[Cite as State v. Breneman, 2012-Ohio-2411.]




           IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 2011CA19

vs.                                                :   T.C. CASE NO. 2010CR103

VIRGIL R. BRENEMAN                                 :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                               .........

                                               OPINION

                             Rendered on the 1st day of June, 2012.

                                               .........

Nick A. Selvaggio, Prosecuting Attorney, Atty. Reg. No. 0055607, 200 North Main Street,
Urbana, OH 43078
      Attorney for Plaintiff-Appellee

John A. Fischer, Atty. Reg. No. 0068346, Greene Town Center, 70 Birch Alley, Suite 240,
Beavercreek, OH 45440
      Attorney for Defendant-Appellant

                                               .........

GRADY, P.J.:

        {¶ 1}    On August 18, 2010, Virgil Breneman entered negotiated guilty pleas to three

offenses: failure to comply with an order or signal of a police officer, a third degree felony in

violation of R.C. 2921.331(B),(C)(5)(a)(ii); possession of cocaine, a fifth degree felony in

violation of R.C. 2925.11(A), (C)(4)(a), and unauthorized use of a motor vehicle in violation
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of R.C. 2913.03(B), (D)(3).      The State dismissed four other charges and agreed to

recommend an aggregate sentence of not more than two years.

       {¶ 2} On October 13, 2010, after hearing the recommendation the State had promised

to make, the court imposed a two-year aggregate sentence consisting of concurrent prison

terms of two years for failure to comply, eleven months for possession of cocaine, and eleven

months for unauthorized use of a motor vehicle.

       {¶ 3} After Defendant had begun serving his sentences, the Bureau of Sentence

Computation advised the court of an error in the sentences the court imposed.            R.C.

2921.331(D) provides that if an offender is sentenced to prison for failure to comply with the

order or signal of a police officer pursuant to division (C)(5) of R.C. 2921.331, as Defendant

was, “the offender shall serve the prison term consecutively to any other prison term or

mandatory prison term imposed on the offender.”

       {¶ 4} Because Defendant’s prison term for failure to comply had been imposed

concurrently with other sentences instead of consecutively, the court on February 9, 2011

permitted Defendant to withdraw his guilty pleas and to enter new guilty pleas for the same

offenses, for which new sentences would be imposed. Defendant withdrew his former guilty

pleas and entered new guilty pleas to the same offenses. The court advised Defendant that it

was not required to follow any sentencing recommendations that were made. Defendant

acknowledged his understanding of that fact.

       {¶ 5} The court accepted Defendant’s pleas and immediately proceeded to

sentencing. After hearing the recommendations of the parties, the court imposed a two-year

sentence for the failure to comply offense, plus six months of community control on both the
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possession of cocaine and the unauthorized use of a motor vehicle offenses. The community

control would commence upon Defendant’s release from prison.               As a condition of

community control, the court ordered Defendant to undergo drug treatment for the

drug-dependency problem for which Defendant had requested help.

       {¶ 6} Neither party objected to the sentence the court imposed on February 9, 2011.

The judgment of conviction was not journalized until July 21, 2011.            Defendant then

appealed from his judgment of conviction.

       FIRST ASSIGNMENT OF ERROR

       {¶ 7} “THE CHAMPAIGN COUNTY COURT ERRED ON RESENTENCING

WHEN, WITHOUT EXPLANATION, IT INCREASED THE SEVERITY OF MR.

BRENEMAN’S ORIGINAL SENTENCE.”

       {¶ 8} In North Carolina v. Pearce, 295 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969), the Supreme Court held that the Double Jeopardy Clause is not a bar to imposition of

a more severe sentence for an offense after a retrial following a defendant’s successful appeal

of his prior conviction and sentence for the same offense. The Supreme Court also attached

the following caveat, at 395 U.S., 723-726:

               To say that there exists no absolute constitutional bar to the imposition

       of a more severe sentence upon retrial is not, however, to end the inquiry.

       There remains for consideration the impact of the Due Process Clause of the

       Fourteenth Amendment.

               It can hardly be doubted that it would be a flagrant violation of the

       Fourteenth Amendment for a state trial court to follow an announced practice
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of imposing a heavier sentence upon every reconvicted defendant for the

explicit purpose of punishing the defendant for his having succeeded in getting

his original conviction set aside. Where, as in each of the cases before us, the

original conviction has been set aside because of a constitutional error, the

imposition of such a punishment, “penalizing those who choose to exercise”

constitutional rights, “would be patently unconstitutional.” United States v.

Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. And the

very threat inherent in the existence of such a punitive policy would, with

respect to those still in prison, serve to ‘chill the exercise of basic

constitutional rights.’ Id., at 582, 88 S.Ct., at 1216. See also Griffin v.

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; cf. Johnson v. Avery,

393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. But even if the first conviction has

been set aside for nonconstitutional error, the imposition of a penalty upon the

defendant for having successfully pursued a statutory right of appeal or

collateral remedy would be no less a violation of due process of law. “A new

sentence, with enhanced punishment, based upon such a reason, would be a

flagrant violation of the rights of the defendant.” Nichols v. United States, 106

F. 672, 679. A court is “without right to * * * put a price on an appeal. A

defendant's exercise of a right of appeal must be free and unfettered. * * * (I)t

is unfair to use the great power given to the court to determine sentence to

place a defendant in the dilemma of making an unfree choice.” Worcester v.

Commissioner of Internal Revenue, 1 Cir., 370 F.2d 713, 718. See Short v.
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United States, 120 U.S.App.D.C. 165, 167, 344 F.2d 550, 552. “This Court has

never held that the States are required to establish avenues of appellate review,

but it is now fundamental that, once established, these avenues must be kept

free of unreasoned distinctions that can only impede open and equal access to

the courts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891;

Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v.

Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372

U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.” Rinaldi v. Yeager, 384 U.S. 305,

310-311, 86 S.Ct. 1497, 1500-1501, 16 L.Ed.2d 577.

       Due process of law, then, 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. And since the fear of such

vindictiveness may unconstitutionally deter a defendant's exercise of the right

to appeal or collaterally attack his first conviction, due process also requires

that a defendant be freed of apprehension of such a retaliatory motivation on

the part of the sentencing judge.

       In order to assure the absence of such a motivation, we have concluded

that whenever a judge imposes a more severe sentence upon a defendant after a

new trial, the reasons for his doing so must affirmatively appear. Those reasons

must be based upon objective information concerning identifiable conduct on

the part of the defendant occurring after the time of the original sentencing

proceeding. And the factual data upon which the increased sentence is based
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       must be made part of the record, so that the constitutional legitimacy of the

       increased sentence may be fully reviewed on appeal.

       {¶ 9} Defendant argues that the additional six months of community control

following his release from two years incarceration the court previously imposed constitutes a

more severe sentence. We agree. Defendant further argues that his request for or need of

drug treatment is not “new information” on which the court could rely, because he had

brought those same matters to the court’s attention when his first sentence was imposed. The

record supports Defendant’s contention. Nevertheless, we cannot find the violation of the

holding in Pearce on which Defendant’s first assignment of error is predicated.

       {¶ 10} The second sentence the court imposed on February 9, 2011, to which

Defendant now objects, was not the result of having his first sentence set aside following

Defendant’s successful appeal or pursuit of a collateral remedy. Rather, the second sentence

was the product of the guilty pleas Defendant entered after the court had granted him leave,

pursuant to Crim.R. 32.1, to withdraw his prior guilty pleas.          Crim.R. 32.1 relief is a

“collateral remedy,” but that relief was offered by the court sua sponte, not as a result of an

order of a superior authority.

       {¶ 11} There is no basis to find that the court acted vindictively when it acted to give

the Defendant assistance in dealing with the drug problem he had requested when both

sentences were imposed. Neither is there any basis to find a chilling effect on Defendant’s

pursuit of his right to a remedy on appeal or by way of a collateral attack on his first sentence,

because neither was a course of conduct Defendant pursued.

       {¶ 12} Defendant further argues that the trial court failed to award him all of the jail
                                                                                             7

time credit to which he is entitled. The court’s July 21, 2011 Judgment Entry of Conviction

and Sentence indicates that Defendant is entitled to a total of 155 days of jail time credit,

which includes thirty-six days earned prior to the initial October 13, 2010 sentencing hearing,

plus one hundred and nineteen additional days between October 13, 2010 and the second

sentencing hearing held on February 9, 2011. For reasons not explained on this record, one

hundred and sixty-two additional days elapsed between the second sentencing hearing on

February 9, 2011 and the court’s journalization of its Judgment of Conviction and Sentence on

July 21, 2011. Defendant contends that the trial court should also have awarded him credit

for those one hundred sixty-two days. The court’s July 21, 2011 Judgment Entry makes no

mention of that time period.

       {¶ 13} R.C. 2967.191 states:

               The department of rehabilitation and correction shall reduce the stated

       prison term of a prisoner or, if the prisoner is serving a term for which there is

       parole eligibility, the minimum and maximum term or the parole eligibility

       date of the prisoner by the total number of days that the prisoner was confined

       for any reason arising out of the offense for which the prisoner was convicted

       and sentenced, including confinement in lieu of bail while awaiting trial,

       confinement for examination to determine the prisoner’s competence to stand

       trial or sanity, and confinement while awaiting transportation to the place

       where the prisoner is to serve the prisoner’s prison term.

       {¶ 14} Pursuant to Ohio Adm. Code 5120-2-04(B), the sentencing court is to

determine the amount of time the offender served before being sentenced and forward that
                                                                                               8

information to the Department of Rehabilitation and Correction (D.R.C.) if the offender is

committed to a state correctional institution. The trial court calculated Defendant’s jail time

credit up to and including the second sentencing hearing held on February 9, 2011. Accord:

R.C. 2949.12.

       {¶ 15} The record of the February 9, 2011, sentencing hearing indicates that

Defendant has been continuously held in prison following the initial sentencing hearing on

October 13, 2010. Furthermore, the record in this case demonstrates that Defendant has been

in the custody of D.R.C. since October 19, 2010, serving the two year sentence the court

imposed for failure to comply with an order or signal of a police officer. Defendant was, of

course, brought back to court from the institution for the February 9, 2011 new plea and

sentencing proceedings.

       {¶ 16} It is reasonable to conclude that, following the second sentencing hearing on

February 9, 2011, Defendant was returned to the institution to continue serving his two year

sentence, and that D.R.C. would therefore credit Defendant with the time he spent in State

custody after February 9, 2011. That Defendant has already been properly credited with all of

the time he has spent imprisoned as a result of this offense is borne out by the fact that, as of

the writing of this opinion, D.R.C.’s website continues to show that Defendant’s prison term

expires on September 5, 2012, which is the original release date based upon the original two

year sentence handed down by the court on October 13, 2010. That calculation necessarily

includes the period between February 9 and July 21, 2011.

       {¶ 17} Defendant’s assignment of error is overruled. The judgment of the trial court

will be affirmed.
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DONOVAN, J., And HALL, J., concur.



Copies mailed to:

Nick A. Selvaggio, Esq.
John A. Fischer, Esq.
Hon. Roger B. Wilson
