What’s On Their Minds: Propriety of Sentencing Penalty for Exercising Right to Trial. State of Ohio v. Malik Rahab.

Update: On April 18, 2017, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Counsel, do you think it is ever appropriate to look at and comment on a defendant exercising their constitutional right to have the state of Ohio prove beyond a reasonable doubt their guilt of the crimes as charged as a factor to be considered when imposing a sentence?”

Chief Justice O’Connor, to the prosecutor. When he responded that it would have been better had the judge not said those things, the Chief rejoined, “I’ll take that as a no.”

On February 9, 2017, the Supreme Court of Ohio heard 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, was 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, and that if found guilty, the sentence “would probably” be more. 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. At the sentencing, the judge said this: “You went to trial, you gambled, you lost. You had no defense…You did this. You had no defense and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are. Six years, Ohio Department of Corrections.”

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.

Read the oral argument preview of the case here.

Key Precedent

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.)

At Oral Argument

Arguing Counsel

Demetra Stamatakos, Hamilton County Public Defenders’ Office, for Appellant Malik Rahab

Scott M. Heenan, Assistant Prosecuting Attorney, Hamilton County, for Appellee State of Ohio

Peter T. Reed, Deputy State Solicitor, Columbus, for Amicus Attorney General Michael DeWine

Rahab’s Argument

The statements made by the judge at the sentencing hearing gave rise to the inference of a trial tax. Once the inference arises, the court must put an unequivocal statement on the record to rebut it. In this case there was no such unequivocal statement, so Rahab’s sentence was unconstitutional. He was punished for going to trial.

The sentencing record is replete with improper remarks, including the following:

“You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner, you are. Six years, Ohio Department of Corrections.”

These remarks are more than an inference; they are a trial tax. A sentence that appears to be based, even in part, on a defendant’s decision to go to trial is unconstitutional. Mentioning a permissible sentencing factor is not enough to rebut the inference of a trial tax. The problem is not with the length of the sentence Rahab received. Rather, the problem is the reasoning behind that sentence. A defendant in a criminal case has the right to go to trial and to make the state prove its case beyond a reasonable doubt.

This is also a case where the facts learned during trial were actually less serious than what the state initially believed. What the state originally thought was some sort of home invasion where the defendant awakened the victim, was not true—Rahab just opened the window and reached inside for the purse.

State’s Argument

The prosecutor shared his time with amicus, the Attorney General’s Office.

Prosecutor’s Argument

First, the court should take a page from the decision in North Carolina v. Pearce, and find that the only time there is any type of presumption or inference of vindictiveness would be when a matter is remanded and the trial court then imposes a harsher sentence after a successful appeal. Otherwise, there should not be a presumption of vindictiveness. The defendant has the burden of showing by clear and convincing evidence that a trial tax was imposed. Second, if there is a constitutional violation, the unequivocal statement the defendant seeks is not the right remedy.

The test this court should adopt is one following its other sentencing decisions, requiring that the defendant show by clear and convincing evidence that the judge was vindictive and imposed a trial tax. That did not happen in this case. Looking at the record as a whole, which the First District properly did in this case, including the victim impact statement, and the defendant’s record, the sentence was proper, and was not a trial tax. While the judge was probably upset with the defendant, that wasn’t what she based her sentence on.  She went through all the appropriate factors from the sentencing guidelines. The judge did not threaten the defendant. Had the defendant shown any genuine remorse, a factor properly to be taken into consideration, that would have weighed in his favor. Instead, the defendant just blamed his lawyer for going to trial, and never showed any real sign of remorse. The facts and the record support the sentence that was given in this case. Furthermore, after a trial, a judge has much more information than at the plea stage, both about the defendant and the facts of the case.

The only question before the court is whether or not the trial court was vindictive toward the defendant, and imposed a trial tax. Looking at the record as a whole, the judge was not, and did not.

Attorney General’s Argument

The only time there should be a presumption of vindictiveness is the situation in the Pearce case, where there is a higher sentence after a successful appeal and retrial.  When the presumption does not apply, which it does not in this case, the test must be actual vindictiveness by the trial judge, which means there must be a causal connection between the defendant’s decision to go to trial and some increase in the sentence. The appearance test suggested in Scalf doesn’t reflect the way the system actually works and it discourages judges from explaining to a defendant the way the system works and the known risks of going to trial. It is desirable for judges to explain the way the system works. The court should adopt the U.S. Supreme Court’s actual vindictiveness test rather than Scalf’s appearances test.

