The Latest from the Ohio Supreme Court on Vindictiveness in Sentencing

By:  Mark Volcheck, Attorney

Everyone connected to law enforcement and the criminal justice system is well aware that most criminal defendants make plea agreements as opposed to going to trial.  Such pleas are generally made upon the prosecution dropping or reducing any number of charges and/or upon the prosecution’s recommendation of an agreed upon sentence.  Generally, in making the decision to enter a plea agreement, the defendant considers the worst possible outcome of going to trial, while the prosecution weighs the severity of the crime, victim impact, the defendant’s criminal history, and the savings in resources by avoiding a trial.  While plea agreements are perfectly legal and necessary for the criminal justice system to function, due process dictates that defendants cannot be punished for refusing a plea offer.  Most recently, the Ohio Supreme Court defined the boundaries of such protection.

In State v Rahab, Slip Opinion No. 2017-Ohio-1401, Defendant Malik Rahab turned down a plea deal that would have sent him to prison for three years on a burglary charge.  He was accused of trespassing into a home and stealing a purse of the homeowner.  Prior to trial, the trial court asked about plea negotiations.  The State recounted the three year offer that was rejected by Rahab.  The trial court confirmed that such was Rahab’s wishes and commented:

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?

Rahab went to trial, was found guilty by a jury of burglary, and was sentenced to six years in prison.  At the sentencing hearing, the trial court referred to a letter that Rahab had written in which he claimed that he wanted to admit to the crime all along but that his attorney insisted he go to trial.  When questioned by the trial court as to why he didn’t take the plea, Rahab answered, “I didn’t think it was worth what I did, three years.”  The trial court responded:

Eight years.  I told you that when they offered you three.  So, you know, I’m a little perplexed that you’re saying you didn’t think three was fair and you’re telling me that your attorney made you go to trial.  And now you’re telling me that you did it.  You did it, didn’t you, right?

Rahab agreed that he had committed the burglary.  The court continued:

Okay.  So I don’t understand why you wouldn’t admit to that and plead to that, and you had to have a trial, or why you wouldn’t take the three years because I can sentence you to eight.

Makes no sense to me…you went to trial.  You gambled, you lost.  You had no defense.  And you even admit that you did it, and yet you put this woman through this trial again.

You traumatized her by breaking into her house.  And then you had to traumatize her again to relive it and go to trial.  I don’t get it.

During the sentencing, the trial court expressed skepticism about Rahab’s claim that his attorney directed him to trial and responded to Rahab’s apology by saying, “I sure wish I would have heard that before the trial.”  The trial court continued at the sentencing:

He went to trial with a prove-it defense.  He had absolutely no defense.  They had his fingerprints.  He gambled, he lost.  I’m sorry, you know right from wrong, but it just does not – it’s like, yeah, now that it’s all over, oh, I’m sorry I got caught, I’m sorry I got – I went to trial and I lost.  Too late.  Too late.  To me, too late…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.

Rahab appealed, arguing that his sentence was contrary to law because the trial court had punished him for exercising his right to a jury trial.  The appellate court affirmed the trial court.  The Ohio Supreme Court then accepted the case for review.

The Court acknowledged that “punish(ing) a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort ***.”  Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), citing North Carolina v. Pearce, 395 U.S. 711, 738 (1969).  Further the Court explained “[t]here is no question, then, that a sentence vindictively imposed on a defendant for exercising his constitutional right to a jury trial is contrary to law.”  State v. O’Dell, 45 Ohio St.3d 140, 147 (1989).  The question for the Court was how such principles are to be applied by reviewing courts in the realm of plea negotiations.

The Court rejected Rahab’s argument that a sentence be presumed vindictive if it is harsher than the one offered during plea negotiations.  Such decision by the Court was instrumental to this case as the reversal would have put the burden on the State to prove that the sentence was not vindictive.  Writing for the majority on this issue, Justice Patrick DeWine reasoned that such presumption is not justified as a trial court has more information after a jury trial to base a sentencing decision than one made during negotiation.  Further, he observed that plea bargaining is a give and take process that presumes a defendant believe that he must have a reasonable probability of receiving a more lenient sentence by accepting a plea offer than he would following trial and conviction.  The possibility of a more severe sentence than that of a plea offer is well known by the defendant.

Having rejected Rahab’s argument for a presumption of vindictiveness, the Court announced that it “will reverse the sentence only if we clearly and convincingly find the sentence is contrary to law because it was imposed as a result of actual vindictiveness on part of the trial court.”  Upon such standard, the Court found that the record of the case did not support a finding of vindictiveness.  Rahab argued that the trial court’s statements prior to the trial constituted a threat.  The Court rejected such argument.  The plurality opinion on this issue concluded that the trial court was insuring that Rahab understood the choice he was making and allowing him to intelligently evaluate whether he wanted to risk the probability of a greater sentence.[1]

The post-trial comments of the trial court appeared to present a greater concern for the justices.  The plurality opinion characterized such as “intemperate” and “troubling.”  However, such did not support a finding of vindictiveness as the plurality opinion reasoned that at the time of sentencing the trial court had a great deal of information and evidence to consider unrelated to rejection of the plea offer that supported the sentence.  Such included evidence of Rahab’s lack of genuine remorse, the impact of his conduct on the victim, his poor performance in treatment, and his lengthy juvenile record.  Upon such record, the case for vindictiveness could not be made.

The standard for vindictiveness announced in Rahab preserves the open communication of the plea negotiation process that has long been a part of our criminal justice system.  Such standard denies criminal defendants any advantage in calling foul after they take their case to a jury and lose.

[1] Three members of the Ohio Supreme Court concurred in judgement only, while Justice Judith French concurred in toto with the opinion of Justice DeWine.  The remaining two members of the Court concurred with the standard to be applied in reviewing vindictiveness but dissented on the issue of whether the record in the case revealed vindictiveness.  Accordingly, that part of the opinion explaining why clear and convincing evidence of vindictiveness was not shown is a plurality opinion.