[Cite as State v. Seymour, 2014-Ohio-72.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2013-03-038
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :             1/13/2014
   - vs -
                                                  :

ROBERT M. SEYMOUR a.k.a. SEYMORE, :

        Defendant-Appellant.                      :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CR2011-03-0432



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Robert Seymour, appeals from a decision of the Butler

County Court of Common Pleas sentencing him to a term of seven years in prison. For the

reasons detailed below, we reverse the decision of the trial court and remand for further

proceedings.

        {¶ 2} On April 13, 2011, appellant was indicted on seven counts in the Butler County

Court of Common Pleas. The indictment included one count of domestic violence, one count
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of aggravated burglary, two counts of assault, one count of grand theft, one count of failure to

comply with an order or signal of a police officer, and one count of violating a protection

order.

         {¶ 3} On July 5, 2011, appellant entered guilty pleas to all charges and was

sentenced to a total prison term of 13 years and six months for those convictions.

Appellant's aggravated burglary conviction accounted for six years of that prison term.

Appellant appealed his conviction.

         {¶ 4} On July 9, 2012, we remanded this matter to the trial court because "under the

facts and circumstances of [the] case, domestic violence, aggravated burglary, and violating

a protection order are allied offenses of similar import that should have been merged under

R.C. 2941.25." State v. Seymour, 12th Dist. Butler Nos. CA2011-07-131, CA2011-07-143,

2012-Ohio-3125, ¶ 1. As such, we found the trial court committed plain error by not merging

those offenses based on the Ohio Supreme Court's decision in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314. Id. at ¶ 27. We therefore reversed the decision of the trial court

and held that on remand the trial court must accept the state's decision on which allied

offense to pursue, and then merge the other counts for resentencing. Id. at ¶ 31.

         {¶ 5} At appellant's resentencing hearing, the state chose to pursue the aggravated

burglary charge, while the charges for violating a protective order and domestic violence were

merged. The trial court then sentenced appellant to a seven-year prison term for the

aggravated burglary offense, a sentence greater than the six-year prison term that was

originally imposed on appellant for that conviction. Appellant now appeals the decision of the

trial court, raising the following assignment of error:

         {¶ 6} 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
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FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE

I, SECTION 16 OF THE OHIO CONSTITUTION

       {¶ 7} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969), the United

States Supreme Court held that a trial court violates due process of law when, motivated by

retaliation or vindictiveness for a defendant's successful appeal, the court resentences a

defendant to a harsher sentence. Id. at 725. Subsequent decisions have limited the

presumption in Pearce to situations where there is a "reasonable likelihood" that an enlarged

sentence was the product of vindictiveness by the trial court. State v. Craycraft, 12th Dist.

Clermont Nos. CA2011-04-029, CA2011-04-030, 2012-Ohio-884, ¶ 11, citing Alabama v.

Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989).

       {¶ 8} 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. State v. Collins, 8th Dist. Cuyahoga Nos. 98575, 98595,

2013-Ohio-938, ¶ 8, citing Pearce at 723. Thus, in order to ensure that a nonvindictive

rationale supports the enhanced sentence, 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; Craycraft at ¶ 11.

       {¶ 9} Appellant alleges the increase of his prison term from six years to seven years

on his aggravated burglary conviction was a product of vindictiveness. In support, he argues

the sentence is subject to a presumption of vindictiveness because the enhanced sentence

was imposed following his successful appeal. Because the same trial judge presided over

both sentencing hearings, but failed to explain the rationale for the enhanced sentence, he

contends that due process requires his sentence be reversed and remanded.

       {¶ 10} In response, the state argues that a resentencing upon remand for an allied
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offenses error under Johnson is not subject to the presumption of vindictiveness. The state

analogizes the case at bar to those appeals following the announcement of the Ohio

Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

       {¶ 11} We have previously questioned whether the application of the Pearce

presumption of vindictiveness automatically applies to cases remanded following the Ohio

Supreme Court's decisions in Foster and Johnson. Craycraft, 2012-Ohio-884, at ¶ 12; State

v. Andrews, 12th Dist. Butler No. CA2006-06-142, 2007-Ohio-223, ¶ 23; State v. Fernbach,

12th Dist. Warren Nos. CA2006-11-130, CA2006-11-131, 2008-Ohio-5670, ¶ 27. In those

cases, however, we questioned the application of the Pearce presumption because the

underlying reversals were "based on void sentences rather than sentences found to be in

error, and because the trial judge was originally constrained by sentencing factors which the

Ohio Supreme Court later found unconstitutional." Fernbach at ¶ 27; Andrews at ¶ 23

(acknowledging that such reversals are "different from cases in which a trial judge has been

reversed for erroneously applying the law").

       {¶ 12} Although we have questioned the application of the Pearce presumption to

sentences following a trial court's reliance on factors later found unconstitutional, we have not

expressed such reservations following a trial court's erroneous application of the law. See

State v. Kortum, 12th Dist. Warren No. CA2001-04-034, 2002-Ohio-613.

       {¶ 13} Nevertheless, the state argues that pursuant to our decision in Craycraft, an

enhanced sentence following an allied offenses remand under Johnson is not entitled to the

Pearce presumption of vindictiveness.

       {¶ 14} In Craycraft, this court originally affirmed a trial court's refusal to merge certain

offenses committed by the appellant. Craycraft at ¶ 3. Subsequently, the Ohio Supreme

Court issued its opinion in State v. Johnson, which announced a new test for determining


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whether offenses should merge for purposes of R.C. 2941.25. Id. That same day, the

Supreme Court reversed our affirmance in Craycraft and remanded the matter to this court

for application of the new Johnson test. Id. We in turn, found that the offenses for which

Craycraft was sentenced were allied offenses of similar import under Johnson. We therefore

reversed the trial court's sentencing of Craycraft and remanded the case to the trial court for

resentencing. Id.

