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.