Vindictiveness and resentencing
In 1998, Kelli Garrett was convicted of aggravated robbery and kidnapping, with various firearms specifications. The judge gave her 39 years in prison. She caught a break, though; her sentence was eventually vacated because of Foster, and back she went to be resentenced.
Her lawyer was well-prepared for it. Garrett was 19 at the time of the crime, and she'd put the intervening nine years in prison to good use, completing several academic courses and getting treatment for her alcoholism. She also took full responsibility for her actions and expressed remorse. The state was unmoved; it argued that "retaining the present sentence would be the appropriate disposition of this case."
So instead of giving her 39 years, the judge gave her 53.
Given the obsequious deference that appellate courts have given trial judges on sentencing issues since Foster came down, the 2nd District deserves kudos for vacating the stiffer sentence last week in State v. Garrett. The issue in the case is "vindictiveness" -- if a judge gives a harsher sentence on a remand, the question arises of whether he's punishing the defendant for exercising her right to appeal. I'd discussed the case law on that in detail a year ago, and the Garrett opinion also includes an excellent analysis of the law.
The (very) short version is that in Garrett, the trial court could point to nothing more in justifying his giving a substantially harsher sentence than doing so is permitted by Foster; in requiring resentencing hearings, the Foster court had said, "While the defendants may argue for reductions in their sentences, nothing prevents the state from seeking greater penalties." The Garrett court correctly noted that this didn't mean that a trial court was absolutely free to impose a longer sentence. Given that the trial court had cited nothing more than "'a naked power to impose' a harsher sentence," the court vacated it and reimposed the original sentence.
Several observations. First, this issue is going to come up a lot. Not only do we still have Foster resentencings, but in light of the insistence of the Supreme Court that failure to properly impose post-release controls also creates a "void" sentence, and that a completely new sentencing hearing is required, the issue is going to arise in those cases as well. You may want to print out the post I did earlier (it's here), and a copy of the Garrett decision as well, if you're got a resentencing hearing coming up. I think a real good argument can be made that unless some additional facts have emerged since the original sentence, a judge can't give a greater one.
Second, the decision serves as a reminder to judges, and just about everybody else, for that matter: the worst reason for doing something is simply because you can.
And last, perhaps the best commentary on the state of Ohio sentencing law is that the attorney for Garrett worked his heart out to get Garrett a lesser sentence, and wound up fighting like a sonofabitch just to make sure she didn't have to do more than the 39 years she initially got.