       {¶ 15} On remand, the trial court sentenced Craycraft to a longer prison term on some

of the counts than had been imposed in the original sentence. Id. at ¶ 4. Craycraft then

appealed his resentencing on the basis of vindictiveness. Id. at ¶ 10. On appeal, we

affirmed the decision of the trial court. Id. at ¶ 18. In so doing, we acknowledged our

hesitation in automatically applying a presumption of vindictiveness because Craycraft was

not a case "in which a trial court judge has been reversed for erroneously applying the law."

Id. at ¶ 12. Since Craycraft was unable to show any evidence of actual vindictiveness, we

found that his sentence was appropriate. Id. at ¶ 15.

       {¶ 16} We find the state's argument and reliance on Craycraft to be unpersuasive.

This Court's decision in Craycraft was not based on the trial court's erroneous application of

existing law. Rather, Craycraft involved an original sentence applying the allied offenses

standard set forth in State v. Rance, 85 Ohio St.3d 632 (1999), which was overruled by

Johnson during the pendency of Craycraft's appeal. Accordingly, Craycraft is similar to our

prior decisions in which we questioned the application of the Pearce presumption in cases

where "the trial judge was originally constrained by sentencing factors which the Ohio

Supreme Court later found unconstitutional." See, e.g., Fernbach, 2008-Ohio-5670, at ¶ 27;

see also Andrews, 2007-Ohio-223, at ¶ 23. Since Craycraft did not involve an erroneous

application of the law by the trial court, it is therefore inapposite to the present case.


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Furthermore, other courts have held that Johnson remands can be subject to the Pearce

presumption of vindictiveness. See State v. Quinones, 8th Dist. Cuyahoga No. 97054, 2012-

Ohio-1939.

       {¶ 17} In the present case, Johnson was established law at the time of appellant's

original sentencing, and was erroneously applied by the trial court. See Seymour, 12th Dist.

Nos. CA2011-07-131, CA2011-07-143, 2012-Ohio-3125. Therefore, the circumstances in

which we previously questioned the application of the Pearce presumption are not present.

       {¶ 18} Accordingly, because appellant was resentenced by the same trial judge

following his successful appeal of an erroneous decision and no other exception is present,

the presumption set forth in Pearce applies to appellant's enhanced sentence. See Kortum,

12th Dist. Warren No. CA2001-04-034, 2002-Ohio-613, at *7. Since the presumption of

vindictiveness applies to the present case, the trial court was obligated to supply "objective

information justifying the increased sentence." Id. Where no explanation for an increased

sentence appears in the record, the increased sentence is constitutionally defective and the

matter must be remanded for resentencing. Id.

       {¶ 19} At appellant's resentencing hearing, the trial court acknowledged the

circumstances of the offense, and stated for the record the seriousness of the offense.

             As I look at this, I note that Mr. Seymour, you have 41 prior
             convictions. You've been to prison six times in Ohio, one time in
             Florida. You had your probation revoked in the State of Florida.

             As I go back to the summary of types, you've had aggravated
             robbery. And I'm not going to name them all. You've had domestic
             violence. You've had thefts; had drug charges. You've had
             assaults and there is an element, a flavor of assault in this case
             because per the bill of particulars on this count, and this count
             alone, you struck [the victim] in the face, causing her nose to bleed
             and facial swelling; more drug charges. So you've had an
             extremely extensive criminal history with elements of violence
             contained in it.

             I certainly believe in your right to go to trial. I believe in your right to
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             exercise all your appellate rights. That's what makes this country
             great.

             It's going to be the sentence of this Court, and the range on this is
             three to 11 years. I've taken all that into account. I've taken into
             account the facts of this Count 2 in particular; that you broke
             through the door and you caused physical harm to [the victim].

             ***

             So, be order of this Court that this Defendant receive a prison term
             of seven years[.]

Although the trial court cited appellant's extensive criminal history and tendency towards

violence, the court failed to provide any explanation for why appellant's prison sentence was

increased from six years to seven years following appellant's successful appeal. The trial

court's decision to sentence appellant to an enhanced prison term was based only on

information originally available to the court at the time of appellant's original sentencing. See,

e.g., State v. Thrasher, 2d Dist. Greene No. 2007CA91, 2008-Ohio-5182, ¶ 22 ("[i]nformation

regarding identifiable conduct on defendant's part that was known by the court at the original

sentencing proceeding does not rebut the presumption of vindictiveness"); see also State v.

Paynter, 5th Dist. Muskingum No. CT2006-0034, 2006-Ohio-5542, ¶ 18 (finding that the trial

court failed to overcome the presumption because "the court did not identify any 'relevant

conduct or events' that came to its attention during the time that passed between appellant's

second and third sentencing"). An explanation for the increased sentence following the facts

in this case is particularly important because Ohio does not allow sentence packaging. State

v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245.

       {¶ 20} 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. Those reasons may come


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to the judge's attention from a variety of ways, including "from a new presentence

investigation, from the defendant's prison record, or possibly from other sources." Collins,

2013-Ohio-938, at ¶ 12, citing Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217

(1984). Accordingly, appellant's sentence is reversed and remanded to the trial court for

resentencing.

      {¶ 21} Judgment reversed and remanded.


      HENDRICKSON, P.J., and S. POWELL, J., concur.




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