Ohio Appellate Reports


STATE v. WAGNER, Unpublished Decision (12-26-2006)
Court of Appeals of Ohio, Third District, Union County.
DATE OF JUDGMENT ENTRY: December 26, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal from Common Pleas Court.

Judgment vacated and cause remanded.

JAMES D. OWEN, Attorney at Law, Reg. #0003525 5354,
Columbus, OH 43214, For Appellant.

DAVID PHILLIPS, Prosecuting Attorney, Reg. #0019966, TERRY
L. HORD, Reg. #0025979, Marysville, OH 43040, For Appellee.


Shaw, J.

{¶ 1} The defendant-appellant, Christopher M. Wagner
(“Wagner”), appeals the June 7, 2006 Judgment of sentence
entered in the Court of Common Pleas, Union County, Ohio
resentencing him to a term of fifteen months in prison.

{¶ 2} On May 4, 2004, Wagner was present at an
undercover operation at the residence of a drug dealer,
Ronald Donahue, when an undercover drug transaction took
place. During the transaction when the confidential
informant was purchasing two ounces of cocaine from Ronald
Donahue, Wagner was present and stated: “Well, for God’s
sake, just get separate baggies and weigh an ounce on
each.” Wagner then went and retrieved the baggies and gave
them to Ronald Donahue who placed the cocaine in the
baggies and completed the drug transaction with the
confidential informant.

{¶ 3} On April 13, 2005, Wagner was indicted by the
Union County Grand Jury on one count of possession of
cocaine, in violation of R.C. 2925.11(A), a felony of the
third degree, and one count of trafficking in cocaine, in
violation of R.C. 2925.03(A)(1), a felony of the third
degree. On June 10, 2005, the State moved the trial court
for an order to amend the count of trafficking in cocaine
to a reduced charge as a felony of the fourth degree, in
violation of R.C. 2925.03(A)(1) and R.C. 2925.03(C)(4)(c).
The trial court granted the State’s motion. On that same
day, Wagner pled guilty to the second count in the
indictment, as amended, trafficking in cocaine, a felony of
the fourth degree and the first count was dismissed at the
request of the State.

{¶ 4} On August 10, 2005, Wagner was sentenced to a
term of twelve months in prison on the fourth degree
felony, fined $5,000.00, ordered to pay the costs of
prosecution and $3,517.50 in restitution, and had his
driver’s license suspended for five years. On September 9,
2005, he filed a notice of appeal with this Court. His case
was remanded for resentencing based on the ruling in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 on May 15, 2006.
On June 6, 2006, the trial court resentenced Wagner to a
term of fifteen months in prison on the fourth degree
felony, a fine of $5,000.00, the cost of prosecution and
$3,517.50 in restitution and suspension of his driver’s
license for five years. The resentencing imposed a prison
term three months longer than the original term imposed.

{¶ 5} On July 7, 2006, Wagner filed a notice of
appeal raising the following sole assignment of error:


{¶ 6} In Wagner’s sole assignment of error, he
maintains that the new, harsher sentence after this Court
reversed and remanded his case for a new sentencing hearing
pursuant to State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, was a result of
vindictiveness and thus a violation of his Due Process

{¶ 7} The Fifth District Court of Appeals has
considered whether a re-sentencing pursuant to the Supreme
Court of Ohio’s decision in Foster which imposes a harsher
sentence is a result of vindictiveness in State v. Paynter,
5th Dist. No. CT2006-0034, 2006-Ohio-5542 through analyzing
the Supreme Court decision of North Carolina v. Pearce
(1969), 395 U.S. 711, 89 S.Ct. 2072. The Fifth District
Court of Appeals held that because due process compelled
the trial court to affirmatively explain the increase in
its sentence in order to overcome the Pearce presumption of
vindictiveness, it found that the reasons given by the
trial court failed to ensure that a non-vindictive
rationale led to the second, higher sentence. Therefore,
the sentence in Paynter was remanded.

{¶ 8} In Pearce, the Supreme Court set aside the
sentence of a state prisoner who had successfully appealed
his conviction but upon remand was given a harsher
sentence. The Supreme Court held that a defendant’s due
process rights were violated when a harsher sentence was
imposed as a result of vindictiveness in a successful
appeal. The Supreme Court stated that, if a more severe
sentence is imposed following appeal, the reasons for the
harsher sentence must appear on the record and 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, 89
S.Ct. at 2081.

