An Ohio judge was reversed in the 5th District Court of Appeals for a vindictive sentence,
State v. Hitchcock, 2020-Ohio-6751. Mr. Hitchcock plead guilty to three counts of Unlawful
Sexual Conduct with a Minor, felonies of the 3rd degree. Each count carried up to 5 years in prison. At the first sentencing
hearing the judge imposed two 5 year prison terms totaling 10 years in
prison. On the third count the judge imposed a 5 year prison sentence
that was suspended for community control for a period of 5 years after
he served the 10 years in prison.
Mr. Hitchcock appealed this “hybrid” sentence to the Ohio Supreme
Court. The Supreme Court ruled in favor of Mr. Hitchcock and the case
was sent back to the trial court for resentencing. The Supreme Court explained
that unless otherwise authorized by statute,
a trial court may not impose community control sanctions on one felony
to be served consecutively to a prison term imposed on another felony count.
At the 1st resentencing hearing the trial judge cited the same rational for the consecutive
sentences on the first 2 counts. Mr. Hitchcock was afforded the opportunity
to speak and told the judge about all of the programming he attended while
in prison. The only minor prison infraction was dismissed at a hearing.
However, at the re-sentencing for Count 3,
the judge imposed a 3 year prison sentence that was to be served consecutive
to the original 10 year prison sentence. This effectively increased Mr. Hitchcock’s prison sentence to 13
years by winning his appeal.
Mr. Hitchcock then sought relief, again, from the Court of Appeals.
In his sole assignment of error, Mr. Hitchcock agued the sentence imposed
by the trial court at resentencing was an impermissible vindictive sentence.
In the court’s opinion they agreed that the increased prison sentence
raised a presumption of vindictiveness. The analysis only begins with
this presumption. A presumption of vindictiveness may be overcome with
any objective information that justifies an increased sentence. 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 Mr.
Hitchcock that occurred
after the time of the original sentencing hearing.
The Court of Appeals ultimately found that the record did not reflect any
additional justification for the 3 year prison sentence and ordered the
sentence modified to the aggregate prison term of 10 years.