Merit Decision: Sentence Not Impermissible Trial Tax; Court Adopts Actual Vindictiveness Standard. State v. Rahab.

On April 18, 2017, the Supreme Court of Ohio handed down a merit decision in State v. Rahab, 2017-Ohio-1401. In a 5-2 opinion written by Justice DeWine, the court found that the trial court judge did not impermissibly give Rahab a harsher sentence for exercising his right to a jury trial, and adopted an actual vindictiveness standard in making this determination. Only Justice French joined the opinion in full. Chief Justice O’Connor and Justices O’Donnell and Kennedy concurred in judgment only, but wrote nothing separately. Fourth District Court of Appeals Judge Marie Moraleja Hoover, sitting for the recused Justice Fischer, (he sat on the appellate panel) concurred in part and dissented in part, joined by Justice O’Neill. The case was argued February 9, 2017.

Case Background

Malik Rahab was charged with burglary for the theft of a purse through an open window of an occupied residence. Before trial, the state offered Rahab a plea bargain of a three year sentence in exchange for a guilty plea.  The trial court, which was not involved in the plea bargaining, confirmed with Rahab that he wanted to turn down the plea offer. Instead, Rahab went to trial, where the jury found him guilty. He was sentenced to six years in prison. At sentencing, the trial judge made a number of comments pertinent to this appeal.

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 and an analysis of that argument here.

Key Statutes and Precedent

North Carolina v. Pearce, 395 U.S. 711 (1969)(presumption of vindictiveness arises when judge imposed a more severe sentence after a retrial following a successful appeal.)

Bordenkircher v. Hayes, 434 U.S. 357 (1978)(“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort…”)

United States v. Goodwin, 457 U.S. 368 (1982) (The Due Process Clause is not offended by all possibilities of increased punishment, only by those that pose a realistic likelihood of vindictiveness. There is still, however, the possibility that a defendant in an appropriate case might prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.)

Wasman v. United States,  468 U.S. 559 (1984), (After retrial and conviction following a defendant’s successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.)

 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. Factors that may have indicated leniency during plea bargaining no longer present after trial.)

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. Stafford, 2004-Ohio-3893 (1stDist.)(presumption of vindictiveness arises when a court involves itself in unsuccessful plea negotiations and then after trial imposes a harsher sentence on the defendant than the one offered.)

Merit Decision

Executive Summary

There is no presumption of vindictiveness when a defendant rejects a plea bargain and is subsequently given a harsher sentence. The burden is on the defendant to show that the trial judge acted vindictively.  An appeals court can only reverse a sentence for vindictiveness upon clear and convincing proof that the sentence was based on actual vindictiveness. There was no such actual vindictiveness in this case.

Proof of Vindictiveness

No justice disagreed with the fundamental point that a sentence imposed on a defendant for exercising his constitutional right to a jury trial (sometimes commonly referred to as a “trial tax”) is improper. The question is, how does the defendant prove that is what happened?

The lead opinion rejects Rahab’s position that vindictiveness should be presumed from the trial court’s statements, and also rejects the position of Rahab’s amicus, the Ohio Association of Criminal Defense Lawyers, that a presumption of vindictiveness arises whenever a court imposes a harsher sentence than what was offered at the plea bargain.

The lead opinion notes that normally trial courts have broad discretion in sentencing, and vindictiveness by a sentencing judge has been presumed in only a narrow subset of cases. The court reviews the case of North Carolina v. Pearce, source of that presumption of vindictiveness. In Pearce, the U.S. Supreme Court held that a presumption of vindictiveness arose when the trial judge imposed a harsher sentence after a second trial following a successful appeal. Digging deeper, the Ohio high court cites a number of additional cases from the U.S. Supreme Court since Pearce, in which the presumption was not applied, suggesting that Pearce is now an outlier.

Bottom line: Rahab’s case does not fit under that narrow subset of cases where vindictiveness is presumed. In reaching this conclusion, the lead opinion rejects the presumption of vindictiveness test when a defendant receives a harsher sentence following his rejection of a plea offer, and instead holds that actual vindictiveness must be proven.

No Actual Vindictiveness in this Sentence

Keep your eye on the ball. First, there is generally a presumption that in sentencing, the trial court considered the appropriate criteria. Next, the reviewing court looks at the entire record to determine if there is any evidence of actual vindictiveness.  Finally, a reviewing court will reverse the sentence if the court finds clearly and convincingly that the sentence is contrary to law because it was imposed as a result of actual vindictiveness by the trial court.

What the Trial Judge Said

Several pages of the lead opinion contain quotes from what the trial court said at sentencing. Here’s an example:

“Well, guess what, you lost your gambling. 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.”

While the lead opinion found that the trial judge’s remarks were “intemperate” and “troubling,” it also found that the remarks must not be read in isolation, but taken as part of the record as a whole.

What the Record as a Whole Shows

The record as a whole showed that Rahab lacked any genuine remorse, the victim was seriously traumatized, Rahab fared poorly in treatment, had a lengthy juvenile record, and a difficult upbringing.

“No doubt it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain. But given the record before us, we are not convinced that the court sentenced Rahab based on vindictiveness, rather than on the evidence of his prior record, insincere remorse, and the impact of his crime on the victim,” DeWine wrote. The court of appeals judgment was affirmed.

Judge Hoover’s Partial Concurrence and Dissent

First, here is what Judge Hoover, joined by Justice O’Neill, agreed with from the lead opinion:

1.There is no presumption of vindictiveness by a trial judge when a defendant rejects a plea bargain and is later given a harsher sentence.

2. A sentence can be reversed for vindictiveness only if an examination of the record as a whole clearly and convincingly finds that the sentence was based on actual vindictiveness.


Here’s the Dissent Part

Judge Hoover, joined by Justice O’Neill, believes that the record does clearly and convincingly show that the trial court sentenced Rahab vindictively. She believes that the numerous intemperate statements from the trial court over Rahab’s decision to exercise his right to a jury trial cannot be ignored. She was particularly troubled by these remarks by the court before the trial even started:

“Sir, you understand that the State is offering to do an agreed sentence of three years in prison. The charge that you’re facing now, sir, carries a potential sentence of 2 to 8. There’s the presumption that you go to prison, okay? And if you didn’t take the agreed sentence and you were found guilty, it would be up to the Court to sentence you. And the Court does not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.

“You understand that? Meaning it probably would be more. I’m not going to fool you. You understand?”

While the lead opinion interpreted those words to mean that the trial court judge wanted to be sure that Rahab understood the choice he was making, the dissent saw them clearly as a threat to Rahab—either take the plea bargain and give up your right to a trial or get a longer sentence if convicted.

Hoover criticized the lead opinion for creating “ a nearly impenetrable barrier to proving actual vindictiveness,” questioning what could possibly amount to vindictiveness if this didn’t.

Case Syllabus

None, unsurprisingly.

Concluding Observations

This is what I wrote after argument:

“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 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.

“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…

“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…,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.”

I also predicted that Justice O’Neill clearly saw this as an impermissible trial tax, and that Judge Hudson seemed to as well, but was harder to read.

If there was a winner for persuasiveness here, it was the Attorney General. The Deputy Solicitor effectively argued that a presumption of vindictiveness should only be applied where there is a higher sentence after a successful appeal and retrial, which was not the case here. Instead, the test should be actual vindictiveness by the trial judge, because the appearances test does not reflect the way the system works.

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