On February 9, 2017, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Malik Rahab, 2015-1892. At issue is the propriety of a “trial tax,” a penalty imposed on a criminal defendant for exercising his or her right to a jury trial. Since Justice Fischer sat on the appellate panel that heard this case, he has recused himself from this appeal, and Judge Marie Moraleja Hoover, Fourth District Court of Appeals, has been appointed to sit in his stead.
Appellant Malik Rahab was charged with burglary for entering a residence at night by opening a window from the outside, reaching inside, and stealing a purse off a table. After rejecting a plea bargain of a three year sentence in exchange for pleading guilty, Rahab decided to have his day in court, despite a warning by the trial court that the court would not look kindly on this. Rahab was then convicted of burglary by a jury, and sentenced to six years in prison (three more than he would have served if he had accepted the plea deal).
On appeal, Rahab argued that his sentence was contrary to law because he was punished for exercising his constitutional right to a jury trial. While finding that the comments made by the trial court at sentencing were both inappropriate and unnecessary, the First District Court of Appeals nonetheless unanimously affirmed the sentence. The appeals court found that the record established that the sentence was properly based on Rahab’s extensive past juvenile history, and the facts of the case, including trauma to the victim, rather than as a punishment for exercising his right to a jury trial.
Votes to Accept the Case
Yes: Chief Justice O’Connor, and Justices Pfeifer, Lanzinger, O’Neill, and French.
No: Justices O’Donnell and Kennedy.
Bordenkircher v. Hayes, 434 U.S. 357 (1978) (Threatening a stiffer sentence is permissible and part of “any legitimate system which tolerates and encourages the negotiation of pleas.”)
North Carolina v. Pearce, 395 U.S. 711 (1969) (Vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.)
Alabama v. Smith, 490 U.S. 794 (1989) (No presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second, longer sentence follows a trial.)
State v. Marcum, 2016-Ohio-1002 (appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court’s findings under relevant statutes or that the sentence is otherwise contrary to law.)
State v. O’Dell, 45 Ohio St.3d 140 (1989) (Defendant is guaranteed the right to trial by jury and should never be punished for exercising that right or for refusing to plead guilty.)
State v. Scalf, 126 Ohio App.3d 614 (8th Dist. 1998) (where trial court has created the appearance of an increased sentence for exercising right to trial, appellate court must determine whether record contains an unequivocal statement as to whether the decision to go to trial was or was not considered in fashioning the sentence.)
State v. Stafford, 2004-Ohio-3893 (1st Dist.)( A defendant should never be punished for exercising his right to a jury trial. Record must affirmatively show there was no improper weight given to failure to plead guilty and that the defendant was sentenced solely on the facts of the case and the defendant’s personal history.)
A defendant should never be punished for exercising the right to a trial. Any increase in sentence based on the defendant’s decision to exercise that right violates the defendant’s right to due process. This prohibition on increased punishment applies, regardless of the defendant’s guilt. So, when a trial court imposes a sentence motivated by vindictive retaliation, it has violated the defendant’s constitutional rights.
When the statements made by a sentencing court allow for the inference that the defendant was the victim of retributive sentencing, the appellate court must review the record for an unequivocal statement that the sentence was not based on the decision to go to trial. There is no such statement in this case.
In the present case, the court warned Rahab that it “does not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty. Meaning it [the sentence] would probably be more. I’m not going to fool you. You understand that?” The court went on repeatedly to question Rahab’s decision to go to trial and expressed displeasure in that decision.
Because the record demonstrates that the trial court punished Rahab for exercising his right to trial, the Supreme Court should reverse and remand for re-sentencing.
There is no question that trial courts cannot impose a “trial tax.” This, however, is not the issue here. The question is, when a defendant alleges that he or she was punished for exercising his right to go to trial, how should appellate courts review that allegation? It is the state’s position that it is the defendant that must present clear and convincing evidence of vindictiveness.
In the present case, the First District reviewed Rahab’s allegation and found that there was no presumption of vindictiveness. Indeed, there is only one situation in which such a presumption is appropriate – when, following a successful appeal, a defendant receives a harsher sentence. This presumption then can be rebutted by the record if it contains reasons for the harsher sentence. In the present case it is unsurprising that Rahab received a harsher sentence at trial because of all the information that the trial court learned during the trial. The developed knowledge of Rahab’s history is what led to a harsher sentence, not the exercise of his constitutional rights.
The standard of review in Stafford improperly allows for a presumption of vindictiveness. Instead, as in all cases alleging sentencing errors, it is the defendant who should have to prove by clear and convincing evidence that the trial court improperly punished him for exercising his right to trial.
The Stafford decision does provide guidance on what must be proven to demonstrate that a trial court has vindictively sentenced a defendant. The factors aside, one thing is clear: the trial court must be actively involved with the plea negotiations for there even to be a suggestion of vindictiveness.
Proof and the record should be the standard, not mere inferences. The defendant should have to prove vindictiveness, and the entire record must be reviewed to support that position. Here, the record shows that Rahab’s sentence was fully justified, based on his lack of genuine remorse, attempts to blame his attorney for the decision to go to trial, extensive juvenile record, and impact on the victim. As the trial court explained, it imposed a sentence based upon the “horrible” criminal history that Rahab had built up, in spite of multiple people trying to help him.
Rahab’s Proposed Proposition of Law
When the sentencing court creates an inference that a sentence is based on the decision to go to trial, the sentence is unconstitutional unless the court makes an unequivocal statement the sentence was not based on the refusal to plead guilty.
State’s Proposed Counter-Proposition of Law
There is no presumption of judicial vindictiveness when a defendant receives a higher sentence after trial than was offered during plea negotiations. Absent clear and convincing evidence that (1) the trial court engages in plea and sentencing bargaining, (2) a tentative sentence was discussed, and (3) a harsher sentence followed a breakdown in negotiations that the trial court took part in, a trial court is presumed to have properly sentenced a defendant. Should such proof exist, then an appellate court may only vacate or modify the sentence if it finds by clear and convincing evidence that the record does not support the sentence.
Amicus in Support of Rahab
The Ohio Association of Criminal Defense Lawyers (“OACDL”) filed an amicus brief to propose a more robust test for how Ohio courts should handle allegations of a“trial tax” (the practice of punishing defendants for exercising the right to trial). OACDL argues that the issue is ripe for a test that provides clarity, protection of the right to a jury trial, and countervailing interests. OACDL offers what it considers to be a better test: when a sentence given at trial is harsher than the sentence a defendant would have been given had he accepted a plea bargain, then there should be a presumption that a “trial tax” exists. This presumption can then be overcome based on a totality of the circumstances test that demonstrates clear-and-convincing evidence that the sentencing judge had objective evidence to justify the increased sentence.
Amicus In Support of the State
The Ohio Attorney General filed a brief in support of the state, arguing that there is no due process presumption of judicial vindictiveness if a defendant receives a higher sentence after trial than offered after an earlier guilty plea or during plea bargaining; rather, a reviewing court presumes that a within-guidelines sentence is based on the facts proven at trial absent clear and convincing evidence of actual retaliation by a judge. Further, the Attorney General argues that: (1) The U.S. Supreme Court only applies a presumption of vindictiveness to higher resentencing after appeal and retrial; (2) The U.S. Supreme Court has rejected a presumption of vindictiveness when a defendant receives a higher sentence after trial than a defendant would have received under a plea bargain or guilty plea; and (3) an appellate court reviews a within-guidelines sentence for clear and convincing evidence that it is contrary to law—i.e., based on judicial vindictiveness—or that the record does not support the sentence.
Student Contributor: David A. López-Kurtz