

543 N.E.2d 1220, 1227(1989).         Thus, 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. United States v. Araujo, 539 F.2d 287(2nd Cir. 1976), certiorari

denied sub. nom. Rivera v. United States, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d
Stark County, Case No. 2018CA00082                                                         5

593(1979); United States v. Hutchings, 757 F.2d 11, 14(2nd Cir. 1985); United States v.

Derrick, 519 F.2d 1, 3(6th Cir. 1975). This rule applies “no matter how overwhelming the

evidence of [defendant's] guilt.” Id. at 3.

       {¶16} Moreover, courts must not create the appearance that it has enhanced a

defendant's sentence because he has elected to put the government to its proof. United

States v. Hutchings, supra; United States v. Stockwell, 472 F.2d 1186, 1187(9th Cir.

1973). The chilling effect of such a practice upon standing trial would be as real as the

chilling effect upon taking an appeal that arises when a defendant appeals, is reconvicted

on remand, and receives a greater punishment. See North Carolina v. Pearce, 395 U.S.

711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

       {¶17} In State v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962, 825 N.E.2d637

(8th 2005), the Court observed, “[If] the court makes statements that ‘give rise to the

inference that [the] defendant may have been punished more severely because of his

assertion of the right to trial by jury,’ we must vacate the sentence * * * unless the record

also contains an unequivocal statement that the defendant's decision to go to trial was

not considered in imposing the sentence.” Id., quoting State v. Hobbs, 8th Dist. No.

81533, 2003-Ohio-4338, ¶ 71. “‘Absent such an unequivocal statement, the sentence will

be reversed and the matter remanded for resentencing.’” Id., quoting State v. Scalf, 126

Ohio App.3d 614, 621, 710 N.E.2d 1206 (1998).

       {¶18} However, when a defendant receives a harsher sentence following his

rejection of a plea offer, there is not a “reasonable likelihood” that the sentence was based

on actual vindictiveness. The Ohio Supreme Court has declined to apply a presumption

of vindictiveness, and instead has held that the appellant must prove actual
Stark County, Case No. 2018CA00082                                                      6

vindictiveness. See United States v. Wasman, 468 U.S. 559, 569, 104 S.Ct. 3217, 82

L.Ed.2d 424(1984); State v. Rahab, 150 Ohio St.3d 152, 2017–Ohio–1401, 80 N.E.2d

431, ¶ 16.

       {¶19} Having declined to presume that the trial court acted with vindictiveness, we

begin our review of an appellant's sentence as we do in any other appeal—with the

presumption that the trial court considered the appropriate sentencing criteria. State v.

O'Dell, 45 Ohio St.3d 140,147, 543 N.E.2d 1220(1989); State v. Rahab, 150 Ohio St.3d

152 at ¶ 9. We then review the entire record—the trial court's statements, the evidence

adduced at trial, and the information presented during the sentencing hearing—to

determine whether there is evidence of actual vindictiveness.        We will reverse the

sentence only if we clearly and convincingly find the sentence is contrary to law because

it was imposed because of actual vindictiveness on the part of the trial court. See R.C.

2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,

¶ 1; State v. Rahab, 150 Ohio St.3d 152 at ¶ 33.

       ISSUE FOR APPEAL.

       Whether the three-year mandatory prison sentence in Risko’s case is clearly and

convincingly contrary to law because it was imposed because of actual vindictiveness on

the part of the trial court.

       {¶20} At the April 18, 2018 hearing, the trial court explained that the state was

offering and that the court would impose a one-year mandatory prison sentence. T. Apr.

18, 2018 at 5. The trial court made no threat or promise concerning sentence should

Risko be found guilty of the offenses. At the pre-trial hearing the court explained,
Stark County, Case No. 2018CA00082                                                    7


             It is your prerogative whether you choose to plead guilty or whether

      you choose to go to trial, and I am in no way, shape or form trying to

      convince you to do one or the other. I'm trying to assure myself that you

      understand clearly as to what is being offered.

             So you understand that the one year has been offered, correct?

             DEFENDANT RISKO: Yes, ma'am.

             THE COURT: Okay. And you understand that if you go to trial, if you

      are convicted of these offenses -- actually if you're convicted of just the

      felony of the third degree, that I would have available to me the ability to

      sentence you to 1, 2, 3, 4 or 5 years in prison; do you understand that?

             DEFENDANT RISKO: Yes, Your Honor.

             THE COURT: Okay. I'm not, again, telling you that I would give you

      five years, I don't know because I have not been presented with the

      evidence and the testimony. I don't know what that testimony is going to do

      as far as what it might evoke in me one way or the other, okay? But it is

      possible that you would get a sentence quite different from the one year that

      you are being offered. That's what I want to make sure that you understand.

             DEFENDANT RISKO: Yes, Your Honor.

      {¶21} T. Apr. 18, 2018 at 6. The trial court then explained the possible sentences

for each charge.

      {¶22} The Ohio Supreme Court has observed,

             Furthermore, as the court made clear in [Alabama v.]Smith [490 U.S.

      794, 801–802, 104 L.Ed.2d 865, 109 S.Ct. 2201(1989)], there are legitimate
Stark County, Case No. 2018CA00082                                                        8


      reasons a defendant who rejects a plea may end up receiving a harsher

      sentence.    Acceptance of responsibility is an appropriate sentencing

      consideration. Id. at 801, 109 S.Ct. 2201. Moreover, a plea bargain is, after

      all, a bargain. In the bargain, the prosecutor achieves certain benefits: a

      forgoing of the risk that the defendant will be found not guilty, relief from the

      burden of trying the case and a concomitant ability to devote prosecutorial

      resources to other cases, and limitations on the defendant's right to appeal

      an agreed sentence, see R.C. 2953.08(D)(1). In return, the prosecutor is

      able to offer the defendant certain sentencing considerations. Both sides

      exchange risk about the outcome for an enhanced degree of certainty. For

      the bargain to be worth anything to the defendant (at least in most cases),

      the defendant must have a reasonable probability of receiving a more

      lenient sentence than he would following trial and conviction.

State v. Rahab, 150 Ohio St.3d 152, 2017–Ohio–1401, 80 N.E.2d 431, ¶ 17.

      {¶23} During the sentencing hearing, the court explained,

             What had been presented to me was if there was a resolution of the

      case the State was making a recommendation and, and I had indicated that

      if, if it had gone forward, that I would have approved it. That's before I hear

      the testimony. That's before I'm laying eyes on this lady who has had her

      world turned upside down.

             I don’t know – the, the medical bills are, are bad and the physical

      pain is bad, and I don’t mean to minimize any of that, but when you say

      what this has done to your credit score, that is not anything to scoff at. You
Stark County, Case No. 2018CA00082                                                      9


      know, you – she’s not going to be able to, to buy a home, she’s not going

      to be able to do these things that most people take for granted and can do

      because of this. Even though you didn’t intend it, this is the result. You are

      responsible. And I can’t say it any more plainly than that.

Sent. T. May 3, 2018 at 10-11.

      {¶24} Given the record before us, we are not convinced that the court sentenced

Risko based on vindictiveness, rather than on the evidence presented during trial. A trial

court is not forever bound to impose a sentence based upon a pre-trial offer made in

exchange for a guilty plea. Simply because it does not honor the pre-trial offer is not,

standing alone, evidence of actual vindictiveness.
Stark County, Case No. 2018CA00082                                                10


                                      CONCLUSION.

      {¶25} Risko’s sole assignment of error is overruled.

      {¶26} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
