State v. Ferrell

[Cite as State v. Ferrell, 2021-Ohio-1259.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2020-P-0057
- vs - :

WILLIAM T. FERRELL, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR
00845.

Judgment: Reversed and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

James W. Armstrong, Leipply & Armstrong, 2101 Front Street, Riverfront Centre, Suite
101, Cuyahoga Falls, OH 44221 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, William T. Ferrell, appeals from the Judgment Entry

of the Portage County Court of Common Pleas, resentencing him to a greater prison

term for Nonsupport of Dependents following a remand due to sentencing error. For the

following reasons, we reverse the judgment of the lower court and remand for

resentencing.

{¶2} On December 19, 2013, Ferrell was indicted by the Portage County Grand
Jury for six counts of Nonsupport of Dependents, felonies of the fourth degree, in

violation of R.C. 2919.21(A)(2) or (B).

{¶3} On August 21, 2014, a plea hearing was held at which Ferrell pled guilty to

four counts of Nonsupport of Dependents. A Nolle Prosequi was entered by the State

on the remaining two counts of the indictment. The guilty plea was accepted by the trial

court and the finding of guilt was memorialized in an August 26, 2014 Judgment Entry.

A sentencing hearing was held on January 20, 2015, at which the court

sentenced Ferrell to 100 days in jail and four years of community control. The court

required that Ferrell become employed and abide by a payment plan to satisfy his child

support arrearages.

{¶4} On two occasions in 2015 and 2016, Ferrell was found to have violated

probation. Following the second violation, on December 2, 2016, the court ordered

Ferrell to successfully complete the program at NEOCAP, a community-based

corrections facility, and serve one year of intensive supervision and one year of regular

probation.

{¶5} On June 23, 2017, the probation department filed a third Motion to

Revoke/Modify Probation on the ground that Ferrell had not reported to probation or

advised of an address change as required. Ferrell admitted to the allegations at an

August 11, 2017 hearing. Counsel emphasized Ferrell’s mental health and housing

concerns, noting that he was attempting to find employment. The court ordered Ferrell

to serve one year in prison for each of the four counts for which he had been convicted,

with the terms to be served consecutively, noting that Ferrell “had been back here too

many times.” The sentence was memorialized in an August 15, 2017 Entry.

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 {¶6} Ferrell appealed from this judgment arguing, inter alia, that the trial court

erred by ordering consecutive prison sentences without making proper statutory

findings. This court held that the trial court failed to make specific consecutive

sentencing findings as required by R.C. 2929.14(C)(4)(a)-(c), its sentence was contrary

to law, and vacated the sentence with instructions to the trial court to resentence Ferrell.

State v. Ferrell, 11th Dist. Portage No. 2017-P-0069, 2019-Ohio-836, ¶ 39-40.

{¶7} The trial court held a resentencing hearing on April 10, 2019. The court

inquired of the prosecutor if the matter would start at “phase one on the motion to

revoke,” to which the prosecutor responded affirmatively. The court asked defense

counsel to speak on sentencing, “with the understanding, and this is very important, that

the Defendant was in my court, in my presence now that I’ve gone through the file fully,

he was in my court four times on motions to revoke, another three times on status

hearings rather than motions to revoke, and he didn’t do anything he was supposed to

do.” Defense counsel presented certificates of achievement and letters from prison

employees to demonstrate Ferrell’s positive progress. Ferrell stated that he enrolled in

college courses while in prison, participated in a leadership institute and counseling,

and mentored other prisoners. He expressed guilt that his son had recently been

convicted and ordered to serve a prison term since he had not been there for him as a

father.1 The court emphasized Ferrell’s probation violations, noting he failed to take

advantage of the opportunity given at NEOCAP and that he “had a total disregard for

this court.” It continued: “Now, you may have changed now, but at that time, you had

absolute total disregard for the law, the Court, and your children by the way, who you

1. Although not referenced at the resentencing hearing, a letter was made part of the record from Ferrell’s
children’s mother, who argued that Ferrell had not been present for the children as a father and this had
negatively impacted their lives, including the ability to pay for college.