What Was On Their Minds

What the Trial Judge Said

Is the court to conclude that simply based on the judge’s statements, the sentence was vindictive, asked Justice O’Donnell?

Were the statements punitive—to punish the defendant for going to trial, asked Chief Justice O’Connor? If the words the trial judge used were eliminated, given all the facts, would a six year sentence be inappropriate?

What is there in the record for the court to come to a conclusion other than that the judge was being vindictive, asked Justice French?

Doesn’t every defendant have the right to plead not guilty and make the state prove its case, asked Justice O’Neill, who commented that he found it disturbing that the trial court said the defendant had to prove his defense. Was the judge threatening the defendant? “If you don’t accept responsibility right here and now, and go to trial, your sentence will be more”—that’s not a threat?

Didn’t the First District find the judge’s remarks inappropriate, asked Judge Hudson?

Presumptions and Inferences

What kinds of statements are required to give rise to an inference, asked Justice French? Is there a difference between a presumption and an inference?

If an inference exists, what does that mean, asked Justice DeWine? What standard applies? Actual vindictiveness, or something else? Like Justice French, he again asked the difference between a presumption and an inference. And Justice O’Neill did as well.

Chief Justice O’Connor quoted the judge’s remarks, and commented that the judge’s statements were direct, as opposed to inferred or ambiguous, and sounded more like a predetermination than a presumption.

Coupled with the pretrial comments the judge made, should there never be a presumption or an inference of vindictiveness, asked Judge Hudson?

The Plea Bargain

Would the trial court be bound to the three years after trial, asked Justice O’Neill?

Was the trial judge part of the plea bargain here, asked Justice French, noting that a number of the tests in this area of law look at that.

Doesn’t some of the language used by the trial judge, trying to convince the defendant he should plead because she would give him more if he took this to trial, suggest she was actually engaging in part of the plea negotiations, asked Judge Hudson?

Do we know that in a plea bargain there is some leniency offered, asked Justice O’Donnell? A lesser sentence offered for a plea?

The Sentencing

Didn’t the defendant have an extensive record, asked Justice O’Neill?

Isn’t there an obligation of the court to consider a victim impact at the time of sentencing, asked Justice O’Donnell? Didn’t the court properly do so here? If the case gets sent back to a different judge, couldn’t that judge, based on the record, impose the maximum sentence? Didn’t the trial judge reference the purposes of sentencing to punish the offender and to protect the public in the course of the hearing? Wasn’t there a more lenient three year sentence for the plea, but then after a verdict, and now adjudicated guilty, maybe the offenses and factors in sentencing weigh more heavily? How could this court assess whether, after hearing all the testimony, five, seven or eight years might not be a fair sentence?

Since the sentence given was within the guidelines, if the case is remanded and the trial judge makes the unequivocal statement, how does that cure this problem, asked Judge Hoover?

Is the defendant just arguing degrees, asked Chief Justice O’Connor, noting that there was no doubt the defendant was going to prison. Later she noted that one of the factors in the state’s favor was that the judge did not give the defendant the maximum sentence, and noted that the case manager was not at all supportive of the defendant.

Wasn’t this a case where when the actual facts of the crime came out, the defendant actually appeared less culpable than at the plea, when the prosecution did not know the defendant  just reached inside the window from outside, asked Justice French?

The Test to be Used

What is the test here to decide if the defendant is entitled to relief, and where does that test come from, asked Justice French, in the key question of the day. What if the court creates a test without a presumption? Should it be by clear and convincing evidence, as in Marcum? Does the test suggested by the AG have no presumption or inference?

Judge Hudson commented that even the First District’s test seems to rely on Stafford, which allows for a presumption if certain things are shown. Many other appellate districts do so as well.  Should the Supreme Court just wipe out all that case law? There should be no presumption under any circumstances?

How it Looks from the Bleachers

To Professor Emerita Bettman

This is a hard one. One part is easy—I think the court will unanimously find the remarks made by the trial judge inappropriate and improper, and will undoubtedly say so, strongly. The First District found as much.  But then the harder question is what test is going to be used to evaluate the effect of the remarks.

