[Cite as State v. Quinones, 2012-Ohio-1939.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97054
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TONY C. QUINONES
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-522702
BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} In 2009, a jury found defendant-appellant Tony Quinones guilty of two counts of
rape and two counts of sexual battery. The court imposed three-year sentences on the rape
counts and ran them concurrently; it imposed two-year sentences on the sexual battery counts and
ran them concurrently, but consecutive to the rape count for a total term of five years. On direct
appeal, we accepted the state’s concession that there was only one act of rape so only one count
of rape could survive. See State v. Quinones, 8th Dist. No. 94082, 2010-Ohio-5240, ¶ 30. We
also held that the sexual battery counts were allied offenses to the rape counts, and we remanded
for a resentencing at which the state was to elect which count it would proceed on: rape or
battery. Id. at ¶ 31. On remand, the state elected to have Quinones sentenced on the single rape
count. The court imposed a five-year term on the rape count, saying that when it originally
sentenced Quinones, it intended that he serve a total of five years regardless of how many counts
there might be. On appeal, Quinones complains that the addition of two years to the original
three-year term for rape violated due process.
{¶2} Quinones frames the issue as one of vindictive sentencing, but the record does not
support that assertion. In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d
381, the Supreme Court of Ohio analyzed the scope of a trial court’s resentencing hearing
following an allied-offenses error, holding:
A remand for a new sentencing hearing generally anticipates a de novo
sentencing hearing. R.C. 2929.19(A). However, a number of discretionary and
mandatory limitations may apply to narrow the scope of a particular resentencing
hearing. * * * In a remand based only on an allied-offenses sentencing error, the
guilty verdicts underlying a defendant’s sentences remain the law of the case and
are not subject to review. [State v.] Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,
922 N.E.2d 182, at ¶ 26–27. Further, only the sentences for the offenses that were
affected by the appealed error are reviewed de novo; the sentences for any
offenses that were not affected by the appealed error are not vacated and are not
subject to review. [State v.] Saxon[, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824,] at paragraph three of the syllabus. Id. at ¶ 15.
{¶3} The remand ordered by this court was for a “de novo” resentencing. “During a de
novo resentencing, ‘* * * the trial court is free to impose the identical sentence that was
originally imposed, or a greater or lesser sentence within its discretion * * *.’” State v. Jackson,
8th Dist. No. 92365, 2009-Ohio-4995, ¶ 9, quoting State v. Cook, 8th Dist. No. 91487,
2008-Ohio-4246, ¶ 10. This freedom to enter an increased sentence is constrained only by the
caveat that the court cannot increase a sentence on remand because of vindictiveness over the
defendant’s exercise of the right to appeal. Quinones argues that vindictiveness is presumed
when the same judge resentences an offender to a lengthier term, especially when he has been a
model inmate. State v. Douse, 8th Dist. No. 82008, 2003-Ohio-5238.
{¶4} While a presumption of vindictiveness existed in this case because of the increased
sentence, the state tried to rebut that presumption by noting that the court ordered the lengthier
sentence because it originally wished to sentence Quinones to five years total, regardless of how
that sentence was imposed. Indeed, the court indicated that it would have sentenced Quinones
to five years even had it known that the sexual battery counts were allied.
{¶5} A “suitable explanation” to rebut the presumption of vindictiveness may consist of
conduct or events discovered since the prior sentencing that cast “‘new light upon the
defendant’s life, health, habits, conduct, and mental and moral propensities.’” Wasman v. United
States, 468 U.S. 559, 570-571, 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). In other words, “[t]hose reasons
must be based upon objective information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing proceeding.” North Carolina v.
Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
{¶6} The court adequately rebutted the presumption of vindictiveness by stating that the
increased sentence for rape was intended to effect the court’s original desire to sentence
Quinones to five years in prison, regardless of what counts may have survived. The difficulty
with this explanation is that those same statements prove that the court sentenced Quinones
pursuant to an illegal “sentencing package.”
{¶7} Federal sentencing law allows the use of a “sentencing package,” which as
applicable to multicount indictments, assumes that the district court will:
[C]raft a disposition in which the sentences on the various counts form part of an
overall plan. When the conviction on one or more of the component counts is
vacated, common sense dictates that the judge should be free to review the
efficacy of what remains in light of the original plan, and to reconstruct the
sentencing architecture upon remand, within applicable constitutional and
statutory limits, if that appears necessary in order to ensure that the punishment
still fits both crime and criminal. United States v. Pimienta-Redondo, 874 F.2d 9,
14 (1st Cir.1989).
{¶8} Ohio does not allow sentence packaging. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph two of the syllabus.
{¶9} The original sentence contained a three-year term for rape and two-year term for
sexual battery, with the sentences to run consecutively. At resentencing, the trial judge
referenced the total five-year sentence it originally imposed on Quinones and stated: “[t]he
Court is still of the mind that five years is an appropriate sentence for the crime of rape * * *.
And, so, this Court is not going to reduce or enlarge his sentence, but reinstitute the five year
sentence that the Court imposed.” (Emphasis added.)
