[Cite as State v. Trotter, 2014-Ohio-3588.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100617




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    DAVID C. TROTTER
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-09-525504

        BEFORE: Keough, J., Jones, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                      August 21, 2014
ATTORNEY FOR APPELLANT

Kimberly K. Yoder
Kimberly K. Yoder Co., L.P.A.
20325 Center Ridge Road, Suite 133
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Scott Zarzycki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, David Trotter, appeals his sentence. For the reasons

that follow, we affirm.

       {¶2} A history of this case was set forth in State v. Trotter, 8th Dist. Cuyahoga No.

99014, 2013-Ohio-2538, ¶ 2-5 (“Trotter III”).

       In 2009, Trotter was charged with four counts of rape, two counts of
       kidnapping, eleven counts relating to alleged child pornography found on
       his computer, and two counts of corrupting another with drugs. The matter
       proceeded to a bench trial in January 2010; however, after six days of
       testimony, the court granted a motion to suppress the evidence found on
       Trotter’s computer that was made after the judge, sua sponte, raised a
       jurisdictional issue. The state appealed this ruling, and this court reversed.
        State v. Trotter, 8th Dist. No. 94648, 2011-Ohio-418 [(“Trotter I”)].

       The bench trial continued in February 2011. At the end of trial, the state
       dismissed the two counts of corrupting another with drugs. The trial court
       convicted Trotter of two counts of rape in violation of R.C. 2907.02(A)(2)
       (Counts 1 and 2); two counts of rape in violation of R.C. 2907.02(A)(1)(c)
       (Counts 3 and 4); and two counts of kidnapping in violation of R.C.
       2905.01(A)(4) (Counts 5 and 6); but acquitted him of the counts relating to
       the child pornography (Counts 7 - 17). The trial court then sentenced
       Trotter to a total of 60 years in prison.

       Trotter appealed his convictions and this court reversed in part, finding that
       the trial court erred by imposing multiple punishments for allied offenses;
       specifically, this court found that Counts 1, 3, and 5 were allied and Counts
       2, 4, and 6 were allied. State v. Trotter, 8th Dist. No. 97064,
       2012-Ohio-2760 [(“Trotter II”)]. We remanded the case for the merger of
       allied offenses and resentencing.

       The trial court held a resentencing hearing on August 14, 2012. The state

       elected to proceed to sentencing on Counts 1 and 2, rape. The trial court

       sentenced Trotter to ten years in prison on each count and ran the sentences

       consecutive, for a total sentence of 20 years in prison.
       {¶3} Following resentencing, Trotter again appealed his sentence contending that

the trial court failed to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to

imposing consecutive sentences. Id. at ¶ 6. This court agreed with Trotter, vacated his

sentence, and remanded the case “to the trial court to consider whether consecutive

sentences are appropriate under [Am.Sub.H.B. No. 86 (“H.B. 86”)], and, if so, to enter

the proper findings on the record.” Id. at ¶ 17.

       {¶4} In September 2013, the trial court conducted a resentencing hearing based on

this court’s remand order in Trotter III. The state elected to proceed with sentencing on

Counts 1 and 2, and the trial court imposed a ten-year sentence on each count. After

making the requisite findings pursuant to R.C. 2929.14(C)(4), the trial court ordered the

sentences to be served consecutively for a total term of imprisonment of 20 years.

       {¶5} Trotter now appeals his sentence, raising two assignments of error.

                                I. Judicial Vindictiveness

       {¶6} In his first assignment of error, Trotter contends that the trial court denied

him due process of law by exhibiting judicial vindictiveness against him during the

resentencing hearing.

       {¶7} The United States Supreme Court held in North Carolina v. Pearce, 395 U.S.

711, 725-726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that when a defendant succeeds on

appeal and his or her case is remanded to the trial court for resentencing, a presumption of

vindictiveness arises where the court imposes a sentence harsher than the original

sentence.
       {¶8} In this case, the trial court did not impose a harsher sentence than the original

sentence. The trial court originally imposed a sentence of ten years on each count to run

consecutively and on remand again imposed a sentence of ten years to run consecutively.

Therefore, a presumption of vindictiveness did not exist in this case.

       {¶9} Trotter contends that the trial court acted vindictively because it already had a

preconceived intention that it was imposing consecutive sentences prior to resentencing.

Considering that the trial court initially imposed consecutive sentences in Trotter II and

then again in Trotter III, it was neither unreasonable nor vindictive that consecutive

sentences would be again imposed.

       {¶10} Trotter also contends that proof of vindictiveness existed when the trial

court refused to advise him that he had a right to appeal his sentence. The trial court

stated that Trotter did “not have any appeal rights”; thus, it did not advise Trotter of his

right to appeal, even though defense counsel specifically requested an advisement. The

trial court’s statement was incorrect because a defendant has a right to appeal a sentence

that is contrary to law pursuant to R.C. 2953.08, however, no prejudice can be shown

because Trotter timely filed his appeal, a transcript was provided at the state’s expense,

and counsel was appointed. See, e.g., State v. Gagnon, 6th Dist. Lucas No. L-08-1235,

2009-Ohio-5185, ¶ 32.

