[Cite as State v. Watkins,

.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 10CA0088

vs. : T.C. CASE NO. 08CR0965

JON A. WATKINS :

Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 17th day of June, 2011.

. . . . . . . . .

Andrew D. Wilson, Prosecuting Attorney, Atty. Reg. No.0073767; Andrew R. Picek, Asst. Prosecuting Attorney, Atty. Reg. No. 0082121, 50 E. Columbia Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501 Attorneys for Plaintiff-Appellee

Charles W. Slicer, III, Atty. Reg. No.0059927, 111 W. First Street, Suite 205, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} This appeal is from a final judgment of the court of

common pleas that imposed sentences for two felony offenses,

following our reversal of sentences the court previously imposed 2

and a remand for resentencing. State v. Watkins,

,

.

{¶ 2} Defendant, Jon A. Watkins, was found guilty following

a jury trial of aggravated robbery, R.C. 2911.11, a first degree

felony, and kidnapping, R.C. 2905.01, as a second degree felony.

The trial court imposed maximum sentences of ten years for the

aggravated robbery and eight years for the kidnapping. The court

further ordered that the two terms would be served consecutively,

for an aggregate prison term of eighteen years. Watkins appealed.

{¶ 3} We reversed the sentences the court imposed on findings

“that the facts in the record in this case do not justify maximum

consecutive sentences for a first time offender and that the trial

court abused its discretion by imposing maximum consecutive

sentences.” ¶46. We sustained Watkins’s third assignment of

error “because we conclude that the imposition of maximum

consecutive sentences is not warranted by the evidence in this

record, resulting in an 18-year sentence for a first-time offender

. . .” ¶47. Pursuant to App.R. 27, we reversed the sentences

imposed by the trial court and ordered the cause “remanded for

resentencing.” ¶57.

{¶ 4} On remand, after acknowledging our decision and order

of remand, and discussing the reasons for the eighteen year sentence

it previously imposed, the trial court stated: 3

{¶ 5} “I can’t just do something that I don’t think is right;

and if I think the facts in the record do justify maximum consecutive

sentences, I think that’s not just within my discretion but it’s

my duty to impose sentences I see fit.” (Tr. 40.)

{¶ 6} The court then imposed the same maximum, consecutive

eighteen-year sentences we previously reversed. Defendant filed

a notice of appeal.

ASSIGNMENT OF ERROR

{¶ 7} “THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS

DISCRETION AND IMPOSED A MAXIMUM CONSECUTIVE SENTENCE.”

{¶ 8} In Blust v. Lamar Advertising of Mobile, Inc. (2009),

, we wrote, at ¶10:

{¶ 9} “The law-of-the-case doctrine holds that the decision

of the reviewing court in a case remains the law of that case on

the questions of law involved for all subsequent proceedings at

the trial and appellate levels. Nolan v. Nolan (1984),

, 11 OBR 1,

. The doctrine functions to compel

trial courts to follow the mandates of reviewing courts. Thatcher

v. Sowards (2001),

,

. ‘Moreover,

the trial court is without authority to extend or vary the mandate.’

,

.”

{¶ 10} Our decision in the prior appeal is an unappealed final

order. It determined a question of law: that the trial court abused 4

its discretion when it imposed maximum, consecutive sentences

totalling eighteen years. That decision was the law of the case

for purposes of the remand for resentencing we ordered pursuant

to App.R. 27. The trial court was then required to execute our

mandate. The court instead varied our mandate by imposing the

same maximum, consecutive sentences we previously reversed.

{¶ 11} We did not find in the prior appeal that the court abused

its discretion by failing to state cogent reasons for the sentence

the court previously imposed. We found that the eighteen-year

sentence the court imposed was not justified by “the facts in the

record of this case.” ¶46. That concluded the issue of law

concerned. The trial court might disagree with our decision, but

the court was not thereby authorized to fail to execute our mandate.

{¶ 12} From the statement quoted above, it appears that the

trial court judge was unable to reconcile his views with our prior

decision. When a judge’s impartiality might reasonably be

questioned, the judge has an obligation to recuse himself or

herself. Code of Judicial Conduct, Rule 2.11(A). By instead

refusing to execute our mandate due to his contrary personal views,

the judge did not comply with the law of the case. Rule 1.1 of

the Code of Judicial Conduct states: “A judge shall comply with

the law.”

{¶ 13} Defendant’s assignment of error is sustained. Because 5

we lack confidence that the trial court judge, Hon. Douglas M.

Rastatter, will execute another mandate to resentence Defendant,

we will exercise the authority conferred on us by Section 3(B)(2),

Article IV of the Ohio Constitution to modify the judgment from

which this appeal is taken.

{¶ 14} As we pointed out, Defendant Watkins is a first offender.

The victim of his kidnapping offense was subjected to degrading

behavior, but suffered no physical harm. In consideration of the

matters in R.C. 2929.11 and 2929.12, we will order the sentences

the trial court imposed modified, to instead impose a sentence

of six years for the aggravated robbery conviction and four years

for the kidnapping conviction, to be served consecutively. As

modified, the judgment of the trial court will be affirmed.

{¶ 15} Further, and pursuant to App.R. 27, the case will be

remanded to the trial court for the limited purpose of notifying

the Ohio Department of Rehabilitation and Correction and any other

relevant authority of the modified sentence, to do so in no less

than thirty days, and to thereafter report its compliance with

our mandate.

FAIN, J. And FROELICH, J., concur. 6

Copies mailed to:

Andrew R. Picek, Esq. Charles W. Slicer, III, Esq. Hon. Douglas M. Rastatter