{¶10} The court’s statements leave no doubt that it sentenced Quinones to a five-year
package consistent with the way such packages are described in Pimienta-Redondo. In rejecting
the sentencing package doctrine, Saxon made it clear that Ohio courts impose a sentence for
“each separate, individual offense.” Saxon at paragraph one of the syllabus. By stating that it
imposed a “five year sentence” in its original sentence, the court acknowledged that it fully
intended that Quinones serve a total of five years regardless of whether any counts might not
survive on appeal. By increasing the length of the remaining rape count to effectuate its original
intent to have him serve five years, the court reviewed “the efficacy of what remain[ed] in light
of the original plan” and fashioned a new sentence to effectuate its plan to have Quinones serve
five years. By any measure, this was an admission by the court that it sentenced Quinones
according to a “single comprehensive sentencing plan” of the kind described in
Pimienta-Redondo.
{¶11} The court’s error was avoidable. Had the court truly desired to have Quinones
serve a total of five years in prison, it could easily have sentenced him with the counts to be
served concurrently. This would have ensured that a reversal on one count would not affect the
sentence on the remaining count. The court cannot, on remand, impose that which it claimed to
have desired all along without making the sentence appear to have been the product of a
sentencing package. It follows that the court had no authority to increase Quinones’s sentence
under these circumstances. We sustain the assignment of error and remand with instructions for
the court to modify Quinones’s sentence by imposing a three-year term on the rape count.
{¶12} This cause is reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common
Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., CONCURS;
JAMES J. SWEENEY, J., DISSENTS
WITH SEPARATE OPINION
JAMES J. SWEENEY, J., DISSENTING:
{¶13} I agree with the majority that the court did not act vindictively in resentencing
Quinones. However, I dissent regarding the majority’s conclusion that the court improperly
sentenced Quinones pursuant to a sentencing package.
{¶14} As the majority opinion points out, courts conduct a de novo hearing when a case is
remanded for resentencing. R.C. 2929.19(A); State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 15. The scope of this hearing is limited when the remand
is based on the merger of allied offenses, such as in the case at hand. These limitations include
that the guilty verdicts remain intact and the sentences for the offenses that were not subject to
merger are also not subject to review. Id. at ¶ 15.
{¶15} The same is not true under federal law, which allows for packaged sentences. The
sentencing package doctrine allows federal trial courts to consider “multiple offenses as a whole
and [impose] one, overarching sentence to encompass the entirety of the offenses * * *.” State
v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. Thus, the court has the
authority to sentence individual counts interdependently. If this finding is made, the appellate
court has the authority to vacate the entire sentence — even if only one conviction is overturned
— because the sentence was bundled to create an overall effect. See generally U.S. v.
Faulkenberry, 759 F.Supp.2d 915, 921-925 (S.D.Ohio 2010).
{¶16} The Ohio Supreme Court has instructed that the opposite is true under state law:
“[A] judge sentencing a defendant pursuant to Ohio law must consider each offense individually
and impose a separate sentence for each offense.” Saxon at ¶ 9. The “sentencing-package
doctrine has no applicability to Ohio sentencing laws * * *.” Rather, “a sentence is the sanction
or combination of sanctions imposed on each separate offense. * * * Because Ohio does not
‘bundle’ sentences, nothing is ‘unbundled’ when one of several sentences is reversed on appeal.”
Id. at ¶ 13, 15. Furthermore, Ohio appellate courts do not have the authority to vacate an
entire sentence when only a portion of that sentence is subject to remand. See Wilson.
{¶17} In the case at hand, the trial court originally sentenced Quinones on each count
individually, consisting of three years in prison for rape and two years for sexual battery, to run
consecutive to one another. In my opinion, these sentences are not interdependent. Rather,
they stand alone.
{¶18} In Quinones’s direct appeal, this court reversed and remanded for merger of allied
offenses regarding all convictions and their accompanying sentences. This case is not an
example of the court’s reversal of some, but not all, of the convictions in a multicount conviction
scenario.
{¶19} At the resentencing hearing, the trial court imposed a sentence of five years for the
rape. Although the trial court stated that it was not “going to reduce or enlarge his sentence, but
reinstitute the five year sentence that the Court imposed,” this statement is misleading. The trial
court did enlarge Quinones’s sentence for rape from three years to five years, which was within
its discretion. See State v. Foster, 109 Ohio St.3d 1, 31, 2006-Ohio-856, 845 N.E.2d 470
(contemplating that, at a new sentencing hearing, “[w]hile the defendants may argue for
reductions in their sentences, nothing prevents the state from seeking greater penalties”).
{¶20} Under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4,
unless a felony sentence is contrary to law, we review it for an abuse of discretion. When
reviewing for an abuse of discretion, “a court of appeals may not substitute its judgment for [that]
of the * * * trial court.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 7487
(1993).
{¶21} In my opinion, the court did not employ the sentence-packaging doctrine. Nor did the
court abuse its discretion on remand, because the record does not imply that the court acted
unreasonably, arbitrarily, or unconscionably in resentencing Quinones. Respectfully, I would
affirm the trial court’s judgment.