State v. Barry Mitcham
| Decision Date | 23 April 1993 |
| Docket Number | 92-A-1693,93-LW-2025 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. BARRY MITCHAM, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas Case No. 12516.
GREGORY J. BROWN, ASHTABULA COUNTY PROSECUTOR, PHILIP D. GERKEN ASSISTANT PROSECUTOR, 25 West Jefferson, Jefferson, Ohio 44047
(For Plaintiff-Appellee).
ATTY THOMAS HITCHCOCK, P.O. Box 1308, Ashtabula, Ohio 44004
(For Defendant-Appellant).
This appeal comes from the Ashtabula County Court of Common Pleas.
Appellant, Barry Mitcham, was indicted on April 4, 1989, by the Ashtabula County Grand Jury on seven counts of rape. The charges were the result of appellant allegedly engaging in sexual acts with his stepdaughter, Sasha. Four of the alleged incidents occurred before Sasha reached the age of thirteen. Consequently, appellant was charged pursuant to R.C. 2907.02(A)(1)(b) in counts four through seven. Count seven also alleged that appellant employed force or threat of force during the rape of a victim under the age of thirteen.
Three of the alleged incidents occurred afar Sasha attained the age of thirteen. Accordingly, appellant was charged pursuant to R.C. 2907.02(A)(2) in counts one through three.
A jury trial was held and appellant was found guilty on counts one through three. He was found not guilty of rape on counts four and five but was convicted of sexual battery on both counts. Last, he was found guilty on count six and seven.
Appellant was sentenced to concurrent terms of ten to twenty-five years on counts one through three, four to ten years on counts four and five; ten to twenty-five years on counts six; and, a life sentence on count seven.
Appellant challenged the convictions and this court reversed the trial court. State v. Barb Mitcham (June 7, 1991), Ashtabula App. No. 90-A-1494, unreported. Two errors at trial mandated the reversal. First, the trial court did not instruct the jury regarding the use of force or threat of force in the commission of the offense alleged in count seven. Therefore, sentencing appellant to a life sentence on count seven was improper. Id. at 5. Second, the trial court did not permit appellant to inquire as to Sasha's reputation for truthfulness or untruthfulness. Id. at 6.
A second jury trial was held in which appellant was retried for rape on all counts of the indictment including counts four and five for which, in the first trial, the jury returned not guilty verdicts on the rape charges, but guilty verdicts for the offense of sexual battery. After evidence was submitted on all of the offenses charged, the trial court determined that appellee, the State of Ohio, failed to produce evidence that appellant employed force or threat of force in The commission of rape as alleged in count seven. Therefore, it reduced the charge from forcible to nonforcible rape which carries a lesser maximum penalty. Also, the trial court withdrew counts four and five from jury consideration.
Regarding counts four and five, the trial court concluded that because, at the first trial, the jury found appellant not guilty of rape but guilty of sexual battery, double jeopardy precluded retrial on the rape charge. Furthermore, he concluded that sexual battery is not a lesser included offense of the offense charged in counts four and five.
The jury found appellant guilty on the remaining five counts. Appellant was sentenced to ten to twenty-five years on each count. The sentences on counts one and two are to run concurrently, while the sentences on counts three, six and seven are to run consecutively to each other and consecutively to the concurrent sentence on counts one and two.
Appellant appeals his conviction and sentence raising the following assignments of error:
In his first assignment, appellant argues that his sentences stemming from his convictions in the second trial violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Judge John G. Cardinal of the Ashtabula Court of Common Pleas presided over appellant's first jury trial while Judge Gary L. Yost, also of the Ashtabula County Court of Common Pleas, administered the second trial. As previously stated, appellant's sentences after the first trial were to run concurrently, but his sentences after the second trial are to run consecutively. We must determine whether, after a successful appeal, a defendant may be sentenced to a harsher sentence by a second judge from the same court when the second judge does not affirmatively state his reasons for imposing the more severe penalty.
In North Carolina v. Pearce (1969), 395 U.S. 711, the coup was called upon to determine whether a judge could impose a harsher sentence upon a defendant after the defendant successfully appealed his conviction and had a new trial ordered. The court concluded that neither the double jeopardy provision nor the Equal Protection clause imposes an absolute bar to the imposition of a more severe sentence upon retrial. Id. at 723. This, however, did not conclude their analysis.
The court said that it would be a "flagrant violation" of due process for a state trial court to follow a practice of harsher sentencing for defendants who had succeeded in having their convictions set aside. Id, at 723, 724. This is predicated upon the conclusion that a defendant, when considering whether to exercise either a constitutional or statutory right of appeal, should not have his choice "chilled" by the fear of a harsher sentence for invoking such right. Id. Thus, the court stated that *** "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725. Last, "[i]n order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 726. In essence, the court had to overcome a presumption of vindictiveness.
While the holding in Pearce, supra, would appear to control in situations where the second sentence is imposed by either the same or different judge, subsequent case law dictates otherwise. In Texas v. McCullough (1986), 475 U.S. 134, 140 fn. 3, the court said that although Pearce apparently involved different judges, that fact may not have been brought to the court's attention and did not serve as a consideration for its holding. Therefore, the McCullough court declined to read Pearce as governing a two-sentence setting. Because the United States Supreme Court does not consider Pearce to be controlling, State v. Papp (1978), 64 Ohio App.2d 203, decided before McCullough, which applied Pearce in a two judge scenario is unpersuasive.
In Colten v. Kentucky (1972) 407 U.S. 104, a criminal defendant challenged the constitutionality of an enhanced penalty which he received under Kentucky's two-tier system of justice. Kentucky operates a two-tier system for adjudicating certain criminal cases. Id. at 105. Specifically, a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the results, may have a second trial de novo in a court of general criminal jurisdiction; however, he must run the risk of a harsher penalty if convicted the second time. Id. at 105, 106.
The court concluded that "***[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system." Id. at 116. The court said that the defendant, by invoking his right to a trial de novo to a superior court, was not before the same court with whose work he was sufficiently dissatisfied to seek a different result. Id. Therefore, it found the rule announced in Pearce, supra, inapplicable. Id.
The decision in Colten, supra, modifies Pearce, supra, to the extent that a judge need not affirmatively state his reasons for an increased sentence unless the possibility for vindictiveness is inherent. Stated otherwise, the presumption of vindictiveness did not apply in the Colten scenario.
In Chafin v. Stynchcombe (1977), 412 U.S. 17, the court was asked to determine whether the rule announced in Pearce applied when a jury imposed a harsher sentence after a defendant successfully appealed his conviction. The court declined to extend the Pearce rule to such situations.
In reaching their conclusions in Chafin, the court made several observations. First, a prerequisite for a retaliatory penalty is knowledge of the prior sentence and generally, a jury has no knowledge of the prior sentence. Id. at 26. Furthermore,
the court said:
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