[Cite as State v. Yates,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24823 Plaintiff-Appellee : : Trial Court Case No. 2009-CR-3827 v. : : REJUAN YATES : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 20th day of April, 2012.

...........

MATHIAS H. HECK, JR., by KIRSTEN BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOSHUA CARTER, Atty. Reg. #0084925, 10044 Meadow Woods Lane, Dayton, Ohio 45458 Attorney for Defendant-Appellant .............

HALL, J.

{¶ 1} Rejuan Yates appeals from being resentenced for possession of drugs. We

reversed his original sentence and remanded for resentencing because new information was

presented at the sentencing hearing to which the trial court did not give Yates a chance to 2

respond, and it was not clear if the court used the information in fashioning the sentence. State

v. Yates,

,

,

(Yates I). On remand, the

trial court conducted a sentencing hearing and allowed Yates to present testimony of three

witnesses. But the response did not change the sentence. The court reimposed the same 5-year

prison term that it imposed at the first hearing. The trial court also reimposed a statutorily

mandated fine. Yates argues that the trial court’s sentence is erroneous in light of the new

evidence. And Yates argues that the court erred by imposing the fine. Finding no merit to

either argument, we affirm.

Yates I

{¶ 2} In February 2010, Yates pleaded guilty to second-degree felony possession of

heroin under a plea agreement promising him a 2-year sentence. Before releasing him on bond,

the trial court made it very clear to Yates that this sentence was conditioned on Yates

appearing at his presentence-investigation interview and appearing at his March 10 sentencing

hearing. The court also made the consequences of his failure to appear at either clear: “That

sentence is only going to be imposed if you show up for your PSI [presentence investigation]

and you show up on March the 10th. Otherwise, I could sentence you to up to eight years. Do

you understand that?” (Plea Tr. 2). Yates failed to show up for either.

{¶ 3} The trial court issued a warrant for his arrest. In May, Yates was found near

Cincinnati in Sharonville, Ohio. When police questioned him, Yates gave them a false name.

But police identified him and took him into custody. A search of his person revealed a false

driver’s license and a baggie of marijuana.

{¶ 4} At the initial sentencing hearing, Yates admitted to the trial court that he 3

understood that his failure to show up broke the plea-agreement condition and that the court

could now impose a longer sentence. Yates told the court that he did not show up because he was

in Atlanta, Georgia, taking care of his recently widowed grandmother, who was in danger of

becoming homeless. The court told Yates that this excuse was “a bunch of garbage,” an

“unadultered lie.” The court said that it had a report from his bail bondsman saying that Yates

was transporting drugs back and forth between Atlanta and Cincinnati the entire time he was out

on bond.

{¶ 5} The trial court imposed a 5-year prison sentence. This decision was “based upon

the purposes and principles of sentencing, the seriousness and recidivism factors, the fact that you

have two prior drug-related felonies, that you were unsuccessfully terminated from both of those

cases, that you failed to comply with the agreement in this case, [and] that you were arrested in

Cincinnati with someone else’s identification as well as drugs on your person at that time.” (First

Sentencing Tr. 15). The court also imposed a statutorily mandatory fine of $7,500.

{¶ 6} On appeal, “Yates argue[d] that the bondsperson’s report was unsubstantiated

and inaccurate and therefore the trial court erred in relying on it to enhance Yates’s sentence.”

Yates I at ¶ 13. We disagreed. We identified the issue instead as whether the court erred by

denying him a chance to respond to the information in the bond report. But we could not resolve

this issue because from the record we could not determine if Yates had an opportunity to review

the bond report before sentencing or for what purpose the trial court considered the report. On

remand, we directed the trial court to determine if it considered the bond report in fashioning

Yates’s sentence or considered it simply as contradicting his failure-to-appear excuse. If the bond

report had been considered for sentencing, the court was to determine if Yates was told of the 4

bond-report information before sentencing. If he was not told, the court was to give Yates an

opportunity to respond before resentencing. Lastly, we said that if the court wanted to consider

the bond report in fashioning the sentence, it should append it to the presentence investigation

report (PSI).

{¶ 7} Yates had also argued on appeal that the trial court erred by sentencing him to a

non-minimum term without making the findings required by R.C. 2929.14. We disagreed, saying

that the court was not required to make any findings. “The trial court,” we said, “stated on the

record that it had considered the principles and purposes of sentencing (per R.C. 2929.11) and the

seriousness and recidivism factors (per R.C. 2929.12) as well as the broken-plea condition and

other factors in determining [Yates’s] sentence. The sentence imposed was within statutory

guidelines.” Yates I at ¶ 31.