       {¶11} Trotter further takes issue with the trial court’s apparent frustration at

resentencing. In response to defense counsel’s attempt to request a concurrent sentence

in exchange for an agreement to waive any appeal, the court expressed its belief that
defense counsel was actually threatening an appeal if concurrent sentences were not

imposed. The trial court’s displeasure was focused at defense counsel, not Trotter. At

no time did the trial judge chastise or berate Trotter; rather, the court’s response was

directed towards defense counsel on an apparent misconstruction of what counsel was

requesting. And the trial court did not take its frustration with counsel out on defendant

by increasing his sentence.

       {¶12} Accordingly, we find that the trial court was not motivated by vindictiveness

in ordering Trotter to serve consecutive ten-year sentences for each offense. Trotter’s

first assignment of error is overruled.

                        II. Consideration of Institutional Conduct

       {¶13} In his second assignment of error, Trotter contends that the trial court erred

in refusing to consider his prison conduct and institutional summary during the

resentencing hearing.

       {¶14} The order of remand for resentencing from Trotter III required the trial

court “to consider whether consecutive sentences are appropriate under H.B. 86, and if so,

to enter the proper findings on the record.” Trotter is not challenging the consecutive

sentence findings made by the court pursuant to R.C. 2929.14(C)(4). Rather, Trotter’s

issue is whether the trial court was required to consider his conduct while in prison and

his institutional summary to determine whether consecutive sentences were appropriate

under H.B. 86.
      {¶15} H.B. 86, was enacted “with a legislative purpose to reduce the state’s prison

population and to save the associated costs of incarceration by diverting certain offenders

from prison and by shortening the terms of other offenders sentenced to prison.” State v.

Bonnell, Slip Opinion No. 2014-Ohio-3177, ¶ 20, citing Ohio Legislative Service

Commission, Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30,

2011). The enactment of H.B. 86 was effectually an overhaul of the criminal offense

statutes and felony sentencing provisions.

      {¶16} One of the noteworthy changes to the felony sentencing laws concerned the

purposes of felony sentencing, as stated in R.C. 2929.11(A). State v. Walker, 8th Dist.

Cuyahoga No. 97648, 2012-Ohio-4274, ¶ 80.          The two primary purposes of felony

sentencing remained — “to protect the public from future crime by the offender and

others and to punish the offender * * *.” R.C. 2929.11(A). However, H.B. 86 added

that these goals are to be realized “using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” Id.

      {¶17} Accordingly, although trial courts have full discretion to impose any term of

imprisonment within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 using the factors and guidelines contained in R.C. 2929.12. Even so, H.B.

86 did not mandate a sentencing court to engage in any factual findings under R.C.

2929.11 or 2929.12; the trial court has discretion to determine whether the sentence
satisfies the overriding purposes of Ohio’s sentencing structure. State v. Jones, 12th

Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 49.

       {¶18} H.B. 86 also revived the former presumption of concurrent sentences in R.C.

2929.41(A) unless the trial court makes the required findings for consecutive sentences

pursuant to R.C. 2929.14(C)(4), which requires that a trial court engage in a three-step

analysis.

       {¶19} In this case, when this court issued its remand order for the trial court “to

consider whether consecutive sentences are appropriate under H.B. 86,” the trial court

was required to follow H.B. 86 and consider the overriding purposes and goals of

sentencing in deciding a term of imprisonment, and if concurrent sentences were not

sufficient to meet those purposes and goals, then the court was required to state its

statutory findings on the record before imposing consecutive sentences. After reviewing

the record, we find the trial court complied with the remand order in Trotter III.

       {¶20} Trotter was found guilty of multiple rape and kidnapping counts following

a bench trial before the same judge who conducted the resentencing. The transcript

reveals that this incident involved two separate acts of rape to the same 15-year-old

victim. Furthermore, Trotter had a criminal history and had been imprisoned previously.

 In mitigation, defense counsel relayed to the court that Totter’s previous criminal history

involved non-violent crimes. Counsel further stated that while in prison, Trotter received

his GED, attended other courses, was working as a cook, and had no disciplinary record.
       {¶21} Even though the trial court stated Trotter’s prison conduct was “irrelevant”

for resentencing, a review of the transcript reveals that mitigation arguments by defense

counsel and Trotter’s allocution were made during resentencing, which included

information about his institutional conduct.

       {¶22} In State v. Jackson, 8th Dist. Cuyahoga No. 92365, 2009-Ohio-4995, this

court held that a trial court may, in its discretion, consider an offender’s conduct while in

prison during a de novo resentencing. However, as this court stated in State v. Smith, 8th

Dist. Cuyahoga No. 91346, 2009-Ohio-1610, a trial court is not required to consider a

defendant’s conduct while incarcerated upon resentencing. The record reflects that the

trial court, in its discretion, gave Trotter’s conduct in prison no weight in resentencing;

nor was the court obligated to consider this information. The trial court’s decision not to

consider this factor in determining whether consecutive sentences were appropriate was

not an abuse of discretion.

       {¶23} Accordingly, Trotter’s second assignment of error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