I’m going to part company with my student contributor David López-Kurtz and call this for the state. I think a majority—and I don’t see the justices united here—are going to reject the appearance of vindictiveness test in favor of an actual vindictiveness test, and put the burden on the defendant to prove it.  I also don’t think the court is going to approve any “magic words” cure—such as requiring an unequivocal statement by the sentencing judge that a trial tax was not being imposed.

Ms. Stamatakos, who was visibly terribly nervous, got very bogged down trying to explain the difference between an inference and a presumption, and getting nowhere, until the Chief threw her a lifeline, commenting, “well the statements were so direct, as opposed to something ambiguous or merely inferred, which is probably your distinction here,” adding, “that is more than a presumption, that is a predetermination.” That seemed to help Ms. Stamatakos gain her composure.

Mr. Heenan also overdid it a bit when arguing that the judge was not vindictive or punishing the defendant, or imposing a trial tax, and when asked by Justice French where in the record there was evidence to support that conclusion, he responded that he had the benefit of knowing the judge personally and what she was like. Justice French did not let him get away with that.

I think in the end the court will not go with any presumption or inference at all. Justice French was most focused on the proper test, and seemed most persuaded to adopt a test without either. I thought Mr. Reed, for the Attorney General, best articulated the test of actual vindictiveness, which I think the court will ultimately adopt over an appearance of vindictiveness test. With that test, the question is whether there is a causal connection between the defendant’s decision to go to trial and an increase in the sentence. But even with that test, this is a very close case.

I think the court is going to find that when looking at all factors, such as Rahab’s extensive criminal record, the impact on the victim (even though, as defense counsel effectively noted in rebuttal, the facts at trial showed the crime was less serious than the prosecution thought at the plea stage), Rahab’s apparent lack of remorse, and the fact that he did not receive the maximum sentence, but one within the guidelines, that there was no trial tax here. Justice O’Donnell seemed most strongly in this camp, followed by Justice French. I think the Chief will join them, although she was very critical of the state at times, and probably Justice DeWine.  Justice O’Neill clearly sees this as an improper trial tax. Judge Hudson was hard to read—she made a couple of strong points on both sides of the issue. But her comments about all the appellate case law that follows Stafford and her concern that the trial judge might have been involved in the plea bargaining may tilt her to the defense. Nothing from Justice Kennedy.  Alternatively, the court could send the case back for resentencing, to use whatever test it articulates.

To Student Contributor David López-Kurtz

This case hasn’t set right with me from the moment that I first started following it. The need for a trial tax rule is, to me, indicative of a huge problem – people are being punished for exercising their Constitutional rights, frequently enough that people felt the need to address the issue. A defendant should never be punished for exercising the right to a trial. When a trial court imposes a sentence motivated by vindictive retaliation, it has violated the defendant’s constitutional right to due process.

Things got off to a rocky start for Rahab. His counsel, Ms. Stamatakos, seemed initially shaken by being peppered by the bench’s questions. However, while Ms. Stamatakos was thrown off by Justice O’Neill’s initial line of questioning, her eventual response clarified a primary point – it is the reason behind the sentence, and not the duration of the sentence that is at issue. She then clarified the standard for what constitutes a “trial tax,” and did so clearly and succinctly.

It was the next line of questioning that was, in my opinion, one of the most significant of the session. It seems to me that the case could hinge on whether or not the court decides to embrace the distinction between an “inference” and a “presumption.” Justice French asked whether there is a difference between the two. Ms. Stamatakos tried to clarify, and Chief Justice O’Connor suggested that it was the directness of the statements in this particular case that made it different, but it seemed to me that counsel was unable to sway at least a couple of the justices.

That said, the state was, in my opinion, less impactful than Ms. Stamatakos, and I believe that the justices will hold the same opinion. Neither Mr. Heenan nor Mr. Reed (who, in his defense, had very little time) made any points that I felt were particularly impactful.

I believe that the court will hold that Malik Rahab’s sentence was based, albeit in part, on the decision to go to trial, and that it was thus unconstitutional.

At one point these words rang out from Ms. Stamatakos,—“there was certainty here-this was a trial tax.” Those words were extremely telling.  I believe that the court will rule in favor of Mr. Rahab.

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