dissenting.
{¶ 33} I would affirm the judgment of the appellate court. I dissented in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, because I believe that a sentence includes all the sanctions imposed on a defendant and that R.C. 2953.08(G)(2) allows an appellate court to vacate an entire sentence even when only one particular sanction was wrongly imposed by the trial court. However, the Saxon majority held, “An appellate court may modify, remand, or vacate only a sentence for an offense that is appealed by the defendant and may not modify, remand, or vacate the entire multiple-offense sentence based upon an appealed error in the sentence for a single offense.” Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph three of the syllabus. I disagree with Saxon, but it is now the law. However, it need not be extended in this case for two reasons.
{¶ 34} First, unlike the defendant in Saxon, the defendant in this case did indeed appeal the legality of the entire sentence, not just the sentence for one offense. The basis of that appeal, which was not dealt with by the appellate court, is that the trial court imposed an unduly harsh penalty on the defendant in retaliation for the defendant’s failure to accept a plea bargain.
{¶ 35} Second, the more specific sentencing error alleged by the defendant here is that the trial court improperly imposed a repeat-violent-offender specification. Rather than being a separate offense, the repeat-violent-offender specification is completely dependent upon the underlying charge, which in this case applied to both the rape and kidnapping charges. Both the sentences on the underlying charges and the sentence on the specification relate to the same offenses. Even under Saxon, the appellate court should be able to vacate the entire sentence for each of those offenses.
{¶ 36} The majority opinion may actually work to the benefit of this particular defendant, since he might wish to avoid resentencing by the same trial judge. *108Because the majority remands the case to the appellate court, we should urge that court to use its power pursuant to R.C. 2953.08(G)(2) to itself modify the trial court’s sentence without remanding it. The record supports the defendant’s contention that the trial judge imposed a harsh sentence on the defendant in retaliation for the defendant’s election to go to trial. The trial judge assailed the defendant for failing to accept a plea bargain:
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellant. Donald Gallick, for appellee.{¶ 37} “And one thing that should be a part of this transcript, just in case you get the inkling you want to appeal, is the fact that you had the ability to plead out this case to an F3 or four, sexual battery, and you wouldn’t do it. Like so many sexual offenders, they deny, deny, deny. They have to convince themselves and other people of their innocence. And just a totally pathetic attempt to convince society that they’re innocent. You could have pled out. Didn’t plea out.”
{¶ 38} A sentence modification by the appellate court, rather than the court that imposed the original sentence, seems especially appropriate here. If the appellate court determines that the trial judge sentenced Evans with a retaliatory animus, judicial economy and fairness dictate that it should modify Evans’s sentence accordingly.