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11th District vacates ‘vindictive’ Portage County resentencing
TRACEY BLAIR
Legal News Reporter
Published: April 13, 2022
A man who once owed $81,000 in back child support alleged a Portage County judge acted vindictively by increasing his sentence after a successful appeal.
The state conceded the trial court committed error warranting reversal, and the 11th District Court of Appeals recently found the defendant’s multiple probation violations were not sufficient to increase his sentence.
In 2014, William T. Ferrell pleaded guilty to four counts of nonsupport of dependents. He was sentenced to 100 days in jail and four years of community control.
On two occasions in 2015 and 2016, Ferrell was found to have violated community control. In 2017, the probation department filed a motion to revoke/modify probation on multiple grounds to which Ferrell admitted. 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.”
Then on appeal, the 11th District held that the trial court failed to make consecutive sentencing findings as required by R.C. 2929.14(C)(4)(a)-(c) and vacated the sentence with instructions to the trial court to resentence Ferrell.
After a resentencing hearing in April 2019, he was ordered to serve six years in prison – 18 months on each of the four offenses to be served consecutively. The trial court stated: “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.”
Then last year, the appellate court held that the trial court did not rebut the presumption of vindictiveness for giving an increased sentence when it “failed to give any acceptable justification for increasing the sentence on the record.”
A second resentencing hearing was held on May 17, 2021. Defense counsel indicated Ferrell was presently at the Oriana House, a “step-down facility,” and was “doing well in that program.”
At the second resentencing, the trial court stated: “The reason this came back is that I did not say enough bad things about you on the record. I did not go over the fact that you had numerous violations on probation, numerous. I mean, my whole file is full of the different motions to revoke and violations that you’ve committed. I gave you every opportunity – every opportunity to do what you had to do on probation, and you failed miserably. You snubbed the court, you didn’t do anything I asked you to do, and that’s why you got consecutive sentences.”
The court again sentenced Ferrell to consecutive terms of 18 months for each of the four offenses but did not provide additional justification for its sentence in the sentencing entry.
Ferrell then filed a second appeal, alleging the presumption of vindictiveness had not been rebutted.
“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,” 11th District Judge Matt Lynch said in his recent 3-0 opinion.
On remand, the trial court did not provide reasons on the record for increasing the sentence that were not based on facts already known at the time of the original sentencing, Judge Lynch added.
“As noted in our prior opinion, upon resentencing, there was significant evidence that Ferrell had made positive changes and, in the absence of any findings justifying the increased sentence, we cannot find the court rebutted the presumption of vindictiveness,” he stated.
“The trial court was also incorrect in stating that its sentence was reversed because it ‘did not say enough bad things about [Ferrell] on the record’; this court clearly indicated that the trial court’s failure to make pertinent findings justifying an increased sentence was the concern. Ferrell’s ‘bad’ conduct that led to his probation violation prior to his original sentence is not a proper ground to increase his sentence.”
The appellate panel vacated Ferrell’s six-year sentence and ordered Ferrell – who had already begun serving the additional time - be immediately released.
Appellate judges Thomas R. Wright and Mary Jane Trapp concurred. The case is cited State v. Ferrell, 2022-Ohio-890.