If a criminal defendant gets a harsher sentence than one offered in a plea bargain, any allegation that the judge imposed the sentence as a “trial tax” must be supported with evidence  that clearly and convincingly demonstrates the judge acted vindictively, the Ohio Supreme Court ruled today.

A Supreme Court majority found Malik Rahab failed to prove a Hamilton County Common Pleas Court judge’s six-year sentence for burglary was based on vindictiveness after Rahab informed the judge he was rejecting a three-year sentence offered by prosecutors. The judge told Rahab he would most likely receive a longer sentence if he lost at trial.

In the Court’s lead opinion, Justice R. Patrick DeWine wrote that any claim that a judge is acting vindictively must be based on the entire record of the trial court proceeding. The Court ruled Rahab’s sentence was based on the facts of the case and his criminal past, not on vindictiveness on part of the trial judge.

Justice DeWine also noted Ohio will not adopt a presumption that a judge is acting vindictively when a defendant rejects a plea bargain and receives a harsher sentence when convicted.

In a partial dissenting opinion, Fourth District Court of Appeals Judge Maria M. Hoover, sitting on the Court by assignment, agreed with the majority’s position about how to evaluate a vindictiveness claim. But she concluded the judge threatened Rahab to forgo his right to a trial or suffer a longer sentence.

Rahab, Judge Discuss Impact of Plea Rejection
Rahab was charged with the 2014 burglary of the home of Christina Hewitt. Hewitt noticed her living room window was open and her purse was missing. A fingerprint from the window implicated Rahab. At a pretrial hearing, Hamilton County prosecutors informed the trial judge that Rahab was offered, and rejected, their recommendation of a three-year sentence.

The trial judge asked Rahab if he understood the potential sentence for the crime was a prison term ranging from two to eight years. The judge also informed Rahab that 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.” The judge added that a conviction would most likely result in more time than the plea offer.

Hewitt testified at Rahab’s trial, and he was convicted. At a sentencing hearing, Rahab claimed he wanted to admit to the crime all along, but his attorney made him go to trial. When asked by the judge why he did not accept the plea, he replied he thought his crime did not justify a three-year prison term. The judge responded that Rahab’s logic was confusing because he refused to take the plea even as he admitted to the crime and after he was informed that he could be sentenced to eight years.

The judge then said to Rahab: “So I don’t know what you talked about with your attorney, but—too late. 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.”

Rahab apologized to the judge, and his brother addressed the court detailing Rahab’s difficult childhood. His brother asked the court not to sentence Rahab to eight years for one bad decision.

In delivering the six-year sentence, the judge told Rahab: “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 Claims Vindictiveness
Rahab appealed his sentence to the First District Court of Appeals, arguing the judge increased his sentence for exercising his constitutional right to a jury trial, and that the judge’s comments support the inference that the judge was acting vindictively when determining the time in prison. The First District affirmed the conviction and Rahab appealed to the Supreme Court, which agreed to hear the case.

Citing the Ohio Supreme Court’s 1989 State v. O’Dell decision, the opinion explained that a sentence vindictively imposed because a defendant sought a jury trial is invalid, but defendants are faced with the difficult task of proving vindictiveness. Rahab sought to reduce the burden by asking the Court to adopt a standard that would infer vindictiveness based on the trial court’s statements, the ruling explained. A judge would then have to make an “unequivocal statement” that the decision to go to trial was not considered as part of the sentence to demonstrate the lengthier sentence was not prompted by vindictiveness.

The opinion noted that the concept of a presumption of vindictiveness stems from the 1969 U.S. Supreme Court decision in North Carolina v. Pearce in which the defendant successfully appealed a conviction, then when retried and convicted again, the same trial judge gave the defendant a more severe sentence for the exact same conviction as the first one. Justice DeWine wrote that the U.S. Supreme Court has sharply limited the Pearce ruling and that subsequent development of the law has allowed judges to consider leniency for those accepting a plea bargain. He noted that a presumption of vindictiveness would apply only in those limited situations when there was a “reasonable likelihood” that the sentence was a product of actual vindictiveness.

Plea Bargains Must Be Bargains to Be Effective
The ruling noted there are legitimate reasons why a defendant who forgoes a plea bargain might get a harsher sentence, including the fact that courts can consider whether the accused accepted responsibility for the crime. The Court also explained that to be effective, a plea bargain must be a bargain, where in exchange for sparing the government the time and expense of a trial, the defendant has a reasonable expectation that the offered sentence in a plea deal would be less than what would be imposed following a trial conviction.

Because there is not a reasonable likelihood that a sentence harsher than what was offered during plea negotiations is a result of vindictiveness, no presumption applies. The defendant must prove actual vindictiveness, and Rahab did not, Justice DeWine concluded.

“The (trial) court’s intemperate statements are troubling. No court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial. But the statements can’t be read in isolation,” he wrote.

The Court held that the judge’s statement allowed Rahab to intelligently evaluate his options because the prosecution was suggesting a sentence near the minimum term while the judge was informing Rahab that he could face up to eight years. The opinion also noted that in the context of the sentencing hearing the judge expressed concern that Rahab did not admit or express remorse for his crime until after he was found guilty, and that Rahab subjected the victim to the trauma of a trial even though he knew he committed the crime.

Justice DeWine also wrote the trial judge had  a great deal of information to consider before imposing sentence, including a report from Rahab’s drug treatment program case manager who testified Rahab had not fared well in treatment and was not complying with program rules. The judge also learned at sentencing that Rahab, who was 19 years old when convicted, had been adjudicated delinquent 22 times as a juvenile, including once for robbery.

“In short, the trial court had a great deal of information to consider before it imposed the sentence—Rahab’s lack of genuine remorse, the impact of his conduct on the victim, his poor performance in treatment, his lengthy juvenile record, and his difficult upbringing,” the opinion stated. “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.”

Justice Judith L. French joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only.

Dissent Finds Judge Acted Vindictively
Judge Hoover, who joined the Court for the case after Justice Patrick F. Fischer recused himself, wrote that she found the judge clearly and convincingly sentenced Rahab vindictively. She noted the record included several “intemperate statements” from the trial judge and that they were made to express the judge’s dissatisfaction with Rahab’s choice to go to trial.

“Of particular concern are the trial court’s remarks made prior to trial. At that time, the trial court had not yet had the benefit of hearing evidence, nor did it know of Rahab’s prior criminal history or apparent lack of remorse; yet it had already determined that Rahab would receive a harsher sentence if he rejected the state’s offer and exercised his right to a jury trial,” she wrote.

Judge Hoover disagreed with the lead opinion that the trial judge was attempting to ensure Rahab understood his options, and interpreted the remarks as a threat to Rahab for not taking a plea.

“The majority’s conclusion that the trial court did not act vindictively in this case creates a nearly impenetrable barrier to proving actual vindictiveness. If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?” she wrote.

Judge Hoover wrote the decision may have a chilling effect on criminal defendants’ willingness to exercise their constitutional rights to a jury trial.

Justice William M. O’Neill joined Judge Hoover’s opinion.

2015-1892. State v. Rahab, Slip Opinion No. 2017-Ohio-1401.

View oral argument video of this case.

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