[Cite as State v. Byrd, 2012-Ohio-4616.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24964
v. : T.C. NO. 08CR3074
DEREK W. BYRD : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of October , 2012.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. No. 0085094, 1800 Lyons Road, Dayton, Ohio 45458
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Derek W. Byrd appeals his conviction and sentence for
one count of involuntary manslaughter, in violation of R.C. 2903.04(B) and 2903.13(A), a
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felony of the third degree. Byrd filed a timely notice of appeal with this Court on December
27, 2011.
{¶ 2} We set forth the history of the case in State v. Byrd, 2d Dist. Montgomery
No. 23950, 2011-Ohio-2060 (hereinafter “Byrd I”), and repeat it herein in pertinent part:
On July 17, 2008, in Dayton, Byrd punched a man so hard that the
man fell down, hitting his head on the concrete on which he was standing.
Two days later, the man died from his injuries.
On January 8, 2010, Byrd entered a negotiated plea of guilty to
involuntary manslaughter, R.C. 2903.04(B) and 2903.13(A), a third-degree
felony. Byrd agreed to serve from 1 to 5 years in prison and agreed not to
apply for judicial release until he had served at least one year in prison. In
exchange, the state agreed not to recommend a prison term, leaving the length
of Byrd’s prison sentence entirely within the trial court’s discretion, and
agreed not to object to his application for judicial release.
On February 23, 2010, the trial court sentenced Byrd to a 5-year
prison term. Under the version of the judicial-release statute that was in
effect at the time of sentencing, coupled with Byrd’s sentencing agreement
that he would not file for judicial release before one year, had the court
imposed a prison term of 1, 2, 3, or 4 years, Byrd could have applied for
judicial release after one year. But the specific wording of the statute for a
5-year term would mean that Byrd would not be eligible for judicial release at
all because he would not be eligible to file until he served all five years. On
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February 24, 2010, the day after he was sentenced, Byrd filed a motion to
withdraw his guilty plea. Byrd argued that he did not enter his guilty plea
knowingly, intelligently, and voluntarily because the trial court had mislead
him into believing that he would be eligible to apply for judicial release after
one year, regardless of the prison term it imposed. On February 25, 2010,
the court entered a judgment of conviction without ruling on Byrd’s motion to
withdraw. On March 11, 2010, Byrd supplemented his motion to withdraw.
{¶ 3} On March 23, 2010, Byrd appealed his conviction and sentence. We
reversed, holding that the trial court erred by failing to hold a hearing on Byrd’s motion to
withdraw his guilty plea. Byrd I, 2011-Ohio-2060. While Byrd’s case was on remand, the
trial court permitted him to withdraw his guilty plea, and the matter was set for trial on
January 9, 2012. Significantly, on September 30, 2011, HB 86 became effective. As a
result, the maximum sentence for involuntary manslaughter was reduced from five years to
three years.
{¶ 4} On November 21, 2011, Byrd appeared before the trial court and pled guilty
to one count of involuntary manslaughter. At that point, Byrd had served almost two years
in prison. Thus, Byrd faced an additional year in prison if the trial court decided to sentence
him to the maximum penalty of three years. We note that Byrd entered his guilty plea
without the benefit of an agreed prison term.
{¶ 5} The trial court subsequently sentenced Byrd to the maximum of three years
in prison. The trial court also imposed a fine on Byrd of $5,000.00. On November 22,
2011, Byrd filed a motion to reconsider that portion of the sentence whereby he was ordered
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to pay the $5,000.00 fine. The trial court did not issue a decision regarding Byrd’s motion
to reconsider before he filed a notice of appeal with this Court.
{¶ 6} It is from this judgment that Byrd now appeals.
{¶ 7} Byrd’s sole assignment of error is as follows:
{¶ 8} “APPELLANT’S SENTENCE WAS IN VIOLATION OF DUE PROCESS
OF LAW AND WAS AN ABUSE OF DISCRETION.”