Yates II

{¶ 8} On remand the trial court allowed Yates to respond to the bond report with

conflicting evidence. Yates presented the testimony of three witnesses–Charles Griffith (his great

uncle), Laquita Body (his girlfriend), and Elonda Lewis (his cousin). Each testified that Yates

was in Atlanta taking care of his grandmother. After hearing the testimony, the trial court

appended to the PSI the bond report and its attachments, which included the Sharonville Police

Department’s arrest report and citation charging Yates with marijuana possession and the

Hamilton County Municipal Court complaint and affidavit charging Yates with providing false

identification.

{¶ 9} Although at the original sentencing hearing the trial court categorically rejected

Yates’s failure-to-appear excuse, at the resentencing, finding Charles Griffith’s testimony 5

credible, the trial court appeared to be willing to accept that Yates was in Atlanta caring for his

grandmother. But ultimately, in the trial court’s apparent view, what he was doing there didn’t

matter: “Whether you were in Atlanta to visit your grandmother or you were in Atlanta for the

nefarious reasons that [the bondsman] suggests, it doesn’t matter. You were not here when you

were ordered to be here, and when you agreed to be here. It was very clear at your sentencing–or

at your plea, be here on March the 10th for sentencing and it’s two years. You don’t show up, all

bets are off.” (Resentencing Tr. 68).

{¶ 10} The trial court reimposed a 5-year prison term. And it cited the same factors that

it cited at the first sentencing hearing–possession of marijuana, providing false identification, two

prior felonies, failing to show for sentencing. The court also reimposed the statutorily mandatory

fine of $7,500.

{¶ 11} Yates appealed. He now presents five assignments of error for our review. The

first, fourth, and fifth allege error with the sentence and the second and third allege error with the

fine.

The Sentence

{¶ 12} When reviewing a felony sentence, “appellate courts must apply a two-step

approach,” State v. Kalish,

,

,

, ¶ 26:

First, they must examine the sentencing court’s compliance with all applicable

rules and statutes in imposing the sentence to determine whether the sentence is

clearly and convincingly contrary to law. If this first prong is satisfied, the trial

court’s decision in imposing the term of imprisonment is reviewed under the

abuse-of-discretion standard.

6

The first and fifth assignments of error allege that Yates’s sentence is contrary to law. The fourth

assignment of error alleges that the sentence constitutes an abuse of the trial court’s discretion.

The requirements of R.C. 2951.03

{¶ 13} In the first assignment of error, Yates alleges that with respect to the bond report

the trial court failed to comply with R.C. 2951.03(B)(5), which provides:

If the comments of the defendant or the defendant’s counsel, the testimony

they introduce, or any of the other information they introduce alleges any factual

inaccuracy in the presentence investigation report or the summary of the report,

the court shall do either of the following with respect to each alleged factual

inaccuracy:

(a) Make a finding as to the allegation;

(b) Make a determination that no finding is necessary with respect to the

allegation, because the factual matter will not be taken into account in the

sentencing of the defendant.

Yates contends that with respect the to factual inaccuracies that he alleged exist in the bond

report the trial court failed to make either the finding or the determination required by this

provision.

{¶ 14} Initially, we note that this provision does not apply to the bond report because the

report is not a PSI. By statute, before imposing sentence, a sentencing court must consider several

things–“the record, any information presented at the hearing by any person pursuant to division

(A) of this section, and, if one was prepared, the presentence investigation report * * *, and any

victim impact statement.” R.C. 2929.19(B)(1). In Yates I we said that the bond report 7

“constituted new information presented at the hearing that was considered by the trial court.”

Yates I at ¶ 23. We also characterized the report as a victim impact statement. See id. at ¶ 25. The

bond report was not created as part of the presentence investigation; the report was sent to the

court independently by the bail bondsman. Appending the bond report to the PSI was simply a

way to preserve the report. See id. at ¶ 27 (“Upon remand, if the trial court wishes to take the

report of the bail bondsperson into consideration in determining a proper sentence, it should

append it to, and preserve it with, the presentence-investigation report.”). This method of

preservation did not somehow make the report part of the PSI. Accordingly, R.C. 2951.03(B)(5)

does not directly apply. Nonetheless, even if we had determined that the statute did apply, we

believe that the trial court made the determination that the factual discrepancy (whether the

defendant was in Atlanta transporting drugs or caring for his grandmother) didn’t matter.

“Whether you were in Atlanta to visit your grandmother or you were in Atlanta for the nefarious

reasons that [the bondsman] suggests, it doesn’t matter.” (Resentencing Tr. 68). Therefore, no

resolution of the discrepancy was necessary.

