Friday, October 5, 2012

Judge McGee erred in imposing a harsher sentence on remand (10 5 2012)

Derek W. Byrd had been convicted of involuntary manslaughter because on July 17, 2008, Byrd punched a man so hard the man hit his head on the concrete and died two days later as a result. Byrd was sentenced to the maximum five years on February 23, 2010. Byrd’s conviction was later reversed. He was convicted again, but in the meantime House Bill 86 reduced the maximum term he faced from 5 years to 3 years for involuntary manslaughter. So when Judge McGee sentenced him again, the judge could only sentence him to a 3 year prison term. The judge threw in a $5,000 fine too, but this was the first time a fine was imposed on Byrd in this case.

A trial court violates a defendant’s rights under the Due Process of the Fourteenth Amendment when it re-sentences a defendant to a harsher sentence out of vindictiveness. North Carolina v. Pierce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A harsher sentence may be imposed on remand, but the judge must give their reasons to show it was not done out of vindictiveness.

The Second District Court of Appeals for Montgomery County found that the trial judge made improper comments to Byrd at the re-sentencing. The Court of Appeals warned the judge about the comments which are "not appropriate judicial discourse." The judge told Byrd that she could not say to him what she would say to him if they were "out on the street." The judge also told Byrd that she would have gone for a more serious charge if she were the prosecutor in the case.

The Court of Appeals determined that no new information was presented which would have warranted a harsher sentence. The Second District Court of Appeals vacated the $5,000 fine the judge imposed. State v. Byrd, 2012-Ohio-4616.

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