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owe $81,000.00 in back child support.” The court ordered Ferrell to serve a term of 18

months for each of the four offenses, to be served consecutively. The court made

consecutive sentencing findings and concluded the hearing with the following: “this was

a motion to revoke where the Defendant was given a multitude of opportunities and just

threw it back in the Court’s face, and so I guess lesson learned by all defendants.” The

sentence was memorialized in an April 11, 2019 Judgment Entry.

{¶8} The trial court held a “judicial release” hearing2 on April 15, 2019, because

it was “impressed with what [Ferrell had] accomplished while in jail.” The court

indicated that if it “released” him, Ferrell would be placed on probation. Ferrell inquired

about the length of probation and counsel indicated Ferrell was apprehensive about

probation and further did not intend to withdraw his notice of appeal. The court stated:

“Well then I’m just not going to hear it then” and the hearing concluded. In a May 6,

2019 Judgment Entry, the court concluded Ferrell was “not interested in being placed

on community control” and found Ferrell’s sentence “shall remain in effect.” On May 9,

2019, the court issued a Judgment Entry Nunc Pro Tunc which altered its previous

statement of jail time credit.

{¶9} Ferrell filed an appeal from the nunc pro tunc entry. We dismissed the

appeal as untimely filed. State v. Ferrell, 11th Dist. Portage No. 2019-P-0064, 2020-

Ohio-866, ¶ 6. He subsequently filed a motion for delayed appeal which was granted by

this court.

2. In the entry issued following the hearing, the trial court referred to it as a “status hearing on judicial
release” and it referenced “releasing” Ferrell during the hearing. However, the judicial release statute
sets forth that an offender sentenced to an aggregate prison term of more than five years but less than
ten, as Ferrell was at the April 10, 2019 resentencing, may move for judicial release after serving five
years of the prison term. R.C. 2929.20(C)(4). Thus, Ferrell would not have been eligible for judicial
release. This hearing would more properly be construed as one reconsidering the court’s sentence.

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 {¶10} On appeal, Ferrell raises the following assignments of error:

{¶11} “[1.] The Trial Court committed prejudicial error by re-sentencing

Appellant, who the Trial Court was aware had mental health issues, to a maximum four

consecutive prison sentences of eighteen months, for a total of six years, for Criminal

Nonsupport of Dependents involving two children with the same Mother.

{¶12} “[2.] Appellant’s rights to due process were violated when he received two

additional years in prison by the Trial Court for exercising his Constitutional and

Appellate Rights.”

{¶13} We will first address the second assignment of error, as it is dispositive of

the appeal. In his second assignment of error, Ferrell argues that his due process rights

were violated when he received two additional years in prison on remand for

resentencing. He contends that the court’s punishment was vindictive and was not

based on legitimate reasons such as his conduct after the original sentencing

proceeding.

{¶14} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). The appellate court “may vacate the sentence

and remand the matter to the sentencing court for resentencing[,] * * * if it clearly and

convincingly finds * * * the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).

The State contends that plain error must apply since Ferrell did not object to the

increased sentence. We note that Ferrell’s counsel did state “we would object to the

consecutive sentences as imposed by the court,” although not specifically noting an

objection to the increase. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting

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substantial rights may be noticed although they were not brought to the attention of the

court.” The Ohio Supreme Court has recognized that “a sentence [that is] vindictively

imposed on a defendant” is contrary to law. State v. Rahab, 150 Ohio St.3d 152, 2017-

Ohio-1401, 80 N.E.3d 431, ¶ 8. Regardless of whether a plain error standard is applied,

it is evident that if a greater sentence is imposed vindictively in violation of the law, this

would affect a defendant’s substantial rights and constitute reversible error.

{¶15} In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.E.2d 656

(1969), the United States Supreme Court held: “whenever a judge imposes a more

severe sentence upon a defendant after a new trial, the reasons for his doing so must

affirmatively appear. Those 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.” Id. at 726. This was based on the rationale that

due process of law requires vindictiveness not play a part in sentencing and that a

defendant must not be unconstitutionally deterred from exercising the right to appeal.

Id. at 725. Subsequently, the Court clarified that Pearce created a presumption of

vindictiveness, and “where the presumption applies, the sentencing authority or the

prosecutor must rebut the presumption that an increased sentence or charge resulted

from vindictiveness; where the presumption does not apply, the defendant must

affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S. 559, 569,

104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). A presumption does not apply “‘in every case

where a convicted defendant receives a higher sentence.’” Alabama v. Smith, 490 U.S.