{¶ 9} Following the decision in Pearce, the Supreme
Court decided Wasman v. United States (1984), 468 U.S. 559,
104 S.Ct. 3217, 82 L.Ed.2d 424. In Wasman, the Supreme
Court clarified its Pearce holding by making it clear that
enhanced sentences on remand were not prohibited unless the
enhancement was motivated by actual vindictiveness against
the constitutionally guaranteed rights. Wasman, 468 U.S. at
568. The Supreme Court further clarified the Pearce
decision in Alabama v. Smith (1989), 490 U.S. 794, 109
S.Ct. 2201 explaining that, unless there was a “reasonable
likelihood” that the increased sentence was the product of
actual vindictiveness, the burden was on the defendant to
show actual vindictiveness. Id. at 799, 109 S.Ct. at

{¶ 10} At the outset, we are not convinced that the
traditional review for vindictiveness following an appeal
invoked in the foregoing authorities and applied by the
Fifth District in Paynter, is specifically applicable to
sentencings under State v. Foster, where the original
sentence has not simply been found to be in error but has
been found to be void. Foster at ¶ 103. Moreover, we
note the express statement of the Ohio Supreme Court in
Foster on the issue of re-sentencing that “[w]hile the
defendants may argue for reductions in their sentences,
nothing prevents the state from seeking greater penalties,”
Id. at ¶ 105 (emphasis added), citing United States
v. DiFrancesco (1980), 449 U.S. 117, 134-136, 101 S. Ct.
426, 66 L.Ed.2d 328. Of course, we are mindful that
permitting the state to seek a greater penalty may also
necessarily imply an obligation upon the state and the
trial court to advance a reason for doing so.

{¶ 11} Nevertheless, in view of the Foster and State
v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, decisions, we
are reluctant to endorse the imposition of additional
required findings upon the trial courts of the district in
re-sentencings under Foster — particularly where it
is either apparent or can be readily presumed that the
original sentence was the result of constraint imposed by a
sentencing factor which the Supreme Court of Ohio
subsequently determined to be void; or where the trial
court appears to have re-evaluated the record or considered
additional factors at the re-sentencing.

{¶ 12} Notwithstanding the foregoing reservations,
the re-sentencing in this case is problematic. First, there
is no information in the record from which we might presume
that the initial sentence of 12 months, a mid-range
sentence for this offense, was linked to or constrained by
any sentencing factor subsequently struck down by the
Foster decision. Second, the State in this case expressly
stated at the re-sentencing that it did not seek any
increase in the sentence. Third, the new judgment entry
ordering a sentence of 15 months, (still less than the
maximum sentence for this offense) provides no independent
indication that it is the product of the removal of any
prior sentencing constraint and, in fact, is based on
exactly the same sentencing factors referred to by the
trial court in its original sentencing.

{¶ 13} Thus in the original judgment entry
sentencing the defendant, the trial court stated “[t]he
court has considered the record, oral statements, the
victim impact statement and presentence report prepared, as
well as the principles and purposes of sentencing under R.C.
2929.11 and has balanced the seriousness and recidivism
factors under R.C. 2929.12 and has considered the need for
deterrence, incapacitation, rehabilitation and
restitution.” The court also found “that the shortest term
possible would demean the seriousness of the offense and
would not protect the public.” No other basis, finding or
explanation appears in the record and the defendant was
sentenced to 12 months.

{¶ 14} In the resentencing on remand, the judgment
entry of the trial court states “[t]he court has considered
the record, oral statements, any victim impact statement
and the pre-sentence report prepared, and has balanced
seriousness and recidivism factors. The Court finds that
the shortest possible term would demean the seriousness of
the offense and would not protect the public.” At the
resentencing hearing, following allocution, the trial judge
did state “I went back over the presentence report.”
However there was no articulation of any new insight or
observation from that review. No other basis, finding or
explanation appears in the record and the defendant was
sentenced to 15 months.

{¶ l5} Under these circumstances, 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 the United State Supreme Court
authorities cited earlier. However, it is also our
conclusion that such a record fails to establish that the
resentence was not unreasonable, arbitrary or
unconscionable so as to constitute an abuse of discretion
directly under the Foster decision.

{¶ 16} For all of the foregoing reasons, Warner’s
sole assignment of error is sustained, the sentence is
vacated and the matter is remanded to the trial court for
further proceedings consistent with this opinion.

Judgment vacated and cause remanded.

ROGERS and WALTERS, JJ., concur. (Walters, J., sitting by
assignment in the Third Appellate District.)