{¶ 15} The first assignment of error is overruled.

Due process and vindictiveness

{¶ 16} In the fifth assignment of error, Yates alleges that the sentence violates due

process. A trial court violates due process if on remand the court, motivated by vindictiveness,

resentences a defendant to a harsher sentence. North Carolina v. Pearce,

,

,

(1969). The trial court here did not sentence Yates to a harsher sentence.

Yates admits this fact but still contends that the sentence was motivated by vindictiveness. Yates

points out that at the first hearing the trial court imposed a 5-year sentence because it found that 8

his story about his grandmother was a lie, based on the bond report claiming that he was

transporting drugs while he was out on bond. At the second hearing Yates presented witnesses

whose testimony rebutted the bond report’s claim. Yet, says Yates, despite this testimony, the

court reimposed the same sentence. Further facts that show the trial court’s vindictiveness,

according to Yates, are that, at resentencing, the court questioned a witness about the bond

report’s allegations and appended the report to the PSI. Finally, Yates says the reasons given by

the trial court for the sentence–his failure to show up for sentencing, the Sharonville police

report, and the municipal court complaint charging him with providing false identification–were

mere pretext; the bond report, asserts Yates, was the real reason.

{¶ 17} None of these facts, alone or together, suggests that the sentence was motived by

the trial court’s vindictiveness. The reasons for the sentence that the court gave at resentencing

are the same as those it gave for the sentence at the original sentencing. And the testimony was

simply irrelevant. The court expressly said that why he failed to show up for sentencing–the

matter that the testimony and bond report concerned–did not matter.

{¶ 18} The fifth assignment of error is overruled.

{¶ 19} In the fourth assignment of error, Yates alleges that the sentence is an abuse of

the trial court’s discretion. “An abuse of discretion * * * ‘implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” Kalish,

,

,

, quoting Blakemore v. Blakemore,

,

(1983). The sentence here implies none of these.

{¶ 20} Yates contends that a 5-year sentence is contrary to the principles of sentencing

in R.C. 2929.11 and 2929.12. Recognizing that in Yates I we held that the original 5-year 9

sentence imposed by the trial court was “within statutory guidelines,” Yates contends that, in

addition to the sentence being his first prison sentence and being based on an uncorroborated

bond report, the mitigating evidence presented at the resentencing hearing (the testimony) shows

that the court should have imposed a shorter sentence.

{¶ 21} Again we note the trial court’s clear statement at the resentencing hearing that

why Yates failed to show up was irrelevant. Regardless of the reason, the court said it was very

clear that “[Yates] didn’t have any intention of showing up.” (Resentencing Tr. 68). The court

said that it had been “very, very clear” that the 2-year sentence agreement was conditioned on his

appearing for his presentence-investigation interview and for his sentencing hearing. And, said

the court, it had been clear that should Yates fail to appear it could sentence him to prison for up

to 8 years. Yates’s 5-year sentence, though also based on his criminal history and the

circumstances of his arrest after he failed to show, is based primarily on his failure to show up for

sentencing. Even with the additional evidence, the trial court’s sentence still conforms to the

statutory guidelines.

{¶ 22} The fourth assignment of error is overruled.

The Fine

{¶ 23} The second and third assignments of error concern the fine imposed under R.C.

2929.18(B)(1). This provision requires courts to impose a fine on defendants convicted of certain

offenses, including the one Yates was convicted of, unless the defendant files an affidavit of

indigence and the court determines that the defendant is indigent and is unable to pay the

mandatory fine. In the second assignment of error, Yates contends that the statutory provision

violates the doctrine of separation of powers and the ban on excessive fines in the Eighth 10

Amendment to the U.S. Constitution. And in the third assignment of error, Yates alternatively

contends that he received ineffective assistance of counsel because his trial counsel did not advise

him to file an affidavit of indigence.

{¶ 24} We decline to consider the issues raised by either assignment of error. “Where an

argument could have been raised on an initial appeal, res judicata dictates that it is inappropriate

to consider that same argument on a second appeal following remand.” State v. D’Ambrosio,

,

(1995). Yates admits that he did not challenge the fine in

his first appeal. Because issues relating to the fine are beyond the scope of our Yates I remand,

they are beyond the scope of our current review. See State v. Gillard,

,

(1997), citing

.

{¶ 25} The second and third assignments of error are overruled.

{¶ 26} All five assignments of error are overruled. Therefore the judgment of the trial

court is affirmed.

.............

FROELICH and FISCHER, JJ., concur.

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Mathias H. Heck, Jr. Kirsten A. Brandt Joshua S. Carter Hon. Mary K. Huffman