794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), quoting Texas v. McCullough, 475

U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). It has been limited to

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circumstances in which “there is a ‘reasonable likelihood’ * * * that the increase in

sentence is the product of actual vindictiveness on the part of the sentencing authority.”

Id.

{¶16} The Ohio Supreme Court has indicated that the Pearce presumption is

narrow in its application and does not apply in circumstances such as where a

defendant is given a harsher sentence after he successfully moves to vacate his plea

and subsequently goes to trial, since “more information bearing on sentencing will be

available to the judge after trial.” Rahab at ¶ 14; also State v. Bozek, 11th Dist. Portage

No. 2017-P-0028, 2018-Ohio-4945, ¶ 50-52. Similarly, it found no presumption of

vindictiveness where a defendant rejects a sentence offered during plea negotiations

and subsequently receives a greater sentence following trial. Id. at ¶ 16-18. As the

Court explained, such cases are distinguishable from Pearce, where the judge was

“expected to operate in the context of roughly the same sentencing consideration after

the second trial as [he did] after the first.” Id. at ¶ 14, citing Smith at 802.

{¶17} In Ohio, it has generally been held that “a presumption of vindictiveness

arises when the same judge imposes a harsher sentence following a successful

appeal.” State v. Banks, 8th Dist. Cuyahoga No. 107048, 2019-Ohio-980, ¶ 29; State v.

Carnahan, 3d Dist. Defiance No. 4-15-18, 2016-Ohio-3213, ¶ 13; State v. Edwards, 6th

Dist. Wood No. WD-13-037, 2014-Ohio-2436, ¶ 5-8. The presumption has been applied

to resentencing after reversal due to errors made by the trial court in the initial sentence.

State v. Hitchcock, 5th Dist. Fairfield No. 19-CA-56, 2020-Ohio-6751, ¶ 9, 20-24;

Edwards at ¶ 6-8.

{¶18} In the present matter, Ferrell was given a greater sentence, two years

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longer than the original one, following reversal of his sentence in a successful appeal

arising from the trial court’s failure to make consecutive sentencing findings. The same

judge presided over the original sentencing hearing and the resentencing. See

McCullough, 475 U.S. at 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (the Pearce presumption

does not apply where “different sentencers assessed the varying sentences” the

defendant received). These facts fit the circumstances under which a presumption of

vindictiveness has been applied.

{¶19} This matter is distinguishable from other cases where this court has

declined to apply the presumption. In Bozek, the presumption did not apply for reasons

similar to those set forth in Rahab, supra. In State v. Polizzi, 11th Dist. Lake Nos. 2020-

L-016 and 2020-L-017, 2021-Ohio-244, this court declined to apply the Pearce

presumption and applied the standard of actual vindictiveness where the trial court

imposed a shorter overall prison term on remand for failure to make consecutive

sentencing findings, holding that a shorter sentence “does not imply a reasonable

likelihood of vindictiveness.” Id. at ¶ 36. We recognize that, in Polizzi, this court found

that a de novo hearing was proper where the sentence was vacated, at which additional

statements and argumentation could be considered and there was no expectation of

finality as to the defendant’s sentence when he challenged it on appeal. These

principles are accurate and the resentencing hearing conducted here was consistent

with the law. However, in Polizzi, since a shorter prison term was ordered, the same

issues of due process raised here relating to vindictiveness did not apply.

{¶20} Having found that the presumption applies, it is necessary to determine

whether it has been rebutted. Pursuant to Pearce, when a more severe sentence is

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imposed by a judge “the reasons for his doing so must affirmatively appear,” they must

be “based upon objective information” and “the factual data upon which the increased

sentence is based must be made part of the record.” Pearce, 395 U.S. at 726, 89 S.Ct.

2072, 23 L.E.2d 656. It has been held that information rebutting vindictiveness can

include “new, probative evidence supporting a longer sentence” and relevant events or

conduct that shine “new light upon the defendant’s ‘life, health, habits, conduct, and

mental and moral propensities.’” McCullough at 143 (where a judge considered

“relevant fact[s] not before the [sentencer]” in the first sentencing proceeding and gave

a “careful explanation * * * for the sentence,” this satisfied the requirement that there is

“‘objective information … justifying the increased sentence’”); Hitchcock, 2020-Ohio-

6751, at ¶ 22 (citation omitted).

