Fourth District Court of Appeals Judge and Scioto County resident Marie Hoover has authored a partial dissenting opinion while sitting by assignment on the Ohio Supreme Court.
On Tuesday, the Ohio Supreme Court determined, if a criminal defendant gets a harsher sentence than one offered in a plea bargain, any allegation that the judge imposed the sentence as a “trial tax” must be supported with evidence that clearly and convincingly demonstrates the judge acted vindictively.
Malik Rahab was charged with the 2014 burglary of the home of Christina Hewitt. Hewitt noticed her living room window was open and her purse was missing. A fingerprint from the window implicated Rahab. At a pretrial hearing, Hamilton County prosecutors informed the trial judge that Rahab was offered, and rejected, their recommendation of a three-year sentence. He was convicted.
Rahab reportedly said he had wanted to admit to the crime all along but his attorney made him go to trial
The judge then, according to the Ohio Supreme Court documents, said to Rahab: “So I don’t know what you talked about with your attorney, but—too late. You went to trial. You gambled, you lost. You had no defense. And you even admit that you did it, and yet you put this woman through this trial again.”
Rahab apologized to the judge, and his brother addressed the court detailing Rahab’s difficult childhood. His brother asked the court not to sentence Rahab to eight years for one bad decision.
In delivering the six-year sentence, the judge told Rahab: “Well, guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are.”
The ruling said Rahab had failed to prove the judge’s six-year sentence was based on vindictiveness.
In the Court’s lead opinion, Justice R. Patrick DeWine wrote that any claim that a judge is acting vindictively must be based on the entire record of the trial court proceeding. The Court ruled Rahab’s sentence was based on the facts of the case and his criminal past, not on vindictiveness on part of the trial judge.
Justice DeWine also noted Ohio will not adopt a presumption that a judge is acting vindictively when a defendant rejects a plea bargain and receives a harsher sentence when convicted.
In a partial dissenting opinion, Hoover agreed with the majority’s position about how to evaluate a vindictiveness claim. But she concluded the judge in that case threatened Rahab to forgo his right to a trial or suffer a longer sentence.
Reach Frank Lewis at 740-353-3101, ext. 1928, or on Twitter @franklewisPDT.