{¶ 9} In his sole assignment, Byrd contends that the trial court violated his rights
to due process and a fair trial by imposing a harsher sentence without an explanation of its
reasons for doing so, after he had successfully appealed his sentence to this Court, in
violation of the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969).
{¶ 10} As we held in State v. Nelloms, 144 Ohio App.3d 1, 4, 759 N.E.2d 416 (2d
Dist.2001):
The Supreme Court has held that a trial court violates the Due Process
Clause of the Fourteenth Amendment when it re-sentences a defendant to a
harsher sentence, motivated by vindictive retaliation. North Carolina v.
Pearce (1969), 395 U.S. 711, 724, 89 S.Ct. 2072, 2080. Further, a
presumption of vindictiveness arises when the same judge re-sentences a
defendant to a harsher sentence following a successful appeal. Id. at 726, 89
S.Ct. at 2081. In order to overcome the presumption, the trial court must
make affirmative findings on the record regarding conduct or events that
occurred or were discovered after the original sentencing. Id.; Wasman v.
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United States (1984), 468 U.S. 559, 104 S.Ct. 3217. This means that a trial
court may impose an enhanced sentence, but it must demonstrate that it was
not motivated by vindictiveness toward the defendant for exercising his
rights. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079.
{¶ 11} Pearce requires that the trial court make findings based upon objective
information concerning identifiable conduct on the part of the defendant. 395 U.S. at 726, 89
S.Ct. 2072. “Relevant conduct or events” sufficient to overcome the presumption of
vindictiveness are those that throw “new light upon the defendant’s ‘life, health, habits,
conduct, and mental and moral propensities.’” Wasman v. United States, 468 U.S. 559,
570-71, 104 S.Ct. 3217, 82 L.Ed. 2d 424 (1984); quoting Williams v. New York, 337 U.S.
241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Thus, a court imposing an enhanced
sentence on remand must “detail the reasons for an increased sentence or charge” so that
appellate courts may “ensure that a non-vindictive rationale supports the increase.” Id. at
572, 104 S.Ct. 3217.
{¶ 12} Initially, we note that the State argues that because Byrd was ordered to
serve a shorter prison sentence of three years after his second guilty plea, his sentence cannot
be deemed harsher than the original sentence even with the added imposition of the
$5,000.00 fine. Accordingly, the State suggests that there can be no claim of vindictive
sentencing. The State’s argument in this regard is not persuasive. Although the range of
potential sentences had recently been lowered by the Ohio legislature, the trial court still
imposed the maximum allowable sentence of three years upon Byrd for involuntary
manslaughter. In addition to ordering Byrd to serve the maximum sentence, the trial court
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also ordered him to pay a fine of $5,000.00. Byrd’s original sentence required him to serve
the maximum prison term, which at that time was five years. Upon re-sentencing, the trial
court not only ordered him to serve the maximum prison term, but also imposed a substantial
fine. In our view, this constitutes a “harsher” sentence for the purpose of determining
whether the trial court acted in a vindictive manner upon re-sentencing Byrd.
{¶ 13} After Byrd pled guilty for a second time, the trial court made the following
comments before it imposed sentence:
The Court: You know I can’t act on – I can’t claim that I know the
hurt that the family feels, but what you did was cowardly. You sucker
punched somebody who wasn’t bother – you know, the thing that bothered
me the most, and I sat through or looked at the information concerning the
Motion to Suppress. You’d have gotten away with it if it hadn’t been for
some person walking down the street, seeing what you did and being shocked
enough and calling the police.
And when it came back, you had the nerve after you’ve punched this
guy and he’s fallen and hit his head on the concrete, to be trying to tell the
police that you don’t know what happened and that you were just trying to
help take care of him. You know, that to be [sic] is galling; it’s cowardly.
And, you know, I can’t say to you what I would like to say to you if I
were out on the street.
You know what you did was wrong. It was wrong on all levels.