{¶21} In the present matter, in support of the sentence imposed, the trial court

stated that Ferrell had disregarded the court by repeatedly violating community control

and not completing NEOCAP, information that was known to the trial court at the first

sentencing hearing and which would not provide a justification for giving a greater

sentence on remand. Hitchcock at ¶ 29 (“[i]nformation regarding identifiable conduct on

defendant’s part that was known by the court at the original sentencing proceeding does

not rebut the presumption of vindictiveness that arises from the imposition of a harsher

sentence following defendant’s successful appeal of his sentence”).

{¶22} Some new information was available for consideration upon resentencing,

including: Ferrell had participated in various programs and educational opportunities

while incarcerated, the March 2019 letter from Ferrell’s children’s mother stating how his

actions had impacted his children, and Ferrell’s statements that his son was

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incarcerated and taking responsibility for his actions and how they impacted his son.

While it is evident that the information showing Ferrell’s progress would not justify an

increased sentence, as the State emphasizes, the letter does constitute new information

that reflects negatively on Ferrell and was not before the court at the prior sentencing

hearing, although the record does not specifically demonstrate the court’s consideration

of the letter.

{¶23} However, even presuming that the letter, if considered by the court, may

justify the increase in the sentence, it has consistently been required that a trial court

state on the record reasons for the increase in the sentence in order to combat the

presumption of vindictiveness. Hitchcock at ¶ 29 (“due process compelled the trial court

to affirmatively explain the increase in its sentence in order to overcome the Pearce

presumption of vindictiveness”); State v. Collins, 8th Dist. Cuyahoga Nos. 98575 and

98595, 2013-Ohio-938, ¶ 17 (“because the Pearce presumption applies, and the trial

court made no affirmative findings on the record to justify the increased sentence, we

are constrained to find vindictiveness in the trial court’s imposition of the increased

sentence”). See also Wasman, 468 U.S. at 569, 104 S.Ct. 3217, 82 L.Ed.2d 424

(finding Pearce inapplicable under the circumstances because, “[i]n sharp contrast to

Pearce * * *[,] the trial judge here carefully explained his reasons for imposing the

greater sentence”). Where the trial court merely restates its reasoning for imposing the

original sentence, as occurred here, the presumption is not rebutted. Edwards, 2014-

Ohio-2436, at ¶ 9, 13 (“because the trial court failed to provide a rationale for enhancing

[the defendant’s] sentence on remand” and its explanation for the sentence “virtually

mirror[ed]” the explanation imposed at the original sentencing, “we find that the

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sentence imposed was contrary to law”); State v. Wagner, 3d Dist. Union No. 14-06-30,

2006-Ohio-6855, ¶ 15 (“where the trial court has expressly referred without elaboration

to the exact same set of findings and factors in both sentencings, we are not convinced

that the record in support of the resentence to a higher prison term is sufficient to dispel

a ‘reasonable likelihood of vindictiveness’ in order to overcome the application of”

Pearce). As the Sixth Circuit has explained, where the Pearce presumption applies,

due process compels the trial court to “give ‘objective reasons’ for imposing a higher

sentence on Defendant on remand than the one it imposed prior to his appeal,”

requiring that the court “‘articulate[] some reason for imposing a more severe sentence’”

that has something to do “‘with conduct or an event, other than the appeal, attributable

in some way to the defendant.’” United States v. Jackson, 181 F.3d 740, 745-746 (6th

Cir.1999), citing United States v. Rapal, 146 F.3d 661, 664 (9th Cir.1998).

{¶24} Here, the trial court failed to give any acceptable justification for increasing

the sentence on the record, either at the sentencing hearing or in its judgment entry.

Instead, the only reasoning for the sentence was based on grounds that were entirely

known at the prior sentencing hearing: that Ferrell had repeatedly failed to comply with

the terms of his probation. The court’s statements demonstrated that it took exception

to Ferrell’s “disregard for the court” but this was not a ground for an increased sentence

under the facts and circumstances of this case. It certainly does not rebut the

presumption of vindictiveness. The fact that the court did not explicitly state that it

increased the sentence because Ferrell prevailed on appeal, as emphasized by the

State, is of no import where the presumption applies.

{¶25} We question the argument by the State that the court chose to issue a

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greater sentence based on the letter given that it decided, due to Ferrell’s achievements

in prison, to hold a hearing reconsidering his sentence just a few days later. At that

hearing, the court praised Ferrell’s conduct in prison and appeared willing to “release”

him before quickly ending the hearing after Ferrell expressed concerns with being

ordered to serve probation and an unwillingness to withdraw his notice of appeal. This

does not establish or rebut vindictiveness at the time of the sentencing hearing since it

occurred on a later date, and we fully recognize a trial court’s discretion to determine

the proper sentence to be served by an offender, but this further adds to the lack of

clarity behind the reason the court increased Ferrell’s sentence. It should be

emphasized that this court’s ruling is not a determination that the trial court was actually

vindictive in sentencing Ferrell. However, we must apply the presumption as required

by law. Had the trial court stated on the record a proper rationale for increasing Ferrell’s

sentence, the court’s sentence would be afforded appropriate discretion and the

outcome may be different.

{¶26} For the foregoing reasons, we reverse the sentence ordered by the trial

court and remand for resentencing. On resentencing, if the court chooses to increase

the sentence above that ordered in its initial sentence in 2017, it must make findings on

the record to support that increase, consistent with the law discussed herein.

{¶27} As a final point, since we are remanding this matter for resentencing, we

find it necessary to dispel an erroneous assumption under which it appears from the

record the trial court and counsel were operating at the time of resentencing regarding

our instructions on remand in Ferrell, 2019-Ohio-836. At resentencing, the trial court

indicated that the “appeals court is advising this Court to go back to the sentencing

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date, the motion to revoke, that’s what I have to consider.” The court acknowledged

Ferrell’s accomplishments while incarcerated, but indicated that it could only consider

conduct presented at the time it heard the motion to revoke. Additionally, at the April

15, 2019 hearing after resentencing, the trial court stated that it “was obligated to

sentence the Defendant according to what had taken place during initial probation back

in 2013.” Counsel did not interpose an objection or observation that the court could

consider Ferrell’s accomplishments while in prison.

{¶28} We emphasize that our earlier opinion did not limit the trial court’s

consideration to Ferrell’s conduct or events as of the date of the hearing on the motion

to revoke. As discussed above, Ohio appellate cases provide support for the argument

that the trial court is permitted to consider conduct or events that occurred or were

discovered after the original sentencing at resentencing. See, e.g., State v. Thrasher,

178 Ohio App.3d 587, 2008-Ohio-5182, 899 N.E.2d 193, ¶ 17 (2d Dist.); Hitchcock,

2020-Ohio-6751, at ¶ 28. In a decision focusing on a federal trial court’s ability under

the sentencing guidelines post-Booker to consider a defendant’s post-sentencing

rehabilitation at resentencing after a successful appeal, the Supreme Court of the

United States also held that a trial court may consider such evidence. See Pepper v.

United States, 562 U.S. 476, 503-504, 131 S.Ct.1229, 179 L.Ed.2d 196 (2011). As

such, on remand, the trial court is permitted to consider conduct and events that

occurred after the original sentencing.

{¶29} The second assignment of error is with merit.

{¶30} In his first assignment of error, Ferrell argues that the trial court failed to

articulate with specificity the reasons it ordered him to serve a maximum sentence and

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he sets forth reasons why the sentence was unwarranted. He further argues there was

no justification for adding two years to his prior term.

{¶31} To the extent that Ferrell questions the court’s rationale for ordering a

maximum sentence, this issue is moot given our disposition of the second assignment

of error. As to the issue raised regarding the increase in his sentence from the original

one, this was fully addressed above.

{¶32} The first assignment of error is moot.

{¶33} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas, resentencing Ferrell, is reversed and this matter is remanded for further

proceedings consistent with this opinion. Costs to be taxed against appellee.

MARY JANE TRAPP, P.J.,

THOMAS R. WRIGHT, J.,

concur.

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