Wrong. And I – you know, I’m not impressed with the fact that you got your
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life together. I’m not impressed with the fact that you hadn’t had any
criminal behavior until this time. You killed a man. Being stupid or
whatever, or intentional or whatever, you put in motion some actions which
led to the death of another man.
***
You know. And, you know, the fact that you’ve decided to make
something of your life as a result of that, that’s all well and good, but it’s not
going to bring him back. And, you know, you’re going to have to spend the
rest of your life trying to do well to maybe convince that family that your life
is worth something.
And quite frankly, I’m annoyed with the grand jury because if I had
been in the prosecutor’s office at that time I would have gone for a felony
homicide, involuntary manslaughter. Because I think from the actions that I
heard on the bench, what you did was despicable. That’s the best word I can
say. Despicable.
{¶ 14} It clear that the trial court offered no new rationale for its decision to impose
a harsher sentence; i.e. a $5,000.00 fine. In fact, the trial court did not make any affirmative
findings on the record that would support the imposition of a $5,000.00 fine. Preliminarily,
we caution the trial court that the following two statements are not appropriate judicial
discourse:
And, you know, I can’t say to you what I would like to say to you if I
were out on the street.
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***
And quite frankly, I’m annoyed with the grand jury because if I had
been in the prosecutor’s office at that time I would have gone for a felony
homicide, involuntary manslaughter.
{¶ 15} We note that the only new/additional information provided to the trial court
consisted of defense counsel’s argument that Byrd had been a model inmate since being
incarcerated and did not have any infractions while in prison. Defense counsel also pointed
out that Byrd had accepted responsibility and was extremely remorseful for his conduct.
{¶ 16} We further note that the record establishes that Byrd’s pre-sentence
investigation report (PSI) had not been updated since his first sentencing in February of
2010. Thus, the trial court possessed no new information that Byrd’s status as an indigent
had changed, which would warrant the $5,000.00 fine. Simply put, there was no evidence
in the record that Byrd had a future ability to pay the fine the trial court decided to impose.
Nevertheless, the trial court found that Byrd would get credit for time served and “he will
have the apparent present ability to get a job with the re-entry program that we have.”
Significantly, we note that there is no evidence in this record of the existence of any re-entry
programs available to Byrd once he is released from prison.
{¶ 17} Upon review, the court’s failure to provide reasons for enhancing Byrd’s
sentence fails to overcome the Pearce presumption of vindictiveness. Thus, the
presumption of vindictiveness arises, and is not overcome by any trial court findings
affirmatively appearing on the record. Most importantly, there is no evidence in the record
which demonstrates that Byrd has the future ability to pay the $5,000.00 fine. Since the
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record is devoid of any justifiable reasons to rebut the Pearce presumption, Byrd’s first
assignment of error is sustained. On the authority contained in Section 3(B)(2), Article IV
of the Ohio Constitution and R.C. § 2953.08(G)(2)(b), we vacate the $5,000.00 fine imposed
by the trial court.
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FAIN, J., concurs.
GRADY, P.J., concurring:
{¶ 18} A sentence is “harsher” for purposes of North Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), when the sentence burdens a right protected by
law that was not similarly burdened by the prior sentence the court imposed. In addition to
the rights associated with personal liberty, the Ohio Constitution, Article I, Section 1,
identifies as “unalienable rights” the rights of “acquiring, possessing, and protecting
property.” The $5,000.00 fine the court imposed on Defendant pursuant to R.C.
2929.18(A)(3)(d) burdened the property rights that Article I, Section 1 protects. Because
Defendant’s property rights were not similarly burdened by the prior sentence the court had
imposed, the $5,000.00 fine imposes a harsher sentence for purposes of Pearce. Further, as
the majority opinion points out, no new factors or circumstances were before the court to
support the fine not previously imposed. The trial court therefore erred when it imposed the
fine as part of Defendant’s sentence.
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Copies mailed to:
R. Lynn Nothstine
Mark A. Deters
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Hon. Frances E. McGee